JUDGMENT

B.R. James, J. - Bungalow No. 12, Stanley Road, Allahabad, is owned by Mr. Mohan Lal Khattri, who is employed at Calcutta. Its tenant is Mr. Rabindra Nath Mitra, an Advocate. Desirous of occuping the house after his retirement Mr. Khattri under Sec. 3 (1) of the Control of Rent and Eviction Act (hereinafter referred to as the Act) made an application to the District Magistrate for permission to file a suit for Mr. Mittra's eviction. The District Magistrate refused permission. Mr. Khattri instituted a revision before the Commissioner, but there too remained unsuccessful. Thereupon he made a representation to the State Government, which passed an order dated the 22nd August 1957 by which it set aside the Commissioner's order and granted permission to Mr. Khattri to sue Mr. Mittra for eviction. Mr. Mittra now comes to this Court under Article 226 of the Constitution and prays that the State Government order aforesaid be quashed and Mr. Khattri prohibited from filing a suit.

2. The State Government has acted in purported exercise of its powers under Sec. 7-A of the Act. This section is worded thus:-

"The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Sec. 3 or requiring any accommodation to be let or not to be let to any person under Sec. 7 and may make such order as appears to it necessary for the ends of justice."

3. Now, it is necessary to bear in mind that before the State Government passed the impugned order it did not call for the record of the case, nor did it hear Mr. Mittra instead it asked Mr. Khattri to file copies of the orders of the District Magistrate and the Commissioner and this he did.

4. Mr. Dwivedi, learned counsel for Mr. Mitra, argues that under Sec. 7-F of the Act the calling for the record is a condition precedent to the passing of the final order, and since the State Government failed to fulfil this condition its order in Mr. Khattri's favour is without jurisdiction. To this Mr. Kacker for Mr. Khattri replies that the use of the word "may" in the opening sentence of the section makes the calling for the record purely discretionary, and that since the State Government as held in Narrottam Saran v. Government of U. P., A.I.R. 1954 Allahabad 232 exercises purely administrative functions, its power of passing an order under Sec. 7-F is unrestricted and cannot be challenged.

5. After considering these rival arguments with the care that they deserve I am of opinion that Mr. Dwivedi's view-point must prevail. It is common ground that for passing an order under Sec. 7-F the State Government is not bound to hear the parties. Yet, as is evident from the concluding words of the section, it is bound to pass such order as is "necessary for the ends of justice." How is this statutory object to be achieved? Since the parties have no right to be heard, the achieving of the object can be only in one way, namely, by considering the material furnished by the records of the District Magistrate and the Commissioner. It necessarily follows that the calling for the record is a necessary procedure for the State Government to adopt and in consequence it must be held to be a condition precedent to the passing of a valid order under the section.

6. In contending the contrary Mr. Kacker lays great emphasis on the use of the word "may". But is his interpretation consistent with the intention of the legislature in enacting Sec. 7-F, that is to say, in giving the State Government power to make such order "as appears to it necessary for the ends of justice"?. Their Lordships of the Supreme Court in the State of U. P. v. M. P. Srivastava, 1957 A.L.J. 921 have laid down that the question as to whether a statutory provision is mandatory or directory depends upon the intent of the legislature and not upon the language in which it is clothed, and further that the meaning and intention of the legislature must govern, and these are to be a