Sarnam Singh Rao v. State of U. P — 1982 DIGILAW 446 (ALL)

ORDER M.P. Mehrotra, J. - This petition arises out of the proceedings under Section 16 of the U. P. Act No. 13 of 1972. The facts, in brief, are these : - Some accommodation fell vacant in the city of Gorakhpur and intimation about its vacancy was given on 11-1-1979 and on the same day the opposite party No. 2 applied for the allotment of the said accommodation for residential purposes. The vacancy was notified on 19-1-1979. On 20-1-1979 the Mukhtar-e-Aam of the landlord gave consent in favour of the opposite party No. 2, who had applied for allotment of the accommodation in question. On 29-1-1979 the petitioner also applied for the allotment of the said accommodation. On 12-5-1979 the landlord intimated to the Prescribed Authority that he had given the accommodation in question to the opposite party No. 2 on licence with effect from 10-5-1979 for three months. On 14-5-1979 the Inspector submitted his report. On 10-7-1979 the Prescribed Authority passed order allotting the accommodation in question in favour of the petitioner. It was held that the opposite party No. 2 had sufficient accommodation. It was also held that the benefit of Rule 10(8)(b) was available to the petitioner because he was a retired qualified technical hand and wanted to engage himself in self employment. The opposite party No. 2 went up in revision and the same was allowed by the revisional court by its judgment dated 4-9-1979, a true copy of which is annexure 8 to the petition. The case was remanded to the Prescribed Authority with a direction that fresh allotment should be made in accordance with law. The revisional court interfered on two grounds. Firstly, it held that as the Prescribed Authority had not made allotment within 21 days of the intimation of the vacancy, therefore, under Section 17(1) he was bound to allot the accommodation in favour of the nominee of the landlord "unless for special and adequate reason to be recorded he allots it to any other person within ten days from the receipt of the intimation of such nomination". The second ground was that Rule 10(8)(b) was held to be not applicable to the case of the petitioner who was retired technical hand. 2. The second ground was that Rule 10(8)(b) was held to be not applicable to the case of the petitioner who was retired technical hand. 2. Feeling aggrieved, the petitioner has now come up in the instant petition and in support of the same, I have heard Sri H. S. N. Tripathi, learned counsel for the petitioner. It was contended by him that there was no nomination by the landlord as such. The nomination, if any, was by the Mukhtar-e-Aam of the landlord and the said Mukhtar-e-Aam could not act in this matter on behalf of the landlord. In this connection Dr. Gyan Prakash, learned counsel for opposite party No. 2 drew my attention to the definition of the expression 'landlord' in Section 3(j), which clearly lays down that a landlord will include his agent or attorney except for the purposes of clause (g). Sri Tripathi further contended that the nomination under Section 17(1) could be made by the landlord only after the expiry of 21 days from the date of receipt of the intimation about the vacancy by the District Magistrate and since in the instant case, the alleged nomination in favour of the respondent No. 2 was made by the landlord within 21 days, therefore, it was bad in law and, in fact, it was not the kind of nomination as is postulated in Section 17(1) of the Act. Learned counsel for the petitioner next contended that even if it was to be held that there was a good nomination on 20-1-1979 in favour of respondent No. 2, still as a result of annexure 6 to the writ petition the same stood waived or revoked. Annexure 6 is a copy of a communication dated 12-5-1979 which was sent by the landlord, respondent No. 3, to the District Magistrate intimating that the former had given the possession of the accommodation in dispute to respondent No. 2 Paras Ram on Licence for a period of 3 months. It was pointed out that in the said communication no reference was made to the alleged nomination dated 20-1-1979. Learned counsel emphasised that this aspect of the matter was not even considered by the revisional court below. Lastly, learned counsel contended that the provision contained in Section 17(1) is directory and not mandatory. It was pointed out that in the said communication no reference was made to the alleged nomination dated 20-1-1979. Learned counsel emphasised that this aspect of the matter was not even considered by the revisional court below. Lastly, learned counsel contended that the provision contained in Section 17(1) is directory and not mandatory. It was elaborated that it is not always possible to make detailed inquiries within 21 days as laid down in this provision and that, therefore, the provision should be interpreted in a manner so as to take into consideration the practical difficulties also. It was next contended that Section 17(1) of the Act is not applicable to non-residential accommodation and in the present case, it was asserted, that the accommodation was a shop, i.e. it was non-residential. The learned counsel made a point that if any other interpretation was placed on the provision contained in Section 17(1), then the constitutional rights of the citizens will be violated and will be hit by the provisions of Art 14 of the Constitution. It was next contended that Section 17 should be read subject to Section 16, which is a central provision of the Act, and the application of Rule 10(5)(c) of the Rules framed under the Act and it was contended that in view of the said provision, the accommodation in question could not be allotted to respondent No. 2 who was found to be in occupation of other accommodation. A reference was also made to Section 11 of the said Act. Sri Tripathi placed reliance on the following cases : - 1. Panna Lal Sharma v. District Judge 1977 All L R 267) : (AIR 1978 NOC 34). 2. Krishna Khanna v. A.D.M. (1975 All LJ353) : ( AIR 1975 SC 1525 ). 3. In opposition, Dr. Gyan Prakash contended that the nomination in favour of respondent No. 2 was validly made on 20-1-1979. It was emphasised that there was nothing illegal in a nomination being made under Section 17(1) within the period of 21 days but such a nomination would become effective only after the expiry of the said period of 21 days. Dr. Gyan Prakash next contended that the provision contained fin Section 17(1) is mandatory and in this respect the Legislature brought about a big change in the new Act compared to the position as it existed under Rr. Dr. Gyan Prakash next contended that the provision contained fin Section 17(1) is mandatory and in this respect the Legislature brought about a big change in the new Act compared to the position as it existed under Rr. 3 and 4, framed under the old U. P. Act No. Ill of 1947, which was repealed by the new Act No. 13 of 1972. He placed reliance on the following cases in this connection 1. Ram Autar v. Rent Control & Eviction Officer (1959 All LJ 8): ( AIR 1959 All 377 ). 2. Krishna Khanna v. A. D. M. (1964 All L J 710). 3. Parshadi Lal v. Jai Ram (1969 All W R 132). 4. Satya Prakash Sahu v. District Judge, Allahabad. (1981 All Rent Cas 418 : 1981 (U. P.) RCC 377) : (1981 UPLT NOC 159). 5. Jagjit Sagar v. I Addl. District Judge (1981 All Rent Cas 360 : 1981 (U. P.) RCC 155) : (1981 All LJ 421). 4. I have considered the aforesaid rival contentions made at the bar. In my view, the learned counsel for the petitioner is not right in contending that the provision contained in Section 17(1) is directory and not mandatory. It is true that analogous provisions contained in Rr. 3 and 4 under the repealed U. P. Act No. Ill of 1947 were interpreted to be directory and not mandatory. However, this interpretation was placed because it was held that no such qualification or time limit was placed in Section 7(2) of the old Act which was the substantive provision dealing with the allotment of the accommodation. In 1959 All L J 8 ; ( AIR 1959 All 377 ) (supra) it was laid down as follows (at p. 378) : - "There is no restriction imposed by the Act with regard to the period within which an order shall be made, and in our opinion, the State Government has no power to impose such a restriction by a rule." 5. In 1964 All LJ 710 (supra) the Division Bench laid down as follows : - "The power of making an order of allotment directing the landlord to let out the accommodation to a particular person is conferred on the District Magistrate by. In 1964 All LJ 710 (supra) the Division Bench laid down as follows : - "The power of making an order of allotment directing the landlord to let out the accommodation to a particular person is conferred on the District Magistrate by. Section 7(2) of the Act without any limitation as to the period within which the order must be made by him and we do not think that the rules framed under the Act can curtail this power conferred on the District Magistrate. Rule 3 should, therefore, in our opinion, be interpreted as being directory and not mandatory." In 1969 All W R 132 (supra) a learned Judge of this Court again took a view that the old R. 4 was directory and not mandatory and taking that view the Division Bench pronouncement reported in 1962 All W R 220 was distinguished. 6. S. D. Agarwal, J. in two pronouncements noticed above, namely 1981 All Rent Cas 360 : (1981 All L J 421) and 1981 All Rent Cas 418 : (1981 UPLT NOC 159), has clearly laid down that the position under the new Act has undergone a change in view of the fact that the provisions which stood contained under the old Rr. 3 and 4 have, with certain changes, been incorporated in the new Act itself vide Section 17(1) of the new Act. In Jagjit Singh's case the learned Judge expressed himself as follows (at p. 422) : - "The position, therefore, is that after the receipt of intimation of vacancy, the District Magistrate has been empowered to allot the building to any person. If no such allotment is made within 21 days, then a choice has been given to the landlord to nominate a person. In case the landlord exercises his choice of nominating a person, then further power has been given to the District Magistrate to allot the premises to any other person after he records special and adequate reasons. This power can be exercised within only 10 days of the receipt of the intimation. If such allotment is not made, then after ten days, the building has to be allotted to the person nominated by the landlord. This power can be exercised within only 10 days of the receipt of the intimation. If such allotment is not made, then after ten days, the building has to be allotted to the person nominated by the landlord. In my opinion, the fact that after the intimation of the nomination, the District Magistrate has been left with the discretion to allot the building within ten days to any other person for special and adequate reasons, indicates that after the expiry of ten days, there is no other option left to the District Magistrate except to allot the accommodation to the person nominated. This provision, in my opinion, is mandatory. After ten days have expired, within which the discretion of the District Magistrate could be exercised, the District Magistrate has, to allot the building to the person nominated by the landlord." 7. Next adverting to the aforesaid three pronouncements dealing with Rr. 3 and 4 framed under the old Act, the learned Judge observed (at p. 423) : - "It was in order to avoid the decisions of this Court that the Legislature while enacting Act 13 of 1972, made its intention quite clear in specific words as used in Section 17 of the present Act that in case the District Judge does not exercise his discretion of allotting the accommodation to any other person for special and adequate reasons within ten days, then the District Magistrate has to allot the building to the nominated person. In view of the above, in my opinion, the principle laid down in the above cases does not apply." 8. It is true that, as has been emphasised by Sri Tripathi, in practice difficulties may arise if the said view of S. D. Agarwal, J. is taken to be correct. The period of 21 days and thereafter the subsequent period of ten days, may often prove to be inadequate to enable the authorities concerned to make detailed inquiries. However, despite this aspect of the matter, I do not think that it is permissible to the courts to treat the provision contained in Section 17(1) as directory merely on the ground of the difficulty of following the principle in practice within the time limit laid down thereunder. However, despite this aspect of the matter, I do not think that it is permissible to the courts to treat the provision contained in Section 17(1) as directory merely on the ground of the difficulty of following the principle in practice within the time limit laid down thereunder. Once the Legislative intention was clarified, it should be for the authorities concerned to make their arrangements in such a manner that compliance should be effected within the time limits laid down in Section 17(1). It cannot be contended that such a compliance is impossible in practice notwithstanding the difficulties which arise from day to day in practice. 9. Sri Tripathi drew my attention to a Supreme Court pronouncement in State v. Manbodhan Lal ( AIR 1957 SC 912 ) in support of his contention that the use of the word 'shall' in Section 17(1) does not necessarily lead to the interpretation that the said provision is mandatory and not directory. In the said Supreme Court pronouncement it was laid down that despite the use of the word 'shall' in Article 320(3)(c) of the Constitution, the provision contained therein is directory and not mandatory. Several reasons were given in the said interpretation. It was laid down as follows (at pp. 916-18) : - "In the first place, the proviso to Article 320, itself contemplates that the President or the Governor, as the case may be, may make regulations specifying the matters in which either generally, or in any particular class of cases or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted." The words quoted above give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the commission need not be consulted. If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary. If it had been intended by the makers of the Constitution that consultation with the Commission should be mandatory, the proviso would not have been there, or, at any rate in the terms in which it stands " (8) Secondly, it is clear that the requirement of the consultation with the Commission does not extend to making the advice of the Commission on those matters, binding on the Government. Of course, the Government/ when it consults the Commission on matters like these, does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. If the opinion of the Commission were binding on the Government, it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character, it is difficult to see how non-compliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government. (9) Thirdly Article 320 of the other articles in Chap. II of Part XIV of the Constitution, deal with and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant. Chapter II containing Article 320, does not, in terms confer any rights or privileges on an individual public servant, nor any constitutional guarantee of the nature contained in Chap. I of that Part Art 3u Article 311, therefore, is not, in any way, controlled by the provisions of Chap. II of Part XIV, with particular reference to Article 320. (10) The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320 (3) (c)? II of Part XIV, with particular reference to Article 320. (10) The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320 (3) (c)? It does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. This aspect of the relevant provisions of Part XIV of the Constitution, has a direct bearing on the question whether Article 320 is mandatory. The question whether a certain provision in a statute imposing a duty on a public body or authority was mandatory or only directory, arose before their Lordships of the Judicial Committee of the Privy Council in the case of Montreal Street Rly. Co. v. Normandin 1917 AC 170 (b). In that case the question mooted was whether the omission to revise the jury lists as directed by the Statute, had the effect of nullifying .the verdict given by a jury. Their Lordships held that the irregularities in the due revision of the jury lists, will not ipso facto avoid the verdict of a jury. The Board made the following observations in the course of their judgment. "....... The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed. p. 596 and following pages. The cases on the subject will be found collected in Maxwell on Statutes, 5th Ed. p. 596 and following pages. 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 no 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." The principle laid down in this case was adopted by the Federal Court in the case of Biswanath Khemka v. The King Emperor, 1945 FCR 99 : (AIR 1945 FC 67) (C). In that case, the Federal Court had to consider the effect of non-compliance with the provisions of S. 256 of the Government of India Act, 1935, requiring consultation between public authorities before the conferment of magisterial powers or of enhanced magisterial powers, etc. The Court repelled the contention that the provisions of S. 256, aforesaid, were mandatory. It was further held that non-compliance with that section would not render the appointment otherwise regularly and validly made, invalid or inoperative. That decision is particularly important as the words of the section then before their Lordships of the Federal Court, were very emphatic and of a prohibitory character. (11) An examination of the terms of Article 320 shows that the word 'shall' appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Article 320 (3) (c) are mandatory in terms, the other clauses or sub-clauses of that article will have to be equally held to be mandatory. If they are so held, appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in cl. (3) of Article 320 would adversely affect the persons so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution. (3) of Article 320 would adversely affect the persons so appointed to a public service, without any fault on his part and without his having any say in the matter. This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceedings or the outcome of the proceedings, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on 'Statutory Construction' - Article 261 at p. 516, is pertinent : "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 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 consequences which would follow from construing it the one way or the other " (12) We have already indicated that Article 320 (3) (c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him to relief under the special powers of a High Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognised and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law. Hence, if the provisions of Article 311, have been complied with in this case and it has not been contended at any state that they had not been complied with he has no remedy against any irregularity that the State Government may have committed. Hence, if the provisions of Article 311, have been complied with in this case and it has not been contended at any state that they had not been complied with he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Article 320 (3) (c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320 (3) (c) 1 in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer. (13) In view of these considerations, it must be held that the provisions of Article 320 (3) (c) are not mandatory and that non-compliance with those provisions does not afford a cause of action to the respondent in a Court of law." 10. It seems to me that the special circumstances which were considered by the Supreme Court in the said case are lacking in the instant case. It should be seen that section 16 of the Act which deals with allotment and release of vacant building has been clearly made subject to the provisions of the Act. This is clear from the words used in S. 16 (1) which are as follows : - Subject to the provisions of the Act, the District Magistrate by order : - 11. It is, therefore, clear that the power to make allotment under S. 16 (1) is subject to the other provisions contained in the Act including the one contained in Section 17 (1). In this view of the matter, Section 17 (1) will have to be held mandatory and not directory. Further, the aim of the said provision is to activate the authority making the allotment to do the job within a stated period. It should be seen that Section 11 of the Act has completely prohibited letting of an accommodation except in pursuance of an allotment order issued under Section 16. There can be no denial that the said provision is mandatory and non-compliance with the same will amount to an offence punishable under Section 31 of the Act. It should be seen that Section 11 of the Act has completely prohibited letting of an accommodation except in pursuance of an allotment order issued under Section 16. There can be no denial that the said provision is mandatory and non-compliance with the same will amount to an offence punishable under Section 31 of the Act. When the landlord has been completely prohibited to let out his building to a tenant without an allotment order, it should be presumed that the Legislature also intended that the allotment order should be passed at the earliest and, therefore, the time limits which formerly used to find a place in the rules framed under the repealed - U. P. Act III of 1947 were now incorporated in the substantive provision of the new Act, namely, Section 17 (1) thereof. This was done by the Legislature to minimise the loss of the landlords concerned on the building remaining vacant as a result of non issuance of the allotment order. It should further be seen that unlike Section 17 (1), no Act which can be treated as an exception to the rule laid down in Section 17 (1) (sic). Taking into consideration all these aspects of the controversy, I agree with the view expressed by S. D. Agarwal, J. in his aforesaid two pronouncements and hold that Section 17 (1) is a mandatory provision and not a directory one. 12. So far as the other cases relied upon by Shri Tripathi are concerned, they do not help him in his aforesaid contention. In 1977 All LR 267 : (AIR 1978 NOC 34) (supra) K. N. Seth, J. had to deal with S. 17 (2) and not with S. 17 (1). I have already noticed the difference between the provisions. In 1975 All L J 353, the Supreme Court affirmed the aforesaid decision of this Court reported in 1964 All LJ 710. The said case has been distinguished above. 13. I do not think that Sri Tripathi is right in contending that the aforesaid interpretation will mean any infringement of any constitutional right of the citizens or will, in any manner, attract Article 14 of the Constitution. It has not been shown as to which constitutional right and whose such right is infringed if the District Magistrate and whose delegate is required (make) to the allotment within the time limits laid down in S. 17 (1). It has not been shown as to which constitutional right and whose such right is infringed if the District Magistrate and whose delegate is required (make) to the allotment within the time limits laid down in S. 17 (1). No would-be allottee can claim a constitutional right that the District Magistrate or his delegate should have an unlimited period at his disposal to make allotment of a building. In fact, such an interpretation will be doing injury to the interest of the landlords who are kept waiting and cannot let out their accommodation till an allotment order is passed under the Act. Therefore, the contention of the learned counsel in this regard has to be rejected. 14. I cannot also appreciate his point that Sections 11 and 16 in any manner require that S. 17 (1) should be interpreted as a directory provision and not a mandatory one. On the other hand, have already referred to the said provisions as strengthening the view that the provision contained in S. 17 (1) should be held to be mandatory and not directory. 15. I do not think that the learned counsel for the petitioner is right in contending that S. 17 (1) of the Act is applicable only to residential buildings and not to non-residential buildings. It should be seen that S. 17 (1) refers to an intimation of vacancy under S. 15 (1) of the Act. Under S. 15(1) the landlord has an obligation to intimate vacancy to the District Magistrate in writing within seven days from the occurrence of such vacancy. Such obligation is applicable to both residential and non-residential buildings. When this is the position, it cannot be appreciated as to why S. 17(1) should be interpreted as confined only to residential buildings and not to non-residential buildings. There is no such qualification laid down in the said provision and no reason has been advanced as to why such a qualification should be implied in the said provision. This contention is accordingly rejected. In this view of the matter, it is not necessary to decide whether the accommodation in question was residential or non-residential. 16. I now go on to consider the contention of the petitioner that the nomination dated 20-1-1979 was not a valid nomination in law because it was not made by the landlord himself but by his alleged Mukhtare-Aam. In this view of the matter, it is not necessary to decide whether the accommodation in question was residential or non-residential. 16. I now go on to consider the contention of the petitioner that the nomination dated 20-1-1979 was not a valid nomination in law because it was not made by the landlord himself but by his alleged Mukhtare-Aam. It is a well established proposition of law that every act can be done by a principal through his agent unless there is an express or implied prohibition. As already pointed out above, the definition of the expression 'landlord' in the Act itself is clear and shows that a landlord will include, his agent and attorney except for the purpose of clause (g) of S. 3. Admittedly, clause (g) is not in the picture. In the facts of the instant case, it should further be seen that the intimation of vacancy was made on behalf of the landlord by his Mukhtar-e-Aam as is clear from the recital made in annexure 3 and also from the recital in the order of the Prescribed Authority dated 10-7-1979 (annexure 6A). This intimation of vacancy has been accepted as good by the authorities below as the notification of vacancy was made on its basis. There can be no doubt whatsoever that the Mukhtar-e-Aam had authorisation from the landlord in this respect. This is clear from the recital in annexure 6 which was an intimation from the landlord himself. In the said intimation there is a clear recital that when the accommodation in question fell vacant on 8-1-1972 its intimation was given to the authority concerned by the landlord. Obviously, when the landlord in the said intimation stated that he had intimated the vacancy to the Rent Control Authority, he, i.e. the landlord was referring to the intimation which was given on his behalf by his Mukhtar-e-Aam of Karpardas. In this situation, it is not comprehensible as to why the landlord could not make the nomination through the same Karpard &, who had earlier intimated the vacancy to the Rent Control Authority. It should further be seen that neither before the Prescribed Authority nor before the revisional court it was contended that the Karpardaz of the landlord was not authorised to act on behalf of the principal. It should further be seen that neither before the Prescribed Authority nor before the revisional court it was contended that the Karpardaz of the landlord was not authorised to act on behalf of the principal. In this view of the matter, it is not open to the petitioner to contend that the nomination by the landlord through his Karpardaz was not good in law because the Karpardaz could not act on behalf of the principal. 17. I do not think that it can be contended that the said nomination dated 20-1-79 was displaced or waived by the subsequent act of the landlord in giving the accommodation on a temporary licence for three months to respondent No. 2. I do not agree with the learned counsel for the petitioner in the interpretation which he seeks to place on annexure 6 which is an intimation dated 12-5-1979 by the landlord to the Rent Control Authority stating that the accommodation in question had been given on a temporary licence for three months to the respondent No. 2. It should be seen that the nomination itself was made in favour of the said respondent No. 2 and the fact that a temporary licence was given to him does not in any manner adversely or negatively affect the earlier nomination made in favour of the same party. If anything, it strengthens the point that the landlord was keen to have the respondent No. 2. as his tenant by allotment, the aforesaid act of granting a temporary licence in favour of respondent No. 2 is absolutely consistent with the continued efficacy of the earlier nomination made in hiss favour by the landlord. There was no waiver of the said nomination by the landlord by the latter's act of granting the temporary licence in favour of the respondent No. 2 who was also the nominee of the landlord. 18. Lastly, I take up the contention of the learned counsel for the petitioner that the nomination under S. 17 (1) cannot be made within a period of 21 days. S. 17 (1) lays down as follows : - "17. Conditions of making allotment order. 18. Lastly, I take up the contention of the learned counsel for the petitioner that the nomination under S. 17 (1) cannot be made within a period of 21 days. S. 17 (1) lays down as follows : - "17. Conditions of making allotment order. - (1) Where the District Magistrate receives an intimation, under subsection (1) of S. 15, of the vacancy or expected vacancy of building any allotment order in respect of that building shall be made and communicated to the landlord within twenty-one days from the date of receipt of such intimation, and where no such order is so made or communicated within the said period, the landlord may intimate to the District Magistrate the name of a person of his choice, and thereupon the District Magistrate shall allot the building in favour of the person so nominated unless for special and adequate reason to be recorded he' allots it to any other person within ten days from the receipt of intimation of such nomination : Provided that where the landlord has made an application under clause (b) of sub-section (1) of S. 16, for the release of the whole or any part of the building or land appurtenant thereto in his favour, the said period of twenty-office days shall be computed from the date of decision on that application or where an application for review or an appeal is filed against such decision from the date of decision on such application or appeal." 19. It is true that the language of the said provision seems to suggest that the nomination is to be made after the expiry of the period of 21 days. However, I do not think that there is anything in law which prevents a landlord from making the nomination even within the period of 21 days and intimating the same to the District Magistrate or his delegate. If the nomination is intimated within the period of 21 days, then the only result will be that it will come into operation only when the statutory period of 21 days has stood expired. Such a nomination will be of no avail within the said period of 21 days but there is no reason why it should not be held to be operative after expiry of 21 days. Such a nomination will be of no avail within the said period of 21 days but there is no reason why it should not be held to be operative after expiry of 21 days. It should be seen that the central point embodied in S. 17(1) is that the District Magistrate or his delegate must make the allotment within 21 days. If this is not done, then another period of 10 days is available to the said authority to make the allotment in favour of a person who is not the nominee of the landlord provided special and adequate reasons are recorded for such allotment in favour of the person other than the nominee. After the expiry of the period of ten days, the District Magistrate is bound to make the allotment in favour of the landlord's nominee. In other words, the law provides that after the expiry of the said period, the desire of the landlord should be given effect to in passing the allotment order without any discretion being left to the authority concerned in this matter. There can be no doubt that the landlord in the instant case desired that the allotment should be made in favour of respondent No. 2. The mere fact that a nomination in the instant case was made within the period of 21 days cannot mean that the same could not be treated to be a nomination by the landlord after the expiry of the said period of 21 days. It has not been suggested that the landlord had changed his option after the expiry of the said period of 21 days. It seems to me that a landlord, while intimating the vacancy to the District Magistrate or his delegate can also nominate a person in whose favour the allotment should be made. The landlord may add, while making the nomination, that in case no allotment is made within 21 days, then such a person should be allotted the accommodation. I do not think that any objection can be taken in law to this course. It is true that in the instant case the landlord did not say that the nomination was to be treated as effective (after) the expiry of 21 days but this fact till not mean that the nomination made could not in law be treated to become effective after the expiry of the period of 21 days. It is true that in the instant case the landlord did not say that the nomination was to be treated as effective (after) the expiry of 21 days but this fact till not mean that the nomination made could not in law be treated to become effective after the expiry of the period of 21 days. In my view, such an interpretation should be placed on S. 17 (1) of the Act which fulfil the legislative intention embodied in the said provision. As I have already said above, the legislative intention is clear that after the expiry of the time limits laid down in the aforesaid provision, the landlord's desire in the matter must be accepted without any discretion or option on the part of the District Magistrate or his delegate. 20. In the view which I have taken, I cannot but reject the contention of the petitioner that R. 10 (8) (b) of the Rules was applicable to the instant case. Since S. 17(1) has been held to be mandatory, therefore, the allotment was bound to be made in favour of respondent No. 2 and there was no option or choice left in the District Magistrate or his delegate in this matter. 21. Accordingly, I dismiss this petition and direct that the District Magistrate or his delegate, as the case may be, shall make allotment of the accommodation in question in favour of respondent No. 2. In the circumstances, there will be no order as to costs.