Heard learned counsel for the petitioner as well as learned Standing Counsel appearing on behalf of respondent no.1.
None appears for the respondent no.2, though he was being represented by learned counsel and on his request time was granted to file counter affidavit, but inspite of repeated opportunities having been granted, the counter affidavit has not been filed.
The facts of the case are very interesting. Both the petitioner and respondent no.2 have entered into a short term license for the premises bearing house no.86/204 (86/161-B), Kurmi Tola, Maqboolganj, Risaldar Park, Police station Qaiserbagh, Lucknow for a period of three months. After the expiry of said period of license, the respondent no.2 did not vacate the premises in question; the petitioner moved an application on 27.05.2000 before the learned prescribed authority under Section 2-A(5) of the U.P. Act No.13 of 1972 (here-in-after be called as 'Act'). The prescribed authority rejected the application vide order dated 24.01.2011 on a flimsy ground that the petitioner and respondent no.2 did not obtain any receipt or acknowledgment from the office of the District Magistrate with regard to information about the said license, which is required as per proviso (1) to Section 2-A of the 'Act'. The prescribed authority did not enter into the merits, as the intimation to this effect has not been submitted to the District Magistrate.
The first proviso to Section 2-A of 'Act of 1972' runs as under :-
"Provided that intimation of the grant of each licence shall be given jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee :
Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation) :
Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee."
In view of this provision, the intimation of such license (short term license for a period of not more than three months) shall be given jointly by the licensee and licensor. The liability and the duty of the information from the office of the District Magistrate lies equally both upon licensee as well licensor. If any of the parties fails to produce the receipt of intimation from the office of the District Magistrate, the licensee cannot keep occupying the premises in question in violation of the provisions contained under the 'Act'.
The learned prescribed authority has not applied its judicial mind and has entered into the technicalities, which are not recognized in the Indian Judicial System.
The learned prescribed authority should have considered judicially the consequences and outcome of non-compliance of the proviso to Section 2-A of 'Act', which jointly casts a duty upon the licensee and the licensor to inform the District Magistrate. In case, both of them have failed to inform the District Magistrate, both will be equally guilty. By the impugned order, the learned prescribed authority has passed the order with a big question mark before the landlord to get the premises vacated. There can be no wrong without a remedy.
As far as the use of word "shall" in the proviso, the guiding factor can be extracted with the observations of Lord Campbell in Maxwell on Interpretation of Statutes, 10th Edition, page 376, which reads :
"No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied annullification for disobedience. It is the duty of the Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of noncompliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done, not in the manner or form prescribed, can have no effect or validity; if it is directory, penalty may be incurred for non-compliance, but the act or thing done is regarded as good."
The aims and objects of the 'Act' are "to provide, in the interest of the general public, for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith".
Ordinarily the use of the word 'shall' prima facie indicates that the provision is imperative in character. However, the court while considering whether the mere use of the word 'shall' would made the provision imperative, it would ascertain the intendment of the legislature and the consequences flowing from its own construction of the word 'shall'. If the use of the word 'shall' makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands. If the word 'shall' is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order.
It has been held by Hon'ble Apex Court in the case of State of Haryana Vs. Rathubir Dayal, reported in 1995 (5) SCC (1), 133 :
"The use of the word 'shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word 'shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed hereon. The word 'shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word 'shall' as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public without very much furthering the object of the Act, the same would be construed as directory."
It has been held by Hon'ble Apex Court in the case of Karnal Improvement Trust Vs. Parkash Vanti, reported in 2002 (2) WLC 383 :
"no particular rule can be laid down in determining whether command is to be considered as a mere direction or mandatory involving invalidating consequences in its disregard. It is further held that fundamentally it depends upon the scope and objective of the enactment "it was said that annullification is a natural and usual consequence of disobedience, if the intention is of an imperative character."
In the case of Mohan Singh and others Vs. International Airport Authority of India and others, reported in (1997) 9 SCC, 132, the Hon'ble Apex Court has held :
"If an object to the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to the innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and promote public justice."
In view of the discussions, as made above, and the law laid down by the Hon'ble Apex Court, the proviso to Section 2-A of 'Act' does not set out consequences for its non-compliance, and as such, the use of the word "shall" is directory and not mandatory. It is directory in the sense that the 'Act' has been enacted by the legislature to provide for regulation of letting and rent, and the 'Act' disapproves any unregulated letting.
Learned prescribed authority was duty bound to keep in mind that the proviso (supra) has been enacted by the legislature with the intent to avoid the defaulting landlord to let out any building or its portion thereof in violation of the scheme as provided under Section 16 and 17 of the 'Act'. The legislature has, in its wisdom, made a provision for short term license under Section 2-A of 'Act', which can be granted for three months, but it is extendable up to six months with another condition that it shall not be let out or even given license within a period of one year.
In this particular case, the licensee has not vacated the premises in question. The learned prescribed authority has rejected the application of the landlord without observing the remedy available to the poor landlord. The Courts of law are redressal forums. The landlord has been left with no alternative remedy and equally defaulting tenant is enjoying the occupation. The learned prescribed authority should have called upon its judicial conscious to seek the reply. It is imperative to state that it is the sacrosanct duty of every public authority to remember that holding a public office is a public trust. The perception of disposing of the matter without result is a degrading treatment of the office, and thereby making the law innocuous. There are some megalomaniac officers who conceive the perverse notion that they are the 'Law' forgetting that law is the science of what is good and just and, in very nature of things, protective of a civilized society. Reverence for the nobility of a human being has to be the corner stone of a body polity that believes in orderly progress. Every judicial officer must ensure the majesty and sacrosanctity and dignity of the institution should not be allowed to be crucified. The purpose of public law is to protect the Constitutional mechanism. The law should be implemented in dynamic manner, which may not cause the sense of insecurity or helplessness in the mind of a single individual, as Pithily stated in Jennison Vs. Baker (1972) 1 All ER 997, 1006 :
"The law should not be seen to sit by limply, while those who defy if go free, and those who seek its protection lose hope."
A public servant must ensure a guarantee that he is answerable to the public at large, and as such, he must be result oriented. The duty casts upon judicial officers are much more important than that of a public servant. The Courts of law, in our setup, are living emblem to release stress in the society. Our district Courts are easier of access for litigants, and in this capacity, the Sub-ordinate Judges are expected to exhibit themselves as an activist Judge, otherwise the judicial mechanism would collapse and the aggrieved people would resort to non-judicial means, which shall destroy the Constitutional fabric.
In view of this circumstance, the impugned order cannot sustain, in the eye of law. It is noteworthy that "judicial sense is of divine nature and judicial sense of a Judge should be so high that when both the parties are apparently correct, the Judge could say who is more correct."
On the basis of the discussions above, the writ petition is allowed and the impugned order dated 24.01.2011 passed by learned prescribed authority is quashed. The respondent no.2 is directed to vacate the premises in question without delay and deliver the peaceful possession to the petitioner, failing which he shall have to pay Rs.100/= (rupees one hundred per day as damages till the date of actual vacation of the premises in question from the date when the license got expired.
Order Date :- 27.8.2012.
Rks.