1965 (8) TMI 84 - HC - Indian Laws

Summary

Issues Involved:
1. Effect of the failure of the outgoing Government servant to give fifteen days' previous notice in writing of his intention to vacate the house to the landlord and the District Magistrate.
2. Legal effect of the omission on the part of the District Magistrate to give seven days' notice to the landlord before allotting the house to another Government servant.

Issue-Wise Detailed Analysis:

1. Effect of the Failure of the Outgoing Government Servant to Give Fifteen Days' Previous Notice:
The petitioner, a landlord, challenged the legality of the District Magistrate's order allotting his house to another Government servant without receiving the statutory fifteen days' notice from the outgoing tenant. The court examined Clause (a) of Sub-section (2) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which mandates that a Government servant intending to vacate a building must give fifteen days' notice to both the landlord and the District Magistrate. The court noted that the outgoing tenant had given only two days' notice. However, it emphasized that the statutory provision's purpose is to ensure the orderly allotment of houses to Government servants, and that strict adherence to the fifteen-day notice period is not always feasible due to the nature of government service transfers.

The court referred to established legal principles, including the Privy Council judgment in Montreal Street Rly. Co. v. Normandin and the Supreme Court's decision in State of U.P. v. Manbodhan Lal Srivastava, which assert that the use of "shall" in a statute does not necessarily make a provision mandatory. The court held that the time limit for notice is directory, not mandatory, as strict enforcement would cause serious inconvenience and injustice to the incoming Government servant who has no control over the outgoing tenant or the District Magistrate. The court concluded that the failure to give fifteen days' notice does not invalidate the District Magistrate's subsequent order of allotment.

2. Legal Effect of the Omission by the District Magistrate to Give Seven Days' Notice to the Landlord:
The petitioner also argued that the District Magistrate should have given him seven days' notice before allotting the house to another Government servant. The court clarified that Clause (a) of Sub-section (2) of Section 11 only requires the District Magistrate to inform the landlord of the allotment within a week of receiving the outgoing tenant's notice. The statute does not mandate a seven-day notice period to the landlord before making the allotment. The court emphasized that the landlord's right to object to the allotment can be exercised even after the allotment is made, and the District Magistrate has the power to cancel the allotment if there are adequate reasons.

The court also highlighted that the statutory scheme aims to benefit Government servants by ensuring they have housing available promptly upon transfer. Holding the time limits as mandatory would defeat this legislative intent and cause undue hardship. The court concluded that the District Magistrate is not bound to give seven days' notice to the landlord before allotting the house to another Government servant.

Conclusion:
The court held that the failure to give fifteen days' previous notice to the landlord or the District Magistrate does not invalidate the subsequent order of allotment made by the District Magistrate. Additionally, the District Magistrate is not required to give seven days' notice to the landlord before making the allotment. The petition was dismissed without costs.