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PATNA HIGH COURT
R.L.Narasimham, K.Sahai and R.J.Bahadur JJ.
Shiveshwar Prasad Sinha
Versus
District Magistrate Of Monghyr
Miscellaneous Judicial Case No. 452 of 1963 ;
Decided On : AUGUST 25, 1965
BIHAR BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1947 - SEC. 11(2)(A) - NON-COMPLIANCE WITH NOTICE PERIOD - EFFECT - INTERPRETATION OF STATUTORY PROVISIONS - MANDATORY OR DIRECTORY - FACTORS TO BE CONSIDERED.
Fact of the Case:
The petitioner, a landlord, challenged the order of the District Magistrate allotting a house to a Government servant, Sri D. P. Yadav, on the ground that the outgoing tenant, Sri S. N. P. Srivastava, did not give 15 days' notice of his intention to vacate the house as required by Sec. 11(2)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The District Magistrate had allotted the house to Sri Yadav within a week of receiving the notice from Sri Srivastava, but the petitioner argued that the order was invalid because the notice period was mandatory and not directory.
Finding of the Court:
The Court held that the requirement of 15 days' notice in Sec. 11(2)(a) of the Act was directory and not mandatory. The Court considered the general scheme of the Act, the context of the other provisions, the purpose of the requirement, the consequences of non-compliance, and the intent of the Legislature in reaching this conclusion.
Issues: 1. Whether the requirement of 15 days' notice in Sec. 11(2)(a) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is mandatory or directory. 2. Whether the District Magistrate is bound to give 7 days' notice to the landlord before allotting the house to the succeeding Government servant.
Ratio Decidendi: The Court held that the requirement of 15 days' notice in Sec. 11(2)(a) of the Act was directory and not mandatory based on the following factors: 1. The general scheme of the Act and the context of the other provisions indicate that the Legislature intended to confer an extra benefit on Government servants and provide for the allotment of houses to them even in preference to the rights of the landlord. 2. The purpose of requiring 15 days' notice is to enable the landlord to apply to the District Magistrate for restoration of possession or object to the re-allotment of the house to another Government servant. However, the landlord is not deprived of this right even if the notice period is not complied with, as he can still appear before the District Magistrate and object to the re-allotment. 3. The statutory provision confers a duty on the District Magistrate to provide quarters to Government servants so that public work may not suffer. Holding the time limit to be mandatory would cause serious hardship to Government servants who are transferred on short notice and may not be able to give 15 days' notice. 4. The proviso to Clause (a) of Sub-section (2) expressly states that if the District Magistrate does not pass any order of allotment, the landlord shall be deemed to have been put in possession of the building. This suggests that the provision about the time limit is intended to be directory and not mandatory. 5. The landlord's rights are not ignored, as he can object to the allotment of the house to another Government servant even after the allotment is made, and he can also avail of Clause (b) of Sub-section (2) to evict any unauthorized occupant.
Final Decision: The Court dismissed the petition, holding that the failure to give 15 days' 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, and that the District Magistrate is not bound to give 7 days' notice to the landlord before allotting the house to the succeeding Government servant.
Narasimham, 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/s. 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 Sec.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 Sec.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 days notice, whereas Clause (a) of Sub-section (2) of Sec.11 of the Act requires that he shall give fifteen days previous notice in writing. That clause further says that the District Magistrates 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 Magistrates order of allotmen
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