The Central Talkies Ltd., Kanpur Vs.
Dwarka Prasad  INSC 13 (16 January 1961)
CITATION: 1961 AIR 606 1961 SCR (3) 495
CITATOR INFO :
RF 1966 SC1888 (3) D 1969 SC 483 (12) R 1978
SC 1 (8)
Rent Control-Ejectment suit with Permission
of District Magistrate-Additional District Magistrate, if can grant permission
Persona designata-U. P. (Temporary) Control of Rent and Eviction Act, 1947 (U.
P. III of 1947) ss. 2(d) and 3 Code of Criminal Procedure, 1898 (V of 1898), S.
Section 3 of the U. P. (Temporary) Control of
Rent and Eviction Act, 1947, enabled a landlord to file a suit for eviction of
the tenant with the permission of the District Magistrate. Section 2(d) of the
Act defined District Magistrate as including an officer authorised by the
District Magistrate to perform any of his functions under the Act. By a
notification issued under s. 10(2) of the Code of Criminal Procedure the U. P.
Government appointed Mr. Seth to be an Additional District Magistrate "
with all the powers of a District Magistrate under the said Code and under any
other law for the time being in force." The respondent applied to the
District Magistrate for permission to file a suit for ejectment against the
appellant. The District Magistrate transferred the application to Mr. Seth the
Additional District Magistrate who granted the permission. The appellants
contended that the permission granted was invalid as the District Magistrate
mentioned in s. 3 of the Act was a persona designata and the permission could
have been granted only by him or by an officer authorised by him to perform his
functions and not by the Additional District Magistrate.
Held, that the permission granted by the
Additional District Magistrate was valid. The notification issued by the
Government invested Mr. Seth with all the powers of the District Magistrate
under the Code as well as under any other law including the Eviction Act and he
was competent to grant the permission under s. 3. The District Magistrate
mentioned in S. 3 was not a persona designata. A Persona designata is a person
selected as an individual in his private capacity, and not in his capacity as
filling a particular character or office, Kedar Nath v. Moot Chand, A.I.R. 1953
All, 62, disapproved.
Parthasaradhi Naidu v, Koteswara Rao, (1923)
I.L.R. 47 Mad.
369 (F.B.), referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 374 of 1957.
Appeal from the judgment and decree dated
September 21, 1955 of the Allahabad High Court in First Appeal No. 251 of 1954
&rising out of the judgment 64 496 and decree dated May 24, 1954, of the
Civil Judge, Kanpur, in Suit No. 35 of 1949.
A. V. Viswanatha Sastri, G. S. Pathak and
Naunit Lal for the appellant.
N. C. Chatterjee, S. N. Andley, J. B.
Dadachanji and P. L. Vohra, for the respondent.
1961. January 16. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-This is an appeal against the judgment and
decree of the High Court of Allahabad with a certificate granted by the High
Court under Art. 133(1)(b) of the Constitution. The High Court, reversing the
decision of the trial Court, decreed the present suit for ejectment against the
appellants, and also awarded damages to the plaintiffrespondent at the rate of
Rs. 593-12-0 per month. The suit was filed by the respondent,, Babu Dwarka
Prasad, against the appellants, Central Talkies Ltd., Kanpur, and Lala Ram
Narain Garg, the Managing Director of the Company.
The facts, briefly stated, are as follows:
Dwarka Prasad was the sole owner of a plot of land No.73/22 (old No. 73/28)
situated in Collector gunj, Kanpur. In 1933 an agreement of lease was executed
by five persons in favour of Lala Rameshwardas, the predecessor-in-title of
Babu Dwarka Prasad, by which the five lessees took over on lease a hall and
other con structions, which the lessor agreed to build at a cost of Rs. 16,000/within
four months. It was agreed that, if the lessor was required to spend an amount
in excess of Rs. 16,000/-, he would be entitled to interest at the rate of 12
annas per cent. per month from the second party till the end of tenancy. The
tenancy was from month to month, and the period of the tenancy was fixed at 5
years in the first instance. This tenancy continued with variations in the
amount of rent till the year 1946, and on January 15, 1946, Dwarka Prasad sent
a letter to the defendants that the period of lease was to expire on February
28, 1946, and that the Central Talkies Ltd. should vacate the premises by that
date, The defendants did not vacate the 497 premises, and a suit for ejectment
was filed against the Central Talkies Ltd.During the pendency of that suit, the
United Provinces (Temporary) Control of Rent and Eviction Act, 1947 (referred
to in the judgment as the Eviction Act), came into force. Under s. 3 of the
Eviction Act, permission of the District Magistrate was required to file in any
Civil Court a suit for the eviction of a tenant, except on grounds which were
enumerated in the section. Admittedly, that suit was filed on a ground which
was not enumerated in the section, and Dwarka Prasad withdrew it. He then
applied to the District Magistrate for permission to eject the Central Talkies
Ltd., from the premises, and permission was granted by the Additional District
Magistrate (Rural Area) on July 7, 1948. It is not necessary to state the pleas
which were taken by the defendants in the newly filed suit, because the only
point argued before us was that the suit was incompetent, because permission of
the District Magistrate as required by s. 3 had not been obtained.
The Divisional Bench of the High Court held
that the suit was competent. The two learned Judges,who heard the appeal,
reached the same conclusion, though on slightly different grounds. Raghubar
Dayal, J. held that the Additional District Magistrate, who granted permission,
was empowered by the Provincial Government under s. 10(2) of the Code of
Criminal Procedure to exercise all the powers of a District Magistrate under
the Code and all the laws for the time being in force, and the requirements of
s. 3 were complied with. Brij Mohan Lal, J. came to the conclusion that the
District Magistrate by transferring the case to the Additional District
Magistrate (Rural Area) had authorised him to perform his functions under the
Act in this behalf and that the Additional District Magistrate, being thus
included in the definition of "District Magistrate" under s.
2(d), was competent to grant the permission.
Concurring, therefore, that the suit was instituted with the permission of the
District Magistrate as required by the Eviction Act, the Divisional Bench held
that the suit was competent.
498 It may be pointed out that, at first, the
application for permission was made over by the District Magis. trate to Mr. Hadi
Hasan, who was also an Additional District Magistrate;
but the latter sent the case back to the
District Magistrate asking for a transfer, because he had been approached on
behalf of the defendants. The District Magistrate thereafter passed an order on
February 11, 1948, to the following effect:
" Transferred to Additional District
Magistrate (R.A.) for disposal. " The application for permission was
disposed of by Mr. Brijpal Singh Seth, Additional District Magistrate (Rural
Area), on July 7, 1948. This Officer, who was previously a City Magistrate,
Kanpur, was appointed an Additional District Magistrate by Notification No.
3400/11-276-48 dated May 22, 1948. The material portion of this Notification
read as follows:
" With effect from the date on which he
takes over charge Shri Brijpal Singh Seth, City Magistrate, Kanpur, is
appointed vice Shri Sheo Ramdas Saksena(a) under sub-section (2) of section 10
of the Code of Criminal Procedure, 1898 (Act V of 1898), to be an Additional
District Magistrate of Kanpur District, with jurisdiction extending over the
whole of the said district and with all the powers of a District Magistrate
under the said Code and under any other law for the time being in
force..." The appellants contended before us that both the reasons given
by the Divisional Bench of the High Court were not valid, and that the suit was
not brought in accordance with the Eviction Act. At first, the appellants
wished to raise a question as to the invalidity of the notice; but during the
course of the arguments, that ground was expressly abandoned. The case was thus
argued only on the footing that the permission given by Mr. Brijpal Singh Seth
did not comply with s. 3 of the Eviction Act.
The material portion of s. 3, as it stood on
the relevant date, read as follows:
"No suit shall, without the permission
of the District Magistrate, be filed in any civil court 499 against a tenant
for his eviction from any accommodation, except on one or more of the following
grounds..." "District Magistrate" is defined by s. 2(d) of the
Act, which reads:
District Magistrate' includes an officer
author rized by the District Magistrate to perform any of his functions under
this Act." The argument of the appellants was that the District Magistrate
mentioned in s. 3 was a persona designata, and that either he or an officer
authorised by him, to perform his functions could grant permission. Accordring
to them, in view of the provisions quoted above and in view also of the
provisions of s. 1(2) of the Code' 'of Criminal Procedure, no Additional
District Magistrate was competent to grant the permission, unless authorised to
do so by the District Magistrate. The order of the District Magisistrate by
which the case was made over to the Additional District Magistrate (Rural Area)
was characterised as a mere transfer and not an authorisation.
It was contended that a transfer could only
take place to a person possessing jurisdiction, and that jurisdiction under the
present Act was confined only to the District Magistrate or an officer
authorised by him. The transfer of the case, it was contended, did not
constitute such authorisation.
Reliance was placed on the decision of a
learned single Judge of the Allahabad High Court reported in Kedar Nath 'V.'
Mool Chand (1) and on the decision of the Nagpur High.
Court referred to therein, P. K. Tare v.
Section 10 of the Code of Criminal Procedure,
at the relevant time, provided as follows:
"10(1), In every district outside the
presidency, towns the Provincial Government shall appoint a: Magistrate of the
first class, who shall be called the District Magistrate.
(2) The Provincial Government may appoint any
Magistrate of the first class to be an Additional District Magistrate and such
Additional District, Magistrate shall have all or any of the powers of a
District Magistrate under this Code or under any (1) A.I.R. 1953 All. 62.
(2) A.I.R. 1943 Nag. 26.
500 other law for the time being in force, as
the Provincial Government may direct." The Notification, which was issued
about Mr. Brijpal Singh Seth and which has been quoted already, invested him
with all the powers of the District Magistrate under the Code of Criminal
Procedure as well as under any other law for the time being in force. He was
thus competent to deal with an application under the Act for permission to file
a civil suit without special authorisation from the District Magistrate.
Learned counsel for the appellants contended that the definition of "
District Magistrate " clearly showed that in addition to the District
Magistrate, only an officer specially authorised by him could act under the
Eviction Act, and he referred to sub-s. (2) of s. 1 of the Code of Criminal
Procedure, which provided:
"It extends to the whole of British
but, in the absence of any specific provision
to the contrary, nothing herein contained shall affect any special or local law
now in force, or any special jurisdiction or power conferred, or any special
form of procedure prescribed, by any other law for the time being in force..."
The argument was that the special jurisdiction created by the Eviction Act was
not affected by s. 10(2) of the Code, in view of the provisions of this
sub-section. The argument overlooks the words " in the absence of any
specific provision to the contrary ", and because there is in the Code of
Criminal Procedure such a pro. vision in s. 10(2), sub-s. (2) of s. 1 is
excluded, and an Additional District Magistrate must be regarded as possessing
the powers under any other law including the Eviction Act.
The argument that the District Magistrate was
a persona designata cannot be accepted. Under the definition of " District
Magistrate ", the special authorisation by the District Magistrate had the
effect of creating officers exercising the powers of a District Magistrate
under the Eviction Act. To that extent, those officers would, on authorisation,
be equated to the District Magistrate. A persona designata is " a 501
person who is pointed out or described as an individual, as opposed to a person
ascertained as a member of a class, or as filling a particular character."
(See Osborn's Concise Law Dictionary, 4th Edn., p. 253). In the words of
Schwabe, C.J., in Parthasaradhi Naidu v. Koteswara Rao (1), personae designatae
are " persons selected to act in their private capacity and not in their
capacity as Judges." The same consideration applies also to a well-known
officer like the District Magistrate named by virtue of his office, and whose
powers the Additional District Magistrate can also exercise and who can create
other officers equal to himself for the purposes of the Eviction Act. The
decision of Sapru, J., in the Allahabad case, with respect, was erroneous.
Reference was made to the definition of
" District Magistrate " in the United Provinces (Temporary)
Accommodation Requisition Act, 1947, which includes an " Additional
District Magistrate ". This definition has been made wide for obvious
reasons, because under s. 10(2) of the Code of Criminal Procedure, the
Additional District Magistrate has to be specially empowered. By including the
Additional District Magistrate in the definition of " District Magistrate
", power is conferred by the Requisition Act itself whether or not the
Provincial Government specially empowers any particular Additional District Magistrate
in that behalf. The Eviction Act, on the other hand,, gave power to the
District Magistrate to authorise officers other than the Additional District
Magistrates empowered by the Provincial Government, by defining the term "
District Magistrate " differently. In view of the above, it is hardly
necessary to into the reasons given by Brij Mohan Lal, J.; but even those
reasons are, with all due respect, equally valid. By the act of transferring
the case to the Additional District Magistrate, the District Magistrate must be
deemed to have authorised him to exercise his powers under s. 3 of the Eviction
Act. However, it is not necessary to rely upon this aspect of the case because,
in our opinion, s. 10(2) of the Code of (1) (1923) I.L.R. 47 Mad. 369, 373
502 Criminal Procedure gave ample powers to
Mr. Brijpal Singh Seth to accord permission for bringing the suit, and the
order of the District Magistrate, even if treated as a transfer, was valid.
In the result, the appeal fails, and is
dismissed with costs.