SHIVESHWAR PRASAD SINHA Vs. DISTRICT MAGISTRATE OF MONGHYR

JUDGEMENT

(1.) This case has been referred to the Full Bench by S. C. Misra and T. Nath, JJ., mainly because they felt some doubt about the correctness of the decision of a Division Bench of this Court in Sudhindra Nath Ghosh v. District Magistrate of Patna, 1960 BLJR 368: (AIR 1961 Pat 254) regarding the effect of non-compliance with some of the provisions of Clause (a) of Sub-section (2) of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, (hereinafter referred to as 'the Act').

(2.) The material facts are as follows. The petitioner is the owner landlord of house No. 31 situated in Municipal holding No. 38 inside the Fort Area of Monghyr Municipality. It was in the occupation of a Government servant named Sri S. N. P. Srivastava till the 20th December, 1961. On the 18th December, 1961, Sri Srivastava addressed a letter to the District Magistrate of Monghyr, stating that in view of his transfer to Dehri-on-Sone he would be vacating the house in the morning of the 20th December 1961. A copy of the letter also appears to have been forwarded by him to the petitioner landlord on the same day. The house was occupied by another Government servant named Sri D. P. Yadav on the 20th December 1961, but the formal order of the District Magistrate of Monghyr allotting the house to him (Annexure A) was made only on the 23rd December, 1961. Soon afterwards the petitioner applied to the District Magistrate for eviction of Sri B. P. Yadav on the main ground that the provisions of Clause (a) of Subsection (2) of Section 11 of the Act, regarding the due service of notice by the outgoing tenant of his intention to vacate the house, was not issued either to the petitioner landlord or to the District Magistrate. His application was dismissed by the District Magistrate by his order dated the 21st January, 1963, and then the petitioner came to this court under Articles 226 and 227 of the Constitution impugning the legality of that order of the District Magistrate.

(3.) In the petition before this court the petitioner alleged in paragraph 11 that the outgoing tenant, namely, Sri Srivastava, secretly vacated the building on the 20th December, 1961, without giving any notice either to the petitioner or to the District Magistrate. In paragraph 6, however, he merely alleged that the outgoing tenant did not give 15 days notice to the landlord and to the District Magistrate. This discrepancy between paragraph 6 and paragraph 11 has not been explained. Moreover, the order of the District Magistrate shows that the outgoing tenant addressed the District Magistrate on the 18th December, 1961, informing him about his intention to vacate the house on the 20th December, 1961, and a copy of that letter was also forwarded to the petitioner under the same memorandum for information. This statement of fact has not been challenged in the petition filed before this Court, and apart from the discrepancy between paragraph 6 and paragraph 11 of the petition already pointed out, it is now conceded that the statement in paragraph 11 that the District Magistrate also did not get any notice from Sri Srivastava about his intention to vacate the house is incorrect. In view of these unsatisfactory features we see no reason to disagree with the facts stated by the District Magistrate to the effect that the outgoing tenant did send a notice on the 18th December. 1961, both to the District Magistrate and to the landlord, about his intention to vacate the house on the 20th December, 1961. It is true that he thus gave only two day's notice, whereas Clause (a) of Sub-section (2) of Section 11 of the Act requires that he shall give fifteen days' previous notice in writing. That clause further says that the District Magistrate's order allotting the house to any other Government servant must be passed within one week of the receipt of the notice from the outgoing tenant. Here this time limit has been adhered to inasmuch as the District Magistrate's order of allotment in favour of Sri D. P. Yadav was made on the 23rd December. 1961.