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Madhya Pradesh High Court · body

2011 DIGILAW 263 (MP)

Satyanjay Tripathi v. Banarsi Devi

2011-02-24

ALOK ARADHE

body2011
ORDER Alok Aradhe, J. 1. This revision under Section 23-E of the M.P. Accommodation Control Act, 1961 (hereinafter referred to as the Act), has been filed by the Applicants/tenants in which they have called in question the legality and validity of the order dated 25-6-2010 passed by the Rent Controlling Authority (hereinafter referred to as RCA) by which the application preferred by the non-Applicant/landlady under Section 23-A(b) of the Act has been allowed by the RCA on the ground that the tenants have failed to file the application seeking leave to contest the prayer for eviction as provided under Section 23-C(1) of the Act within the prescribed time limit. 2. Facts giving rise to filing of the revision lie in a narrow compass. The non-Applicant claiming herself to be a widow, filed an application under Section 23-A(b) of the Act on the ground that she bona fide needs the suit accommodation for her grandson who wants to run the business of clothes in the accommodation in question. The notice of the proceedings before the RCA was served on the Applicants/tenants on 4-2-2010. The Applicants/tenants entered appearance through their counsel on 31-3-2010 and filed the written statement, without filing any application under Section 23-C(1) of the Act seeking leave to contest the prayer for eviction. Thereafter, the proceedings before the RCA were fixed for 9-4-2010. On 9-4-2010 the proceedings were adjourned to 23-4-2010. However, the case was adjourned to 7-5-2010 for filing reply to the application filed under Section 13(6) of the Act. On 7-5-2010, reply to application under Section 13(6) of the Act was filed and the case was fixed for arguments on aforesaid application on 11-5-2010. On 11-5-2010 the Applicants filed an application under Section 23-C on the ground that since the Applicants/tenants failed to move any application seeking to contest the prayer for eviction, therefore, the order of eviction be passed in favour of the landlady. The case was fixed for consideration of the issue of non-compliance with the mandatory provisions as well as arguments and was adjourned to 13-5-2010. On 13-5-2010, the arguments were heard and thereafter, vide order dated 25-6-2010 the RCA passed an order of eviction. The case was fixed for consideration of the issue of non-compliance with the mandatory provisions as well as arguments and was adjourned to 13-5-2010. On 13-5-2010, the arguments were heard and thereafter, vide order dated 25-6-2010 the RCA passed an order of eviction. The RCA held that on 26-2-2010, the Applicants/ tenants were served with the summons of the proceedings however, within a period of 15 days, i.e. up to 15-3-2010 and thereafter on 31-3-2010 even when the non-Applicant entered appearance through the counsel, no application seeking leave to contest the prayer for eviction was filed arid, therefore, the right of the Applicants to contest the prayer for eviction is closed. The RCA on the basis of the affidavit which was filed by the non-Applicant as well as her witness Anurag Jain and the documents, held that grand-son of the non-Applicant is unemployed and wants the accommodation bona fide for carrying on the business of clothes. Accordingly, the order of eviction was passed. 3. Learned Counsel for the Applicants submitted that the proceedings under Section 23-A(b) of the Act were not maintainable before the RCA as the non-Applicant had set up the need of accommodation in question for her grandson. Learned Counsel for the Applicants also submitted that under Section 23-A(b) of the Act, an order of eviction could be sought only for the requirement of a major son or an unmarried daughter. It was further submitted that Section 23-B of the Act provides that RCA has to issue the summons in relation to every application under Section 23-A of the Act in the form specified in Second Schedule. However, in the instant case, no notice in the prescribed format as required under Sub-section (1) of Section 23-B of the Act was served on the tenants. It was further submitted that provisions of Section 23-B are mandatory in nature and, therefore, the RCA grossly erred in holding that the tenants have lost the right to contest the prayer for eviction. In support of his submissions, learned Counsel for the Applicants has placed reliance on Uttam Rajak v. Smt. Shanti Bai Chouksey 2007 (4) M.P.H.T. 91 (CG) and Dheeraj bai v. Ushabai 2004 (1) M.P.H.T. 456 . 4. On the other hand Shri Amitabh Gupta, learned Counsel for the non-Applicant/landlady vehemently submitted that the provisions of Section 23-B of the Act are directory in nature. 4. On the other hand Shri Amitabh Gupta, learned Counsel for the non-Applicant/landlady vehemently submitted that the provisions of Section 23-B of the Act are directory in nature. It was further submitted that on 31-3-2010, the Applicants had appeared through their counsel. It was also argued that the object of issuance of notice under Section 23-B of the Act in the prescribed format is to apprise the other side with regard to nature of proceedings which has been instituted in the instant case. It was further submitted that Applicants have entered appearance through their counsel on 31-3-2010 and thereafter on several dates i.e. 9-4-2010, 23-4-2010, 7-5-2010, 11-5-2010 and 13-5-2010, the proceedings were adjourned. In the proceedings before the RCA, the Applicants did not raise any objection that they have not been served with the notice of the proceedings in the prescribed format as required under Section 23-B of the Act and, therefore, they are precluded from raising such an objection. Apart from this, since the Applicants/tenants had entered appearance through their counsel, therefore, no prejudice has been caused since the provisions of Section 23-B of the Act are directory in nature and its substantial compliance having been made, no fault can be found with the order passed by the RCA. It was further submitted that since the accommodation in question is held for the benefit of the grandson, therefore, the RCA did not commit any illegality in granting the decree on the ground of bona fide need of the grandson. It was further submitted that provisions of Section 23-C of the Act have been held to be mandatory as they provide for a consequence. It was further submitted that the decision relied upon by the learned Counsel for the Applicant reported in 2007 (4). M.P.H.T. 91 (CG) supra, is of no assistance to the learned Counsel for the Applicants. While drawing the attention of this Court to the facts of the case, it was contended that tenant in that case had appeared in person and on the date when he appeared before the RCA, copy of the application was supplied to him whereas, in the instant case, along with the summons, copy of the application for eviction filed by the non-Applicant/landlady under Section 23-A(b) of the Act, was served on the tenants who had appeared through his counsel on 31-3-2010. It was also submitted that the written statement was filed on 31-3-2010 itself. It was further submitted that the landlady/non-Applicant filed an application under Section 23-C of the Act before the RCA on 11-5-2010 in which a prayer was made that since the Applicants/tenants have failed to file the application seeking to contest the prayer for eviction, therefore, the order of eviction should be passed in favour of the landlady. Despite receipt of the aforesaid application, the tenants neither filed any application under Section 23-C(1) of the Act, nor raised any objection with regard to non-receipt of the notice in mandatory form, therefore, the objection in this regard is deemed to have been waived. The order passed by the RCA is perfectly just and legal and does not warrant any interference by this Court in exercise of power under Section 23-E of the Act. In support of his submissions, learned Counsel for the non-Applicant has placed reliance on the decisions of Supreme Court in Sharif-ud-Din v. Abdul Gani Lone AIR 1980 SC 303 J. Chatterjee v. Mohinder Kaur Uppal and Anr. AIR 2000 SC 3076 and Tilakraj Sharma v. Shyamabai Tiwari 1997 (1) MPLJ 72 . 5. I have considered the submissions made on both the sides. Chapter III-A of the Act has been inserted in the statute book by way of Amendment Act namely M.P. No. 27 of 1983. Chapter III-A deals with eviction of tenants on the ground of bona fide need and contains special provision for eviction of tenant on the ground of bona fide requirement, Section 23-A(b)of the Act provides that the accommodation let for non-residential purposes if required by the landlord for the purpose of starting the business or for any of his major sons or unmarried daughters and for any other person for whose benefit the accommodation is held and that the landlord has no other reasonably suitable non-residential accommodation of his own in the city or town can be got vacated under Section 23-A(b) of the Act. Section 23-A(b) of the Act reads as under: 23-A(b) -- that the accommodation let for non-residential purposes is required "bona fide" by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner therefore or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. Section 23-B(1) mandates the RCA to issue to the tenant a summons in relation to every application referred to in Section 23-A in the form specified in Second Schedule. Second Schedule prescribes the form of summons. Relevant extract of the form reads as under: You are hereby summoned to appear before the Rent Controlling Authority within fifteen days of the service for hearing and. to obtain the leave of the Rent Controlling Authority to contest the application for eviction on the grounds aforesaid; in default whereof the Applicant will be entitled at any time after the expiry of the said period of fifteen days to obtain an order for your eviction from the said accommodation. Subject as aforesaid the date for further proceeding shall be.... Leave to appear and contest the application may be obtained on an application to the Rent Controlling Authority supported by an affidavit as is referred to in Section 23-C. Given under my hand and seal. Thus, by this notice, the tenant is apprised that he is required to appear before the RCA within a period of fifteen days from the date of service of notice and to obtain the leave of the RCA to contest the application for eviction. He is further apprised that in case he fails to move an application within the period of fifteen days, the landlord is entitled to seek an order of eviction. The tenant by the aforesaid notice is also informed that he is required to move an application to the RCA supported by an affidavit. 6. He is further apprised that in case he fails to move an application within the period of fifteen days, the landlord is entitled to seek an order of eviction. The tenant by the aforesaid notice is also informed that he is required to move an application to the RCA supported by an affidavit. 6. Section 23-C of the Act reads as under: 23-C. Tenant not entitled to contest except under certain circumstances-- (1) The tenant on whom the summons is served in the form specified in the Second Schedule shall not contest the prayer for eviction from the accommodation unless he files within fifteen days from the date of service of the summons, an application supported by an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Rent Controlling Authority as hereinafter provided, and in default of his appearance in pursuance of the summons or in default of his obtaining such leave, or if such leave is refused, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant. The Rent Controlling Authority shall in such a case pass an order of eviction of the tenant from the accommodation: Provided that the Rent Controlling Authority may, for sufficient cause shown by the tenant, excuse the delay of the tenant in entering appearance or in applying for leave to defend the application for eviction and whereas "ex parte" order has been passed, may set it aside. (2) The Rent Controlling Authority shall, within one month of the date of receipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in Section 23-A. 7. Thus, from perusal of Section 23-C(1) of the Act, it is apparent that in case of failure to comply with the requirement mentioned in Sub-section (1) of Section 23-C of the Act, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the Rent Controlling Authority in such a case shall pass an order of eviction of the tenant from the accommodation. Thus, the consequence of non-compliance of requirement contained in Section 23-C(1) of the Act is provided in Sub-section (1) itself. 8. It is well settled in law that in order to decide the question as whether a particular provision contained in the Statute is mandatory or directory, the intention of the Legislature has to be gathered. For ascertaining the real intention of the Legislature, the Court has to consider the nature and design of the Statute and the consequence which would follow from construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely that the Statute provides for a contingency of the non-compliance with the provisions; the fact of non-compliance with the provisions is or is not visited by some penalty; the serious or trivial consequences, that flow there from; and above all, whether the object of the Legislature would be defeated. See: State of U.P. v. Manbodhal Lal Shrivastava AIR 1957 SC 912 Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee and Ors. AIR 1976 SC 263 and Sarla Goel and Ors. v. Kishan Chand (2009) 7 SCC 658 . 9. In the backdrop of well settled legal position, the provisions in question may be seen. Section 23-B as well as Section 23-C(1) of the Act have to be read in conjunction. No doubt, the Legislature while drafting the provision of Section 23-B(1) of the Act has employed affirmative words and has cast an obligation on the Rent Controlling Authority to issue summons to the tenant in the format specified in Second Schedule. The object of requirement of notice is to apprise the tenant that in case on receipt of notice within a period of fifteen days, if he fails to enter appearance and files an application seeking leave to defend, an order of eviction shall be passed against him. The notice contains sufficient particulars to apprise the tenant with regard to its non-consequence. The noncompliance of procedural requirement contained in Section 23-1(c) of the Act is drastic in nature and entails an order of eviction against the tenant that too without affording any opportunity of hearing to him. The notice contains sufficient particulars to apprise the tenant with regard to its non-consequence. The noncompliance of procedural requirement contained in Section 23-1(c) of the Act is drastic in nature and entails an order of eviction against the tenant that too without affording any opportunity of hearing to him. Thus, if the provisions of Section 23-B and 23-C(1) of the Act are read in conjunction, it is apparent that non-compliance with the requirement contained in Section 23(1) of the Act is visited with the penalty which is mentioned therein namely the order of eviction. The consequence which is provided by the Statute is drastic in nature. Thus, for the aforementioned reasons and applying the well settled legal principles referred to above for adjudging whether the statutory provision is mandatory or directory in nature, this Court has no hesitation in holding that Section 23-B of the Act is mandatory in nature. 10. In the instant case, the notice which has been annexed is admittedly not in the format which has been prescribed in Second Schedule to the Act. The notice which has been issued is the general notice which is issued in the revenue cases and requires the Applicants/tenant to appear on 31-3-2010 at 11.30 a.m. The notice does not mention that the Applicants are required to appear and to obtain leave of the Rent Controlling Authority to contest the application for eviction on the ground and the default thereof within a period of fifteen days failing which the landlady would be entitled to an order of eviction. The notice also does not mention that the Applicants are required to move an application before the RCA which is duly supported by an affidavit. Thus, the notice has been issued to the tenants in violation of the mandatory provisions of Second Schedule of the Act. Apart from this, it is well settled legal proposition that in case of violation of mandatory provision, no prejudice need be shown arid in such a case necessary benefit should be given to the delinquent. See: Vinod v. State of Maharashtra (2002) 8 SCC 351 and Major G.S. Sodhi v. Union of India (1991) 2 SCC 382 . Apart from this, it is well settled legal proposition that in case of violation of mandatory provision, no prejudice need be shown arid in such a case necessary benefit should be given to the delinquent. See: Vinod v. State of Maharashtra (2002) 8 SCC 351 and Major G.S. Sodhi v. Union of India (1991) 2 SCC 382 . It is equally well settled legal principle that when a Statute prescribes a mode of doing an act in a particular manner, that act has to be done in that manner alone and other modes of its performance are forbidden. See: Bhagwant Rai and Ors. v. State of Punjab and Ors. (1995) 5 SCC 440 and I.T.C. Bhadrachalam Paper Boards and Anr. v. Mandal Revenue Officer A.P. and Ors. (1996) 6 SCC 634 . 11. For the aforementioned reasons, the order passed by the RCA dated 25-6-2010 cannot be sustained in the eye of law. The same is hereby quashed. The Applicants/tenants are directed to appear before the RCA on 1-3-2011 along an application under Section 23-C(1) of the Act as also an application for condonation of delay. The RCA shall consider and decide the application within a period of one week thereafter. Learned Counsel for the Applicants assures this Court that the Applicants shall not seek any unnecessary adjournment and will cooperate for the early proceedings before the RCA. In view of aforesaid statement made by learned Counsel for the Applicants, it is directed that the RCA shall conclude the proceedings positively by 31-5-2011. With the aforesaid direction, the civil revision stands disposed of.