Ram Nath vs State of J&K and Ors.

This letters patent appeal is directed against the Judgement of a learned Single Judge on this Court (Hon'ble the Chief Justice V. Khalid as his

Lordship then was) dated 23.3.84, where by he has dismissed the writ petition of the appellant.

The contention raised in the writ Petition as also in this letters patent appeal is that SubSection (4) of Sec. 12 of the J&K Houses and Shop

Rent Control Act 1966, hereafter to be referred to as the Act, is invalid and that the word Shall occuring in that Sub Section shall be interpretted

to mean as may. The learned Single Judge as in his detailed Judgment rejected both the contentions raised by the petitioner. He has discussed the

provisions of the act as also sec. 11A of the Bihar Act, on which reliance was placed by appellant. A full bench authority of the Patna High Court

reported in AIR 1981 Pat. I was also considered by the Single Bench of this Court.

It has rightly been observed by the Single Bench that sec. 11A of the Bihar Act was not examined by the Full Bench of the Patna High Court

from the appeallant wants us to examine Sec 12(4) of the act in this appeal The Judgement given by the Full Bench of the Patna High Court has

mainly processed on the question of waiver and it has not considered the validity of Sec. 11A of the Bihar Act. Since the landlord in that case had

with drawn the amount deposited by to legal representative of the tenant, though in violation of the directions given by the rent controller therefore

the mandatory nature of the second part of Sec. 11A could not be acted upon in view of the conduct of the landlord It is well settled that a party

deriving benefit of a court order cannot approbate and reportable, on the one hand the landlord in that case was benefited by withdraw of the rent

and on the other he could not be heard to say that defence of the tenant was liable to be struck off. Striking off the defence of the tenant was

intended to benefit the landlord was otherwise bestfitted, therefore, by his conduct he has waived the right to ask for striking of the defence of the

defendant tenant. This was the majority view in Full Bench case of Patna S.P. Sinha J has dissented from the majority view. In his opinion the court

was empowered to strike off the defence independent of any application having been made by the landlord for striking off the defence once it was

established that mandate of Sec 11A of the Bihar Act was violated. However, in a Full Bench case of this court in Ghasha Lal Vs. Harjee Lal and

anr. reported in 1980 K L J 25 the ambit and scope of sec. 12(4) of the Act has been discussed at Length. No fault was found with sec. 12(4) of

Act. In a Single Bench case of this court also mandate of see, 12(4) of the Act is upheld. The consistant view of this court has been that sec. 12(4)

is valid and the word shall occuring in the said subsection is mandatory This court therefore, cannot construct meaning of word 'shall' as directory

in the said subsection. When the learned counsel for the appellant was asked to explain as to what grounds he was challenging the vires of sec.

12(4) of the Act, and wanted us to assign different meaning to the word 'shall' in the said SubSection. The Rent Control Legislation is not puntive

legislation It does not intenant to give benifit landlord at the cost of tenant or to the tenant at the cost of landlord. It only controls litigation coming

under the Rent Control Act

The Supreme Court in Baga Bibi Vs. Abdul Ahad and Ors reported in 1979 S. C. 272 has made it clear that the whole object of the Rent

Control Act is to provide for Control of rents and evictions act. Therefore, the contention of the learned counsel for the appeallant that Sec. 12(4)

of the Act seeks to penalised the tenant cannot be accepted. He has given certain hypothetical examples to make his point clear. We are afraid that

we cannot agree with his contention, A rent Controller will definitly use common sense and prudence while striking out defence of a failing tenant

u/s 12(4) of the Act. The question of striking off defence largely depends on the facts of each ease. The mandate at Sec. 12(4) cannot be

interpretted by us to be directory in nature, as that would be inconsistant with the scheme of legislation and with the view consistently taken by this

court. Nothing was shown to us about Section 12(4) of the Act being violative of Art. 14 of the Constitution of India. It does not suffer from and

illegality muchless of constitutional invalidity. The impugned judgment is a reasoned one and cannot be assailed in law and facts. This letters patent

Appeal has, therefore, no force and is dismissed in limine.