1. The facts relating to the dispute between the parties to this writ petition have been given in detail in the judgment in Special Appeal No. 181 of 1973. It is not necessary to restate them here. After the State Government allowed the respondent landlord's revision under Section 7-F on 15-11-1972 the latter moved an application before the Prescribed Authority on 24-11-1972 under Section 43 (2) Clause (rr) of the new U. P. Act No. XIII of 1972 read with Section 21 of the said Act seeking the eviction of the tenant. By the order dated 13-12-1972 passed in Civil Misc. Writ No. 7746 of 1972, the Prescribed Authority was directed not to pass final order of eviction during the pendency of the said writ petition. The Writ petition was, however, dismissed on March 5, 1973 and thereafter the Prescribed Authority by his order dated 17-5-1973 allowed the application of the Landlord respondent No. 2. The tenant thereafter filed this writ petition against the order dated 17-5-1973 of the Prescribed Authority. The writ petition has been filed during the pendency of Special Appeal No. 181 of 1973 and the Bench hearing the special Appeal by its order dated 17-8-1973 directed that the writ petition itself should also be beard along with the special appeal.
2. The only point which has been convassed in support of the writ petition against the Prescribed Authority's order dated 17-5-1973 is that compensation was bound to be paid to the tenant in terms of the second proviso to Clause (b) of Sub-section (1) of Section 21 of the new Act. In ground No. 3 of the writ petition the petitioner contended that such compensation was bound to be awarded by the State Government. However, that is an obvious mistake as compensation under Section 21 is awarded by the Prescribed Authority. In fact Mr. Shanti Bhushan appearing on behalf of the petitioner contended that compensation was bound to have been awarded by the Prescribed Authority.
3. The second proviso to Clause (b) of Sub-section (1) of Section 21 lays down as under:
'Provided further that if any application under Clause (a) is made in respect of any building in which the tenant is engaged in any profession, trade or calling, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount equal to two years' rent as compensation and may, subject to rules, impose such other conditions as he thinks fit.'
Now, it is true that the use of the word 'shall' prima facie leads to the conclusion that the prescribed authority is bound to award compensation to the tenant of shop. However, it is well known that sometimes the word 'shall' is not mandatory but only directory. The said proviso enjoins upon the prescribed authority to consider all relevant facts of the case. If the prescribed authority is bound to award two years' rent as compensation to the tenant then it will be a mere matter of arithmetical calculation and the direction that all relevant facts have to be considered by the Prescribed Authority becomes meaningless. Therefore, we are of opinion that the Second Proviso leaves a discretion in the matter to the Prescribed authority. There may be situations where the tenant may stand to lose nothing by an order of eviction and it will be inequliable that he should be awarded two years' full rental as compensation.
4. Further, no question was raised by the tenant before the prescribed authority about compensation. Then is no plea to that effect in his written statement which is annexure II to the writ petition. We are of opinion that if the tenant does not raise the question of compensation, the prescribed authority has no authority and is not bound to award compensation under the proviso in question. The landlord-respondent No. 2 relied upon the judgment of a learned single Judge of this Court in Writ Petn No. 7859 of 1972 -- (reported in AIR 1974 All 118). The question was not argued before the learned single Judge as it was taken for granted that when an application is made under Section 43, Sub-section (2), Clause (rr) then no compensation will be payable to the tenant. It is not necessary to go into that controversy as We have held that the proviso itself is not mandatory but directory and further that if a tenant fails to raise the question of compensation the prescribed authority is not suo motu required to enter into that question.
5. The writ petition is, therefore, dismissed with costs.