Lala Ram Swarup & Ors Vs. Shikar
Chand & ANR  INSC 244 (10 November 1965)
10/11/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 893 1966 SCR (2) 553
R 1971 SC 530 (253,237,387)
U.P. (Temporary) Control of Rent and Eviction
Act, 1947 (U.P. 3 of 1947), ss. 3(3), 3(4) and 16-Jurisdiction of Civil
Court--If barred--Revisionary powers of CommissionersScope.
The appellants sued the-respondents-their
tenants for ejectment from their shop. They had applied to the District
Magistrate for the requisite permission to institute the suit under s. 3(1) of
the U.P. (Temporary) Control of Rent and Eviction Act. When the permission was
refused they moved the Commissioner in his revisional jurisdiction under s.
3(2) of the Act and the Commissioner gave the permission.. The Munsif decreed
the suit. This was confirmed in appeal by the District Judge. The High Court,
on appeals, upheld the respondents contention that the permission granted by
the Commissioner under s. 3 (3) of the Act, was invalid in law, and so
concluded that the appellants' suit was incompetent. In this Court the
appellants contended (i) ss. 3(4) and 16 of the Act totally excludes the
jurisdiction of civil courts in relation to the question as to whether
permission has been properly or validly granted or refused by the appropriate
authority exercising their powers under the relevant provisions of the Act, and
(ii) the decision of the High Court that the permission granted by the
Commissioner was invalid in law was inconsistent with the true scope and effect
of the provisions prescribed by s. 3(3) of the Act.
HELD:(i) Section 3 (4) and 16 of the Act
create a bar against pleas which challenge the correctness or propriety of the
orders in question. [558 G] The two tests, which are often considered relevant
in dealing with the question about the exclusion of civil courts' jurisdiction
are (a) whether the special statute which excludes such jurisdiction has used
clear and unambiguous words indicating that intention; and (b) does that
statute provide for an adequate and satisfactory alternative remedy to a party
that may be aggrieved by the relevant order under its material provisions.
Applying these tests the inference is inescapable that the jurisdiction of the
civil courts is intended to be excluded. [558 D-G] This conclusion, however,
does not necessarily mean that the plea against the validity of order passed
by. the District Magistrate, or the Commissioner, or the State can never be
raised in a civil court. The bar excluding the jurisdiction of civil courts
cannot operate in cases where the plea raised before the civil court goes to
the root of the matter and would, if upheld, lead to the conclusion that the
impugned order is a nullity. [558 G-H] (ii)The High Court was not justified, in
introducing a limitation pertaining to questions of jurisdiction in determining
the scope of the width of the revisional power conferred on the Commissioner by
s. 3 (3). There are three categories of cases in which the commissioner' can
interfere with the order passed by the District Magistrate :(a) if the District
Magistrate has acted illegally; (b) if he has acted with material irregularity
and(c) if he has wrongly refused to act. This last ground is wide enough 5 54
to empower the Commissioner to correct the error committed by District
Magistrate in making an order brought before it;
clearly if the District Magistrate refused to
grant permission and the Commissioner thinks that in doing so, he has committed
an error, that would be a case where the District Magistrate "has wrongly
refused to act" and that would give the Commissioner jurisdiction to
exercise his revisional powers. [562 C-E, H]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 116. of 1964.
Appeal from the judgment and order dated
September 13, 1960, of the Allahabad High Court in Special Appeal No. 212, of
J. P. Goyal and B. P. Jha, for the
A. V. Ranganadham Chetty and A. V. Rangam,
for the respondents.
The Judgment of the Court was delivered by
Gajendragadkar, C.J Appellant No. 1, Lala Ram Swaruup, and five other members
of his family sued the two respondents, Shikar Chand and his son, for ejectment
from the shop situated in Qasba Chandausi, Bazar Waram, on the allegation that
the said premises had been let out to the respondents to conduct their shop on
a monthly rent with effect from the 11th April, 1952, for a year. At the time
when the present suit was brought, the U.P. (Temporary) Control of Rent and
Eviction Act, 1947 (U.P. Act III of 1947) (hereinafter called 'the Act') was in
force. Section 3 of the Act imposes certain restrictions on the landlord's
right to eject his tenant from the premises to which the Act applies.
Broadly stated, the effect of the provisions
contained in S. 3(1) is that a landlord can evict his tenant if he satisfies
two conditions. The first condition is that he must obtain the permission of
the District Magistrate to file such a suit; and the second condition is that
he must prove the existence of one or the other of the seven grounds;
Enumerated in clauses (a) to (g) of S. 3(1).
We shall presently refer to the relevant provisions of this section.
In their plaint, the appellants pleaded that
they needed the premises in suit to carry on their own business in the shop,
and they alleged that they had applied for permission-to the District
Magistrate, Moradabad, under S. 3 (1 ) of the Act;
that the said permission had been refused by him,
whereupon they had moved the Commissioner in his revisions jurisdiction under
S. 3(2) of the Act; and that the Commissioner had given them permission to file
That is how the appellants claimed to have
satisfied both the, conditions prescribed by S. 3 (1). The appellants further
claimed ejectment of the respondents and asked for a decree for damages. for
use and occupation of the suit premises from 11th April, 1953 to 11th July,
1954 Rs. 35/per month.
The suit (No. 349, of 1954) was filed on the
14th July, 1954.
The respondents resisted the claim made by
the appelants on.
several grounds. They urged that the suit was
bad for non joinder of necessary parties; that the permission to sue granted to
the appellants by the Commissioner was not valid in law; that the rent note
executed by them was not admissible in evidence; and that the notice given by
the appellants under section 106 of the Transfer of Property Act was also
invalid in law.
On these pleadings, the learned Munsif,
Chandausi, framed appropriate issues. Evidence wag led by both the parties in
support of their respective contentions. The learned trial Judge recorded
findings in favour of the appellants on all the issues and decreed their suit
with costs on the 25th March, 1955.
The respondents then preferred an appeal
(Civil Appeal No. 213 of 1955) in the Court of the District Judge, Moradabad,
and urged that the findings recorded by the trial Judge were erroneous and
asked for the reversal of the decree passed by him. The learned District Judge
rejected the respondents' contentions and confirmed the decree under appeal on
the 2nd June, 1955.
That took the respondents to the High Court
at Allahabad in second appeal (No. 1106 of 1955). The learned single Judge of
the said High Court who heard this appeal, upheld the respondents' contention
that the permission granted by the Commissioner under s. 3(3) of the Act was
invalid in law;
and so, he came to the conclusion that the
appellants' suit was incompetent. This judgment was delivered on the 26th July,
1956. The learned Judge, however, allowed the appellants leave to file a
Letters Patent Appeal.
The Letters Patent Appeal was placed before a
larger Bench of three learned Judges of the High Court, because it was thought
that the question raised by the appellants was of some importance. On the
question as to whether the permission granted by the Commissioner was valid or
not, the learned Judges who heard the appeal differed. Two of the learned
Judges held that the said permission was invalid, whilst the third learned
Judge held that it was valid. In accordance with the majority opinion the
Letters Patent appeal preferred by the appellants was dismissed on the 13th
September, 1960. The appellants then applied for 556 and obtained a certificate
from the High Court and it is with the said certificate that this appeal has
come to this Court.
At the hearing of this appeal, the first
point which Mr. Goyal for the appellants has raised for our decision is that
the courts below had no jurisdiction to consider the question about the
validity of the permission granted by the Commissioner. He contends that s. 3
of the Act provides a self-contained code for the grant of permission, and all
questions in relation to the grant or refusal of the said permission have to be
decided by the appropriate authorities constituted under the Act. Once the
question about the grant of permission asked for by a landlord is determined by
the appropriate authorities, their decision is final and cannot be questioned
in a civil court. In support of this argument, Mr. Goyal has based himself on
the provisions contained in S. 3 (4) and s. 16 ,of the Act. Section 3 (4)
provides that the order of the Commissioner under subsection (3) shall subject
to any order passed by the State Government under s. 7-F, be final. Similarly,
S. 16 provides that no order made under this Act by the State Government or the
District Magistrate shall be called in question in any Court. The combined
effect of these two provisions, according to Mr. Goyal, is to exclude the
jurisdiction of the civil courts to entertain the question about the
correctness, propriety or legality of the order passed by the Commissioner in
the present case whereby he granted permission to the appellants to bring the
In order to appreciate the validity of this
argument, it is necessary to consider the scheme of the, relevant provisions of
the Act. Section 3(1) reads thus.:"Subject to any order passed under
sub-section (3) no suit shall, without the permission of the District
Magistrate, be filed in any Civil Court against a tenant for his eviction from
any accommodation, except on one or more of the following grounds".
It is unnecessary to cite the said grounds,
because it is not disputed that the ground of personal need set out by the
appellants justifies their claim for the respondents' ejectment. Section 3(2)
and (3) as they stood at the relevant time read thus :"(2) The party
aggrieved by the order of District Magistrate granting or refusing to grant the
permission referred to in subsection (1) may, within 30days from the date of
the order or the date on which it is communi5 57 cated to him, whichever is
later, apply to the Commissioner to revise the order.
(3) The Commissioner shall, as far as may be,
hear the application within six weeks from the date of its making, and, if he
is satisfied -that the District Magistrate has acted illegally or with material
irregularity or has wrongly refused to act, he may confirm or set aside. the
order of the District Magistrate".
We have already referred to s. 3(4).
It would thus be seen that the scheme of s. 3
is that if a landlord wants to bring a suit to eject his tenant, he has to
apply to the District Magistrate for permission to do so.
The District Magistrate may grant or refuse
to grant such permission. After the District Magistrate makes an order on the
landlord's application, the party aggrieved by the order can apply in revision
to the Commissioner within 30 days;
and the Commissioner, in exercise of his
revisional jurisdiction, has to deal with the revision application under s.
3(3). If he is satisfied that the District Magistrate has acted illegally or
with material irregularity, or has wrongly refused to act, he can make an
appropriate order; and the order thus made by him is final under sub-s. (4),
subject to any order that the State Government may pass under s. 7-F of the
Section 7-E provides for the revisional
powers of the State Government in very wide terms. It reads thus :"The State
Government may call for the record of any case granting or refusing to grant
permission for the filing of a suit for eviction referred to in section 3 or
requiring any accommodation to be let or not to be let to any person under
section 7 and may make such order as appears to it necessary for the ends of
It is clear that the power conferred on the
State Government by s. 7-F to revise the orders passed by the Commissioner
under s. 3 (3 ) is very wide. In the first place, the State Government need not
necessarily be moved by any party in that behalf. It may call for the record
suo moto and it can exercise its powers in the interests of justice. In other
words, whenever it is brought to the notice of the State Government either by a
party aggrieved by the order passed by the Commissioner, or otherwise, that the
order passed by the Commissioner is unfair or unjust, the State Government may
in the ends of justice pass an appropriate order revising -the order made by
the Commissioner. That, in brief, is the 558 scheme of. the relevant provisions
of the Act relating to the grant of permission to the landlord to sue his
tenant in ejectment.
Mr. Goyal contends that the words of s. 3 (4)
read with s. 16 are clear and unambiguous, and they indicate that the
jurisdiction of the civil courts is completely excluded in relation to the
question as to whether permission has been properly or validly granted or
refused by the appropriate authorities exercising their powers under the
relevant provisions of the Act. It cannot be seriously disputed that the
jurisdiction of the civil courts to deal with civil causes can be excluded by
the Legislature by special Acts which deal with special subject-matters; but
the exclusion of the jurisdiction of the civil courts must be made by a
statutory provision which expressly provides for it, or which necessarily and
inevitably leads -to that inference.
In other words, the jurisdiction of the civil
courts can be excluded by a statutory provision which is either express in that
behalf or which irresistibly leads to that inference.
One of the points which is often treated as
relevant in dealing with the question about the exclusion of civil courts'
jurisdiction, is whether the special statute which, it is urged, excludes such
jurisdiction, has used clear and unambiguous words indicating that intention.
Another test which is applied is : does the said statute provide for an
adequate and satisfactory alternative remedy to a party that may be aggrieved
by the relevant order under its material provisions ? Applying these two tests,
it does appear that the words used in s. 3 (4) and s. 16 are clear. Section 16
in terms provides that the order made under this Act to which they said section
applies shall not be called in question in any court. this is an express
provision excluding the civil courts' jurisdiction. Section 3 (4) does not
expressly exclude the jurisdiction of 'the civil courts, but, in the context,
the inference that the civil courts' jurisdiction is intended to be excluded, appears
to be inescapable. Therefore, we are satisfied that Mr. Goyal is right in
contending that the jurisdiction of the civil courts is excluded in relation to
matters covered by the orders included within the provisions of s. 3 (4) and s.
This conclusion, however, does not
necessarily mean that the plea against the validity of the order passed by the
District Magistrate, or the Commissioner, or the State Government, can never be
raised in a civil court. In our opinion, the bar created by the relevant
provisions of the Act excluding the jurisdiction of the civil courts cannot
operate in cases where the plea raised before the civil court goes to the root
of the matter and would, if upheld, 559 lead to the conclusion that the
impugned order is a nullity.
Take,, for instance, the case of an order
purported to have been passed by a District Magistrate who is not a District
Magistrate in law. If it is shown by a party impeaching the validity of the
order in a civil court that the order was passed by a person who was not a
District Magistrate,-the order in law would be a nullity, and such a plea
cannot be ruled out on the ground of the exclusion of the jurisdiction of the
civil court. Similarly, if an order granting permission to a landlord is passed
by a District Magistrate of one District when the property in question is
situated in another district outside his jurisdiction, a party would be
entitled to urge before a civil court that the permission purported to have
been granted by the District Magistrate is wholly invalid and a nullity in law.
Let us take another case to illustrate the position. If S. 3 had provided that
before a District Magistrate grants permission to the landlord to sue his
tenant, he shall issue notice to the tenant and give him an opportunity to
represent his case before the application of the. landlord is dealt with on.
the merits; and in the face of such a
statutory provision, the District Magistrate grants permission ex parte without
issuing notice to the tenant; in such a case, the failure of the District
Magistrate to comply with the mandatory provision% prescribed in that behalf,
would render the order passed by him completely invalid, and a plea that an
order has been passed by the District Magistrate without complying with the mandatory
provision of the Act, would be open for examination before a civil court.
Likewise, in the absence of such a statutory provision, if it is held that the
proceedings before the appropriate. authorities contemplated by S. 3 are in the
nature of quasi-judcial proceedings and they must be tried in accordance with
the principles of natural justice, and it is shown that in a given case, an
order has been passed without notice to the party affected by such order, it
would be open to the said party to contend that an order passed in violation of
the principles of natural justice is a nullity and it existence should be
ignored by the civil court. Such a plea cannot, in our opinion, be excluded by
reason of the provisions contained in S. 3 (4) and S. 16 of the Act.
In this connection, we may incidentally refer
to a recent decision of this Court in Lala Shri Bhagwan & A nr. v. Shri Ram
Chand and Another(1). In that case, -this Court upheld the decision of the
Allahabad High Court which had set aside the order passed by the appropriate
authority under the relevant provisions the Act on the ground that in passing
the said order, principles of natural (1)  3 S.C.R, 218 560 justice had
not been followed. The view which was taken by this Court in that case was that
the proceedings taken by a landlord under S. 3 are proceedings of a
quasi-judicial nature and the appropriate authorities, in exercising their
powers in relation to such proceedings, must act in accordance with the
principles of natural justice. It must, however, be made clear that in that
,case, the question as to whether such a plea can be raised in a civil court
having regard to the bar created by sections 3 (4) and 16 of the Act, was not
raised and has not been considered.
We ought to point out that the provisions
contained in sections 3(4) and 16 undoubtedly raise a bar against pleas which
,challenge the correctness or propriety of the orders in question. The merits
of the order are concluded by the decision of the ,appropriate authorities under
the Act and they cannot be agitated in a civil -court. But where a plea seeks
to prove that the impugned order is a nullity in the true legal sense, that is
a plea -which does not come within the mischief of the bar created by sections
3(4) and 16 of the Act.
Similar questions have often been considered
by judicial ,decisions to some of which we will now refer. In The Secretary ,of
State for India in Council v. Roy Jatindra Nath Chowdhury -and A nr., (1)
dealing with the effect of s. 6 of the Bengal Alluvion and Diluvion Act (IX of
1847), the Privy Council observed that -the finality of the orders specified in
the said section had to be read subject to two conditions; the first was that
the said orders -should not suffer from any fundamental irregularity, that is
to -say, "a defiance or noncompliance with the essentials of the
procedure"; and the second condition was that the alleged defiance or
non-compliance, with the essentials of the procedure must be strictly proved by
the party alleging it.
This decision show that if the special
statute prescribes certain mandatory conditions -subject to which the orders in
question can be passed, and the said mandatory provisions are violated, the
validity of the said orders ,can be challenged in a civil proceeding.
Similarly, if principles ,of natural justice are not complied with, the orders
passed in violation of the said principles would be wholly inoperative in law
and their validity can be impeached in civil proceedings.
The same principle has been emphasised by the
Privy Council in Secretary of State v. Mask & Co.(1). In that case, though
the words used in sections 188 and 191 of the Sea Customs Act (1878) were held
to exclude the jurisdiction of the civil courts, (1) A.I.R. 1924 P.C. 175.
(2) 67 1. A. 222 561 the Privy Council
observed that even where jurisdiction is excluded, the civil courts have
jurisdiction "to examine into cases where the provisions of the Act have
not been complied -with, or the statutory tribunal has not acted in conformity
with the fundamental principles of judicial procedure". This latter clause
presumably covers cases where orders are passed in violation of the principles
of natural justice.
In M/s Kamala Mills Ltd. v. The State of
Bombay(1), while dealing with a similar point, this Court has considered the
effect of the two decisions of the Privy Council, one in -the case of Mask
& Co.(1), and the other in Raleigh Investment Company Ltd.. v. Governor
General in Council(3).
The conclusion reached by this Court in M/s.
Kamala Mill's case(1) also supports the view which we are taking in the present
Therefore, while upholding the contention
raised by Mr. Goyal that the jurisdiction of the civilcourts is barred, we wish
to make it clear that this contention will not avail Mr. Goyal if the
respondents' plea, if upheld, would render the permission granted by the
Commissioner totally invalid land a nullity.
The second point which then calls for our
decision in the present appeal is: is the permission granted by the Commissioner
without jurisdiction and as such, a nullity ? The majority decision of the
Allahabad High Court is in favour of the respondents; and Mr. Goyal's argument
is that the said decision is inconsistent with the true scope and effect of the
provisions prescribed by s. 3 (3) of the Act.
The decision of this point lies within a very
narrow compass. The majority decision is that the jurisdiction conferred on the
Commissioner under s. 3(3) is exactly similar to the jurisdiction conferred on
the High Court under s. 115 of the Code of Civil Procedure. It will be recalled
that. 115 of the Code confers revisional jurisdiction on the High Court to make
such order as it thinks fit in a given case, if the subordinate court whose
order is brought before the High Court under s. 115 "appears (a) to have
exercised a jurisdiction not vested in it by law, or (b) to have failed to
exercise a jurisdiction so vested, or(c) to have acted in exercise of its
-jurisdiction illegally or with material irregularity".
There is no doubt that the requirements of
clauses (a), (b) & (c) all centre round the question about the jurisdiction
of the subordinate court, and the view which has been accepted by the majority
decision under appeal is that the same limitation must be imported in construing
(1) (1966) 1 S.C.R. 64.
(3) 74 T. A. 50, at pp. 62-63.
(2) 67 I.A. 222.
56 2 the scope of the authority and power
conferred on the Commissioner by S. 3(3).
Let us examine whether this conclusion is
right. In construing the provision of s. 3 (3), one factor which is patent is
that it ,does not refer to any considerations of jurisdiction at all.. In fact,
it is not easy to conceive of a limitation as to jurisdiction being relevant in
s. 3(3), because the said provision deals with .orders passed by District
Magistrates, and the District Magistrates normally would have jurisdiction to
deal with applications made by landlords. But quite apart from this aspect of
the matter, the words used in S. 3(3) are unambiguous. There are 'three
,categories of cases in which the Commissioner can interfere with the order
passed by the District Magistrate. If the District Magistrate has acted
illegally, the Commissioner can interfere with his order; so can he interfere
with the order if the District Magistrate has acted with material irregularity;
and lastly, the Commissioner can interfere with the order of the District
Magistrate if the District Magistrate has wrongly refused to act. This last
-clause is wide enough to empower the Commissioner to correct the error committed
by the District Magistrate in making an order brought before it; quite clearly
if the District Magistrate refuses to grant permission and the Commissioner
thinks that in doing so, he has committed an error, that would be a case where
the District Magistrate has wrongly refused to act, and that would give the Commissioner
jurisdiction to exercise his revisional power.
It is significant that the revisional
application can be made to the Commissioner only against orders passed by the
District Magistrate granting or refusing to grant such permission. It is, we
think, fallacious to assume that a party can move the Commissioner under s.
3(3) in cases where the District Magistrate just refuse to make an order on the
application made by the landlord for permission to bring a suit against the
tenant. If a District Magistrate just does not deal with the application and
passes no, order on it, the party aggrieved may be justified in applying for an
appropriate writ to the High Court or adopt some other suitable remedy in law;
but a revision in such a case does not appear to be competent under s. 3 (3).
Besides, the illegality or the irregularity to which s. 3 (3) refers need not
necessarily be correlated with questions of jurisdiction. Therefore, we are
satisfied that the High Court was not justified in introducing a-limitation
pertaining to questions of jurisdiction in determining the scope of the width
of the revisional visional power conferred on the Commissioner by S. 3 (3).
That is why it must be held that the High Court was in error in coming to the
conclusion that the permission granted by the Commissioner in exercise of the
powers conferred on him by s. 3 k 3) is invalid in law. As we have already
emphasised, the only plea which can be raised before a civil court in relation
to orders passed under the relevant provisions of the Act can be a plea which,
if sustained, would render the order wholly invalid and as such, a nullity. No
other plea can be raised, because all other pleas are barred by ss. 3 (4) and
16 of the Act.
In this connection, we may incidentally point
out that by a subsequent amendment of s. 3(3), the Legislature has made it
clear that its intention is to confer wide jurisdiction on the Commissioner.
The amendment in question has been introduced by Act 17 of 1954. The amended
provision reads thus :"'The Commissioner shall hear the application made
under sub-section (2), as far as may be, within six weeks from the date of
making it, and he may, if he is not satisfied as to the correctness, legality
or propriety of the order passed by the District Magistrate or as to the
regularity of proceedings held before him, alter or reverse his order, or make
such other order as may be just and proper".
There is no doubt that under this amended provision,
the Commissioner can deal not only with the legality, but also with the
correctness and propriety of the order passed by the District Magistrate. In
our opinion, the position about the Commissioner's powers was not different
even under the un amended provision.
It may also be relevant to point out that the
power conferred on the State Government at all material times by s. 7-F was
very wide. As we have already indicated, in exercise of its powers under s.
7-F, the State Government can pass such orders as appear to it to be necessary
in the ends of justice. Therefore, there is no doubt that the relevant
provisions of the Act did not intend, even prior to the amendment of 1954, to
limit the jurisdiction of the Commissioner only to cases where irregularity or
illegality bad been committed by the District Magistrate in granting or
refusing, to grant permission.
The result is, the appeal is allowed, the
order passed by the High Court in the Letters Patent Appeal is set aside, and
that of the District Court restored with costs throughout.