@JUDGMENTTAG-ORDER
1. In this writ petition under Art. 226 of the Constitution, the petitioner has challenged the order dt. 26-11-1976 of the House Rent Controller, City Area, Bangalore (hereinafter referred to as ''the Controller)'' (Ext.D) affirmed in appeal on 10-2-77 (Ext.H) by the Special Deputy Commr, Bangalore Dist allotting premises bearing No. 67815 situated in III Main Road, Vyalikaval, Bangalore-3 to respondent-3.
2. Admittedly, residential premises bearing No. 67815 situated in III Main Road. Vyalikaval, Bangalore, is jointly owned by the petitioner, his sister Dr. Miss B.S. Prapulla Kumari and his brother B.S. Narendra and the same was in occupation of one H.R. Sahni as their tenant. It is the case of the petitioner that H.R. Sahni vacated the premises on 8-1-76 and the same was immediately notified to the Controller in accordance with the provisions of the Karnataka Rent Control Act. 1961 (hereinafter referred to as ''the 1961 Act''), which fact is not denied by the respondents by filing any return in the case. In response to the advertisement of vacancy, respondent-3 and several others applied for allotment of the premises. Before the Controller, the petitioner sought for the release of the premises for the use and occupation of his sister Dr. Miss Prapulla Kumari who was due to return from United Kingdom and settle down in Bangalore. On 26-11-76, the Controller rejecting the request of the petitioner allotted the premises to respondent-3 inter-alia on the grounds that he had the benefit of a directive from the State Govt, under ''the 1961 Act''. In pursuance of the allotment order of the Controller, respondent-3 who had not deposited one month''s rent along with the application before the order of allotment, deposited the same on 27-11-76 and had been in occupation of the premises ever since then. In the absence of a challenge by the other non-successful applicants, the order of the Controller has become final against them.
3. Sri C.G. Gopalaswamy, learned Counsel for the petitioner, at the forefront of his case, urged that the application made by respondent-3 for allotment without the necessary deposit of one month''s rent under sub sec(5) of Sec. 8 of the 1961 Act was liable to be rejected in limine and the allotment of the premises made to respondent-3 was without jurisdiction and is manifestly illegal. In support Of his case, Shri C.G. Gopalaswamy relied on the ruling of this Court in Rama Rao v. Deputy Commr, Chickmagalur, (1977) 1 Kar LJ. 71. Shri C. Shivappa, learned Counsel for respondent-3 in addition to addressing various arguments to sustain the allotment, virtually contended that Rama Rao''s case, (1977) 1 Kar LJ. 71, has been wrongly decided by the Division Bench and contended that sub-sec (5) of S. 8 of the 1961 Act was only directory. In support of his contention he relied on the ruling of the High Court of Calcutta in Dalim Kumar Sain v. Nandarani Dassi, AIR. 1970 Cal. 292. At this stage itself, I may observe that this case inter-alia dealing with the principles to be applied in interpreting rules of procedure is of no assistance to Shri C. Shivappa. I have not permitted Shri C. Shivappa to address arguments on the correctness of the principles enunciated in Rama Rao''s case, (1977) 1 Kar LJ. 71.
4. Along with the application or even before the allotment, respondent-3 had not deposited one month''s rent and that the same was deposited on 27-11-76 are not disputed by Shri C. Shivappa. learned Counsel for respondent-3 or the other respondents who have remained absent despite service of notices. In examining a similar default and the validity of an allotment made in contravention of sub-sec(5) of Sec. 8 of the 1961 Act, Venkataswami J, before whom the matter first came up in a writ petition held that provision as only directory and not as mandatory and in that view rejected the challenge of the owner of the premises in that case. In a writ appeal by the owner of the premises a Division Bench of this Court speaking through Venkatachaliah, J. expressly overruled the view expressed by Venkataswami, J, and held that sub-section (5) of Sec. 8 was mandatory and was not directory and in that view quashed the allotment proceedings of the Controller in that case. After the decision of the Division Bench in Rama Rao''s case, (1977) 1 Kar LJ. 71, sub-sec(5) of Sec. 8 has not been amended and therefore the principle enunciated therein is binding on me and in that view without any further consideration I should quash the proceedings in this case also. But Sri C. Shivappa, learned Counsel for respondent-3 maintained that Rama Rao''s case, (1977) 1 Kar LJ. 71, was rendered on 13-12-76 prior to the substitution of Art. 226 of the Constitution from 1-2-77 by the 42nd Amendment of the Constitution and that even if the provision is held to be mandatory this Court cannot annul the proceedings solely on that ground alone. In Rama Rao''s case, (1977) 1 Kar LJ. 71 rendered on 13-12-76 having regard to Art. 226 of the Constitution as it stood then, this question was not required to be examined and therefore was not examined. I therefore consider it necessary to consider the contention of Sri Shivappa.
5. Sub-sec(5) of Sec. 8 of the 1961 Act has been held to be mandatory in Rama Rao''s case, (1977) 1 Kar LJ. 71. I have also pointed out that there was disobedience of a mandatory provision in the present case. As a general rule, non-compliance of the requirements of a mandatory provision results in the nullification of the acts done and therefore cannot be upheld by Courts. In considering the distinction between a mandatory or an absolute enactment and a directory enactment Maxwell on the Interpretation of Statutes (11th Edn) at page 364 states as under:
"The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially."
Similar observations arc made by Crawford in his Treatise on Construction of Statutes (1940 Edn) at page 104. It is observed:
"So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where non-compliance will not invalidate the proceedings to which it relates."
Shri C. Shivappa. learned Counsel for respondcnt-3 urged that even in respect of a mandatory provision, there can be waiver and the act done in disregard of the mandatory requirement of the provision will not be in. valid. In support of his contention, Shri C. Shivappa relied on the following passage in ''Principles of Statutory Interpretation by G.P. Singh(II Edn).
"The general rule, that non-compliance of mandatory requirements results in nullification of the act done in breach thereof, is subject at least to one exception. If certain requirements or conditions are provided by a statute in the interests of a particular person, the requirements or conditions although mandatory may be waived by him if no public interests are involved, and in such a case the act done will be valid even if the requirement or condition has not been performed. It was, therefore, held that the requirement of notice under Sec. 80 of the CPC although mandatory could be waived by the defendant as the provision was enacted merely for the protection of the defendant, State or Authority. On the same principle, compliance of Sec. 35 of the Bengal Money-Lenders Act which requires certain matters to be specified in a sale proclamation for the benefit of the judgment-debtor, although mandatory, can be waived by him."
In my view, a close study of the above passage and the principle enunciated by the Supreme Court in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh, AIR. 1964 SC 1300, do not really assist Shri C. Shivappa. In Dhirendra Nath Gorai''s case, AIR. 1964 SC 1300, the Supreme Court had to consider the validity of execution sales in disobedience of Section 35 of the Bengal Money-Lenders Act (Act of 1940) enacted for the benefit of judgment debtors. In examining the effect of such disobedience, the Supreme Court holding that provision was primafacie mandatory and assuming it to be so for the purpose of the cases before it, examined the effect of disobedience of that provision. On an examination of the principle and a review of the authorities, the Supreme Court held as under:
"But a mandatory provision can only bewaived if it is not conceived in the public interest but in the interest ofthe party that waives it. (Underlining italics is mine).
In Rama Rao''s case, (1977) 1 Kar LJ. 71, the Division Bench has expressly ruled that sub-sec (5) of Sec. 8 was a mandatory provision. Now the only other question that requires to be decided is whether that provision has been conceived in the public interest or for the benefit of a party. In repelling the argument of the learned Govt Advocate in Rama Rao''s case, (1977) 1 Kar LJ. 71, that sub-sec(5) of Sec. 8 was only directory, the Division Bench held:
"7. Sri M.P. Chandrakantharaj Urs, learned Govt Advocate appearing for respondents-1 and 2, however, contended that the provisions of Sec. 8(5)(ii) of the ''Act'' do not admit of the construction contended for the appellant and that in ascertaining whether a provision of a statute was mandatory or merely directory the real intention of the legislature should be gathered regard being had, inter alia, to the nature and design of the statute; the consequences which follow from construing it one way or the other; the impact of the provisions whereby the necessity of complying with the provisions in question is avoided; the serious or the trivial consequences that flow from non-compliance; the fact that non-compliance with the provisions is or is not visited by some penalty and the like. Relying on these guide lines enunciated by the Supreme Court, in State of U.P. v. Babu Ram Upadhya (AIR 1961 SC 751), Shri Chandrakantharaj Urs contended that, tested in the light of these norms, the view in favour of the provision being merely directory becomes really inescapable.
8. These principles of interpretation are enunciated by the Supreme Court. But we find it difficult to accept the further contention that the application of these principles to the present case would lead to the inference suggested by Sri Urs. One of the objects of the provision as to deposit, as a stipulation conditioning the eligibility of the applicant, appears to us to have been built in to keep out speculative and frivolous applications and to obviate the difficulties and inconveniences caused thereby. When two other clauses of sub-sec(5) of Sec. 8, namely clauses(i) and (iii) are mandatory, as clearly they are and indeed Sri Urs agrees they are, there is no reason which can support a different view as to the import of Cl (ii) of the said sub-section."
In my view, the observation of the Division Bench at para 8 can only be read as the provision viz, sub-sec (5) of Sec. 8 having been conceived in the public interest and not in the interest of a private party that can waive it. Assuming that the above observations cannot be read as above, even then I am of the view that sub-sec(5)of Sec. 8 has been conceived in the public interest and not in the interest of a private party. In enacting that provision, the legislature clearly intended that speculative applications needlessly increasing the work of the authorities and Courts should be avoided and the same has therefore been enacted in the public interest and not for the benefit of a private party that can waive it. In that view, on the application of the principles enunciated by the Supreme Court in Dhirendra Nath Gorai''s case, AIR. 1964 SC 1300, it has to be held that the disobedience of sub-sec(5) of Sec. 8, a mandatory provision, was fatal and should necessarily result in nullification of the proceedings before the authorities challenged in this writ petition.
6. Let me assume that sub-sec(5) of Sec. 8 has been enacted for the benefit of a private party as contended by Shri C. Shivappa. Even then, that provision has been enacted for the benefit of the owner or the landlord of the premises and not for the benefit of the intending applicant for allotment. From the pleadings and orders of the authorities, it is clear that the owner of the premises has not waived the benefit conferred on him if any and in that view also, the proceedings before the authorities are vitiated. In that view also, I hold that there has been a manifest illegality and contravention of sub-sec(5) of Sec. 8 of the 1961 Act.
7. All along, the case of the petitioner is that the premises are required for the use and occupation of his sister Dr. Miss Prapulla Kumari. Even before the appellate authority, it was the case of the petitioner that Dr. Miss Prapulla Kumari had returned to India and that she requires the premises for her independent occupation. In para 13(c), the petitioner has expressly stated that Dr. Miss Prapulla Kumari has been staying with her brother against her will much to her discomfort and inconvenience which have not been controverted by Respt-3 or others by filing a return. In that view, the submission of the petitioner that the deprivation of the premises to which they were legally entitled to, has resulted in substantial failure of justice is well founded and therefore calls for my interference under Article 226 of the Constitution.
8. Shri C.G. Gopalaswamy, learned Counsel for the petitioner, contended that ''the 1961 Act'' has no application to the premises, and that the finding of the authorities that the premises were not required for the use and occupation of the owner were perverse. As the petitioner is entitled to succeed on the first contention I consider, it unnecessary to examine these contentions.
9. Shri C. Shivappa, learned Counsel for respondent-3 contended that in the event of my accepting the contention of the petitioner, I should grant at least one year''s time to his client to vacate the premises. Shri C.G. Gopalaswamy, learned Counsel for the petitioner, very fairly and properly stated before me that the petitioner has no objection for my granting 3 months'' time to respondent-3 to vacate the premises without examining the power of the Court to grant time to vacate the premises or otherwise in such cases. In my view, the concession made by Shri C.G. Gopalaswamy is fair and reasonable and therefore I grant 3 months'' time to respondent-3 to vacate the premises from this day subject to the condition that he pays the arrears of rents if any and continues to pay the rents regularly till he vacates the premises and hands over the same to the petitioner.
10. Lastly, Shri C.G. Gopalaswamy bitterly complained that in his arguments before the appellate authority, he strongly relied on the Divn Bench ruling of this Court in Rama Rao''s case, (1977) 1 Kar LJ. 71 and the appellate authority without even a reference and consideration of Rama Rao''s case, (1977) 1 Kar LJ. 71, has dismissed the appeal of the petitioner. In the course of his order, the appellate authority while unticing the rival contentions urged by the petitioner and respondent-3 on the failure to deposit one month''s rent has not specifically noticed and has not dealt with the Divn Bench ruling of this Court in Rama Rao''s case, (1977) 1 Kar LJ. 71. Evidently dealing with the above contention, the appellate authority has this to say:
"So far as the deposit of onemonths'' rent is concerned, I would like to mention here that in law as laid down by the High Court as on the day when the respondent filed application was that the applicant could deposit one months'' rent contemplated under the provisions of the Act, before occupying the premises."
It is regrettable that the appellate authority should not have noticed a direct and a binding ruling that was cited before it and should have indulged in an observation which is manifestly wrong. It is the plain duty of any authority or Court to notice a binding decision cited before it and deal with the same and if the same is not done it will not be doing justice in the case itself. I hope the appellate authority will not commit such a mistake in future.
11. Let me now consider whether the view expressed by the appellate authority is correct. Shri C. Shivappa learned Counsel for respondent-3 also surprisingly supported the view of the appellate authority. It is well to remember that Courts do not make laws but only interpret or declare laws. An interpretation or declaration of a law made by a superior Court has to be treated as a declaration which was the only correct declaration at all times, and in that view the appellate authority was bound to give effect to the Divn Bench ruling of this Court in Rama Rao''s case, (1977) 1 Kar LJ. 71 and by its failure to do so it has committed a manifest illegality apparent on the face of the record.
12. For the reasons stated above, I quash the impugned orders by issue of a writ of certiorari and further direct the House Rent Controller, City Area respondent-2, by issue of a writ in the nature of mandamus to forcibly evict respondent-3 if he does not voluntarily vacate the premises on or before the time granted to him and deliver possession of the same to the petitioner.
13. Rule made absolute with costs payable by respondent-3. Advocate''s fee Rs. 100.
