MUNNI DEVI & Anr. v. GOKAL CHAND & Ors.

The first appellant appEed for an order in ejectrnent of the first res ,pondent on the plea that he had committed default rent. The District Magistrate held that the respondent was not in occupation of the shop, declared the shop vacant and allotted it to another person. The respondent brought an action in the civil court for- a ded.aration that he was an allottee of the shop and was in possession in that capacity. The trial court held that the appellant . neve'r vacated the shop, nor was his tenancy terminated, and was therefore entitled to remain in occupa tion of the same.. An appeal to the District Court and a second appeal .to the High -C9urt were unsuccessful. In appeal to this Court, the appellants contended that the suit filed by the respondent was not main tainable, for the Act set up a complete machinery for determining after enquiry whether any premises governed by the Act had fallen vacant, and that by exoress enactmeµt in s. 16,. the order of the District Magistrate was decl3:red final. Rejectirig the contention. HELD : The Legislature while investing the District Magist!rate with power to allot the pr~inises to ·another person on the existence of a vacancy has not made· his determination of the preliminary state of facts conclusive. There is nothing in s. 7 or s. 7 A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his iurisdiction arises. Whether there is a vacancy is a jurisdictional fact which could not be decided by him finally. By reaching an erroneous decision, he cannot clothe himself. with jurisdiction which It is only when the order is with jurisdiction that he does not possess. the order is not liable to he challenged in a civil court by virtue of s. 16 of the Act. [36S H-369 CJ Reg v. Commissioner of Income-tax, 21 Q.B.D. 313, and Ebrahim [1952) Aboobakar & Anr. v. Custodian-General of Evacuee Property, S.C.R. 696, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 899 of

#1966. c D E F G H . - 364 SUPREME COURT REPORTS [1970] 2 S.C.R. Appeal by special leave from the judgment and decree dated May 14, 1965 of the Allahabad High Court in Second Appeal No. 4136 o.f 1964. .A Y ogeshwar Prasad and Hardev Singh, for the appe!lants. S. N. Anand, for the respondents. The Judgment of the Court was delivered by B Shah, J. Gokal Chand-first respondent in this appeal-. was a tenant of shop No. 34/2, Dispensary Road, Debra Dun, which belongs to Munni Devi-the first appellant in this appeal. Munni Devi applied to the Rent Control & Eviction Officer. J)ehra c Dun, for an order in ejectment on the plea that Gokal Chand had committed defa~lt in paying rent. T~e RC. & E. Officer passed an order observmg that the tenant did not lead any evidence to show that he had not vacated the shop and it was clear on the evidence that the tenant was not in occupation of the shop and had let it out to one Alladia. He accordingly declared that the shop was vacant. D The RC. & E. Officer allotted the shop to Kishori!al. Kishori- lal then applied to the R.C. & E. Officer that the shop allotted to him was in the illegal occupation of Rawe! Chand s/ o Gokal Chand. On May 22, 1957, the RC. & E. Officer declared that Gokal Chand the preyious tenant had vacated the shop and that E Rawe! Chand was in illegal occupation of the shop. He accord ingly issued a notice under s. 7 A (3) of the Act. Gokal Chand then filed a civil suit in the Court of the Munsif, Debra Dun, for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity. To that suit were impleaded Munni Devi and Kishorilal as party F defendants. The Trial Court held that Gokal Chand had at no time vacated the shop, nor was his tenancy terminated. He ac cordingly made an orde.r declaring that Gokal Chand was an allottee and a tenant of the shop and was entitled to remain in occupation of the same. An appeal against that order to the District Court was dismissed. A second appeal to the High Court was also un- G successful. In this appeal with special leave, counsel for Munni Devi and Kishorilal. urges that the order of the civil court was without juris diction. · Section 3 of the U.P. (Temporl\fY) Control of Rent and Eviction Act, 1947, imposes certain restrictions on eviction of tenants. Bys. 7(1)(a) it is provided: H "Every landlord shall, within 7 days after an accom modation becomes vacant by his ceasing to occupy it or . -· A B C D E F G H MUNN! DEVI V. GOKAL CHAND (Shah,. J.) 365- by th-~ tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from re quisition or in any other manner whatsoever, give notice of the vacancy in writing to the District Magistrate." Sub-sections (2) & (3) of s. 7 provide : "(2) The District Magistrate may by general or spe- cial order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant. (3) No tenant shall sub-let any portion of the ac commodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously obtained." Section 7A 'Yhich was added by Act 24 of 1952 provides, in se> far as it is material : "(1) Where in pursuance of an order of the District Magistrate under sub-section (2) of section 7, the vacancy of any accommodation is required to be reported and is not reported, or where an order requiring any accom modation to be let or not to be let has been duly passed under sub-section (2) of Section 7 and the District Magis trate believes or· has reason to believe that any person has in contravention of the said order, occupied the ac commodation or any part thereof, he may call upon the person ih occupation to show cause, within a time to be fixed by him, why he should not be evicted therefrom : Provided (2) If such person fails to appear in reply to the notice served under sub-section ( 1) or, if he appears but fails to satisfy the District Magistrate that the order under sub-section (2) of Section 7 was not duly passed and that he is entitled to remain in occupation of the ac commodation the District Magistrate may, without pre judice to any other action which may be taken against him under this Act or any other law for the time being in force, direct him to vacate the premises within a period to be specified." Section 16 of the Aci provides : "No order made under this Act by the State Govern ment or the District Magistrate shall be called in ques tion in any Court." :. - 366 SUPREME COIJRT REPORTS (1970] 2 S.C.R. Counsel for the appellants urged that the suit filed by Gokal Chand was not maintainable, for the Act sets up a complete machinery for determining after enquiry whether any premises governed by the Act have fallen vacant, and for making an order calling upon the person-· or persons in wrongful occupation to vacate and deliver possession of the premises, and that by express enactment in s. 16, the order of the District Magistrate is declared final. We are unable to agree with that contention. Lord Esher, M.R., in Reg. v. Commissioner of Income-tax('), observed : "When an inferi.or court or tribunal or body which has to exercise the power of deciding facts, is first estab lished by Act of Parliament, the legislature has to consi der what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain thingr, it shall have jurisdiction to do such things but not otherwise. There it is not for them con clusively to decide whethe~ that state of facts exists, and, if they exercise the iurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or bocty with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists, as well as the jurisdiction, and on finding that it does exist, to- proceed further to do some thing more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give them selves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the pre liminary facts on which the further exercise of their juris diction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no ap peal from such exercise of their .iurisdiction." 'This rule was approved by this Court in Ebrahim Aboobakar and Anr. v. Custodian-General of Evacuee Property('). Munni Devi applied for an order in ejectment against Gokal Chand on the plea that he had committed default in paying rent. The R.C. & E. Officer held that Gokal Chand had vacated the premise and had inducted a sub-tenant. The Legislature has in- .(l) 21 C.B.D. 313. (1) [1952] S.C.R. 696. A D c D E F G H ... MUNN! DEVI v. GOKAL CHAND (Shah, J.) 367 A B c D E F G H vested !he District Magistrate with power on the existence of a vaeancy'to allot the premises to another person, but the Legislature has. not made the determil)ation of the preliminary state of facts by the District Magistrate conclusive. The jurisdiction to pass an order in ejectment only arises if there is a vacancy. The right of a tenant in possession is a valuable right and there is nothing in s. 7 or s. 7 A which confers jurisdiction upon the District Magis trate to conclusively determine the facts on the existence of which his jurisdiction arises. Undoubtedly he has jurisdiciion to make orders under ss. 7 & 7 A of the Act, if there be a vacancy. But whether there is a vacancy is a jurisdictional fact which could not to be decided by him finally. By reaching an erroneous deci sion, he cannot clothe himself with jurisdiction which he does not possess. It is C'nly when the order is with jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of s. 16 of the Act. In Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi('), the reilpondent had obtained on rent the "accommodation" in dispute from the appellant. The appellant submitt.~d an aprlicatlon under s. 3A of the U.P.)1'emporary) Control of Rent and Eviction Act, 1947, to the House Allotment Officer (on whom the power of the District Magistrate was conferred) for increase in rent. That Offi cer passed an order increasing the rent payable by the tenant on the ground that there was a new construction. The appeilant then instituted a suit under s. 5 ( 4) of the Act for the enhancement of "reasonable annual rent". Th~ respondent contended, inter alia, that there was no new construction of "accommodation" after June 30, 1946, and that, therefore, the suit was not maintainable. The Trial Court found that there was a new "accommodation" and the Court could determine its rent under s. 5(4). In revision, the High Court held that though the construction was new, the "ac commodation" in the occupation of the respondent was noi new, and therefore s. 3A of the Act was inapplicable. In appeal, this Court held that a wrong decision made By the House Allotment Officer who ex.~rcised the power of the District Magistrate under s. 3A of the Act. or an order made by him in excess of his power under that sectlon could be rectified by a suit under s. 5(4) of the Act. In the present case the civil court has come to the conclusion that Gokal Chand had never vacated the shop and no vacancy had occurred. By. wrongly deciding that Gokal Chand had vacated t~e s~op, the. Distri.ct Magistraie had no power to pass orderS d1rectmg forcible eiectment and allotting the sl;!op to another person. The appeal fails and is dismissed with costs. Y.P. (!) (1959) Supp;(!) s.C.R. 733. Appeal dismissed.