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TMI Blog2019 (10) TMI 1587X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 held that Section 13(a) of the Rajasthan Act was to confer benefits on all tenants against whom suits for eviction on the ground of default of payment of rent were pending. Such judgment was not found to be attracted in view of mandatory provisions contained in Section 12(3)(a) of the Bombay Act. While examining as to when the provision of a statute is to be treated as directory or mandatory, this Court held in NASIRUDDIN AND ORS. VERSUS SITA RAM AGARWAL [ 2003 (1) TMI 693 - SUPREME COURT] that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a public function within a time-frame, the same will be held to be directory unless the consequences thereof are specified. The deposit of rent along with an application for determination of dispute is a pre-condition to avoid eviction on the ground of non-payment of arrears of rent. In view thereof, tenant will not be able to take recourse to Section 5 of the Limitation Act as it is not an application alone which is required to be filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigation. Therefore, the learned Single Judge, decided the matter on merits rather than referring it to the larger Bench for decision. 5. In this background, the argument of the learned Counsel appearing for the Appellant is that the High Court has not maintained judicial decorum and should have referred the matter to the larger Bench to decide the scope and ambit of Section 7(2) of the Act. We find that since a short question of law arises for consideration, therefore, without going into the question as to whether learned Single Judge should have referred the matter to the larger Bench or not, the question to be decided by this Court is to bring certainty in respect of scope of Section 7 of the Act. 6. Learned Counsel for the Appellant contends that the provisions of Section 7(2) of the Act are pari-materia to Section 17(2) of West Bengal Premises Tenancy Act, 1956 for short the 1956 Act which was the subject matter of consideration in an earlier judgment of this Court reported as B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmick (1987) 2 SCC 407. Learned Counsel for the Appellant argued that the Limitation Act, 1963 would be applicable to seek condonation of delay in filing an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Sub-section (4) of Section 13 of the Act. It is thus contended that provisions of the Rajasthan Act are close to the language of Section 7 of the Act. Therefore, the Limitation Act is not applicable to seek condonation of delay in filing an application Under Section 7(2) of the Act. It was held as under: 15. B.P. Khemka [(1987) 2 SCC 407 : AIR 1987 SC 1010] arose out of the West Bengal Premises Tenancy Act, 1956 (in short the West Bengal Act ). In the said case the tenant committed default in payment of arrears of rent and the landlord brought a suit for eviction on the ground of default. While the suit was pending, the West Bengal Premises Tenancy (Amendment) Ordinance 6 of 1967, which was replaced by the West Bengal Premises Tenancy (Amendment) Act 30 of 1969 came to be promulgated with effect from 26-8-1967. The Act gave a retrospective effect to the amendments by providing that the amendments made by Section 2 of the Ordinance shall have effect in respect of all suits including appeals which were pending at the date of commencement of the Ordinance. The amendments inter alia enabled tenants who were in default to apply to the court and pay the arrears of rent in instalmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the rate of ten per cent per annum. (b) Such payment or deposit shall be made within one month of the service of summons on the tenant or, where he appears in the suit without the summons being served upon him, within one month of his appearance. (c) The tenant shall thereafter continue to pay to the landlord or deposit with the Civil Judge month by month by the 15th of each succeeding month, a sum equivalent to the rent at that rate. (2) If in any suit referred to in Sub-section (1), there is any dispute as to the amount of the rent payable by the tenant, the tenant shall, within the time specified in that subsection, deposit with the Civil Judge the amount admitted by him to be due from him together with an application for determination of the rent payable. No such deposit shall be accepted unless it is accompanied by an application for determination of the rent payable. On receipt of the application, the Civil Judge shall, having regard to the rate at which rent was last paid and the period for which default may have been made by the tenant, make, as soon as possible within a period not exceeding one year, an order specifying the amount, if any, due from the tenant and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and by such dates as the Court may fix: Provided that where payment is permitted by instalments such sum shall include all amounts calculated at the rate of rent for the period or default including the period subsequent thereto up to the end of the month previous to that in which the order under this Sub-section is to be made with interest on any such amount calculated at the rate specified in Sub-section (1) from the date when such amount was payable up to the date of such order. (2B) No application for extension of time for the deposit or payment of any amount under Clause (a) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified therefor in Sub-section (1) or Sub-section (2), and no application for permission to pay in instalment under Clause (b) of Sub-section (2A) shall be entertained unless it is made before the expiry of the time specified in Sub-section (1) for the deposit or payment of the amount due on account of default in the payment of rent. 12. This Court, while considering the above provisions of the 1956 Act in B.P. Khemka held as under: 11. Since the Ordinance came to be replaced long after by the Act, Section 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpreting the provisions of the 1956 Act. 14. However, another three Judge Bench judgment in Arjun Khiamal while examining provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 for short the Bombay Act considered the judgment reported as Vatan Mal v. Kailash Nath (1989) 3 SCC 79, dealing with the Rajasthan Act, held that Section 13(a) of the Rajasthan Act was to confer benefits on all tenants against whom suits for eviction on the ground of default of payment of rent were pending. Such judgment was not found to be attracted in view of mandatory provisions contained in Section 12(3)(a) of the Bombay Act. The judgment in B.P. Khemka was found not to be of any assistance for the same reason. 15. This Court in Nasiruddin also considered the question as to whether provisions of a statute being directory or mandatory would depend upon the language implied therein, and referred to a judgment reported as Union of India v. Philip Tiago De Gama (1990) 1 SCC 277. This Court also examined the judgment in Shyamcharan Sharma v. Dharamdas (1980) 2 SCC 151, wherein it was found that there is no restriction in M.P. Accommodation Control Act, 1961 For short the M.P. Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression shall or may is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character. 38. Yet there is another aspect of the matter which cannot be lost sight of. It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same would ordinarily be mandatory but when a public functionary is required to perform a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose behind this provision: that purpose is that before the Accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours. 18. The judgment in B.P. Khemka is in respect of a statute giving power to condone delay without any fetters. The amendments carried with retrospective effect inter alia enabled tenants who were in default to apply to the court and pay the arrears of rent in instalments and thereby avert their eviction. In pursuance of the amendments, the tenant deposited the rent. However, he subsequently committed default in paying monthly rent. Consequently, the defence was struck of on the ground that in paying the rent for the months of September 1968 and March 1969, there had been a delay of 44 days and 6 days respectively, which was in contravention of Section 17(1) of the West Bengal Act. This Court held that the proviso makes it c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-section (3) provides for consequences of non-payment of rent i.e. striking of the defence against the delivery of the possession and to proceed with the hearing of the suit. Such provision is materially different from Sub-sections (2A) and (2B) which was being examined by this Court in B.P. Khemka. Sub-sections (2A) and (2B) of Section 17 of 1956 Act confer unfettered power on the court to extend the period of deposit of rent, which is circumscribed by the proviso of Sub-sections (2) and (3) of Section 7 of the Act. Therefore, the provisions of Sub-section (2) are mandatory and required to be scrupulously followed by the tenant, if the tenant has to avoid the eviction on account of non-payment of arrears of rent Under Section 6 of the Act. There is an outer limit for extension of time to deposit of arrears of rent in terms of the proviso to Sub-section (2) of Section 7 of the Act. The consequences flowing from non-deposit of rent are contemplated Under Sub-section (3) of Section 7 of the Act. Therefore, if the tenant fails to deposit admitted arrears of rent within one month of receipt of summons or within one month of appearance without summons and also fails to make an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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