NANIBEN Vs. MAGANBHAI DURLABHBHAI

JUDGEMENT

(1.) The petitioner landlady has filed these two petitions against the two tenants as her application under sec. 32T on the basis of the certificate under sec. 88C has been dismissed by the order of the Revenue Tribunal dated February 22 1965 As both these petitions raise common questions they are disposed by this common order:-

(2.) As regards the other Spl.C.A. 1167/65 there is an additional question as to whether the tenancy was duly required under the mandatory terms of sec. 32T(3) of the Act. Sec. 32T(3) provides that the notice required to be given under sub-sec. (1) shall be in writing and shall be served on the tenant on or before December 13 1961 and a copy thereof shall at the same time be sent to the Mamlatdar and an application for possession shall be made thereafter under sec. 29 to the Mamlatdar on or before March 31 1962 This section is similar to section 31 which is available to other landlords. Under sec. 31(2) the notice required to be given under sec. 31(1) shall also be in writing and shall be served on the tenant on or before December 31 1956 and a copy thereof shall at the same time be sent to the Mamlatdar and an application for possession shall be made thereafter under sec. 29 to the Mamlatdar on or before March 31 1957 In . the Division Bench consisting of S. T. Desai C. 1 and Miabhoy J. had interpreted this corresponding sec. 31(2) by holding that the plain ordinary and natural meaning of the expression shall be served on the tenant on or before December 31 1956 was that the notice shall not merely be issued or despatched but it shall be served on the tenant before the date mentioned therein. It was also held that even though the expression used in sec. 31(1) was giving of the notice sec. 31(2) in terms defines how the giving of the notice in sub-sec. (1) was required to be done. It was held that what was intended by the expression giving of the notice was actually service on the tenant and sending a copy at the same time to the Mamlatdar. The Division Bench further held that the provision of sec. 31(2) was mandatory in the context of the entire Act designed for the protection of the tenants and as sec. 31 was enacted to confer certain rights which formerly were not vested in the landlord. In that view of the matter the Division Bench refused to equate the expression under the issue of the notice on the tenant as that would make sec. 31(2) of the material part thereof nugatory. It is true that the Division Bench of the Maharashtra High Court in Spl.C.A No. 556 of 1959 decided on July 7 1960 construed sec. 31(2) as only directory in view of the fact that the Legislature has not considered it necessary to provide that the information should be lodged in the specified period even though necessary condition of making an application was that the previous notice should be given to the petitioner. The Maharashtra High Court therefore held that as this notice was made a condition for making an application to the Mamlatdar there must be only a substantial compliance with that provision that the notice should be given on or before the relevant date. It is true that in view of the binding decision of the Division Bench of this Court this Maharashtra High Court decision cannot be preferred in so far as it holds the provision in sec. 31(2) to be only directory provision and not a mandatory provision. It should however be noted that in the Maharashtra case this view was taken on the facts of that case as in the ordinary course the notice which was posted on December 24 would have reached the tenant long before December 31 and the landlord could not be blamed for the delay of the postal authorities for delivering at late. The conclusion was arrived at by treating the provision in sec. 31(2) as a directory provision. That conclusion cannot be arrived at on the reasoning by us in view of the aforesaid decision of the Division Bench which holds the provision of sec. 31(2) to be mandatory. But as we shall presently consider the said conclusion would be correct because of certain other provisions of law which could be applied on the facts of that case. At this stage it would be only material to note that sec. 32T(3) with which we are concerned is Pari materia in the same terms as sec. 31(2). Therefore in view of the aforesaid settled legal position we must hold that the notice under sec. 32T(I) which had to be given in the manner defined in sec. 32T(3) must be served on the tenant on or before December 31 1961 and it would not be sufficient to say that the notice must only be issued b4fore that date. The legislature itself has maintained that distinction between the words service on the tenant and the copy being sent to the Mamlatdar at the same time. Therefore so far as the sending of the copy to the Mamlatdar is concerned it is sufficient if it is sent at the same time while in the case of the tenant service must be on or before December 31 1961 as per the decision of the Division Bench that this provision must be held to be mandatory provision.

(3.) However in the present case the further question has arisen which was never considered as to whether sec. 32T(3) authorises the notice to be served by post so that sec. 28 of the Bombay General Clauses Act 1904 can be attracted to the facts of any such case. The Revenue Tribunal was unable to point out any provision in the Act which would authorise service of such notice by post. When we turn to sec. 3 of the Act it in terms provides as under:-