P L D 1964 (W (PLP)

Khwaja Ghulanj Qadir appellant obtained transfer of the house in dispute under the Displaced Persons (Compensation and Rehabilitation Act), 1958, in June 1960, and he served a notice on Tajammal Husain, respondent‑occupant, on the 14th of September 1960, demanding Rs. 14 per month as rent from him. This notice was served on the respondent and he replied to it on the 17th of September 1960. On the 21st of December 1960, after the expiry of the stipulated period of three months, Kh. Ghulam Qadir brought an application in the Court of the Rent Controller for eviction of the tenant on ground of non-payment of rent. The tenant, pleaded that he had filed a revision petition against the order of the Settlement Commissioner and that as it was still pending, the petition for ejectment was premature and that the rent of the premises in dispute was Rs. 7 per month. The Rent Controller framed four issues and came to the conclusion that a valid notice was served on the respondent; that Rs. 7 per month was the rent and that Tajammal Husain respondent had defaulted in the payment of rent. He, therefore, ordered his ejectment. Tajammal Husain appealed against this order. The District Judge, as Appellate Authority, upheld the findings of the Rent Controller, but came to the conclusion that though he had defaulted in payment of rent for about six months, he would exercise his discretion under section 13 (2) of Ordinance VI of 1959 in favour of the tenant and condone his lapse. The reasons which impelled him to condone the lapse were that the landlord had demanded Rs. 14 per month as rent instead of Rs. 7 and this had probably resulted in hesitation in the mind of the tenant to pay the exorbitant rent, and, secondly, that as the tenant was in occupation of the premises since 1930, it was not in the interest of justice to order his eviction for default of six months, especially when the landlord had demanded double the rent, which had by then been paid. Dissatisfied with his order, Kh. Ghulam Qadir has moved this Court in second appeal.

2. The short question which falls for determination in this case is whether the Rent Controller or the Appellate Authority has a discretion in directing the tenant to put the landlord in possession in case of an application under subsection (2) of section 13 of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959).

3. For the appellant it is contended that the word "may" has been used in the sense of "must" or "shall". In support of his contention his learned counsel relied on Kurban Hussain Sajauddin v. Ratikant Nilkant and another (A I R 1959 Bom. 401), in which the learned Judges of the Bombay High Court, after considering the word "may" in subsection (3) (a) of section 12 of Bombay Act 57 of 1947, came to the conclusion that it was used in the sense of "must" or "shall". Usually, the word "may" is an enabling word : it gives discretion to the person who is given the option to act in a particular manner mentioned In the section. But it is well recognised that the word "may" in some context may even mean "shall". If statutes authorise any specified person to do acts for the benefit of others, the authority conferred is coupled with an obligation to discharge a duty by the statutes themselves, then in such a case, though the word used by the Legislature may be "may", the intention is to impose an obligation upon the authority to discharge his duty, with the result that the word "may" in the context means "must" or "shall". As Lord Phillimore has observed in Alcock, Ashdown & Co. Ltd. v. Chief Revenue Authority, Bombay (AIR 1923 P C 138), "when a capacity or power is given to a public authority, there may be circumstances which couple with the power a duty to exercise it". Lord Cairns in the case of Julius v. Lord Bishop of Oxford ((1880) 5 A C 214) has observed as follows :‑ "There may be something in the nature of the thing empowered to be done, something ill tile object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or person for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." The word "may" used in section 51 of the Indian Income‑tar Act was held by the Judicial Committee of the Privy Council in A I R 1923 P C 138, cited above, to mean, in the context of the scheme of the Act and the other relevant factors, when the other conditions of section 51 (1) were satisfied, that it was the duty of the Chief Revenue Officer to make a reference. In Hookamchand v. Nowroji (10 Bom. L R 345), Mr. Justice Beamanj has similarly construed the word "may" occurring in section 49 of the Indian Insolvency Act. The word "may" in section 59 of the Indian Stamp Act has also been held to mean "shall" by Chagla, Acting C. J., and Bhagwati, J., in Chief Controlling Revenue Authority, Bombay v. Maharastra Sugar Mills, Ltd. (49 Bom. L R 893). There is thus good authority for the proposition that the word "may" in the context in which it has been used and the scheme of the statute and other relevant considerations, may be interpreted as meaning, "must" or "shall", but this need not necessarily be so in each and every case. The question is whether by looking at the word "may" in the context of subsection (2) of section 13 of Ordinance VI of 1959, it can be said that it has been used in the sense of "shall" or "must", I am not inclined to held that this is so.

4. In the first instance, it is noticeable that in a case under subsection (2) where a landlord, who is to evict his tenant, applies to the Rent Controller on grounds specified in its clauses (i) to (iv), the provision is that the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land, and if the Controller is not so satisfied, he shall make an order rejecting the applica tion. In the same provision two different words "may" and shall" have been used, and it appears to me that the two words have been deliberately chosen in their context; "may" in the first place, in relation to directing the tenant to put the landlord in possession, and "shall" in the second place, in relation to rejecting the application if he is not satisfied. Similarly, where a landlord applies to the Controller under subsection (3) (a), sub‑paragraphs (i) or (ii) of section 13 of the Act, for an order directing the tenant to put the landlord in possession on any one of the grounds specified therein, the Controller shall, under its paragraph (d), if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building or rented land on such date as may be specified by the Controller, and if the Controller is not so satisfied, he shall make an order rejecting the application. Here the word "shall" has been used in both places. It is particularly noticeable that the word "shall" has been used in the context of making an order directing the tenant to put the landlord in possession. when he satisfies the Controller that his application is bona fide, This is in marked contrast to the word "may" used under subsection (2) of section 13 of Ordinance VI of 1959. One of the grounds for the landlord to apply for ejectment of the tenant under subsection (2) of section 13 is non‑payment of rent by the tenant for the specified period. In case of the termination of lease by forfeiture by non‑payment of rent, section 114 of the Transfer of Property Act provides that the Court may, in lieu of making a decree for ejectment pass an order relieving the lessee against the forfeiture, if the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. It may bet that in view of this principle, the word "may" was deliberately used in subsection (2) of section 13 of Ordinance VI of 1959, leaving a discretion with the Controller not to direct the tenant to put the landlord in possession if the case falls under clause (i) of subsection (2) of section 13, or if the circumstances of the case are such that it is necessary in the interest of justice not to order so. It must be remembered, however, that it is intended that normally in case of default an order of ejectment is to follow, and the exercise of discretion must be based on good grounds on a careful consideration of all the relevant factors with a view only to prevent grave hardship. The exercise of the discretion must be judicial, As a discretion vests in the Controller, I can also be exercised by the Appellate Authority. Thus the exercise of discretion by the Appellate Authority was not incompetent.

5. The next question which arises is whether I should interfere with the discretion exercised by the Appellate Authority is not directing the tenant to put the landlord in possession. The original rent of the premises was Rs.7 p.m. when the house was transferred to the appellant, he served the respon dent with notice Exh. R. 3, demanding rent at the rate of Rs. 14 p.m. It is not shown that Rs. 14 was the rent according to the latest valuation of the Municipal Committee. Thus the rent demanded was not claimed in accordance with the provisions of section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. For the default of the tenant in the payment of the rent, the appellant‑landlord was partly responsible himself. The Appellate Authority was justified in holding that the hesitation on the part of the tenant to pay the rent was probably due to the exorbitant amount of rent demanded by the landlord. On the very relevant question why rent was not paid by the tenant at the rate of Rs. 7 p.m. to the landlord to avoid his being a defaulter ; he had led evidence that he offered rent at that rate to the landlord, but it was refused. He had also applied to the Settlement Authorities for transfer of the property to him and his revision petition was still pending. The rent due has also been paid in full. For all these reasons, I am not inclined to interfere with the discretion exercised by the lower‑appellate Authority.

6. This second appeal is, therefore, dismissed, but there will be no order as to costs. K. B. A, Appeal dismissed.