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TMI Blog2011 (2) TMI 1628X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of clothes in the accommodation in question. The notice of the proceedings before the RCA was served on the Applicants/tenants on 4-2-2010. The Applicants/tenants entered appearance through their counsel on 31-3-2010 and filed the written statement, without filing any application under Section 23-C(1) of the Act seeking leave to contest the prayer for eviction. Thereafter, the proceedings before the RCA were fixed for 9-4-2010. On 9-4-2010 the proceedings were adjourned to 23-4-2010. However, the case was adjourned to 7-5-2010 for filing reply to the application filed under Section 13(6) of the Act. On 7-5-2010, reply to application under Section 13(6) of the Act was filed and the case was fixed for arguments on aforesaid application on 11-5-2010. On 11-5-2010 the Applicants filed an application under Section 23-C on the ground that since the Applicants/tenants failed to move any application seeking to contest the prayer for eviction, therefore, the order of eviction be passed in favour of the landlady. The case was fixed for consideration of the issue of non-compliance with the mandatory provisions as well as arguments and was adjourned to 13-5-2010. On 13-5-2010, the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to apprise the other side with regard to nature of proceedings which has been instituted in the instant case. It was further submitted that Applicants have entered appearance through their counsel on 31-3-2010 and thereafter on several dates i.e. 9-4-2010, 23-4-2010, 7-5-2010, 11-5-2010 and 13-5-2010, the proceedings were adjourned. In the proceedings before the RCA, the Applicants did not raise any objection that they have not been served with the notice of the proceedings in the prescribed format as required under Section 23-B of the Act and, therefore, they are precluded from raising such an objection. Apart from this, since the Applicants/tenants had entered appearance through their counsel, therefore, no prejudice has been caused since the provisions of Section 23-B of the Act are directory in nature and its substantial compliance having been made, no fault can be found with the order passed by the RCA. It was further submitted that since the accommodation in question is held for the benefit of the grandson, therefore, the RCA did not commit any illegality in granting the decree on the ground of bona fide need of the grandson. It was further submitted that provisions of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of starting the business or for any of his major sons or unmarried daughters and for any other person for whose benefit the accommodation is held and that the landlord has no other reasonably suitable non-residential accommodation of his own in the city or town can be got vacated under Section 23-A(b) of the Act. Section 23-A(b) of the Act reads as under: 23-A(b) -- that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner therefore or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned. Section 23-B(1) mandates the RCA to issue to the tenant a summons in relation to every application referred to in Section 23-A in the form specified in Second Schedule. Second Schedule prescribes the form of summons. Relevant extract of the form reads as under: You are hereby summoned to appear before the Rent Controlling Authority within fifteen days of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of application, give to the tenant, if necessary, leave to contest the application, if the application supported by an affidavit filed by the tenant discloses such facts as would disentitle the landlord from obtaining an order for the recovery of possession of the accommodation on the ground specified in Section 23-A. Thus, from perusal of Section 23-C(1) of the Act, it is apparent that in case of failure to comply with the requirement mentioned in Sub-section (1) of Section 23-C of the Act, the statement made by the landlord in the application for eviction shall be deemed to be admitted by the tenant and the Rent Controlling Authority in such a case shall pass an order of eviction of the tenant from the accommodation. Thus, the consequence of non-compliance of requirement contained in Section 23-C(1) of the Act is provided in Sub-section (1) itself. It is well settled in law that in order to decide the question as whether a particular provision contained in the Statute is mandatory or directory, the intention of the Legislature has to be gathered. For ascertaining the real intention of the Legislature, the Court has to consider the nature and design of the Statute and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been annexed is admittedly not in the format which has been prescribed in Second Schedule to the Act. The notice which has been issued is the general notice which is issued in the revenue cases and requires the Applicants/tenant to appear on 31-3-2010 at 11.30 a.m. The notice does not mention that the Applicants are required to appear and to obtain leave of the Rent Controlling Authority to contest the application for eviction on the ground and the default thereof within a period of fifteen days failing which the landlady would be entitled to an order of eviction. The notice also does not mention that the Applicants are required to move an application before the RCA which is duly supported by an affidavit. Thus, the notice has been issued to the tenants in violation of the mandatory provisions of Second Schedule of the Act. Apart from this, it is well settled legal proposition that in case of violation of mandatory provision, no prejudice need be shown and in such a case necessary benefit should be given to the delinquent. See: Vinod v. State of Maharashtra : (2002) 8 SCC 351 and Major G.S. Sodhi v. Union of India (1991) 2 SCC 382. It is equally well settled legal principle t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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