TMI Blog1989 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... e alongwith the interest to be calculated by the Controller at 8 per cent per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller. What the proviso requires is that the Controller has to calculate the interest at 8 per cent per annum on such arrears of rent and determine the costs of the application, if any. If the argument of the learned counsel is to be accepted then in every case the Rent Controller has to hold an enquiry at the first instance and determine the arrears of rent even on the first date of hearing which is in the nature of things not possible without any evidence, nor is it contemplated under the scheme of the Act.Hence we hold that this argument advanced on behalf of the appellant is misconceived and fallacious. The rules 4(c), 5(1) and 6 are not mandatory but only directory. In that view, we see no force in the contention of the learned counsel that the non-mentioning of the amount of arrears of rent due in the application for ejectment has adversely affected the proceedings of this case and as such the application for ejectment is liable to be dismissed on that score. Appeal dismissed. - Civil Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt @ Rs. 1142 p.m. but only @ Rs.950 p.m. as agreed between the parties and he had failed to pay the rent from 1.4.75. On the basis of the above finding the Rent Controller directed the ejectment of the tenant from the premises by granting two months' time. This order of the Rent Controller, on appeal, was confirmed by the Appellate Authority. On being aggrieved with the Order of the Appellate Authority, the tenant preferred a Civil Revision Petition before the High Court under Subsection (6) of Section 15 of the Act. On behalf of the tenant, it was urged before the High Court on the strength of Clause 'C' of Rule 4 and Clause (1) of Rule 5 of the Haryana Urban (Control of Rent and Eviction) Rules 1976 framed under Section 23 of the Act that since in the application for ejectment no specific amount of arrears due was mentioned, the application was not maintainable. The High Court rejected this plea observing thus: "Admittedly, no such objection as to the noncompliance of the said rules was taken either in the written statement or before the Rent Controller, inasmuch as it was not raised even before the Appellate Authority. Moreover, it has not been shown that any prejudice was ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the application, is satisfied- (i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable. Provided that if the tenant, within a period of fifteen days of the first hearing of the application for ejectment after due service, pays or tenders the arrears of rent and interest, to be calculated by the Controller, at eight percenturn per annum on such arrears together with such costs of the application, if any, as may be allowed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within the time aforesaid." The answer to the first legal question mainly turns on the interpretation of the proviso to Section 13 which refers to the following essential conditions namely: 1. There must be an application for ejectment before the Court; 2. The tenant, within a period of fifteen days of the first hearing of the application after due service, pays or tenders: (a) the arrears of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our considered view both these decisions cannot be of any assistance to the appellant in the present case because the points for determination that arose in those two cases were different. Mr. R.F. Nariman then advanced an argument that a statutory duty is cast under Section 13(2)(i) of the Act on the Rent Controller to calculate and determine the arrears of rent as well as the interest to be paid by the tenant within a period of 15 days of the first hearing of the application for ejectment after due service, but since the Controller has failed to discharge that obligation no eviction can be ordered particularly when there is a dispute with regard to the quantum of arrears of rent. From the judgment on appeal, it seems that a contention substantially identical to the one presently made was advanced before the High Court which repelled the same holding thus: "Going through the whole scheme of the Act, there is no provision that the Rent Controller should decide at the first date of hearing the amount due as arrears of rent. If this argument of the learned counsel for the petitioner is accepted, in that situation the tenant will have another opportunity for making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th reference to Rules 4(c), 5(1) and 6 of the Rules under the Act which rules read as follows: 4. Application for eviction. Section 13 Application under section 13 of the Act, shall besides the particulars mentioned in Rules 5 and 6 contain the following particulars namely: (emphasised) (a) xxxxxxxxxx (b) xxxxxxxxxx (c) The amount of arrears due and the period of default. 5(1) Applications Section 4 and 13(1) In addition to the particulars mentioned in rules 3, 4 and 6 as far as these may be applicable, every application made under this Act shall contain simple and concise narrative of the facts which the party by whom or on whose behalf the statement of pleading is made, believes to be material to the case and which he either admits or believes that he will be able to prove. (emphasised) 6. Particulars to be furnished to the Controller Section 21(1) Every landlord and every tenant of a building or rented land shall furnish to the Controller, or any person authorised by him in that behalf, the following particulars namely: (emphasised) (a) name and number of the building or rented land, if any, or its description and boundaries sufficient to identify it; (b) street ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute to be construed." Lord Penzance in Howard v. Bodington, [1877] 2 P.D. 203 at p. 211 said: "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory." In 'Craies on Statute Law' (Sixth Edition) at page 63, the following quotation is found: "When a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory" See Montreal Street Rly. Co. v. Normandin, [1917] AC 170. With reference to non-compliance of the directory enactment in 'Craies on Statute Law' it is said at page 261: "But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." See also K. Kamaraja Nadar v. Kunju Thevar and Others, [1959] SCR 583 and Ch. Subbarao v. Member, Election Tibunal, Hyderabad, [1964] 6 SCR 2 13. It is apposite to refer to the observation of this Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque, [1955] 1 SCR 1104 dealing with this problem: "It is well established that an enactment in form mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter." Reference may be had to (1) State of U.P. Ors. v. Babu Ram Upadhya, [1961] 2 SCR 679 and (2) Ajit Singh v. State of Punjab, [1983] 2 SCC 217. The word "shall" in its ordinary import is obligatory. Nevertheless, the word "shall" need not be given that connotation in each and every case and the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
