SUMIT GUPTA Vs. BELA BASU

JUDGEMENT

(1.) The opposite party filed an application under S. 29 B of the West Bengal Premises Tenancy Act 1956 before the Rent Controller, Calcutta for eviction of the petitioner as a wife of a retired member of the Military Force to the Union of India, inter alia, on the ground that the husband of the opposite party Dr. S. N. Basu was a retired Army Doctor and he retired on 28th February 1975 and the opposite party wanted the suit premises for use and occupation for the opposite party and her family members and also for starting a Nursing Home in the suit premises. The necessary abetment notice was also served upon the petitioner. The said proceeding under S 29B was registered as R C. Case No 5 of 1980 E. V. C. At the time of filing the said proceeding, the necessary certificate as required under clause (b) of sub-s (2) of the said S. 29(B) was also produced before the Rent Controller in support of the opposite party's case. The petitioner contested the said case after taking leave and filing written statement denying and disputing the case of the opposite party Later on, the opposite party filed an application for amendment of the petition under S. 29B and also filed a certificate from the Brigadier Commanding Calcutta area as required under the said clause (b) of Sub-s (2) of S. 29B, as the earlier certificate filed by the opposite party was not a proper one and the Rent Controller by his order dated 17.8.82 allowed the said amendment application and also accepted the said certificate At the time of herring, both parties examined witnesses and produced documents in support of their respective cases and the Rent Controller by his order dated 57 83 allowed the said application of he opposite party under S 29B of the West Bengal Premises Tenancy Act 1956, holding inter alias that the opposite party or her husband was not in occupation of any reasonable accommodation elsewhere and that the opposite party also required her family and for running a Nursing Home Against the said order, the petitioner has moved this Court in revision and obtained the present Civil Order.

(2.) Mr Ashoke Chandra Lahiri, learned Advocate appearing on behalf of the petitioner with Mr. Sudipta Dutta Chwodhury submitted before me that since the opposite party had not complied with the proviso sub-s (2) of S 29B of the West Bengal Premises Tenancy Act in not producing the necessary certificate before the Rent Controller while filing the application under S 29B of the said Act, the said proceeding was invalid and as such the Rent Controller had no jurisdiction to proceed with the said case Mr. Lahiri further contended that the Rent Controller illegally allowed the amendment of the said application under S 29B by accepting the subsequent certificate filed by the opposite party at the stage of argument as Rent Controller had no jurisdiction to entertain the said application under S. 29B as the opposite party did not comply with the provision of the proviso to sub-s (2) of the said S 29B initially at the time of filing the said application under S. 29B and by way of amendment the Rent Controller could not assume jurisdiction in the matter and in support of his said contention Mr. Lahiri referred to the decisions reported in AIR 1953 Assam, at page 102 and AIR 1978 Calcutta at page 133 Mr. Lahiri also contended that by allowing the amendment and accepting the subsequent certificate filed by the opposite party at the time of hearing the Rent Controller had allowed to change the nature and character of the proceeding, such amendment ought not to have been allowed which prejudiced the petitioner to a large extent and the Rent Controller having come to a finding that the suit premises was not reasonably required by the petitioner, ought to have dismissed the application under S 29B and in support of his said condition Mr. Lahiri referred to the decision reported in 1985 (1) Calcutta High Court Notes page 40 Mr. Lahiri further contended that the word 'shall' as used in the proviso to sub-s. (2) of S 29B is to be read as mandatory and as such since the necessary certificate was not filed before the Rent Controller by the opposite party at the time of filing the application under S 29 B the entire proceeding was vitiated by such non-compliance of the said proviso and the Rent Controller had acted in excess of his jurisdiction in proceeding with the said application in spite of such vital defect and hence his order could not be sustained. In support of his said contention Mr. Lahiri referred to the decisions reported in 1984 (2) Calcutta High Court Notes at page 57, 71 CWN at page 842 and AIR 1960 SC page 610, AIR 1967 SC page 420 and 72 CWN at page 844.

(3.) Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing on behalf of the opposite party with Mr Nihar Chandra Chatterjee, in reply to the argument advanced by Mr. Lahiri, submitted that the word 'shall' as used in proviso of sub-s. (2) of S. 29B is not mandatory in nature but directory in character and whether a particular word used in a particular statute is mandatory or directory it has to be decided with reference to the scheme of the act and also to the scope and object of he Act in order to ascertain the real intention of the legislature. Mr. Roy Chowdhury in support of his said contention referred to he decision reported in AIR 1984 Calcutta page 125 and AIR 1969 SC page 244 Mr. Roy Chowdhury further submitted that since the Rent Controller after considering the evidence and other materials on record had come to a finding that the suit premises was reasonably required by the opposite party for her use and occupation and also for the use and occupation of her family and also for starting a Nursing Home therein, this Court under Article 227 should not interfere with the order passed by the Rent Controller as the order of the Rent Controller did not suffer from any error in the exercise of jurisdiction or from any material irregularity.