P L D 1964 Supreme Court 536 (PLP)

B. Z. KAIKAUS, J.

‑While I am in agreement with Hamoodur Rahman, J. in the conclusion that he has reached and generally with the reasoning by which it is supported, I am not, with great respect, inclined to agree as to the erect of section 30 of the Displaced Persons Act. Hamoodur Rahman, J. is of the opinion that the provision in section 30 which requires notice of transfer to be sent by registered post and makes the date of receipt of notice the starting point for calculating the period of six years is a technical provision which is to be strictly complied with and which cannot be subject to waiver or estoppel as it is a provision relating to public policy. I am of the opinion that technical compliance cannot be insisted upon for the reason, inter alia, that such compliance may be impossible I and I am also of the opinion that it can be waived. I will not however deal with these matters at as great a length as I may otherwise have done because there is on record a registered notice, not referred to in the judgment of Hamoodur Rahman, J. which in my opinion satisfies the requirements of section

30. The notice to which I am referring is a registered notice acknowledgement due dated the 30th August 1961. It was relied upon during argument before us. It is one of the documents admitted by the appellant before the Rent Controller. In the last notice of ejectment after which the application for ejectment was filed there is a mention of this notice in para. 2 and its service has been accepted in the reply to the last notice by the appellant. Both the notice and the reply are on the file and are admitted documents. This notice of 30th August 1961, is in the following words: "Will you please inform me as to from which date and month of the last year you had begun paying the rent of the flat in your possession? Also please confirm the following: (1) You had begun paying me the rent of the flat in your possession after you had a talk with me at my flat upstairs and after I had shown you the P. T. O. issued to me by the Settlement Department.

2. On my saying that I would send you a notice, you said you did not require a notice as you had seen the P. T. O. I may state here that I note with satisfaction that yours sons are not seen now making mischief in a manner that may damage the property." It is a registered notice and does mention the fact of transfer. It refers to the P. T. O. and states that notice had been waived. The requirement of law is only that "notice shall be given be the transferee to the tenant of such transfer by registered post (acknowledgement due)". If a document is sent by registered post and it brings the transfer to the notice of the tenant the law is sufficiently complied with although section 30 is no mentioned. It is not the requirement of law that section 3 should be mentioned in the notice. Let me further point out that in the last notice of ejectment on the basis of which the application for ejectment was filed all the relevant facts are stated seriatim. This notice too had been sent by registered post and although it calls upon the appellant to vacate the premises it does mention the fact that the property has been transferred to the respondent. Even this notice could, if need be, serve as compliance with section

30. Coming to the question of technical compliance let me just explain the difficulties which an insistence on such compliance will produce. Suppose the tenant is out of the country, the house being occupied by some licensee and the transferee of the house is unable to find his address in spite of due diligence. Or the tenant is a travelling agent who only on few occasions comes back to his own house. Even in a case where the tenant is living in the house a registered notice can be avoided very easily by the addressee simply failing to remain at his residence at the time when the postal peon comes to the house for service. It is to be remembered that the postal peon comes at fixed times and his only duty is to present the document if the addressee is there. He is not a process server of a Court who is to take all steps to find out the person who is to be served. The duty of a postal peon finishes if he finds that the addressee is not in the house. The house may be closed or the inmates may give him no information or may give him incorrect information. The tenant may die and may have a large number of heirs residing at distant places whose addresses it may be almost impossible to find. What then is to happen in such cases? The law cannot intend to punish a person for no fault of his nor can the law expect a person to perform that which is impossible or not practicable. If the transferee cannot in spite of his best efforts serve a registered notice it does not mean that the period of six years should not begin. It is to be observed that the period of six years starts from "receipt of notice." If the provision was that the sending of a registered notice at an address which became reasonably certain in view of a legal provision was sufficient compliance with the law I could understand that there was no difficulty created in technical compliance and time could start when a registered notice was sent whether it was actually delivered or not. But here the words used are "the receipt of notice" and it appears to me that this may be impossible of compliance. I have just indicated an obstacle in the way of an interpre tation insisting on technical compliance. I will not (sic) deal further with the matter for to my mind there can be difficulty in the requirement of registered notice being liable to be waived. Notice of transfer of course there has to be but cannot the precise method of giving notice be waived? Could not the tenant who has received a written notice through ordinary post or through a private peon or some other method waive the right to get the notice through registered post? The position is well recognised that any right or benefit conferred on a party can be waived for a person is entitled to do anything with what is his, but if the provision be based on public policy it cannot be waived. The question, therefore, to be determined in each K case would be whether the particular provision in dispute is based on public policy. When we say that a rule is based o public policy we mean it has been framed not for the benefit of the individual whom it actually benefits (or not for his benefit alone) but for the benefit of the public or the society. That the question as to whether a provision can be waived is to be deter mined on the basis of public good or public benefit or avoidance of injury to the public will be clear on a reference to commen taries and decided cases. In Craies on Statute Law after saying that all rights can be waived there is a proviso added which says "But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the public cannot be dispensed with." In Halsbury Volume VII ,(2nd Edition p. 153), the rule as to agreements being void on ground of public policy is thus stated Any agreement which tends to be injurious to the public or against the public good is void as being against public policy." In Prem Parkash v. Mohan Lal (A I R 1943 Lah. 268) the question as to whether a prohibition of attachment that benefited a judgment‑debtor could be waived was thus stated by Abdur Rahman, J. "This takes me to the question whether these prohibitions were really made for the benefit of the judgment‑debtor only or in the interest of the society at large i.e. on grounds of public policy." Here it may be explained that in one sense all laws are framed for public good and though the laws confer rights on individuals the reason for the grant of such rights is that the public good is thereby advanced. What then is the difference between the two kinds of cases with which we are dealing? The difference is this. The public good is in the first case (case where individual alone is benefited) sufficiently served by the simple conferment of the right on the individual without regard to how the individual deals with the right so that it is not affected by his failure to exercise or retain the right, while in the second case the public good is not sufficiently served by a simple conferment of the right on the individual: but needs also the exercise or retention of the right by the individual and public good suffers if the right be not exercised or be parted with. The criterion for determining whether a provision can be waived will be whether the failure to exercise the right conferred by the provision is detrimental to public interest. If it be so detrimental the provision relates to public policy and cannot be waived, while if it be not so detrimental no question of public policy arises. To take an example the Punjab Alienation of Land Act prohibited sale of land by an agriculturist to a non‑agriculturist. This was not a provision for the benefit of the particular agri culturist who wanted to sell his land. If he was allowed to alienate land to a non‑agriculturist then the public interest would suffer because on the view that the Government took the passing of land from the agriculturists to the non‑agriculturists was injurious to the public interest. Similarly the provision in section 60 of the Civil Procedure Code which prevents the attachment of the salary of a public servant except to a certain extent was held to be a matter of public policy because if the public servant was allowed to enter into an agreement to have a larger portion of his salary attached than was permitted by law the efficiency of the Government Departments would suffer. Examples need not be multiplied. One may be sure that if the waiver does not injure the public interest it cannot be urged that on grounds of public policy there is an objection to waiver. Of course we are to consider whether the Legislature regards a particular violation of law as opposed to public interest and has enacted a law with a view to the protection of that interest. The main reason for brother Hamoodur Rahman holding that this 'provision is based on public policy is that it was intended for the protection of non‑claimant displaced persons against whom the claimant displaced persons had a preferential right of acquiring the property and the intention was "not to leave the non‑claimants at the mercy of the transferee or to give them no protection even for a reasonable time during which they may find alternative accommodation". A little considera tion would reveal that very few displaced persons could have received benefit from section

30. If a displaced person was in possession of a house as allottee he was entitled under the Schedule to the transfer of the house whether he was a claimant or a non‑claimant. The house being in his possession could not be given to another. In accordance with the definition of "house" in the Displaced Persons Act as it originally stood any part of a house separately allotted was a "house". Section 30 was substantially the same in the original Act as it is now and therefore the question whether any provision is it is based on public policy has to be decided with reference to the original Act. On 5‑1‑1959 the Act was amended and section 30 was put in the form in which it now is (except that the period was three years) but still the definition of house remained unchanged and even till then the section could have had little effect on displaced persons who were in occupation of evacuee house. It may be explained here that if an evacuee was in possession of a house not as allottee but as trespasser section 30 gave him no protection for the section was inapplicable to trespassers inasmuch as it said that after the transfer of the house the person in possession would be a tenant "on the same terms and conditions on which he held it immediately before transfer". He must have "held" the house and there must have been "terms and conditions" on which he held it. A trespasser would remain a trespasser. Also, if the house was in possession of the displaced person it could not go to another for possession was an essential condition of the right to a transfer. Long after the first amendment of the Act the Government extended the definition of "possession" so as to entitle even an unauthorised displaced person to a transfer, but that would not mean he "held on terms and conditions" and in any case would not affect the interpretation of the section as to whether it was originally intended for benefit of refugees. It is only when the Displaced Persons Act was further amended on 28th September 1959, by Ordinance LIII of 1959 that the definition was altered and it became possible for two allottees to be occupying parts of the same house. Then a possibility arose of a house in the possession of one displaced person being transferred to another and that too only in case the house was found to be indivisible. To this extent the displaced persons could also henceforth be affected but the subsequent amendment is not relevant for determining the intention of the original Act. I would not therefore accept that the main reason for granting a period to the persons in possession was the benefit of displaced persons. But even if it were so it would not for more than one reason conclude the matter. I have already made it clear that the question under consideration is whether the particular mode of service of notice can be waived that is whether the tenant can agree to a notice which is not sent to him by registered post, but by some other method referred to above. If the tenant accepts a notice which has come to him L by ordinary post or through a peon and sends a letter to the transferee that he does not stand in need of a registered notice, what public interest will suffer by the waiver? What is the difference to the public if the tenant accepts a notice through ordinary post instead of through registered post? The actual difference in the two methods of service is that in the first case there is no record in the post office of the notice and in the second there is such a record. There is no particular benefit to society or the public by the fact that record was kept. Brother Hamoodur Rahman has not dealt with the question as to whether the particular provision relating to registration is based on public policy and has dealt generally with the question as to whether the grant of a period of six years to the occupants of evacuee houses was based on public policy and holding that this was so has assumed every provision in section 30 to be a matter of public policy. Whether the grant of a period of six years was a matter of public policy which could not be waived is matter quite distinct from the question whether the particular method of service can be waived. But even the grant of period of six years to a class of persons neither necessarily means that they are not entitled to waive this benefit nor does it mean n that the intention was to provide occasions for raising technical objections by which this period may be increased. If the tenant was entitled to occupy for six years could he not on payment of consideration transfer this right? I do not think he was debarred from doing so. There is nothing in the Act which indicates such an intention. In fact it may have been much more for the benefit of an occupant in a particular case to be his right of residence to another. It should be remembered that a rule of public policy does not confer additional benefit upon the person to whom it relates for it creates a disability and prevents him from dealing with the right which he holds, because such dealing though of benefit to him personally will injure the public interest. When there is no rule of public policy involved a person is entitled to deal with the right which he has in any way he likes. He is the full owner of the right. On the other hand when a rule of public policy is brought in there is an obstacle to his parting with the right whether for consideration or otherwise and when we say he cannot waive it because of public policy it is necessarily implied that he cannot transfer it or abandon it for value. The Punjab Alienation of Land Act prohibiting transfer from agriculturists to non‑agricul turists adversely affected the agriculturist by preventing him from selling the land for consideration to a non‑agriculturist. It appears to me that the conferment of a right of residence for six years on the occupants of evacuee houses falls within the first of the two classes which I have indicated above that is, where the public good is sufficiently satisfied by a conferment of a right without being concerned with the exercise or retention of the right. There was a demand that those who had felt secure as allottees or tenants of evacuee houses because the Custodian would not take any unreasonable action should not be left at the mercy of the individual transferees. To protect the occupants against action by the transferees it was regarded proper to provide that they will be entitled to remain in possession for six years. But the intention being to grant them protection it was sufficient that the right of residence was granted to them. What they do with the right is their own business and the cannot possibly have any cause for complaint if they are allowed to do with the right as they please. I do not think therefor that residence for six years was intended as a matter of public policy which could not be waived. I may add here that the mere fact that a provision is for the benefit of a class of persons does not mean that it could not be waived. On the other hand commentaries on the interpretation of statutes all go on saying that if the provision is intended for "the benefit of an individual or class of individual" it can be waived. I may explain that so far as the enhancement of rent is concerned that is a different matter which has to be considered in the light of the various Rent Restriction Acts which have been passed. The Rent Restriction Acts would have been rendered useless if rent was allowed to be enhanced. The allottee was granted by section 30 P the right of a tenant and the same considerations which would apply to a tenant apply to him. But even if the grant of aright of residence for a period of six years had been based on public policy, it would not imply that the method of service of notice was based on public policy and could not be waived. That has to be decided with reference to whether the waiver will injure the public interest. The mere fact that one provision in a section was a matter of public policy does not mean that every thing in that section and particularly matters relating to procedure become matters of public policy. A number of cases could be cited where notices and other requisite procedure though mandatory in form were allowed to be waived. I will just cite one case which may serve as an illustration. Section 80, C. P. C. runs

80. No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered . . . . . . These are very strong words. "No suit shall be instituted" without a notice. The party protected is the Government and there is a possible argument that the provision was based on public policy because public interest may suffer if there is not a proper opportunity to the Government to consider its position in respect of a claim made by some person. Yet the Privy Council felt no difficulty in holding in Vellayan Chettiar v. Madras Province (P LD1947 PC 160 = A I R 1947 PC 197) that the provision could be waived, though it found the provision to be mandatory. As to the provision being mandatory it was said: "There is no inconsistency between the proposition that the provisions of the section are mandatory and must be enforced by the Court and that they may be waived by the authority for whose benefit they are provided". As to the reason for waiver it was said. "On the other hand there appears to their Lordships to be no reason why the notice required to be given under section 80 should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required if in the particular case he does not require that protection and says so he can lawfully waive his right. I may also state what will be the result of disallowing waiver. The allottee or the tenant accepts an unregistered notice by hand and states that he does not need a registered notice. He goes on paying the rent. A part of the house falls and he calls upon the transferee to repair it which the transferee does at a sub stantial cost. The tenant then applies for fixation of fair rent to the Controller and gets the rent reduced (the transferee having raised no objection as to jurisdiction). At the end of six years the tenant turns round and says that he has not yet received a registered notice and the period of six years would commence only when he receives it. I do not think this result was contemplated. A.H. Appeal allowed.