Bhagwan Das Vs. Paras Nath [1968] INSC
232 (27 September 1968)
27/09/1968 HEGDE, K.S.
HEGDE, K.S.
SIKRI, S.M.
BACHAWAT, R.S.
CITATION: 1970 AIR 971 1969 SCR (2) 297
CITATOR INFO:
F 1970 SC1919 (2,6,8,9) R 1972 SC1910 (13) RF
1981 SC1284 (10)
ACT:
U.P. (Temporary) Control of Rent and Eviction
Act 1947, ss. 3 and 7(F)--District Magistrate refusing permission to landlord
to sue tenant for eviction--Commissioner in revision granting it--Landlord
filing suit and obtaining decree--state Government thereafter revoking
permission by order u/s 7(F)--Such order whether renders decree unenforceable,
HEADNOTE:
The appellant was a tenant of the respondent
in respect of a shop in Agra, Uttar Pradesh. The respondent applied to the
District Magistrate under s. 3(1) of the U.P.
(Temporary) Control of Rent and Eviction Act,
1947 for permission to institute a suit against the appellant for evicting him
from the shop. The application was rejected by the District Magistrate, but the
Commissioner, by order under s. 3(3 ), granted the permission. The appellant
thereupon moved the State Government under s., 7(F) of the Act, but it was only
after the respondent had flied a suit and ,obtained a decree that the State
Government passed an order revoking the permission granted by the Commissioner.
The first Appellate Court, in view of the order under 7(F) act aside the decree
of the trial Court.
However in second appeal the High Court,
relying upon a Full Bench decision of that Court in Bashi Ram v. Mantri Lal
(1965) 1 All 545, decided in favour of the respondent. In appeal before this
Court by. special leave, the question for consideration was whether a decree
for eviction obtained in a suit instituted after obtaining the permission of
the Commissioner under s. 3(3) of the Act becomes unenforceable if the State
Government acting under s. 7(F) of the Act revokes the permission granted by
the Commissioner after the decree is passed.
HELD: The order of the District Magistrate is
by s. 3(1) specifically made subject to the order of the Commissioner in
revision under s. 3(3 ), but the Commissioner's order according to s. 3 (4 ) is
final though subject to the order of the State Government under s. 7(F). There
is no provision in the Act providing that a suit validly instituted after getting
the required permission under s. 3 (1 ) ceases to be maintainable because of
any order made by the State Government under s. 7(F). [305 G--H] Similarly
there is no provision in the Act invalidating a decree passed after the Act
came into force in a validly instituted suit. The finality or the force of a
decree can be taken away by a statute, .but the Court will not readily infer
that a decree passed by a competent Court has become unenforceable unless it is
shown that a provision of law has specifically or by necessary implication made
that decree unenforceable. [305 H--306 C-D] On an examination of the relevant
provisions of the Act the conclusion must be that when the Commissioner sets
aside the order passed by the District Magistrate granting permission to file a
suit for ejecting a tenant, the order of the Commissioner prevails. If he
cancels the permission granted by the District Magistrate, there is no
effective permission left and the suit instituted by. the plaintiff without
awaiting his decision must be treated as one filed without any valid permission
by the District Magistrate. To this extent the decision in Munshi Lal and ant.
v.Shambhu Nath Ramkishan, (1958) A.L.J. 584
was correct.
[305 D--F] Sup. C1/69--2 298 It follows that
the Full Bench decision in Bashi Ram's case to the extent it held that a suit
filed by the landlord after obtaining the permission of the District Magistrate
cannot become infructuous even if the Commissioner revokes the permission, was
incorrect. [306 F] Bashi Ram's case was however correctly decided in so far as
it held that a suit validly instituted after obtaining a permission as required
by s. 3(1) does not cease to be maintainable even if the State Government
revokes, after the institution of the suit, the permission granted. if the
State Government revokes the permission granted before the institution of the
suit, then there would be no valid permission to sue. In other words the State
Government's power to revoke the permission granted under s. 3(1) gets exhausted
once the suit is validity instituted. [306 G] Bashi Ram v. Mantri Lal, (1965)
1, All. 545 and Munshi Lal and ant. v. Shambhu Nath Ram Kishan, (1958) A.L.J.,
p.
584; considered.
Dr. S.L. Khoparji v. State Government, (1958)
A.LJ., p. 724; Basant Lal Sah v. Bhagwan Prasad Sah, A.I.R. 1964 All. p. 210
and Shri Bhagwan and ant. v. Ram Chand and anr., 1965 3 S.C.R., 218; referred
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1617 of 1968.
Appeal by special leave from the judgment and
decree dated March 19, 1968 of the Allahabad High Court in Second' Appeal No.
2296 of 1961.
1. P. Goyal and A. G. Ratnaparkhi, for the
appellant.
C.B.Agarwala and R. Mahalingier, for the
respondent.
The Judgment of the Court was delivered by
Hegde, J. The question of law that arises for decision in this appeal by
special leave is not free from difficulty.
That question is whether a decree for
eviction obtained in a suit instituted after obtaining the permission of the
Commissioner under sub-s. 3 of s. 3 of the U.P. (Temporary) Control of Rent and
Eviction Act, 1947 (to be hereinafter referred to as the Act) becomes
unenforceable if the State Government acting under s. 7(F) of that Act revokes
the permission granted by the Commissioner after the decree is passed ? The
appellant was a tenant of the respondent in respect of a shop in Balugani in
Agra. On January 2, 1959, the respondent applied to the District Magistrate
under s. 3(1) of the Act for permission to institute a suit against the
appellant for evicting him from the shop in question. That application was
rejected by the District Magistrate as per his order of July 9, 1959. The
respondent took up the matter in revision to the Commissioner under sub-s. 2 of
s.
3. The Commissioner reversed the order of the
District Magistrate and granted the permission asked for on October 16, 1959.
As against that order the appellant moved the State Government under s. 7(F) on
November 17, 1959. On January 299 1, 1960, the respondent served on the
appellant a notice under s. 106 of the Transfer of Property Act. The appellant
replied to that notice on January 6, 1960. In that reply he informed the
respondent that he had already moved the State Government to revoke the
permission granted by the Commissioner. On February 13, 1960 the respondent
instituted suit No. 115 of 1960 in the Court of Munsiff, Agra seeking the
eviction of the appellant from the suit premises. The appellant filed his
written statement in that case on May 7, 1960. Therein again he took the plea
that the permission granted by the Commissioner is not final as he had moved
the Government to revoke the same. The suit was decreed by the learned Munsiff
on November 2, 1960. The appellant went up in appeal as against that order to
the Civil Judge, Agra. On January 27, 1961, the State Government revoked the
permission granted by the Commissioner during the pendency of the appeal.
Relying on this order the Civil Judge of Agra allowed the appeal of the
appellant on February 9, 1961. As against that decision the respondent went up in
second appeal to the High Court.
The High Court allowed the second appeal on
19th March 1968 following the Full Bench decision of the Court in Bashi Ram v.
Mantri Lal(1). This appeal is directed against that decision.
The Act was intended as a temporary measure
as could be gathered from its title as well as the preamble. It is deemed to
have come into force on the 1st day of October 1946 though it was passed in
1947. Under the Act as originally stood, the decision of the District
Magistrate under s. 3 was neither appealable nor revisable. As per the
amendments effected in 1952 a Limited power of revision was conferred on the
Commissioner. By the Amending Act 17 of 1954, the power conferred on the
Commissioner was enlarged and s. 7(F) was incorporated in the Act which says
that:
"the State Government may call for the
records of any case granting or refusing to grant permission for the filing of
a suit for eviction referred to in s. 3 ..... and make such order as appears to
it necessary for the ends of justice." The only sections in the Act
material for the purpose of this appeal are ss. 3 and 7(F). Section 3 reads
thus.:
"Restrictions on evictions.--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:
(1) (1965) 1 A11. 545.
300 (a) that the tenant is in arrears of rent
for more than three months and has ,failed to pay the same to the landlord
within one month of the service upon him of a notice of demand;
(b) the at the tenant has willfully caused or
permitted to be caused substantial damage to the accommodation;
(c) that the tenant has, without the
permission in writing of the landlord, made or permitted to be made any such
construction as, in the opinion the court, has materially altered the
accommodation or is likely substantially to diminish its value;
(d) that the tenant has created a nuisance or
has done any act which is inconsistent with the purpose for which he was
admitted to the tenancy of the accommodation, or which is likely to affect
adversely and substantially the landlord's interest therein;
(e) that the tenant has on or after the 1st
day of October, 1946, sub-let the whole or any portion of the accommodation
without the permission of the landlord;
(f) that the tenant has renounced his
character as such or denied the title of the landlord and the latter has not
waived his right or condoned the conduct of the tenant;
(g) that the tenant was allowed to occupy the
accommodation as a part of his contract of employment under the landlord and
his employment has been determined.
Explanation. For the purposes of sub- section
(e) lodging a person in a hotel or a lodging-house shall not be deemed to be
sub- letting.
(2) Where any application has been made to
the District Magistrate/or permission to sue a tenant for eviction from any
accommodation and the District Magistrate grants or refuses the permission, the
party aggrieved by his order may within 30 days from the date on which the
order is communicated to him, apply to the Commissioner to revise the order.
(3) The Commissioner shall hear the
application made under sub-section (2), as far as may be, 301 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
revise his order, or make such other order as may be just and proper.
(4) The order of the Commissioner under
subsection (3) shall, subject to any order passed.' by the State Government
under section 7 (F) be We have earlier quoted the relevant portion of s. 7 (F).
Conflicting opinions were expressed by
different Benches of the Allahabad High Court as to the scope of s. 3, till the
decision of the Full Bench in Bashi Ram's case(x). The Full Bench held that a
decree obtained in a suit for eviction instituted after obtaining the requisite
permission will not become unenforceable even if the State Government revoked,
after the decree is passed, the permission granted, in exercise of its powers
under s. 7(F). Majority of the Judges in that case further held that once a suit
is instituted after obtaining the permission of the District Magistrate, any
further order made either by the Commissioner or the State Government cannot
affect the course of that suit or the decree passed therein. Dwivedi J. the
other Judge did not express any opinion on that question but even according to
him in the appeal filed against the decree, the appellate court cannot receive
in evidence the order made by the State Government which means that the decree
cannot be reversed on the ground that the State Government had revoked the
permission granted. The correctness of the Full Bench decision is challenged by
the appellant in this appeal. In support of his interpretation of ss. 3 and
7(F) he placed reliance on the decision of a Division Bench of the High Court
of Allahabad in Dr. S.L. Khoparji v. State Government(a). He also sought
support from the decision of a Single Judge of that Court in Basant Lal Sah v.
Bhagwan Prasad Sah(3). It is not necessary to refer to the various decisions of
the Allahabad High Court on this question.
Suffice it to say that in that Court there
was serious cleavage of opinion on the question that we are considering in this
appeal till the decision of the Full Bench in Bashi Ram's case(x). We were
given to understand that Dhavan, j.
had doubted the correctness of the decision
of the Full Bench and had requested the Chief Justice to constitute a larger
Bench to consider the correctness of the decision in Bashi Ram's case(1) but in
view of the pendency of this appeal, the constitution of a larger bench was not
considered necessary.
(1) (1965) 1 All. 545. (3) A.I.R. 1964 All p.
210.
(2) (1958) A.L.J. 724.
302 The contention of Mr. Goyal, the learned
Counsel for the appellant was that the Act generally speaking,' has restricted the
right of the landlord to evict his tenant, to one or other of the grounds
mentioned in cls. (a) to. (g) of s. 3(1 ); but in order to meet any exceptional
case, it is provided in s. 3 (1 ) that a suit for eviction may be instituted on
any ground other than those mentioned in cls.
(a) to (g) if the permission of the District
Magistrate is obtained; the order made by the District Magistrate is revisable
both by the Commissioner as well as the State Government; the only order that
is final is that made by the State Government. If a landlord chooses to
institute a suit on the basis of the permission granted by the District
Magistrate or the Commissioner without waiting for the decision of the State
Government he takes the risk; if the State Government revokes the permission
granted by the District Magistrate or the Commissioner then the suit must be
deemed to have been instituted without permission and consequently not
maintainable. Mr. Goyal urged that if the decision in Bashi Ram's case(1) is
accepted as correct then so far as the tenant is concerned, generally speaking,
he cannot invoke the powers of the State Government under s.
7(F) because immediately after the decision
of the Commissioner, if the same is in his favour, the landlord is likely to
institute a suit for eviction and thus nullify the power of the State
Government under s. 7(F). He urged that as s. 7(F) empowers the State
Government to revise the order made by the subordinate authorities whether the
same is in favour of the landlord or the tenant we should not place an
interpretation on s. 3 which would affect the power of the State Government to
do justice to the tenants for whose benefit the Act has been enacted.
On the other hand it was urged by Mr. C.B.
Aggarwal, learned Counsel for the respondent that the landlord has a right to
sue for the eviction of his tenant under the provision of the Transfer of
Property Act subject to the restrictions stipulated therein. That is a
statutory right.
The provisions contained in the Act to the
extent they encroach upon the rights of the landlord either specifically or by
necessary implication further control the rights of the landlord. In other
respects the landlord's rights under the Transfer of Property Act remain
unaffected.
According to him the only restriction placed
on the landlord in the matter of instituting a suit for eviction on grounds
other than those mentioned in cls. (a) to (g) of s. 3(1) is to obtain the prior
permission of the District Magistrate subject to the order made under sub-s. (3)
of s. 3 by the Commissioner; once a suit is validly instituted in accordance
with those provisions, no order of the State Government can either interfere
with the course of that suit or invalidate the decree obtained therein. He
urged that if the position is as (1) 1965) 1 Ali. 545 303 contended by the.
learned Counsel for the appellant, curious results are likely to follow.
Section 7 (F) does not fix any period within which the State Government must
act. It can exercise its power under that provision at any time it pleases--may
be after 10 years or 20 years; the power conferred on the State Government is
extremely wide as observed by this Court in Shri Bhagwan and anr. v. Ram Chand
and anr.(1). Therefore it can revoke the permission granted after the decree
for eviction is confirmed by the High Court or even the Supreme Court and thus
make a mockery of the judicial process; this could not have been the intention
of the legislature. According to Mr. Aggarwal from the very scheme of the Act
and from the very nature of the power conferred on the State Government, it
cannot be exercised after a suit is instituted after complying with the
requirements of subs. (1 ) of s. 3. His further contention was that on a proper
construction of sub-s. ( 1 ) of s. 3, it would be seen that the suit instituted
after obtaining the required permission being a validly instituted suit, its
progress cannot be interrupted; the permission required under s. 3 (1 ) is the
permission of the District Magistrate subject to any order under s. 3(3) by the
Commissioner; in other words the permission given by the District Magistrate is
not final till affirmed by the Commissioner; till then it remains tentative;
once the Commissioner affirms the same or grants the permission asked for it
becomes final and thus amounts to a valid permission to sue; hence a suit filed
on the basis of that permission is a validly instituted suit unless the
permission granted was revoke by the State Government before the institution of
the suit. Proceeding further he stated that it is true that the order of the
Commissioner though final yet it is subject to any order that may be passed by
the State Government; but s. 3 (1 ), the provision dealing with the permission
to file a suit for eviction does not refer to the order under s. 7(F); it only
speaks of the permission granted by the District Magistrate subject to the
order of the Commissioner and not further subject to any orders made by the
State Government. In this connection he invited our attention to the fact that as
against the order passed by the District Magistrate under subs. ( 1 ) of s. 3,
a revision petition can be filed before the Commissioner within 30 days of that
order and not thereafter. The Commissioner has not even the power to condone
the delay in filing the revision petition. Further under subs. (3) of s. 3, the
Commissioner is required to hear the application made under sub-s. (2) of s. 3,
as far as may be, within six week from the date of making it. All these
provisions indicate that the legislature was of the opinion that the
proceedings under s. 3 should be carded_on expeditiously and the decision of
the Commissioner should be considered as final. According to Mr. Aggarwal the
question of granting or refusing to grant the permission under s, 3 are primarily
to be (1) [1965] 3 S.C.R.218, 304 dealt with only by the District Magistrate
and the Commissioner. They are the only tribunals in the hierarchy of the
tribunals constituted for that purpose. The power given to the Government under
s. 7(F) is merely a supervisory power. That is why no limitation is imposed on
the exercise of that power either in the matter of time within which it should
be exercised or the circumstances under which it can be exercised. Such a power
according to him is a reserve power and therefore has to be exercised before
the court's jurisdiction is invoked, He particularly laid emphasis on the fact
that sub-s. (1) of s. 3, the compliance of which is necessary before validly
instituting the suit does not at all refer to an order under s. 7(F).
After examining the provisions of this Act,
we are constrained to observe that the drafting of this Act leaves considerable
room for improvement despite the fact that it was amended twice over. Though it
was intended to be a temporary measure when it was originally enacted it has
now reminded in the statute book for over 20 years and there is no knowing how
long the same will continue to be in force.
Therefore it is but appropriate that the
provisions of this Act should be clear and unambiguous. From sub-s. (1 ) of s.
3 it is not possible to find out the contents
of the powers of the District Magistrate. No guide-lines are laid down therein
to regulate the exercise of the powers of the District Magistrate. It is not
possible to find out from that provision under what circumstances the District
Magistrate can grant the permission asked for and under what circumstances he
can refuse the same. It is likely that different District Magistrates are
exercising that power in different ways. One consideration may appeal to one
District Magistrate and a totally different consideration may influence another
District Magistrate. It would have been appropriate if the legislature had
defined the scope of the powers of the District Magistrate or at least laid
down certain guide-lines for regulating his discretion. Sub-s. (3 ) of s. 3
says that if the Commissioner is not satisfied as to the correctness, legality
or propriety of the order passed by the District Magistrate, he may alter or
reverse the order of the District Magistrate or make such other order as may be
just and proper. It is not possible to find out on what basis the Commissioner
can determine the correctness, legality or propriety of the order made by the
District Magistrate. As seen earlier, no restrictions are placed on the powers
of the District Magistrate in granting or refusing to grant the permission
asked for under s. 3 (1 ). Therefore the only thing the Commissioner can do is
to exercise his discretion in preference to the discretion exercised by the
District Magistrate. Now coming to the power conferred on the State Government
under s. 7 (F), it would be seen that it is a power of wide amplitude. It can
be exercised by it in any way it pleases. No restriction either as to the time
305 within which it can be exercised or as to the circumstances under which it
can be exercised is placed on the State Government Under these circumstances
the anomalies pointed out by Mr. Goyal as well as by Mr. Agarwal are
inevitable.
Therefore in construing this Act, no useful
purpose will be served by taking into consideration the hardship to the
parties. In whatever way we may construe ss. 3 and 7(F) hardship to one party
or the other is inevitable. Neither Counsel suggested to us any interpretation
which could steer clear of the anomalies pointed out at the bar. Therefore we
have to fall back on the grammatical construction of sub-s.
(1 ) of s. 3 and leave out of consideration
all other rules of construction for finding out the intention of the
legislature. Section 3(1) does not. restrict the landlord's right to evict his
tenant on any of the grounds mentioned in cls. (a ) to (g) of that sub-section.
But if he wants to sue his tenant for eviction on any ground other than those
mentioned in those clauses then he has to obtain the permission of the District
Magistrate whose discretion is subject to any order passed under sub-s. (3) of
s. 3 by the Commissioner. These are the only restrictions placed on the power
of a landlord to institute a suit for eviction of his tenant. If a landlord
files a suit for the eviction of his tenant without obtaining the permission of
the District Magistrate that suit is not maintainable but if he files a suit
after obtaining the permission of the District Magistrate and if the Commissioner
revokes the permission granted by the District Magistrate in a properly
instituted application under s. 3(2) then the suit instituted by him will be
considered as having been filed without the permission of the District
Magistrate because s. 3 (1 ) in specific terms says that the permission given
by the District Magistrate is subject to any order passed under sub-s. (3). In
other words the permission given by the District Magistrate does not acquire
any finality until either the period fixed for filing an application under sub-
s. (2) of s. 3 expires and no application under that section was filed within
that time or if an application had been filed within that time, the same had
been disposed of by the Commissioner. The permission to file a suit for
eviction assumes finality under s. 3 (1 ) once the Commissioner decides the
revision petition pending before him. In fact sub-s. (4) of s. 3 says that the
order of the Commissioner is final. It is true that that order despite the fact
that it is final is subject to any order passed by the State Government under
s. 7(F). There is no provision in the Act providing that a suit validly
instituted after getting the required permission under s. 3 (1 ) ceases to be
maintainable because of any order made by the State Government under s. 7(F).
Similarly there is no provision in the Act invalidating a decree passed after
the Act came into force in a validly instituted suit. Section 14 provides :--
306 "no decree for the eviction of a tenant from any accommodation passed
before the date of commencement of this Act shall, in so far as it relates to
the eviction of such tenant be executed against him 'as long as this Act
remains in force except on any of the grounds mentioned in s. 3:
Provided that the tenant agrees to pay to the
landlord "reasonable annual rent" or the rent payable by him before
the passing of the decree whichever is higher ." This provision applies
only to decrees passed before the date of the commencement of the Act. A decree
of a Court in a suit validly instituted is binding on the parties to. the same.
It is true that the finality or the force of a decree can be taken away by a
statute, but the Court will not readily infer that a decree passed by a
competent Court has become unenforceable unless it is showy that a provision of
law has specifically or by necessary implication made that decree
unenforceable. No such provision was brought to our notice. On an examination
o/the relevant provisions of the Act our conclusion is that when the
Commissioner sets aside the order passed by the District Magistrate granting
permission to file a suit for ejecting a tenant, the order of the Commissioner
prevails. If he cancels the permission granted by the District Magistrate there
is no effective permission left and the suit instituted by the plaintiff
without awaiting his decision must be treated as one filed without any valid
permission by the District Magistrate. To this extent we are in agreement with
the decision of Upadhyaya, J. in Munshi Lal and anr. v. Shambhu Nath Ram
Kishan(1). From this it follows that the Full Bench decision in Bashi Ram's
case(2) to the extent it held that a suit filed by the landlord after obtaining
the permission of the District Magistrate cannot become infructuous even if the
Commissioner revokes the permission, is incorrect. But we agree with the Full
Bench that a suit validly instituted after obtaining a permission as required
by s. 3 (1 ) does not cease to be maintainable even if the State Government
revokes after the institution of the suit, the permission granted. If the State
Government revokes the permission granted before the institution of the suit
then there would be no valid permission to sue. In other words the State
Government's power to revoke the permission granted under s.3(1) gets exhausted
once the suit is validly instituted.
For the reasons mentioned above, this appeal
fails and the same is dismissed. But in the circumstances of the case, we make
no order as to costs.
R.K.P.S. Appeal dismissed.
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