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PETITIONER: AMMAL CHANDRA DUTT

       Vs.

RESPONDENT: IIND ADDL. DISST. JUDGE & ORS.

DATE OF JUDGMENT01/11/1988

BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) PATHAK, R.S. (CJ)

CITATION:  1989 AIR  255            1988 SCR  Supl. (3) 722  1989 SCC  (1)   1        JT 1988 (4)   291  1988 SCALE  (2)1450

ACT:     U.  P. Urban Buildings (Regulation of Letting, Rent  and Eviction)  Act  1972/U. P. Urban Buildings  (Regulation  of Letting,  Rent and Eviction) Rules,  1972--Section  21/Rules 18-Release  of  house  on  requirement  of  landlord--Second application--Whether permissible. %     Statutory  Interpretation: Where situation  and  context warrants word ’shall’ has to be construed as ’may’.

HEADNOTE:     In  1967 the second respondent landlord applied  to  the Prescribed   Authority,   under  section  3  of   the   U.P. (Temporary)  Control  of  Rent and Eviction  Act,  1947  for permission   to  file  a  suit  for  eviction  against   the appellant-tenant  on  the  ground  of  his  own  requirement because his brother with whom he was living had asked him to find accommodation elsewhere. This application was rejected.     After  the 1947 Rent Act was replaced by the U.P.  Urban Buildings  (Regulation  of Letting, Rent and  Eviction)  Act 1972,  the second respondent again sought the permission  of the  Prescribed Authority for recovery of possession of  the leased  premises  either fully or partially, on  the  ground that  he was living in great hardship in a single room in  a house.  The  Prescribed  Authority  refused  to  grant   the permission on the ground that the application had been  made within  a period of six months from the commencement of  the 1972 Rent Act and hence it was barred by Rule 18 (1) of  the U.P.  Urban  Buildings  (Regulation  of  letting,  Rent  and Eviction)  Rules,  1972. The Appellate  Authority,  however, granted  permission  to  the second  respondent  to  recover possession  of  the ground floor portion of the  house.  The appellant  moved  a petition in the High Court  against  the order of the Appellate Authority but did not succeed.     Before  this  Court  the appellant  contends  that(l)  a second application on the same ground made within six months from the commencement of the 1972 Act was barred under  Rule 18 (1) of the 1972 Rules; (2) the High Court’s view that  it is not barred because it is the circumstances of requirement and not the nature of the requirement that would  constitute                                                   PG NO 722

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                                                 PG NO 723 the  ground of eviction is erroneous and  unsustainable  (3) the  Act  and the Rules do not permit the  creation  of  two dwelling  units in a building covered by a  single  tenancy; (4) the Appellate Authority has erred in rendering a finding against the appellant in the matter of comparative hardship; and  (5)  the Appellate Authority and the  High  Court  have failed to notice the without the ground floor, the first and second  floors cannot be used as residence because the  bath and toilet rooms are situated only in the ground floor.     Dismissing the appeal, it was,     HELD:  (I) All that Rule 18(1) says is that if a  second application  is  made  for release of  the  house  on  which permission to sue was sought for in the previous application on  the same ground within a period of six months  from  the date  of the final order in that application or  within  six months from the commencement of the Act, whichever is later, ’the prescribed authority shall accept the findings in those proceedings as conclusive." [727E-Fl     (2)  Even if the two applications are treated as  having been  made on the same ground, the second application  would not  attract  the  operation of Rule 18(1)  since  the  Rule contains  only a formula of presumption based on facts.  The prescription  of the rule is only of a directory nature  and not of a mandatory nature [728C]     (3)  In  the  interpretation  of  statutes,  where   the situation and the context warrants, the word "shall" used in a section or rule has to be construed as "may". The  present context  is  one  such  where  the  words  "the   prescribed Authority shall accept the findings in those proceedings  as conclusive" have to be read as "the Prescribed Authority may accept  the  findings in those  proceedings  as  conclusive" because  the  finding  are based upon  existence  of  facts. [728(,-H]     (4)  It will be inequitable and unrealistic to  construe Rule  18(1) as containing an inexorable  legal  prescription for   rejecting  a  second  application  filed  within   the prescribed  time limit solely on the basis of  the  findings rendered in the earlier application. [729F]     (5)  The long interval of time between the rejection  of the  first  application and the date of  making  the  second application  viz.,  about five years,  and  the  significant changes  that  had taken place during the  interval  in  the living  conditions  of  the  second  respondent  undoubtedly rendered irrelevant the earlier findings. [730A-B]                                                   PG NO 724     (6)  Section  21(1) provides for an  order  of  eviction being  passed  against a tenant  ’From  the  building under tenancy or any specified part thereof." [730C]     (7)  It is open to the appellant to move the  Prescribed Authority   for  directions  being  given  to   the   second respondent  to make suitable provision in the  ground  floor for  the appellant and his family members to have access  to and  make  use of the bath and toilet rooms  in  the  ground floor. [730G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1201  of 1976.     From  the  Judgment  and  Order  dated  3.8.76  of   the Allahabad  High Court in Civil Miscellaneous Writ No.  12204 of 1975.     Appellant in person.

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   Dileep Tandon and R.B. Mehrotra for the Respondents.     The Judgment of the Court was delivered by     NATARAJAN,  J. This appeal by special leave by a  tenant is  directed  against the dismissal of  Civil  Miscellaneous Writ No 12204 of  1975 by the High Court of Allahabad.     The  second  respondent  became the  owner  of  a  house bearing  Municipal  No. 140 (old No. 94-A) in  Hewett  Road, Allahabad  under a gift deed executed in his favour  by  his mother in 1945. However even in 1944, his father had  leased the house to the appellant on a monthly  rent of Rs.30 which after  some years was raised to Rs.35 The house is a  three- storeyed  building  and the appellant was  residing  in  the first  and second floors and running a drug store  belonging to his wife in the ground floor. Some years later the second respondent’s father leased out an adjacent building also  to the appellant for being used for the drug store business.     In 1967 it became necessary for the second respondent to seek  recovery of possession of the house because his  elder brother,  with  whom  he  was  living,  asked  him  to  find accommodation  elsewhere.  Therefore the  second  respondent applied   for  permission  under  Section  3  of  the   U.P. (Temporary)   Control   of  Rent  and  Eviction   Act   1947 (hereinafter  referred  to  as the 1947  Rent  Act)  to  the Prescribed Authority to file a suit for eviction against the                                                   PG NO 725 appellant on the ground of urgent and reasonable requirement of  the  house  for  his  own  occupation.  The   Prescribed Authority  rejected  the application on November  10,  1967. After  the  1947 Rent Act came to be replaced  by  the  U.P. Urban  Buildings (Regulation of Letting, Rent and  Eviction) Act  1972  (hereinafter  the  1972  Rent  Act),  the  second respondent  again  sought the permission of  the  Prescribed Authority to file a suit against the appellant but this time he sought for recovery of possession of the leased  premises either  fully  or partially. He averred in  the  application that since his brother had asked him to vacate his house  he had taken up residence in a single room in the house of  one Srivastava  and  was living there in great hardship  and  as such  he  wanted to recover possession of his house  in  its entirety  failing  which  at  least a  portion  of  it.  The Prescribed  Authority  refused to grant  permission  on  the ground the application had been made within a period of  six months from the commencement of the 1972 Rent Act and  hence it  was  barred by Rule 18(1) of the  U.P.  Urban  Buildings (Regulation  of  Letting,  Rent and  Eviction)  Rules,  1972 (hereinafter  the Rules). The Appellate Authority,  however, differed   from   the  Prescribed  Authority   and   granted permission to the second respondent to recover possession of the  ground floor portion of the house alone. Thereupon  the appellant  moved  the High Court under Article  226  of  the Constitution  for issuance of a writ to quash the  order  of the  Appellate Authority but did not meet with  Success  and hence this appeal by special leave.     A few facts may first be noticed before the  appellant’s contentions are set out and examined. Admittedly, the second respondent  became the owner of the leased premises  in  the year  15145 under a gift settlement made by his  mother  and except the leased building he has no other house. It is also an  admitted  fact  that  when  the  first  Application  for permission to sue was made, the second respondent was living with his brother but subsequently he had to move out of that house  and take up residence in a single room in a  building belonging to one Srivastava. A Commissioner appointed by the Court  had  inspected  the  room  occupied  by  the   second respondent  and found that the second respondent  was  faced

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with  acute  shortage of space and that the  bath  room  and latrine  were situated in the ground floor which was in  the landlord’s  occupation.  While  the  prayer  in  the   first application  was  for the release Of the entire  house,  the prayer  in  the second application was for  release  of  the whole  house  or in the alternative for the  release  of  at least a portion of the house.                                                   PG NO 726     Coming now to the contention of the appellant, who is a member of the bar and who appeared in person and argued  the case for himself. they were as follows:     1.  The application made under the 1972 Rent Act  was  a second  application  for release of the house  on  the  same ground  of  requirement and hence it was barred  under  Rule 18(1) of the Rules since it had been made within six  months from the commencement of the 1972 Rent Act.     2. The High Court’s view that the second application was not barred under Rule 18(1) because it is the  circumstances of  requirement and not the nature of the  requirement  that would  constitute  the ground of eviction is  erroneous  and unsustainable.     3.  The Act and the Rules do not permit the creation  of two dwelling units in a building covered by a single tenancy and  hence the grant of permission for partial  eviction  is bad in law.     4.  The  Appellate Authority has erred  in  rendering  a finding  against the appellant in the matter of  comparative hardship  merely because the appellant had another  building adjacent to the leased premises for running the drug store.     5.  In any event, the Appellate Authority and  the  High Court  have failed to notice that without the ground  floor, the  first  and second floors cannot be  used  as  residence because  the bath and toilet rooms are situated only in  the ground floor.     ’The learned counsel for the second respondent.  besides refuting the above contentions of the appellant argued  that the  appeal  itself  has become  unsustainable  because  the appellant  has vacated the building in the year 1976  itself and  taken  up residence in another house belonging  to  his wife  and  consequently  by reason  of  Explanation  (1)  to Section  21  of  the 1972 Rent Act,  he  is  disentitled  to dispute the second respondent’s right to recover  possession of the house.     We will now consider the contentions of the appellant in seriatum In so far as the first contention is concerned,  it suffers  from  a  fallacy  in that  it  is  founded  upon  a misconstruction  of  Rule  18 (1) The Rule  in  question  is worded as under:     18.  Avoidance of multiplicity of  proceedings  (Section 38(4)  and  41)--(l)  Where an  application  of  a  landlord against  any  tenant  for  permission to  file  a  suit  for                                                   PG NO 727 eviction  under  Section  3 of the old Act,  on  any  ground mentioned  in  Section  21(1) has been  finally  allowed  or rejected  on merits either before or after the  commencement of  the  Act,  whether  by the  District  Magistrate  or  on revision  by  the Commissioner or the  State  Government  or under  clause  (i)  or clause (m) of Section  43(2)  by  the District  Judge, and the landlord instead of filing  a  suit for  eviction makes an application under Section 21  on  the same ground within a period of six months from such decision or from the commencement of the Act, whichever is later, the Prescribed  Authority  shall accept the  findings  in  those proceedings conclusive. " (emphasis supplied)     Provided  that the period during which the operation  of

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any  permission  as aforesaid is stayed by  order  ot’  any court  or authority shall be excluded in computing the  said period of six months     (2) .....   omitted.     On a reading of Rule 18(1), it may be seen that the Rule does  not prohibit or bar the filing of an  application  for release  of any building on any ground mentioned in  Section 21( 1) within a period of six months from the date on  which a  final order was passed in the previous  application  made under Section 3 of the 1947  Rent Act or within a period  of six  months from the commencement  of the Act. All that  the Rule  says  is  that it a second  application  is  made  for release  of the house on which permission to sue was  sought in  the  previous application on the same  ground  within  a period  of  six months from the date of the final  order  in that application or within six months from the  commencement of  the  Act whichever is later," the  prescribed  authority shall   accept   the  findings  in  those   proceedings   as conclusive."  The Rule only sets out a rule of   presumption to be followed by the Prescribed Authority for dealing  with an  application  for release on the same  ground  without  a sufficient  interval of time between the filing of  the  two petitions   The  Rule  does  not  mandate  that   a   second application preferred on the same ground within a period  of six  months  from  the date of the  order  in  the  previous application  or  from  the  commencement  of  the  Act  must necessarily  be  dismissed as barred under  the  Rules.  The first  contention  of the appellant is  therefore  obviously misconceived and cannot therefore be sustained                                                   PG NO 728     In  so  far as the second contention is  concerned,  the appellant is right when he says that the earlier application under  Section  3  of  the  1947  Rent  Act  and  the  later application under Section 21(1) of the 1972 Rent Act  should be construed as having been made on one and the same  ground viz.  bona  fide requirement of the premises by  the  second respondent  for  his  own occupation.  The  High  Court  has however  taken the view that the ground of eviction  in  the two  applications is not the same because different sets  of circumstances would constitute different grounds and such  a test is satisfied in this case. We do not think it necessary to  go into the question whether the High Court’s   view  is correct or not because even if we treat the two applications as  having  been  made  on  the  same  ground,  the   second application  would not attract the operation of Rule  18(1). Since the Rule contains only a formula of presumption  based on  facts, it goes without saying that the  prescription  is only   of  a  directory  nature  and  not  of  a   mandatory nature.  In  this  context we may appositely  refer  to  the following   passage  in  Phipson  on  Evidence   (Thirteenth Edition) at pages 4 and 5:     "Presumptions are either of law or fact. Presumptions of law  are arbitrary consequence expressly annexed by  law  to particular  facts; and may be either conclusive, as  that  a child  under  a certain age is incapable of  committing  any crime;  or  rebuttable, as that a person not  heard  of  for seven  years  is dead, or that a bill of exchange  has  been given for value.     Presumptions  of  fact  are inferences  which  the  mind naturally and logically draws from given facts, irrespective of their legal effect. Not only are they always  rebuttable, but the trier of fact may refuse to mke the usual or natural inference   notwithstanding  that  there  is  no   rebutting evidence."     Besides  it  is  a  well-known  principle  that  in  the

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interpretation of statutes that where the situation and  the context  warrants it, the word "shall" used in a Scction  or Rule of a statute has to be construed as "may". The  present context  is  one  such  where  the  words  "the   Prescribed Authority shall accept the findings in those proceedings  as conclusive" have to be read as "the Prescribed Authority may accept  the  findings in those  proceedings  as  conclusive" because the findings are based upon existence of facts.     We   may  now  set  out  the  reason  as  to  why   the prescription  in  Rule  18(1) should be  construed  as  only                                                   PG NO 729 directory  and not  mandatory In the first place,  the  Rule envisages  two  kinds of situations, one of them  where  the second application is made within an interval of six  months from  the  date  on which final orders were  passed  in  the previous   application  and  the  other  where  the   second application is made beyond an interval of six months,  which may  even go up to several years, as in this case where  the interval  was over five years, but within six months of  the Act  coming  into force. Surely, the legislature  would  not have  intended that the interval factor in the two  sets  of situations  should be visited with the same consequences  by adopting   a  rigid  and  inflexible  application   of   the prescriptive  guideline  given in Rule 18(1)  .  The  second factor  is  that  even if the interval factor  is  the  sole criterion  for the application of the formula  contained  in Rule  18(1),  the legislature could not have  intended  that even where drastic changes had taken place subsequent to the disposal   of  the  earlier  application,   the   prescribed authority  should  shut  his eyes to the  realities  of  the situation and blindly and mechanically apply the formula  in Rule 18(1) and reject the second application. To cite a  few examples  it  may be that after the disposal  of  the  first application, the landlord had been rendered houseless due to the house occupied by him falling down due to decay or heavy rains  or  being destroyed by fire Could any  one  say  that irrespective  of  the  changes that have  taken  place,  the findings rendered in the previous application would have the force of relevancy till the period of six months fixed under the  Rule has expired? It is, therefore, manifest  that  the rule  of  presumption enunciated in Rule 18(1)  is  only  to serve  as  a  guideline to be  followed  by  the  prescribed authority if he finds the circumstances to remain  unchanged and the finding rendered in the earlier application to  have relevancy  even with reference to the facts set out  in  the second  application the Rule intended to avoid  multiplicity of  proceeding as the very heading given to the  Rule  would make   it  clear  It  will  therefore  be  inequitable   and unrealistic  to  construe  Rule  18  (1)  as  containing  an inexorable   legal  prescription  for  rejecting  a   second application filed within the prescribed time limit solely on the   basis  of  the  findings  rendered  in   the   earlier application.     In  this case we have already referred to the fact  that after  the  first  application  was  rejected,  the   living conditions  ot’ the second respodent had changed  materially He had been turned out of his brother’s house and forced  to take  up  residence in a single room belonging  to  a  third party and live there in great discomfort and hardship In the plight  in  which  he was placed, he was  even  prepared  to accept  partial  release  of the house it’ he  could  not  get release  of the entire premises. The long interval  of  time                                                   PG NO 730 between the rejection of the first application and the  date of  making the second application viz. about five years  and

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the  significant  changes that had taken  place  during  the interval  in the living conditions of the second  respondent undoubtedly  rendered  irrelevant the earlier  findings  and such  being the case the rule of presumption given  in  Rule 18(1)  can  have no application or relevance to  the  second application.  Viewed  in this manner, we do  not  think  the Appellate  Authority  or the High court  has  committed  any error in granting the relief of partial release of the house to  the  respondent  Hence  the  second  contention  of  the Appellant has also to fail.     So  far  as the third contention is concerned  viz.  the impermissibility of creating two dwelling units in a  single tenanted  premises, the argument fails to note that  Section 21(1) provides for an order of eviction being passed against a  tenant "from the building under tenancy or any  specified part thereof." (Emphasis supplied). We do not therefore find any error in the second respondent being granted the  relief of partial eviction.     As  regards the fourth contention, it is  admitted  that the  appellant had been given an additional building by  the second respondent’s father for being used for the drug store business  Since the appellant was using the ground floor  in the suit premises only for running his wife’s drug store and was  not living there in the Appellate Authority  cannot  be said to have committed any error in taking the view that in the  matter  of comparative hardship the  second  respondent would  be  the  more affected person  if  eviction  was  not ordered  than the appellant by an order of partial  eviction being  passed  because  he had another  building  and  could conveniently shift his business to that building.     Coming  to the last contention of the appellant viz  the unsuitability of the first and second floors for residential purpose without the use of the bath and toilet rooms in  the ground  floor,  it  is open to the  appellant  to  move  the Prescribed  Authority  for  directions being  given  to  the second  respondent to make suitable provision in the  ground floor  for  the  appellant and his family  members  to  have access to and  make use of the bath and toilet rooms in  the ground floor.     As  regards  the contention of the respondent  that  the appellant  and his wife are now living in a house  belonging to  the  appellant’s  wife  and as  such  the  appellant  is precluded under Explanation (i) to Section 21(1) of the 1972 Rent  Act  from resisting the second respondent’s  suit  for eviction,  we  are unable to make any  pronouncement  on  it because  of  lack of evidence in support of  that  plea  and                                                   PG NO 731 besides the appellant would say that the house now  occupied by  him and his wife is the subject matter of  a  litigation between his wife and her uncle.     In the light of our conclusions, the appeal fails and is accordingly  dismissed. There will, however, be no order  as to costs. R.S.S.                                     Appeal dismissed.