TMI Blog1965 (8) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... th December 1961. A copy of the letter also appears to have been forwarded by him to the petitioner landlord on the same day. The house was occupied by another Government servant named Sri D. P. Yadav on the 20th December 1961, but the formal order of the District Magistrate of Monghyr allotting the house to him (Annexure A) was made only on the 23rd December, 1961. Soon afterwards the petitioner applied to the District Magistrate for eviction of Sri B. P. Yadav on the main ground that the provisions of Clause (a) of Subsection (2) of Section 11 of the Act, regarding the due service of notice by the outgoing tenant of his intention to vacate the house, was not issued either to the petitioner landlord or to the District Magistrate. His application was dismissed by the District Magistrate by his order dated the 21st January, 1963, and then the petitioner came to this court under Articles 226 and 227 of the Constitution impugning the legality of that order of the District Magistrate. 3. In the petition before this court the petitioner alleged in paragraph 11 that the outgoing tenant, namely, Sri Srivastava, secretly vacated the building on the 20th December, 1961, without giving an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate or to both. Similarly, we are not concerned with the further question about the legal consequence which would arise if, though the outgoing tenant gave fifteen days' notice as required by the statute, the District Magistrate fails to pass the order of allotment within one week of the receipt of that notice, as required by the statutory provision. We are also not concerned with the legal effect of the omission on the part of the District Magistrate !o inform the landlord of the allotment of the house to Sri D. P. Yadav. The order of the District Magistrate (Annexure A) clearly shows that a copy of the order was forwarded to the petitioner also, and the petitioner has not asserted anywhere in his petition that he did not get a copy of that order. Thus thp legal questions that arise for decision by this Full Bench on t'he facts of this case may be formulated as follows: 1. What will be the effect of the failure on the part of the outgoing Government servant to give fifteen days' previous notice in writing of his intention to vacate the house tq. the landlord and to the District Magistrate? 2. What will be the legal effect of the omission on the part of the Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Mayawati Devi v. State of Bihar. Misc. Judt. Case No. 426 of 1957, dated 21-10-1959 (Pat). 7. It is now well settled by innumerable authorities that merely because a statutory provision uses the auxiliary verb shall or there is absence of the imperative, it does not necessarily follow that the said provision is either mandatory or directory. The leading decision is the well known Privy Council judgment in Montreal Street Rly. Co. v. Normandin, 1917 AC 170, where at p. 175 the principle was enunciated as follows: 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 110 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. This principle was adopted, and the aforesaid passage was also quoted, by their Lordships of the Supreme Court in State of U. P. v. Man-bodhan Lal Sriva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the Officer. At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p. 111 it is stated as follows: As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive . See also Crawford on Statutory Construction, Article 269 at p. 535. 9. Following the aforesaid authorities if appears that the undermentioned factors have to be considered in deciding whether the time limit provided in Clause (a) of Sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o confer an extra benefit where a tenant is a Government servant, and to provide, through the intervention of the District Magistrate, for the allotment of houses to Government servants even in preference to the rights of the landlord. Thus any construction of Clause (a) of Sub-section (2) must be made with this object prominently in view, and such construction should not be given which will render the benefit conferred on the Government servant illusory in many instances. The object of requiring fifteen days' notice to be given to the landlord seems to be to enable him to apply to the District Magistrate for restoration of ossession to him. He can also object to there-allotment of the house to another Government servant for adequate reasons. But it is not correct to say, as alleged by the petitioner, that the District Magistrate should also give one week's notice to the landlord before allotting the house to another Government servant. The words who shall, under intimation to the landlord, within a week of the receipt of the notice, either allot the building to any other servant of the Government whom the District Magistrate thinks suitable subject to the payment of rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay not suffer and it may not be feasible for the District Magistrate to wait for a week before allotting the quarters to him. The Legislature may be presumed to have been fully aware of these difficulties of Government servants when it passed Sub-section (2) of Section 11. It is true that under ordinary circumstances the time limit in Clause (a) of that section is intended to be obeyed by the outgoing Government servant and the District Magistrate. But to hold that the requirement about time limit is mandatory and that otherwise the allotment of the house by the District Magistrate will be null and void would be to render the benefit of this clause not available to some Government servants and defeat the policy and main aim of the Legislature,. 12. This seems to be the main reason why in the proviso to Clause (a) it is expressly stated that if the District Magistrate does not pass any order of allotment under the main portion of that clause, the landlord shall be deemed to have been put in possession of the building. Thus the landlord's right to possession of the building is stated to arise only when the District Magistrate omits to pass an order of allotment. This provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict Magistrate is null and void because of non-compliance with the requirement about time limit, the District Magistrate will not be able to evict him (or any person to whom he may let it) and allot the house to a Government servant later on, in view of the right conferred on the landlord by the proviso to Clause (b) of Sub-section (2). 14. For these reasons I must hold that the law laid down in the Division Bench decision in 1960 BLJR 368: (AIR 1961 Pat 254) and other Division Bench decisions, reported or imreported, to the same effect is not correct. 15. The answers to the two questions formulated at the end of paragraph 4 of this judgment are as follows: (l) The failure to give fifteen days' previous notice, either to the landlord, or to the District Magistrate, or to both, will not invalidate the subsequent order of allotment made by the District Magistrate. (2) The District Magistrate is not bound to give seven days' notice to the landlord before allotting the house to the succeeding Government servant. 16. The petition is, therefore, dismissed but without costs. Sahai, J. 17. I agree. Bahadur, J. 18. I agree. - - TaxTMI - TMITax - In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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