Patna High Court
Shiveshwar Prasad Sinha vs The District Magistrate Of Monghyr And ... on 25 August, 1965
Equivalent citations: AIR1966PAT144, AIR 1966 PATNA 144, 1965 BLJR 876 ILR 45 PAT 436, ILR 45 PAT 436
JUDGMENT Narasimham, C.J.
1. This case has been referred to the Full Bench by S. C. Misra and T. Nath, JJ., mainly because they felt some doubt about the correctness of the decision of a Division Bench of this Court in Sudhindra Nath Ghosh v. District Magistrate of Patna, 1960 BLJR 368: (AIR 1961 Pat 254) regarding the effect of non-compliance with some of the provisions of Clause (a) of Sub-section (2) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (hereinafter referred to as 'the Act').
2. The material facts are as follows. The petitioner is the owner landlord of house No. 31 situated in Municipal holding No. 38 inside the Fort Area of Monghyr Municipality. It was in the occupation of a Government servant named Sri S. N. P. Srivastava till the 20th December, 1961. On the 18th December, 1961, Sri Srivastava addressed a letter to the District Magistrate of Monghyr, stating that in view of his transfer to Dehri-on-Sone he would be vacating the house in the morning of the 20th December 1961. A copy of the letter also appears to have been forwarded by him to the petitioner landlord on the same day. The house was occupied by another Government servant named Sri D. P. Yadav on the 20th December 1961, but the formal order of the District Magistrate of Monghyr allotting the house to him (Annexure A) was made only on the 23rd December, 1961. Soon afterwards the petitioner applied to the District Magistrate for eviction of Sri B. P. Yadav on the main ground that the provisions of Clause (a) of Subsection (2) of Section 11 of the Act, regarding the due service of notice by the outgoing tenant of his intention to vacate the house, was not issued either to the petitioner landlord or to the District Magistrate. His application was dismissed by the District Magistrate by his order dated the 21st January, 1963, and then the petitioner came to this court under Articles 226 and 227 of the Constitution impugning the legality of that order of the District Magistrate.
3. In the petition before this court the petitioner alleged in paragraph 11 that the outgoing tenant, namely, Sri Srivastava, secretly vacated the building on the 20th December, 1961, without giving any notice either to the petitioner or to the District Magistrate. In paragraph 6, however, he merely alleged that the outgoing tenant did not give 15 days notice to the landlord and to the District Magistrate. This discrepancy between paragraph 6 and paragraph 11 has not been explained. Moreover, the order of the District Magistrate shows that the outgoing tenant addressed the District Magistrate on the 18th December, 1961, informing him about his intention to vacate the house on the 20th December, 1961, and a copy of that letter was also forwarded to the petitioner under the same memorandum for information. This statement of fact has not been challenged in the petition filed before this Court, and apart from the discrepancy between paragraph 6 and paragraph 11 of the petition already pointed out, it is now conceded that the statement in paragraph 11 that the District Magistrate also did not get any notice from Sri Srivastava about his intention to vacate the house is incorrect. In view of these unsatisfactory features we see no reason to disagree with the facts stated by the District Magistrate to the effect that the outgoing tenant did send a notice on the 18th December. 1961, both to the District Magistrate and to the landlord, about his intention to vacate the house on the 20th December, 1961. It is true that he thus gave only two day's notice, whereas Clause (a) of Sub-section (2) of Section 11 of the Act requires that he shall give fifteen days' previous notice in writing. That clause further says that the District Magistrate's order allotting the house to any other Government servant must be passed within one week of the receipt of the notice from the outgoing tenant. Here this time limit has been adhered to inasmuch as the District Magistrate's order of allotment in favour of Sri D. P. Yadav was made on the 23rd December. 1961.
4. The crucial question for consideration, therefore, is whether the order of the District Magistrate allotting the house to Sri D. P. Vadav is without jurisdiction and as such invalid, inasmuch as neither he nor the landlord was given fifteen days' notice in writing by the outgoing tenant of his intention to vacate the house. Here we are not concerned with the question as to what will be the legal consequence if no notice was issued by the outgoing tenant either to the landlord or to the District Magistrate or to both. Similarly, we are not concerned with the further question about the legal consequence which would arise if, though the outgoing tenant gave fifteen days' notice as required by the statute, the District Magistrate fails to pass the order of allotment within one week of the receipt of that notice, as required by the statutory provision. We are also not concerned with the legal effect of the omission on the part of the District Magistrate !o inform the landlord of the allotment of the house to Sri D. P. Yadav. The order of the District Magistrate (Annexure A) clearly shows that a copy of the order was forwarded to the petitioner also, and the petitioner has not asserted anywhere in his petition that he did not get a copy of that order. Thus thp legal questions that arise for decision by this Full Bench on t'he facts of this case may be formulated as follows:
1. What will be the effect of the failure on the part of the outgoing Government servant to give fifteen days' previous notice in writing of his intention to vacate the house tq. the landlord and to the District Magistrate?
2. What will be the legal effect of the omission on the part of the District Magistrate to give seven days' notice to the petitioner before allotting the house to another Government servant.
5. The answer to these two questions will depend on proper construction of the provisions of Clauses (a) and (b) of Sub-section (2) of Section 11 of the Act, which are quoted below:
"11.(2) (a) Where a servant of the Government in possession of any building as a tenant intends to vacate such building, he shall give fifteen days' previous notice in writing of his intention to do so to the landlord and to the District Magistrate who shall, under intimation to the landlord, within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent, and the observance of the conditions of the tenancy by such servant of the Government or direct that the landlord shall be put in possession of the building;
Provided that when no such order is passed by the District Magistrate, the landlord shall be deemed to have been put in possession of the building.
(b) Where a building is vacated by a servant of the Government any person occupying such building other than the persons referred to in Clause (a) shall be liable to be evicted by the District Magistrate in such manner as may be prescribed;
Provided that, after a landlord has been, or is deemed to have been put in possession of such building, he may let it to any person.
Explanation: In this sub-section 'District Magistrate' includes the Additional Deputy Commissioner of Dhanbad".
It was urged that the use of the auxiliary verb "shall" in Clause (a) must be given full force and that it must be held that the District Magistrate's jurisdiction Jo allot the house to another Government servant arises only on the fulfilment of the following conditions:
(a) The outgoing tenant must have given fifteen days' notice both to the landlord and to the District Magistrate.
(b) The District Magistrate must also have given one week's notice to the landlord.
6. The Division Bench-of this Court in 1960 BLJR 368: (AIR 1961 Pat 254) held that the statutory requirement about the period of notice was mandatory; and if this period is abridged, the District Magistrate's jurisdiction to allot the house is ousted. They followed their own previous decision in Smt. Mayawati Devi v. State of Bihar. Misc. Judt. Case No. 426 of 1957, dated 21-10-1959 (Pat).
7. It is now well settled by innumerable authorities that merely because a statutory provision uses the auxiliary verb "shall" or there is absence of the imperative, it does not necessarily follow that the said provision is either mandatory or directory. The leading decision is the well known Privy Council judgment in Montreal Street Rly. Co. v. Normandin, 1917 AC 170, where at p. 175 the principle was enunciated as follows:
"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have 110 control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."
This principle was adopted, and the aforesaid passage was also quoted, by their Lordships of the Supreme Court in State of U. P. v. Man-bodhan Lal Srivastava, (S) AIR 1957 SC 912 where it was held that the provisions of Article 320(3) (c) of the Constitution were merely directory and not mandatory even though the word "shall" was used in that sub-clause. In Collector of Monghyr v. Keshav Prasad Goenka, AIR 1962 SC 1694 at p. 1701 their Lordships formulated the legal position as follows:
"It is needless to add that the employment of the auxiliary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of Ihe other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safe-guarding of the right of liberty of person or of property which the action might involve."
Following these decisions this Court also in Kishun Rai v. Stale of Bihar, 1965 BLJR 285 held that, notwithstanding the use of the verb "shall", the provisions of Sub-rule (ii) of Rule 7-D of the Bihar Land Reforms Rules, 1951, regarding service of fifteen days' notice, was only directory and not mandatory. It is not necessary to cite any other decision cm the subject.
8. Where the statute relates to the performance of a public duty and prescribes a specific time within which that duty is required to be done, the law seems to be as follows, pointed out in Maxwell on Interpretation of Statutes, 11th edition, page 369:
"It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time."
(See Smith v. Jones (1830) 109 ER 809 and the other decisions cited in Maxwell).
In America also the law seems to be the same. Thus in Sutherland, Statutory Construction, 3rd edition, Volume 3, at page 102, the law is stated as follows:
"A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the Officer."
At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p. 111 it is stated as follows:
"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive".
See also Crawford on Statutory Construction, Article 269 at p. 535.
9. Following the aforesaid authorities if appears that the undermentioned factors have to be considered in deciding whether the time limit provided in Clause (a) of Sub-section (2) of Section 11 of the Act is directory or mandatory:
(1) The general scheme of the Act and the context of the other provisions.
(2) Whether the time limit is insisted upon, as a protection for sai'eguarding the right of property of a person.
(3) Whether the statute relates to the performance of a public duty by a public officer.
(4) Whether serious general inconvenience or injustice to persons who have no control over those entrusted with the duty would arise if the provision is held mandatory and not directory.
(5) Whether such a decision would not promote the main object of the Legislature.
(6) Where the statute itself expressly provides for the result of non-compliance with the statutory provision, what can reasonably be held to be the intent of the Legislature?
10. The Act was passed with the object of giving relief to tenants of houses both as regards the rent and security from eviction, except for adequate reasons. It is thus a piece of beneficial legislation and should ordinarily receive beneficial construction (see Maxwell ibid p. 66) unless a clear intendment to the contrary is discernible in the Act itself. The Act expressly takes away the statutory rights of the landlord under the law of Contract and the Transfer of Property Act and imposes certain disabilities on him. Where the tenant is not a Government servant, Sub-section (1) of Section 11 authorises his eviction in execution of a decree passed by a court on certain specified grounds. But where the tenant happens to be a Government servant, special provision has been made in Sub-section (2) of Section 11. The period of notice for termination of tenancy is reduced to fifteen days and the landlord is deprived of his right to enter his house after the expiry of the notice except when the District Magistrate fails to allot the same to another Government servant. Clause (b) of Subsection (2) confers drastic powers upon the District Magistrate to evict anyone who may be in occupation of the house vacated by a Government servant in contravention of the provisions of Clause (a) of that Sub-section. Sub-rule (6) of Rule 3 of the Bihar Buildings (Lease, Rent and Eviction) Control Rules, 1955, authorises him to use even force, if necessary for the purpose of eviction of persons in unauthorised occupation.
Thus the scheme of Sub-section (2) of Section 11 is clearly to confer an extra benefit where a tenant is a Government servant, and to provide, through the intervention of the District Magistrate, for the allotment of houses to Government servants even in preference to the rights of the landlord. Thus any construction of Clause (a) of Sub-section (2) must be made with this object prominently in view, and such construction should not be given which will render the benefit conferred on the Government servant illusory in many instances. The object of requiring fifteen days' notice to be given to the landlord seems to be to enable him to apply to the District Magistrate for restoration of ossession to him. He can also object to there-allotment of the house to another Government servant for adequate reasons. But it is not correct to say, as alleged by the petitioner, that the District Magistrate should also give one week's notice to the landlord before allotting the house to another Government servant. The words "who shall, under intimation to the landlord, within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent" seem to indicate that the statute only requires that the order of allotment of the building by the District Magistrate to any other Government servant must be made after giving intimation to the landlord. The words "under intimation to the landlord" refer to the allotment of the building to any other Government servant and do not relate to the words "within a week of the receipt of the notice". All that the statutory provision requires is that the District Magistrate's order allotting the house to any other Government servant should be made within a week of the receipt of the notice from the outgoing tenant and that such an order of allotment should be made after giving intimation to the landlord. The landlord is undoubtedly free to appear before the District Magistrate and object to such re-allotment and he can ordinarily do so because the earlier part of the clause requires that he should get fifteen days' notice.
11. There is no doubt that the statutory provision confers a duty on the District Magistrate to be exercised for the purpose of providing quarters to Government servants so that public work may not suffer. The Government servant to whom the house is allotted has obviously no control either over the DistricMagistrate or over the outgoing Government servant, and hence, if the time limit required by the provision is held to be mandatory and the order of allotment of the house to him is declared null and void, the succeeding Government servant, who gets the house on the strength of the allotment order of the District Magistrate, will be put to serious hardship through no fault of his own. Such a construction will not promote the object of the Legislature, because, as already pointed out, the Legislature's main aim in Sub-section (2) of Section 11 is to benefit the Government servant who is a tenant of the house. It should also be remembered that, not infrequently, the Government servants are transferred by telegraphic orders and on rare occasions by orders communicated through telephones and it may not be always possible for the outgoing Government servant to give fifteen days' notice either to the landlord or to the District Magistrate about his intention to vacate the building. Similarly, a new Government servant posted to a station on receipt of telegraphic orders may have to be immediately given quarters, so that public work may not suffer and it may not be feasible for the District Magistrate to wait for a week before allotting the quarters to him.
The Legislature may be presumed to have been fully aware of these difficulties of Government servants when it passed Sub-section (2) of Section 11. It is true that under ordinary circumstances the time limit in Clause (a) of that section is intended to be obeyed by the outgoing Government servant and the District Magistrate. But to hold that the requirement about time limit is mandatory and that otherwise the allotment of the house by the District Magistrate will be null and void would be to render the benefit of this clause not available to some Government servants and defeat the policy and main aim of the Legislature,.
12. This seems to be the main reason why in the proviso to Clause (a) it is expressly stated that if the District Magistrate does not pass any order of allotment under the main portion of that clause, the landlord shall be deemed to have been put in possession of the building. Thus the landlord's right to possession of the building is stated to arise only when the District Magistrate omits to pass an order of allotment. This proviso does not say that where fifteen days' notice is not given as required by the main clause and where the District Magistrate passed an order of allotment after the expiry of a week, the landlord shall be deemed to have been put in possession of the building. This express mention in the proviso of the consequence that would arise in respect of contravention of a portion only of Clause (a) and the significant omission to make any reference to the consequence which would arise if the other provisions of Clause (a), such as time limit etc., are not obeyed, must lead to the reasonable inference that the provision about time limit is intended to be directory and not mandatory.
13. It was, however, urged that the landlord's rights also should not be ignored and that if the time limit in Clause (a) be held to be directory the landlord will not get a reasonable opportunity to object before the District Magistrate to the allotment of the house to another Government servant for adequate reasons. This argument, however, is not convincing. The statutory power conferred on the District Magistrate to make allotment will necessarily include the power to cancel the allotment for adequate reasons (see Section 24 of the Bihar and Orissa General Clauses Act, 1917) and hence I he landlord's right to object can always be exercised even after the allotment is made, as has happened in this case. Moreover, where due to shortness of the notice till landlord is not able to obtain possession and some person other than the person referred to in Clause (a) of Sub-section (2) occupies the house, Clause (b) of that sub-section can be availed of by the landlord who may take the help of the District Magistrate and evict that unauthorised occupant even by use of force. Thus the abridgement of the time limit prescribed in Clause (a) of Sub-section (2) cannot cause serious injury to the landlord, provided he satisfies the District Magistrate that he has good reasons for taking possession of the building. On the other hand, if the provision dealing with time limt is held mandatory, the main object of the Legislature will he nullified and the special protection intended to be given to Government servants by Sub-section (2) of Section 11 may not he available in several instances. Once the landlord obtains possession of the house on a declaration that the order of allotment by the District Magistrate is null and void because of non-compliance with the requirement about time limit, the District Magistrate will not be able to evict him (or any person to whom he may let it) and allot the house to a Government servant later on, in view of the right conferred on the landlord by the proviso to Clause (b) of Sub-section (2).
14. For these reasons I must hold that the law laid down in the Division Bench decision in 1960 BLJR 368: (AIR 1961 Pat 254) and other Division Bench decisions, reported or imreported, to the same effect is not correct.
15. The answers to the two questions formulated at the end of paragraph 4 of this judgment are as follows:
(l) The failure to give fifteen days' previous notice, either to the landlord, or to the District Magistrate, or to both, will not invalidate the subsequent order of allotment made by the District Magistrate.
(2) The District Magistrate is not bound to give seven days' notice to the landlord before allotting the house to the succeeding Government servant.
16. The petition is, therefore, dismissed but without costs.
Sahai, J.
17. I agree.
Bahadur, J.
18. I agree.