ORDER
S.J. Hyder, J.
1. The only question, which has been canvassed at the bar in support of this revision, is that Sections 13 and 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982, hereinafter referred to as ‘the Act’ are not operative. Special procedure, prescribed under section 14 of the Act, for the disposal of suits for eviction on the grounds referred to in Clauses (c) and (e) of Sub-section (1) of Section 11 of the Act, it is contended, should not have been invoked by the court below. In order to appreciate the submissions urged on behalf of the applicants, the facts of the case and the salient provisions of law bearing on the questions may be noticed.
2. The applicants are the tenants of a building of which plaintiff-opposite party is the landlord. Plaintiff opposite party filed the suit giving rise to this revision for ejectment of defendants-applicants in the court of Munsif, Hazaribagh. Two grounds were disclosed in the statement of claim filed by plaintiff-opposite party. In the first place it was stated by him that the building in dispute had been let out by him to defendant-applicants for a fixed period of five years which expired on Feb. 17, 1983 and, as such, plaintiff-opposite party was entitled to obtain possession of the building in dispute from defendants-applicants. It was next stated by him that the building was bona fide required by plaintiff-opposite party for his personal use and occupation as he intended to start a business of his own in the said building. The Munsif, Hazaribagh, issued summons by registered post to defendants-applicants fixing Mar. 9, 1983 for the appearance of defendants-applicants. The envelope containing the summons was returned with an endorsement ‘refused’, whereupon the Munsif, by his order dt. Mar. 9th 1983, directed plaintiff-opposite party to take further steps for summons by registered post. Summonses through registered post were again issued to defendants-applicants and the same were returned with the same endorsement. This time, the Munsif directed that the case should be heard ex parte on Mar. 24, 1983. This case was not taken up for hearing on that date but was adjourned for April 8, 1983. On that date, defendants-applicants appeared before the court through a counsel and sought time to file counter to the claim petition of plaintiff-opposite party. The Munsif accepted the motion and allowed time to defendants-applicants to file a rejoinder up to April 16, 1983. On that date again, defendants-applicants sought time to file reply. Their request was allowed and they were granted time up to May 10, 1983. On May 24, 1983, defendants-applicants made an application for setting aside the order for ex parte hearing dt. Mar. 18, 1983. Arguments of defendants-applicants were heard on July 23, 1983 and the court-passed the impugned order. The Munsif was of the view that since defendants-applicants had not complied with the mandatory provisions contained in sub- Section (4) of Section 14 of the Act, the ex parte order could not be set aside.
3. In the year 1947, the State Legislature passed an Act regulating the eviction of the tenants from buildings and other incidental matters. This Act was of temporary duration and was continued by successive notifications until it lapsed on Mar. 31, 1976. Thereafter the State Legislature passed a fresh Act concerning regulation of eviction of tenants from buildings and other connected matters. This Act, for the sake of brevity, is referred to in this Judgment as Act XVI of 1977. It was limited in duration and was to expire on Mar. 31, 1981. On the expiry of Act XVI of 1977 no legislative measure concerning the above subject was enacted or brought on the Statute book. However, the Governor of Bihar was pleased to issue Ordinance No. 63 of 1982 in relation to the matters which were previously governed by Act XVI of 1977. It was through this Ordinance, Sections 13 and 14 of the Act were, for the first time, brought on the Statute Book. It is evident from the perusal of Ordinance 63 of 1982 that it brought about certain other changes also in the law governing the relationship of tenants of buildings and their landlords. The Bihar Legislature then enacted the Act which is a verbatim copy of the ordinance. Only Section 34 of the Act which deals with repeal of the Ordinance and the consequence of such repeal has been added.
4. This brings us to the salient provisions of the Act. Section 1 of the Act deals with the extent and commencement of the Act. According to the said provisions, the Act is to apply to the whole of the State of Bihar. Sub-section (3) of that section lays down that Section 28 of the Act shall come into force immediately and its remaining provisions shall be deemed to have come into force on April 1, 1981. Section 28 of the Act deals with penalty consequent on the contravention of any provision contained in the Act. Thus retrospective operation has been given to the Act so as to bridge the gap between the expiry of Act XVI of 1977 and the actual enactment of the Act. Section 2 is the definition clause. Clause (g) of that section defines “prescribed” to mean prescribed by rules made under the Act. Section 11 of the Act deals with the grounds on which a suit may be instituted for eviction of a tenant of a building. The said section has been given overriding effect and it derogates from Chap. V of the Transfer of Property Act. Clauses (c) and (e) of Sub-section (1) of Section 11 in so far as they are relevant, are quoted below : —
"(c) Where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord; x x x x x (d) xxxxx x x x x x (e) in case of a tenant, holding on a lease for specified period, on the expiry of the period of the tenancy; and xx x x x"
In Section 13 of the Act, it is stated that the provisions of Section 14 or of any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this or in any other law for the time being in force. Section 14 of the Act prescribes special procedure for the disposal of suits filed by a landlord for the possession of any building, on the grounds specified in Clauses (c) and (e) of Sub-section (1) of Section 11 of the Act. Sub-section (2) of that section lays down that “the Court shall issue summons in the prescribed form in every suit based on the grounds specified in Clauses (c) and (e) of Sub-section (1) of Section 11 of the Act. Sub-section (4) of Section 14 of the Act is relevant and it is also the basis of the order of the Court below :
“(4) The tenant on whom summons is duly served (whether by ordinary mail or by the registered post) shall not contest the prayer for eviction from the premises unless he files, an affidavit stating the ground on which he seeks to make such contest and obtains leave from the Court as hereinafter provided; and in default of the appearance in pursuance of the summons or his obtaining such leave the statement made by the landlord in the suit for eviction shall be deemed to be admitted by the tenant and the landlord shall be entitled to an order for eviction on the ground aforesaid.”
An order made under Section 14 of the Act is not appealable. In other respects also if contains stringent provisions. In short, the procedure prescribed for the hearing of a suit filed by a landlord against his tenant on grounds mentioned in Clauses (c) and (e) of Section 11 of the Act is not only in derogation of the ordinary procedure prescribed for the hearing of suits but is heavily loaded in favour of the landlord.
5. Sub-section (1) of Section 33 of the Act empowers the State Government to make Rules for carrying out the purposes of the Act. Sub-section (2) of that Section lays down that “in particular and without prejudice to the generality of the powers conferred on the State Government”. Under Sub-powers (sic) to frame rules in respect of matters enumerated in Clauses (a) to (e) of Section 33 of the Act.
6. It is common ground between the parties that Rules have been framed by the State Government in pursuance of the Rule making power given to it under Sub-section (1) of Section 33 of the Act. It is also common ground between the parties that no form of summons which may be issued to the tenant in a suit falling in the ambit of Section 14 of the Act, is contained in the said Rules. In other words, there exists no prescribed form of summons to be issued to the defendants in a suit of the nature referred to above. Summons may be issued to a defendant either for appearance on a particular date or for the hearing of a suit. There is slight variation in the summons of the two descriptions in the. Schedule annexed to the Civil P. C. At the time of admission of the present revision, it was made clear that the record of the case be not summoned and, as such, it cannot be ascertained in which form the summonses were issued to defendants-applicants.
7. As already stated, the Act has been given retrospective effect. It is deemed to have come into force on April 1, 1981. The Act includes Sections 13 and 14 which are also deemed to have come into force on that date. However, according to the submissions made on behalf of defendants-applicants, the sections referred to above did not come into force at all as no form for the service of summons has been prescribed. Alternatively, it is submitted that Sections 13 and 14 of the Act should be deemed to be in a state of suspended animation and can come into force if and when a form of summons to be issued to the defendants is prescribed by the State Government in accordance with Sub-section (2) of Section 14 of the Act.
8. I see no logical basis for the doctrine of suspended animation. Either Sections 13 and 14 of the Act came into force along with the Act or they did not come into force at all with the commencement of the Act. The Legislature has not expressly conferred any power on the State Government to suspend the operation of any particular provision of the Act to a future date. All that has to be enquired into is whether such power can be implied from the rule making power which is conferred on the State Government by Section 33 of the Act.
9. In support of his contention that Sections 13 and 14 of the Act did not come into
operation as no form of summons to be served on the tenant has been prescribed by the State Government under its rule making power, four submissions have been pressed upon me by the learned counsel for defendants-applicants. In the first place, it has been urged that the Act is beneficial to the tenants and Sections 13 and 14 thereof are in the nature of an exception. An exception, it is urged by the learned counsel, must be construed strictly. It was next submitted by him that Section 14 deals with the procedure in a suit falling under Clauses (c) and (e) of Sub-section (1) of Section 11 of the Act. Procedural provision, according to the submissions of the learned counsel, must be strictly complied with and since no form has been prescribed by the State Government for issue of summons to the defendants, in a suit governed by Section 14 of the Act, there can be no strict compliance with its provision. Thirdly it is urged, if a thing has to be done in a particular manner, it should be done in that manner alone or not at all. Lastly it has been submitted at the bar that since no form as laid down by Sub-section (2) of Section 14 of the Act has been prescribed it is a case of casus omissus and the court will be legislating, if it were to say that the summons may be issued to a defendant in a particular manner. In support of these arguments, learned counsel relies on Crawford on Statutory Construction, Craies on Statutory Laws and a number of decisions of the Supreme Court and the different High Courts. The above abstract propositions urged on behalf of defendants-applicants are well founded. I, therefore, do not consider necessary to refer to the authorities cited at the bar. It has only to be determined whether principles stated above apply to the facts of the instant case in the manner alleged by the counsel.
10. I am unable to agree with the learned counsel that Sections 13 and 14 of the Act are in the nature of exception to the general rule which is alleged to pervade to the provisions of the Act. It may be stated that the general law of tenancy is contained in Chap. V of the T. P. Act, 1882. It may also be stated that the Transfer of Property Act was the handiwork of British intellectuals who were not immune to the sense of euphoria created by the Industrial Revolution and
the loot coming from the colonial countries. The Doctrine of laissez faire as propounded by Adam Smith permeated the thinking of these intellectuals and great store was placed on private property It is not, therefore, surprising that the T. P. Act is heavily loaded with this thinking. Under the general law governing tenancy all that a landlord is required to do is to serve a notice under Section 106 of the Transfer of Property Act to get rid of an unwanted tenant. When such notice has been served on the tenant, a landlord can institute a suit for eviction without any ado. This is the law governing tenancy in the United Kingdom also. However, in that country, various Rent Acts have been passed which modify the common law. This has also been done in India after 1947 in relation to the tenancies pertaining to buildings. Different States in the country have passed legislations which placed restriction on the enhancement of rent and
also on the eviction of tenants.
11. It is sometimes said that the Judges in this country are conservative by nature and are backward looking. This criticism, is perhaps, justified. However, it should not be forgotten that all fundamental laws which are still in force in this country were brought on the statute book by the Colonial Rulers during Nineteenth Century. The lawyers and the Judges of this Country have been educated and trained under the said laws. It is, therefore, natural for the Judges and the lawyers to suffer from the colonial hangover.
12. It may be said that what has been
stated in the preceding para is not strictly
speaking relevant for the decision of this
case. Anyhow what I intended to stress
was the general law governing tenancy,
including the tenancy of buildings, was
originally governed by the T. P. Act, 1882.
On the reasoning of the learned counsel,
the Act and the similar legislations in other
States constitute an exception to the
general law and must be strictly construed.
However, the Courts have taken contrary
view, and if I may say, with respect, rightly
so. It has been consistently held by all
High Courts and also by the apex court of
the country that Rent Control Legislation
passed by the different States are
beneficial pieces of legislation and that
they may be construed in favour of the
tenant so as to advance the remedy.
13. It is, thus, evident that the Statutes which are later in point of time are not construed as an exception to the general rule embodied in an earlier one. I see no difference in principle if two sets of provisions in the same Statute are dealt with in a similar manner. It is not possible for tenants to claim that virtue lies on their side above and that in every case the landlord is the villain of the piece. The law reports abound with cases in which a tenant is found guilty of prolonging litigation to avoid this ultimate doom. As such the Bihar legislature in its wisdom has provided for summary procedure governing suits only in respect of two grounds on which the tenants can be evicted. The provisions conferring benefit on the tenants are severable from Sections 13 and 14 of the Act. In other words, the two sets of provisions are independent of each other and deal with different topics and distinct subjects. The first submission urged in support of this revision, therefore, fails.
14. I am also unable to agree with the submission of the learned counsel that the rule of strict compliance of the rules of procedure can be invoked to sustain this revision. Even if it be assumed that it was mandatory on the part of the State Government to prescribe a form for service of summons on the tenants in a suit governed by Section 14 of the Act, the Munsif cannot be said to have violated the procedure prescribed by law. It is the admitted case of the parties, it is indeed the foundation on which this revision is based, that no form has been prescribed by the State Government under Sub-section (2) of Section 14 of the Act. The Rule of strict compliance with the procedure prescribed comes into play only when there is any violation of procedural requirement. If no form existed in which summons should have been issued no fault can be found with the Munsif.
15. The third argument of the learned
counsel is equally ill-founded. Sub-section (2)
of Section 14 of the Act, as I shall presently
show, is not mandatory. This submission of
the learned counsel is based on an
assumption, which is incorrect.
16. The last submission urged by the counsel in support of this revision also does not commend itself. The terms of
Section 14 of the Act are clear, unambiguous, and do not admit of any doubt. They do not suffer from any omission which needs to be supplied. True it is that in the exercise of its rule making power no form of summons to be served on a defendant in a suit governed by that provision of law has been prescribed by the State Government in the exercise of its rule making power. At the same time it cannot be overlooked that the defendants-applicants themselves appeared before the court. It was not in pursuance of summons that such appearance was made by them. It is, therefore, wholly immaterial in which form the summonses were issued to them. The submission of the learned counsel is wholly besides the point. More will be said about the submission in a Later part of this judgment.
17. I have repeatedly stated above that the Act, except Section 28 thereof, has been given retrospective effect. Needless to emphasise that an Act speaks from the moment it commences. Sometimes the power of commencement of an enactment is conferred on an outside agency, such as the State Government. In that case, the commencement of the Act is dependent on a notification issued in that behalf by the State Government. It is called an instance of conditional legislation. Occasionally legislature itself fixes the date of its commencement of an Act: Such an Act is not conditional legislation and comes into effect on the date prescribed in that behalf by the legislature itself. The proposition for which learned counsel for the defendants-applicants has contended, would make Sections 13 and 14 of the Act conditional on the prescription of a form of summons to be issued to a defendant of a case under Sub-section (2) of Section 14 of the Act. This interpretation would run counter to the will of the legislature and cannot be accepted.
18. The legislatures in India, within the sphere assigned to them, are sovereign taw making bodies. However, a legislature cannot itself foresee every fact upon which it desires to base legislative action or comprehend every derail which may be necessary for giving effect to the legislative policy contained in art Act. It has, therefore, been found necessary to confer power on an outside instrumentality such as the State
Government to frame rules to give effect to the purpose of an enactment. It is however, to be remembered that an enabling provision conferring power to give effect to the will of the legislature cannot be called in aid to defeat the object of the legislature. In Sections 13 and 14 of the Act, the Legislature has made the legislative intent clear. As already stated, the said provisions provide for a special procedure governing suits of a particular nature. May be that the State Government has not prescribed the form of summons to be issued to a defendant in a suit falling under the said provisions of law. This omission on the part of the Bihar State cannot be legitimately construed as if repealing or holding in abeyance the operation of the said provisions of law as if by a side wind.
19. The law recognises a distinction between a statute which is imperative and a statute which is merely directory. Maxwell on his treatise “The Interpretation of Statutes”. (Twelfth Edition) has stated thus :
“The first such question is; when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its Validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty if any were imposed, for breach of the enactment “An absolute enactment must be obeyed or fulfilled exactly, but in is sufficient if a directory enactment be obeyed or fulfilled substantially.”
Later in his work, Maxwell relies with approval on a passage in Howard v. Bodington (1877) 2 PD 203, at p. 211. In that case. Lord Penzance 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”.
20. With the above observations in view, let us examine the object behind Section 14 of the Act. As already stated, the said Section applied only to suits by a landlord on two of the enumerated grounds mentioned for eviction of tenants from a building referred to in Section 11 of the Act. It is also clear from a perusal of Section 14 of the Act that it provides for a procedure governing a suit on the two grounds which is different from the procedure prescribed by the Code of Civil Procedure. The whole object behind Sub-section (2) of Section 14 of the Act is to intimate to the tenants-defendants that the suit is one in which the new procedure shall be followed. Nothing more can be read in the prescription that a form of summons to be issued to a defendant of a suit governed by Section 14 of the Act shall be laid down in the Rules. Section 14(2) of the Act cannot, therefore, be read as mandatory and the procedure prescribed by Section 14 of the Act does not become inapplicable merely because the form of summons has not been prescribed by the State Government. The object behind sub-sec. (2) of Section 14 of the Act can be achieved by conveying the necessary information to the defendant in any other suitable manner. It has perforce to be held that Section 14(2) of the Act is only directory.
21. The matter will become clear from an illustration. A defendant in a suit to which the provision of Section 14 of the Act squarely applies may be vigilant enough to appear on any date before summonses are issued to him. In such a contingency it will be superfluous to serve a summons on the said defendant and he may nevertheless, be permitted to contest the suit if permissible under Section 13 of the Act. In such a contingency, the defendant cannot be heard to say that extraordinary procedure laid down under Section 14 of the Act is inapplicable in his case as no summons had been served upon him as required by Sub-section (2) of Section 14 of the Act. The answer to such an objection will be in the negative.
22. In short, what is necessary is that a defendant governed by Section 14 of the Act should have information of the suit. He should also have knowledge that such suit
will be-governed by the new procedure
contained in that section. Beyond that nothing more can be read in Sub-section (2) of Section 14 of the Act. The knowledge of the suit and the procedure prescribed for it may be acquired by the defendant in any manner whatsoever. The Courts are under a duty to give effect to the legislative intent which is clear from the provision of the Act. To insist that the new procedure prescribed by Section 14 of the Act can come into force only when a summons as required by Sub-section (2) of Section 14 of the Act has been prescribed by the State Government is to insist on a futile rigidity. It is not possible to subscribe to the view that Section 14 of the Act has either not come into force or stands pro tanto repealed on account of inaction of the State Government. The Rules framed by the State Government under Section 33 of the Act are only ancilliary to the purposes of the Act. They strangely depart from the course earmarked for them when they govern instead of subserving the purposes of the Act. In case the submission of the learned counsel is accepted, it will be an instance of the tail wagging the dog.
23. It is to be regretted that the State Government did not prescribe the form of summons to be issued on the defendant in compliance with the requirement of sub-sec. (2) of Section 14 of the Act while framing Rules under the enabling provisions of Section 33 of the Act. If this omission had not occurred much time of the Court and expenses of the parties could have been avoided. This omission, however, is not fatal to the maintainability of a suit falling within the four corners of Section 14 of the Act. The doctrine of casus omissus does not apply to such a case.
24. Applying the above principles to
the fact of the instant case, it can be safely-
presumed that the defendants-applicants
acquired knowledge of the suit and the
procedure to be followed in that suit when
they engaged a counsel and appears in
court through him. At that stage they were
only content that by making an application
for setting aside the ex parte order, and
they took no steps for compliance with the
provisions contained in Section 14 of the
Act. Even their application for setting
aside the ex parte order did not disclose
any sufficient cause. There is no whisper
in their application that they have been
misled on account of the fact that the summons issued to them did not indicate that a new procedure had to be followed in the case. In such circumstance, the trial court was right in rejecting the application moved by the defendants-applicants for setting aside the ex parte order.
25. For the reasons stated above, I find no force in this revision application which is dismissed. There shall be no order as to
costs.