Rabindra Nath Mitra v. State of Uttar Pradesh — 1958 DIGILAW 333 (ALL)

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. 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"?. 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 ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequence which would follow from construing it the one way or the other. Bearing these principles in mind' I have no difficulty in reaching the conclusion that the provision for calling for the record is a mandatory one, and further that the word "may" is more designed to call attention to the fact that the State Government has a discretion in deciding whether to grant or not grant relief to the aggrieved party. 7. Mr. Kacker frankly concedes that in certain circumstances the Court is entitled to read "shall" for "may" but he contends that the direction to Mr. Khattri for filing copies of the orders of the District Magistrate and the Commissioner was sufficient compliance with the requirements of the law, I would be most reluctant to accept this position, as in my opinion the "record" means, not only the impugned orders or judgments, but all other documents which are relevant for the purpose of doing justice in the case. In the usual dispute under the Control of Rent and Eviction Act, the record, apart from the orders of the authorities, contains the statements or affidavits of the parties and reports of Inspectors. I decline to subscribe to the view that it could be possible for the State Government to pass orders "necessary for the ends of justice" by merely perusing the judgments of the District Magistrate and the commissioner. I decline to subscribe to the view that it could be possible for the State Government to pass orders "necessary for the ends of justice" by merely perusing the judgments of the District Magistrate and the commissioner. As already stated, in passing the impugned order it omitted to "call for the record." This discussion makes it difficult to resist the conclusion that the State Government's order in Mr. Khattri's favour has been passed contravention of the provisions of Sec. 7-F of the Act; consequently it must be held to be invalid. 8. On the question of what should be the proper relief to which Mr. Mittra is entitled it has been argued that the impugned order being an administrative order cannot be quashed by certiorari. But the decision of a Division Bench of this Court in Sunni Central waqf Board v. Imtiaz Husain, 1958 A.L.J. 567 is an authority for the proposition that such orders too can be quashed in exercise of the general powers conferred by Article 226 to issue directions or orders,and that an order passed without jurisdiction which adversely affects the petitioner ought ordinarily to be set aside. Accordingly I allow this petition with costs, quash the State Government's order dated the 22nd August 1957 and direct Mr. Khattri to refrain from filing any eviction suit against Mr. Mittra. If any suit has already been filed, It shall stand dismissed.