AMMAL CHANDRA DUTTversusIIND ADDL. DISTT. JUDGE & ORS.

                         AMMAL CHANDRA DUTI
A
                                         v.
                  IIND ADDL. DISTI. JUDGE & ORS.

                             NOVEMBER 1, 1988

B            [R.S. PATHAK, CJ. AND S. NATARAJAN, J.]

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

          In 1967 the second respondent landlord applied to the Prescribed
    Authority, under section 3 of the U.P. (Temporary) Control of Rent and
D   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
E   (Regulation of Letting, Rent and Eviction) Act 1972, the second respon-
    dent again sought the permission of the Prescribed Authority for reco·
    very 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
F   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 Let-
    ting, Rent and Eviction) Rules, 1972. The Appellate Authority, how-
    ever, 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
G   not succeed.

          Before this Court the appellant contends that(l) a second applica-
    tion on the same ground made within six months from the commence-
    ment 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 circumstan-
H   ces of requirement and not the nature of the requirement that would
                                       722
                   A.C. DU1T v. ADDL. DISTI. JUDGE                    723

constitute the ground of eviction is erroneous and unsustainable (3) the
                                                                             A
Act and the Rules do not permit tbe 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 that without the ground floor, the first and
second floors cannot be used as residence because the bath and toilet        B
rooms are situated only in the ground floor.

      Dismissing the appeal, it was,

       HELD: (1) 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 C
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-F]
                                                                             D
      (2) Even if the two applications are treated as having been made
on the same ground, the second application would not attract the opera·
tion of Rule 18(1) since the Rule contains only a formula of presumption
based on facts. The prescription of the role is only of a directory nature
and not of a mandatory nature. [728C]
                                                                             E
      (3) In the interpretation of statutes, where the situation and the
context warrants, the word "shall" used in a section or role has to be
construed as "may". The ·present context is one such where the words
"the prescribed Authority shall accept the fmdings in those proceedings
as conclusive" have to be read as "the Prescribed Authoritl'..may accept
the findings in those proceedings as conclusive" because the findings        F
are based upon existence of facts. [728G-HJ

      (4) It will be inequitable and unrealistic to construe Rule 18(1) as
containing an inexorable legal prescription for rejecting a second appli·
cation filed within the prescribed time limit solely on the basis of the
findings rendered in the earlier application. [729F]                       G

      (5) The long interval of time between the rejection of the trrst
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]                           H
      724         SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

A          (6) Section 21(1) provides for an order of eviction being passed
      against a tenant "from the building nnder tenancy or any specified part
      thereof." [730C]

            (7) It is open to the appellant to move the Prescribed Anthorlty
      for directions being given to the second respondent to make suitable
B     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 Door. [730G]

            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1201
      of 1976.
c          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.

D           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
E     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
F     rent of Rs]O 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.
G
            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
1-I   (hereinafter referred to as the 1947 Rent Act) to the Prescribed
              A.C. DUTI v. ADDL. DISIT. JUDGE (NATARAJAN, J.) 725

Authority to file a suit for eviction against the appellant on the ground A
of urgent and reasonable requirement of the house for his own occupa-
tion. 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 iiermission of the Prescribed Authority to file a suit against the B
appellant but this time he sought for recovery of possession 0f 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 posses-
sion 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 c
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 Author-'
ity, however, differed from the Prescribed Authority and granted D
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.
                                                                           E
       A few facts may first be noticed before the appellant's conten-
tions are set out and examined. Admittedly, the second r!'spondent
became the owner of the leased premises in the year 1945 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 applica-
tion for permission to sue was made, the second respondent was living      F
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 with acute shortage of space and that the bath
room and latrine were situated in the ground floor which was in the        G
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.

      Coming now to the contentions of the appellant, who is a             H
    726          SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

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
B         · Rules since it had been made within six months from the com-
            mencement of the 1972 Rent Act.

           2. The High Coun'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.
c
            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.

D         J 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
B            jiave 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
F   has become unsustainable because the appellant has vacated the build-
    ing 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 disput~ the second
    respondent's right to recover possession of the house.

O         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)
H                and 41) -( 1) Where an application of a landlord against
         A.C. DUTI v. ADDL. DISTI. JUDGE INATARAJAN, J.)          727

           any tenant for permission to file a suit for eviction under
           Section 3 of the old Act, on any ground mentioned in Sec-
                                                                         A
           tion 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     B
           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 com-
           mencement of the Act, whichever is later, the Prescribed
           Authority shall accept the findings in those proceedings as
           conclusive." (emphasis supplied)
                                                                         c
           Provided that the period during which the operation of any
           permission as aforesaid is stayed by order of any court or
           authority shall be excluded in computing the said period of
           six months.
                                                                         D
           (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 E
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 if a second application is made for release of the
house on which permission to sue was sought for in the previous appli-
cation 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 p
commencement of the Act, whichever is later, "the prescribed autho-
rity shall accept the findings in those proceedings as conclusive." The
Rule only sets out a rule of presumption to be followed by the Pre-
scribed 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 applica- G
tion preferred on the same ground within a period of six months from
the date of the order in the previous application or from the com-
mencement 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.
                                                                         H
     728        SUPREME COURT REPORTS                [1988] Supp. 3 S.C.R.

           In so far as the second contention is concerned, the appellant is
A
     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 how-
B    eyer taken the view that the ground of eviction in the two applications
     is not the same because different sets of circumstances would consti-
     tute 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 o_r 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
c    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 pas-
     sage in Phipson on Evidence (Thirteenth Edition) at pages 4 and 5:

D                     "Presumptions are either of law or fact. Presump-
                tions of law are arbitrary consequenc 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
E               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
F               inference notwithstanding that there is no rebutting
                evidence.''

     Besides it is a well-known principle that in the interpretation of sta-
     tutes that where the situation and the context warrants it, the word
     "shall" used in a Section or Rule of a statute has to be construed as
O    "may". The present context is one such where the words "the Pre-
     scribed 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.
                                                                                '
ti         We may now set out the reasons as to why the prescription in



                                                                                i,
                             .                                                   ./ .

         A.C._ D_UTI v. ADDL. DISTI. JUDGE [NATARAJAN, J.)          729

Rule 18( 1) should be construed as only directory and not mandatory.
                                                                            A
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 finalorders 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 B
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
se~ond 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 c
place subsequent to the disposal of the earlier application, the pre-
scribed 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 D
 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 E
 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 is
 intended to avoid multiplicity of proceedings as the very heading given
 to the Rule would make it clear. It will therefore be inequitable and F
 unrealistic to construe Rule 18( 1) as containing an inexorable. legal
 prescription for rejecting a second application filed within the pre-
 scribdd 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 G
application was rejected, the living conditions of 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 if he could not_get release oft.he _entire premises. The lon_g _H
     730         SUPREME COURT REPORTS                 [1988] Supp. 3 S.C.R.

     interval of time between the rejection of the first application and me
 A
     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 $econd respondent undoubtedly rendered
     irrelevapt the earlier findings and such being the case the rule of pre-
     sumption given in Rule 18( 1) can have no application or relevance to
B    the second application. Viewed in this manner, we do not think the
     Appellate Authority or the High <Zourt 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 impermissibi-
C    lity 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 hot
     therefore find any error in the second respondent being granted the
     relief of partial eviction.
D
           As regards the fourth contention, it is admitted that the appel-
     lant 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 therdn, the Appellate Authority
R    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.

fl         Coming to the last contention of the appellant viz. the unsuitabi-
     lity 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 fal)lily members to have access to and
(j   make use of the bath and toilet rooms iri the ground floor.

          As regards the contention of the respondent that the' appellant
   and his wife are now living in a house beJonging 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
I{ for eviction, we are unable to make any pronouncement on it because
      "- -:   : .i;     ,    ~c, ~ ·l' - · _   :;_:-~l~~ _ .      ·:~,   .
     ''I,         A.C. DUIT v. ADDL. DISTI. JUDGE (NATARAJAN, S.]            ·731
       .11-;~ . ,-,    ... "-~.;:      -~~~-'.   ',      -~-}
    of Jack of'eviclence in suppori of that plea 1a'nd besides the appellant        A
    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.
                                                                                    B
    R.S.S.                                                     Appeal dismissed.




                            ·.