SANTOSHKUMAR v. MAHARASHTRA REVENUE TRIBUNAL — 1970 DIGILAW 29 (BOM)

JUDGMENT-The petitioner Santoshkumar in both these petitions is the landlord. Respondent no. 4 Govinda in Special Civil Application No. 969 of 1969 is a tenant of field survey number 4 of village Nandkheda, taluq and district Akola, belonging to the petitioners. Respondent no. 4 Saraswatibai in Special Civil Application no. 970 of 1969 is a tenant of survey number 312 of village Titwa, taluq and district Akola. The landlord had started proceedings against both these tenants for possession on the ground that they had failed to pay lease-money for the years 1960-61 to 1963-64. The petitioner no. 1, the landlord of both the fields, which are the subject-matter of these petitions, is admittedly a minor. The Naib Tahsildar held that since the landlord was a minor his ownership of these fields did not stand transferred to the tenants and that the tenancies of both the tenants were validly terminated and the landlord was entitled to possession in view of section 30(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act. It may be stated that in both the cases the landlord had sent notices on 19-7-1961,30-6-1962, 8-6-1963 and 15-5-1964 to the tenants under section 19 of the Tenancy Act. The tenants filed appeals against this order, but the appeals were rejected by the Special Deputy Collector. The tenants then filed revision applications before the Maharashtra Revenue Tribunal. Both the revision applications were disposed of by a common order and the Maharashtra Revenue Tribunal took the view that the intimation dated 30-6-1962 in respect of the arrears of lease-money for the year 1961-62 was not given within the prescribed time and though the notices for the other two years 1962-63 and 1963-64 were served before the expiry of the 3 months period the landlord was not entitled to possession under section 30(2) of the Tenancy Act. The revision applications were, therefore, allowed. The petitioners are now challenging these orders in these two petitions. 2. The revision applications were, therefore, allowed. The petitioners are now challenging these orders in these two petitions. 2. It is contended by the learned counsel for the petitioners that giving of the intimation on 30-6-1962 which reached the tenants on 2-7-1962 was substantial compliance with the provisions of section 30(2) of the Tenancy Act and that the most important condition that the tenants were in arrears of lease-money for more than three years having been satisfied the tribunal ought to have held that there was substantial compliance with the provisions of section 30(2) of the Tenancy Act. His contention was that the words "the landlord has given intimation to the tenant" must be read as meaning that the intimation has been given within 3 months irrespective of the time when it reaches and he relied upon a decision of this Court in Rajaram Ambusa Kalal v. Maharashtra Revenue Tribunat1 in which with reference to the word "give" used in section 30(2) of the Tenancy Act it was observed that the use of the word "serve" instead of the word "serve" was deliberate and the requirement is substantially complied with if the landlord issues the notice on or before 15-2-61 to the tenant intimating his intention to terminate tenancy even though it was served after such date. The learned counsel appearing on behalf of the tenants, however, relied on a decision of the Supreme Court in K. Narasimhiah v. H. C. Singri Gowda2 in which it has been held that "giving" of anything is not complete unless it has reached the hands of the person to whom it has to be given, and according to the learned counsel, before the provisions of section 30(2) of the Tenancy Act can be said to have been complied with it must be proved that an intimation was also received by the tenant within a period of 3 months of each default. 3. 3. In order to appreciate these rival contentions it is necessary to refer to the provisions of section 30 of the Tenancy Act, which are as under :- "30(1) Where any tenancy of any land held by any tenant is terminated for nonpayment of rent and the landlord files any proceeding to eject the tenant, the Tahsildar shall call upon the tenant to tender to the landlord the rent in arrears together with the costs of the proceeding, within three months from the date of the order, and if the tenant complies with such order, the Tahsildar shall in lieu of making an order for ejectment, pan an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated: (2) Nothing in this section shall apply to any tenant whose tenancy has been terminated for non-payment of rent, if such tenant has failed for any three years to pay rent and the landlord has given intimation to the tenant to that effect within a period of three months on each default." Under section 19 of the Tenancy Act a landlord has a right to terminate the tenancy of a tenant by giving 3 months notice in writing informing him of the landlords decision to terminate the tenancy if the tenant has failed to pay in any year rent of such land for that year before 31st day of March of that year. Where a landlord files a proceeding for ejectment a power is given to the Tahsildar under section 30(1) to give relief to the tenant against termination of tenancy for non-payment of rent. The Tahsildar under section 30(1) has the power to call upon the tenant to tender to the landlord the arrears of rent together with costs of the proceeding within 3 months from the date of his order. If the tenant complies with this order, the Tahsildar has in lieu of making an order for ejectment, to pass an order directing that the tenancy had not been terminated and if the tenant fails to comply with such order the Tahsildar has to direct ejectment of the tenant. If the tenant complies with this order, the Tahsildar has in lieu of making an order for ejectment, to pass an order directing that the tenancy had not been terminated and if the tenant fails to comply with such order the Tahsildar has to direct ejectment of the tenant. This power under section 30(1) to give relief against termination of tenancy for non-payment of rent cannot, however, be exercised by the Tahsildar in the case of a tenant whose tenancy has been terminated for non-payment of rent if such tenant has failed for any 3 years to pay the rent. It is clear from the provisions of section 30(2) of the Tenancy Act that the legislature did not want a relief against termination of tenancy to be given to a contumacious tenant who is persistent in committing defaults in the matter of paying rent. It is also provided under section 30(2) that in the case of such a tenant who has failed for any 3 years to pay rent before the tenant is denied the statutory relief against termination of tenancy it must be shown that the landlord has given intimation to the tenant to the effect that he is in arrears within a period of 3 months from each default. What is contemplated by sub-section (2) of section 30 is that an intimation must be given to the tenant and apart from the decision of the Supreme Court in K. Narasimhiahs case (cit. supra) it is clear that if what is to be given to the tenant is an intimation unless that intimation reaches the tenant, the intimation will be ineffective. 4. In the Supreme Court case relied upon by the learned counsel for the respondent no. 4 the facts were that under section 27(3) of the Mysore Town Municipalities Act, 1951, a notice of 3 clear days was required to be given in the case of a special general meeting and a notice of a special general body meeting of the municipality to be held on 14-10-1963 was issued on 10-10-1963 and the notice reached some of the members on 11th, 12th and 13th of October 1963. While challenging the validity of the meeting it was contended that the requisite 3 days notice was not served on all the members and so the meeting was not validly held. While challenging the validity of the meeting it was contended that the requisite 3 days notice was not served on all the members and so the meeting was not validly held. The High Court took the view that as the notices were sent on 10th October 1963 they must be held to have given on that date even though they were actually served on 11th, 12th and 13th of October 1963. Apart from this, the High Court also took the view that the provision of 3 days notice was directory and not mandatory and so the late receipt of the notices would not affect the validity of the meeting. When the matter was taken to the Supreme Court, answering the contention that three days notice of special general meeting was not given and so the meeting was invalid their lordships of the Supreme Court observed as follows: "We find it difficult to agree with the High Court that "sending" the notice amounts to "giving" the notice. "Giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however "giving" is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the Councillors on the 10th October. In our opinion, the notice given to five of the Councillors was of less than three clear days." After having so observed their Lordships further held that the provision with regard to 3 days notice was only directory and not mandatory and further observed in paragraphs 14 and 15 of the judgment as follows: "It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lesser period-of three clear days-is considered sufficient for "special general meetings" generally. A consideration of the object of these provisions and the manner in which the object is sought to be achieved indicates that while the legislature did intend that ordinarily the-.notice as mentioned should be given it could not have intended that the fact that the notice is of less than the period mentioned in the section and thus the Councillors had less time than is ordinarily considered reasonable to arrange his other business to be free to attend the meeting, should have the serious result of making the proceedings of the meeting invalid." Thus it was held that the provisions of section 27 (3) of the Mysore Town Municipalities Act, 1951 were only directory and not mandatory. In view of the meaning of the word "giving" as set out in this decision it is not possible to accept the contention of the learned counsel for the petitioner that the sending of an intimation must be equated with giving of an intimation. But it must also be noted that inspite of holding that sending of the notices did not amount to giving of the notices, the provision was held to be directory and non-compliance thereof was held as not affecting the proceedings of the meeting. 5. But it must also be noted that inspite of holding that sending of the notices did not amount to giving of the notices, the provision was held to be directory and non-compliance thereof was held as not affecting the proceedings of the meeting. 5. The next question which, therefore, will have to be considered is whether the provision in section 30(2) requiring the landlord to give an intimation to the tenant within a period of 3 months of each default is of a mandatory nature or is directory. In the determination of the question whether a provision of law is directory or mandatory the prime object must be to ascertain the legislative intent, from a consideration of the entire statute, its nature, its object, and the consequences that would result from construing in one way or the other, or from such statute in connection with other related statutes, and the determination does not depend on the form of statute. Further, to this end, an enquiry into the purpose behind the enactment of the legislation must always be made. The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The intention of the Legislature must govern, and this is to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. It is, therefore, necessary to find out the object with which section 30(2) was put on the statute book. The object of section 30(2) was to deprive contumacious tenants of the relief against termination of the tenancy which could be given by Mamlatdar under section 30(1) of the Tenancy Act. The crucial fact which deprives the tenant of this relief is that he has failed to pay rent for any 3 years. The tenant himself is aware of the fact that he has to pay rent on or before 31st March of that year and that if he does not pay this rent accordingly under section 19(1) (I)(a) (i) he commits a default in payment of rent. The tenant himself is aware of the fact that he has to pay rent on or before 31st March of that year and that if he does not pay this rent accordingly under section 19(1) (I)(a) (i) he commits a default in payment of rent. The clause requiring an intimation to be given to the tenant is obviously intended only to remind him that he has committed a default, but all the same this reminder is of a fact of which the tenant himself has knowledge. Section 30(2) of the Tenancy Act, 1958 is analogous to section 25(2) of the Tenancy Act, 1948. The provisions of section 25(2) of the Tenancy Act, 1948 were considered by the Division Bench of this Court in Josephine Mathew v Sowr Langdya3. Referring to the nature of the intimation which was required to be given under section 25(2) of the 1948 Tenancy Act the Division Bench observed: "The intimation may therefore, only be that the tenant has failed to pay rent. The object of requiring the landlord to give an intimation probably is that each default should be brought to the notice of the tenant so that if he does not wish to lose the right to relief against forfeiture given to him by sub-section(1), he may not commit similar defaults in further years. From this point of view it is not necessary that the tenant should also be told that the landlord had decided to terminate the tenancy. We do not also find anything in sub-section (2) which makes, it obligatory on a landlord to state in the intimation that he intended to or had decided to terminate the tenancy." (Italics mine.) The object of giving an intimation is therefore only to bring the default to the notice of the tenant. Thus if the intimation which is required to be given is in respect of the fact which the tenant himself knows, it is difficult to hold that the provision of section 30(2) mandatorily requires that the intimation given within the period of three months must also reach the tenant within the said period of three months. Thus if the intimation which is required to be given is in respect of the fact which the tenant himself knows, it is difficult to hold that the provision of section 30(2) mandatorily requires that the intimation given within the period of three months must also reach the tenant within the said period of three months. In my view, if the landlord has substantially complied with the requirement of section 30(2) and had sent an intimation within the period of 3 months of the default he cannot be deprived of the relief under section 30(2) of the Tenancy Act merely because the intimation was received late. 6. In the instant case inspite of the tenant having been informed about the default for the year 1961-62 he has committed defaults for two next succeeding years. So also in spite of the intimation to pay rent for the years 1962-63 and 1963-64 he had failed to pay rent and it is, therefore, difficult to hold that merely because the intimation was given to him on 30-6-1962, which step was taken by the landlord admittedly within a period of 3 months, though the intimation reached the tenant on 2-7-1962, it would render ineffective the right of the landlord to obtain possession forthwith. 7. A reference may also be made to another decision of this Court in Kundanlal v. Luxman4. The question in that case was whether the provision in section 31 of the Bombay Tenancy Act, 1948, requiring the landlord to serve on a tenant a notice on or before 31st December 1956 that he bona fide required the land for personal cultivation was mandatory or directory and the Division Bench held that the requirement that the notice should be served on or before the 31st December 1956 can only be regarded as directory and not as a mandatory provision even though the necessary condition of making the application is that a previous notice should be given to the tenant and that there must be substantial compliance with the provision that a notice should be given on or before 31-12-1956. It may be stated that section 31 of the 1948 Tenancy Act provided for giving a notice terminating the tenancy, while sub-section (2) of section 30 of 1958 Tenancy Act only provides for intention in respect of the fact of which the tenant himself has knowledge. It may be stated that section 31 of the 1948 Tenancy Act provided for giving a notice terminating the tenancy, while sub-section (2) of section 30 of 1958 Tenancy Act only provides for intention in respect of the fact of which the tenant himself has knowledge. It is difficult to hold, therefore, that the legislature contemplated that even though a tenant was a contumacious tenant having committed defaults in payment of rent for the period of 3 years with full knowledge of his liability to pay rent within the prescribed period, merely because an intimation which was despatched by the landlord within the period of 3 months but which reached the tenant 2 days after the expiry of three months from the date of default, the landlord would be deprived of his right to obtain possession. Since, therefore, the intimation had been issued within the prescribed period of 3 months, in my view, the requirement of sub-section (2) of section 30 has been substantially complied with and the Naib Tahsildar and the Deputy Collector were right in holding that the tenants were not entitled to relief under section 30(1) of the Tenancy Act. The orders passed by the Maharashtra Revenue Tribunal are, therefore, liable to be quashed. 8. Both the petitions are thus allowed with costs. The orders passed by the Maharashtra Revenue Tribunal are quashed and those passed by the Naib Tahsildar and the Deputy Collector are restored. Petition allowed.