Full Judgment Text
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PETITIONER:
BEOPAR SAHAYAK (P) LTD. & ORS.
Vs.
RESPONDENT:
VISHWA NATH & ORS.
DATE OF JUDGMENT15/07/1987
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 2111 1987 SCR (3) 496
1987 SCC (3) 693 JT 1987 (3) 76
1987 SCALE (2)27
CITATOR INFO :
R 1988 SC 184 (13)
RF 1990 SC1480 (76)
ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972: s. 3(e)--Prescribed Authority--Juris-
diction of to pass release order--Executive Magistrate of
First Class with three years’ experience in criminal
trial--Whether competent.
Administrative Law--Subordinate legislation--Government
notification published in official gazette--Whether could be
superseded by administrative instruction--De facto
doctrine--Applicability of to orders passed by person hold-
ing office under colour of lawful authority--Appointment of
Authority----Whether could be challenged in a col-lateral
proceeding.
HEADNOTE:
Clause (e) of s. 3 of the U.P. Urban Buildings (Regula-
tion of Letting, Rent & Eviction) Act, 1972 defined ’Pre-
scribed Authority’ to mean a Magistrate of the First Class
having experience as such of not less than three years,
authorised by the District Magistrate to exercise the powers
of such authority. When the Code of Criminal Procedure, 1973
came into effect in 1974 this definition was amended to mean
an officer having not less than three years experience as
Munsif or as Magistrate of the First Class or as Executive
Magistrate authorised by the State Government to exercise
the power of the Prescribed Authority.
The respondents having their residence in the second
floor of the premises and their business establishments in a
portion of the ground floor, sought recovery of possession
under s. 21 of the Act of the first floor and another por-
tion of the ground floor leased out by their father to the
predecessor concern of the appellant for residential and
nonresidential purposes respectively. The Prescribed Author-
ity passed an order of release holding that the requirement
of the leased portions by the respondents for their residen-
tial and non-residential purposes was a bona fide one and
that the comparative hardship factor was more in their
favour than in favour of the appellant. These findings were
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confirmed by the Appellate Authority.
497
In the writ petition filed before the High Court it was
contended for the first time that the order of the Pre-
scribed Authority had been passed without jurisdiction and
was, therefore, a nullity and its affirmation by the Appel-
late Authority could not validate it. That contention was
repelled by the High Court holding that even if the order of
the Prescribed Authority was a defective one, it had got
merged with the order of the Appellate Authority when it was
confirmed and that the question of jurisdictional competence
of the Prescribed Authority to pass the order of release
involved adjudication upon disputed questions of fact and
such an enquiry was beyond the scope of proceedings under
Article 226 of the Constitution.
The Government had in exercise of its powers under ss.
12 and 39(1), Cr. P.C., 1898 by a general notification dated
6.2.1968 conferred on all Tehsildars the powers of a First
Class Magistrate, and on all Naib Tehsildars the powers of a
Second Class Magistrate. The Deputy Secretary, Government of
U.P. had, however, in his note forwarding the General Noti-
fication to all the District Magistrates stated that the
conferment of powers was confined to the maintenance of law
and order. By means of a notification dated 9.9.1974 the
Government had designated the Additional City Magistrate II,
Kanpur to be the Prescribed Authority under the Act for
certain areas.
The Prescribed Authority, whose order is impugned had
served as Tehsildar from 29.9.1962 to 6.11.1964 and again
from November, 1965 to 15.2.1974, when he was promoted to
Deputy Collector and posted as Additional City Magistrate,
Kanpur, which post he held when he dealt with the applica-
tion in the instant case.
In the special leave petition it was contended that the
powers of a First Class Magistrate under s. 39(1) Cr. P.C.
1898 cannot be deemed to have been conferred on the incum-
bent in the instant case in the absence of requisite proof
under s. 39(2) of the Code, that even if the general notifi-
cation dated 6.2.1968 empowered him to act as such, the
conferment of power was only for ensuring the maintenance of
law and order and not for trial of cases, and that s. 3(e)
requires that an Executive Magistrate to be lawfully empow-
ered to act as Prescribed Authority must have had not less
than three years experience in the trial of cases as a First
Class Magistrate.
Dismissing the appeal,
HELD: 1. The Prescribed Authority’s experience as an Execu-
498
tive Magistrate in the instant case satisfied the require-
ments of s. 3(e) of the U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972. He was not, therefore,
incompetent 10 act as such and pass the impugned order of
release. [507]
2. The General Notification dated February 6, 1968,
conferring the powers of a First Class Magistrate on all
Tehsildars and the powers of a Second Class Magistrate on
all Naib Tehsildars, which was published in the Official
Gazette on February 17, 1968, had been communicated to-all
the Tehsildars of the District by the District Magistrate.
It must, therefore, be taken that the Government Notifica-
tion should have been fully acted upon and all Tehsildars,
including the official whose order is impugned, must have
been conferred powers of a First Class Magistrate in the
year 1968 when he was serving as Tehsildar. The requirement
of s. 39(2) of the Code of Criminal Procedure, 1898 had thus
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been complied with.[504B-D,G; 505A]
3. There is nothing in the Government Notification dated
February 6, 1968 or in the Gazette publication dated Febru-
ary 17, 1968 to indicate that the powers of a First Class
Magistrate and a Second Class Magistrate conferred on Teh-
sildars and Naib Tehsildars respectively was only for the
limited purpose of ensuring the maintenance of law and order
and not for exercise of those powers in the trial of crimi-
nal cases. The note of the Deputy Secretary appears to be
only an administrative instruction and not an order passed
by the Government itself in exercise of its powers under ss.
12 and 39 of the Criminal Procedure Code, 1898. The adminis-
trative instruction cannot whitle down the Government Noti-
fication conferring higher magisterial powers on Tehsildars
and Naib Tehsildars. [504E-F]
4. All that s. 3(e) of the Act says is that for being
conferred the powers of a Prescribed Authority an Executive
Magistrate should have had experience as such magistrate for
a period of not less than three years. Having regard to the
terms of the stipulation, it would suffice if he had ac-
quired experience in the trial of criminal cases, albeit
cases triable by a Second Class Magistrate, for more than
three years, while at the same time having the right to
exercise the powers of a First Class Magistrate. This is
because of the fact that as per Schedule III of the Code of
Criminal Procedure, 1898 a Magistrate Of the First Class is
also entitled to exercise all the powers of a Magistrate of
the Second Class. A First Class Magistrate, therefore, can
also gain experience by the trial of cases triable by a
Second Class Magistrate. What is of relevance is the gaining
of experience in trial of criminal cases for a period of
three
499
years and more and at the same time.having the powers of a
First Class Magistrate and not necessarily the experience of
trying cases triable by a First Class Magistrate alone. It
cannot, therefore, be said that the Prescribed Authority did
not have requisite qualification in the instant case to be
so appointed under el. (e) of s. 3 of the Act and hence the
release order passed by him was a nullity. [505C-F]
5. The appointment of Prescribed Authority in the in-
stant case was not made as persona designata. He exercised
the powers of a Prescribed Authority by reason of his post-
ing as Additional City Magistrate II, Kanpur, by virtue of
an earlier Notification of the Government dated September 9,
1974 constituting the Additional City Magistrate II, Kanpur,
as the Prescribed Authority, for certain specific areas in
the city. The said Notification of the Government was a
General Notification and therefore whoever came to be posted
as Additional City Magistrate II, automatically became a
Prescribed Authority for the areas indicated in the Govern-
ment Notification. Therefore, as long as the Government
Notification dated September 9, 1974 was not challenged, the
exercise of powers by him as a Prescribed Authority could
not also be challenged. The appellant was also not entitled
to question the validity of the appointment of Prescribed
Authority in a collateral proceedings. [505G-506A; 507G]
6. Even if the person appointed as Prescribed Authority
was not fully qualified to act as such and pass the order of
release, the validity and legality of the order of release
passed by him cannot be impugned because of the de-facto
doctrine in as much as he did not hold the office as an
usurper but only under colour of lawful authority. [507E-F]
G. Rangarajan v. Andhra Pradesh, [1981] 3 SCR, 474, referred
to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 265 of
1978.
From the Judgment and Order dated 12.9.1977 of the
Allahabad High Court in C.M.W. No. 144 1 of 1976.
S.N. Kacker and B.R. Agarwala for the Appellants.
U.R. Lalit, R.B. Mehrotra and D.N. Misra for the Respond-
ents.
Mr. Prithvi Raj and Mrs. Shobha Dikshit for the Respondents.
500
The Judgment of the Court was delivered by
NATARAJAN, J. The only question for consideration in
this appeal by special leave is whether the order of release
passed by the Prescribed Authority under the U.P. Urban
Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 (for short the Act hereinafter) is a null and void
order because the Prescribed Authority had no jurisdiction
to pass the order as he did not possess the requisite quali-
fication for being appointed as such Authority.
Premises No. 58/3 Birhana Road, Kanpur is a three-sto-
reyed building and in addition it has a mezzanine floor as
well. As early as in 1947, when the respondents who are
brothers were minors, a portion of the ground floor and the
entire first floor was leased out to the predecessor concern
of the appellant by the father of the respondents. While the
first floor was leased out for residential purposes, a
portion of the ground floor was leased out for non-residen-
tial purposes. The respondents sought recovery of possession
from the appellant of the leased portions for their residen-
tial needs and business purposes. It may be mentioned here
that the respondents were already having their residence in
the second floor and their business establishments in anoth-
er portion of the ground floor. As the appellant refused to
comply, the respondents preferred an application under
Section 21 of the Act for an order of release in their
favour to recover possession of the leased portions. Various
defences were raised by the appellant to oppose the applica-
tion but all the objections were found untenable by the
Prescribed Authority and he, therefore, passed an order of
release on 19.8. 1975 holding that the requirement of the
leased portions by the respondents for their residential and
non-residential purposes was a bona fide one and furthermore
the comparative hardship factor was more in their favour
than in favour of the appellant. The findings of the Pre-
scribed Authority were confirmed by the Appellate Authority
(Additional District Judge, Kanpur) and thereafter the
appellant filed a petition under Article 226 of the Consti-
tution before the High Court. For the first time the appel-
lant raised a contention, by means of an amendment petition,
that the order of the Prescribed Authority had been passed
without jurisdiction and was therefore a nullity and in such
circumstances its affirmation by the Appellate Authority
could not also validate it. The High Court, though it al-
lowed the amendment petition and permitted the additional
question to be raised, did not see any merit in it on ac-
count of two factors. The first was that even if the order
of the Prescribed Authority was a defective one, it had
become merged with the order of the Appellate Authority when
it was con-
501
firmed and as such there was no room for the appellant to
assail the order on the question of jurisdictional incompe-
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tence of the Prescribed Authority. Besides, the High Court
was of opinion that the question of jurisdictional compe-
tence of the Prescribed Authority to pass the order of
release involved adjudication upon disputed questions of
fact and such an exercise was beyond the scope of proceed-
ings under Article 226 of the Constitution. The High Court
thereafter went into the correctness of the findings concur-
rently rendered by the Prescribed Authority and the Appel-
late Authority and found the findings to be fully in accord-
ance with law and facts. The High Court, therefore, dis-
missed the writ petition filed by the appellant and hence
the present appeal by special leave.
For a proper comprehension of the attack made on the
competence of the Prescribed Authority to pass the impugned
order of release, it is necessary to set out the terms of
Clause (e) of Section 3 which defines the ’Prescribed Au-
thority’ under the Act as it stood before and after the
amendment in 1974, and also the qualifications of Shri
Senger who was the Prescribed Authority who had passed the
order of release in this case.
Clause (e) of Section 3 of the Act was originally in the
following terms:
"Prescribed Authority" means a Magistrate of
the First Class having experience as such of
not less than three years, authorised by the
District Magistrate to exercise, perform and
discharge all or any of the powers, functions
and duties of the prescribed authority under
this Act, and different Magistrates may be so
authorised in respect of different areas or
cases or classes of cases, and the District
Magistrate may recall any case from any such
Magistrate and may either dispose of it
himself or transfer it for disposal to any
other such Magistrate."
The definition of a Prescribed Authority had, however,
to be changed with the coming into effect of the Code of
Criminal Procedure 1973 with effect from 1.4.1974 because
the Executive Magistrates ceased to be Magistrates of the
First Class under the Code. Hence by means of an Amendment
Act viz. U.P. Act No. 19 of 1974, Section 3(e) came to be
amended as under:-
"(e) ’Prescribed Authority’ means an officer
having not less
502
than 3 years experience as Munsif or as
Magistrate of the First Class or as Executive
Magistrate authorised by general or special
order of the State Government to exercise,
perform and discharge all or any of the
powers. functions and duties of the Prescribed
Authority under this Act, and different
officers may be so authorised in respect of
different areas or cases, or classes of
cases."
Thus by reason of the amendment the State Government became
the authority to authorise a person to act as a Prescribed
Authority and three classes of officers viz. Munsifs, Magis-
trates of the First Class and Executive Magistrates, each
having not less than three years experience as such were
designated the officers on whom the powers of a Prescribed
Authority under the Act could be conferred.
Coming now to the qualifications of Shri Senger, the
Prescribed Authority, he had served as Tehsildar from
29.9.2962 to 6.11.1964 and again from November 1965 to
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15.2.1974 and he was promoted as Deputy Collector with
effect from 16.2. 1974 and posted as Additional City Magis-
trate II, Kanpur. He worked as Additional City Magistrate
II, Kanpur from 16.2.1974 to 14.8.1974 and again from May
1975 to 26.8.1975. It was during this period i.e. on
19.8.1975 he had passed the impugned order of release. While
Shri Senger was serving as a Tehsildar the Government in
exercise of its powers under Sections 12 and 39(1) of the
Code of Criminal Procedure 1898, issued a general Notifica-
tion dated 6.2.1968 conferring on all Tehsildars the powers
of a First Class Magistrate and on all Naib Tehsildars the
powers of a Second Class Magistrate. The Notification of the
Government was duly published in the Gazette on 17.2. 1968.
By means of a Notification dated 9.9.1974 the Government had
designated the Additional City Magistrate II, Kanpur, to be
the Prescribed Authority under the Act for certain areas
including the limits of Collector Ganj Police Station where
the leased property is situate. By reason of this notifica-
tion when Shri Senger succeeded one Shri Jagdish Sharma as
the Additional City Magistrate II, Kanpur, on May 19, 1975,
he became the Prescribed Authority for those areas including
the Collector Ganj area. It was in such circumstances Shri
Senger dealt with the application filed under Section 21 of
the Act by the respondents before his predecessor and passed
the order of release on 19.8.1975.
Having set out these factual matters we will now refer
to the grounds on which the competence of Shri Senger to
have passed the order of release are questioned. They are as
follows:-
503
1. There is no proof that the General Notification of the
Government dated 6.2.68 was given effect to in the case of
Shri Senger, and in the absence of such proof he cannot be
deemed to have been conferred ’the powers of a First Class
Magistrate because Clause (2) of Section 39 of the Criminal
Procedure Code 1898 lays down that any conferment of magis-
terial powers on an officer under Section 39(1) "shall take
effect from the date on which it is communicated to the
person so empowered."
2. Even if there had been a communication to Shri Senger as
envisaged under Section 39(2) of the Code, the conferment of
powers was only for ensuring the maintenance of law and
order and not for the trial of cases. This position has been
set out by the Deputy Secretary, Government of U.P. in his
note while forwarding a copy of the General Notification of
the Government to all District Magistrates (vide page 260 of
the Printed Paper Book). Therefore, Shri Senger cannot be
treated as a Tehsildar on whom the powers of a First Class
Magistrate had been conferred upon for trial of cases.
3. For an Executive Magistrate to be lawfully empowered to
act as a Prescribed Authority under Section 3(e), he must
have had not less than three years experience in the trial
of cases as a First Class Magistrate. The terms of Section
3(e) are clear on this aspect and they have been reiterated
by the Government through a communication sent by the Com-
missioner and Secretary, Government of Uttar Pradesh to all
District Magistrates on 9.9. 1974 (vide page 228 of Printed
Paper Book). It has been stated therein that "in the case of
Executive Magistrates, it shall be deemed sufficient if they
have gained three years’ experience of working as Magis-
trates of First Class before the 1st April, 1974".
These grounds were controverted by Mr. Lalit appearing
for the respondents and he contended that Shri Senger had
been conferred the powers of a First Class Magistrate in
terms of the Government Notification and the Gazette publi-
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cation is proof thereof. that this position has been con-
firmed by the District Magistrate in his reply to the Sixth
Additional Judge, Kanpur (vide pages 224/225 of the Printed
Paper Book), that Shri Senget was empowered to exercise all
the powers of a First Class Magistrate and that the note
issued by the Deputy Secretary that the conferment of powers
was confined to the maintenance of law and order and would
not extend to the trial of cases is an
504
administrative note which cannot override the Gazette Noti-
fication and it must therefore be held that Shri Senger had
been an Executive Magistrate exercising the powers of a
First Class Magistrate from February 1968 itself and as such
he fully satisfied the terms of Section 3(e) for being
conferred the,powers of a Prescribed Authority under the
Act. We will now examine the contentions of the counsel in
greater detail.
It is not in dispute that the Government issued a Gener-
al Notification on 6.2. 1968 conferring the powers of a
First Class Magistrate on all Tehsildars and the powers of a
Second Class Magistrate on all Naib Tehsildars and this
Notification was duly published in the Official Gazette on
17.2.68. The argument of Mr. Kacker that in spite of the
Government Notification there is no proof that Shri Senger
had been individually communicated an order conferring upon
him the powers of a First Class Magistrate cannot be accept-
ed because the Additional District Magistrate has categori-
cally stated in his reply to the letter of the Sixth Addi-
tional Judge dated 3.5.76 that by virtue of the General
Notification of the Government and the Gazette Notification,
"all the Tehsildars had been appointed Magistrates, First
Class" and by way of enclosure he had sent the relevant
Gazette Notification as well. In the face of such materials,
it must be taken that the Government Notification should
have been fully acted upon and all Tehsildars including Shri
Senger must have been conferred the powers of a First Class
Magistrate in the year 1968 itself. In so far as the second
criticism is concerned, there is nothing in the Government
Notification dated 6.2.68 or in the Gazette publication
dated 17.2.68 to indicate that the powers of a First Class
Magistrate and a Second Class Magistrate conferred on Teh-
sildars and Naib Tehsildars respectively was only for the
limited purpose of ensuring the maintenance of law and order
and not for exercise of those powers in the trial of crimi-
nal cases. The note of the Deputy Secretary (page 260 of the
Printed Paper Book) relied on by Mr. Kacker appears to be
only an administrative instruction and not an order passed
by the Government itself in exercise of its powers under
Sections 12 and 39 of the Criminal Procedure Code 1898. In
such circumstances, the instruction cannot whitle down the
Government Notification conferring higher magisterial powers
on Tehsildars and Naib Tehsildars. Incidentally, we may
point out that the copy of the Government Notification dated
6.2.68 together with the administrative instruction of the
Deputy Secretary had been communicated to all the Tehsildars
of the District by the District Magistrate. The endorsement
made by the Collector will, therefore, disprove the conten-
tion of Mr. Kacker that there had been no individual commu-
nica-
505
tion of the Government’s Order to all the Tehsildars and
hence the requirement of Section 39(2) of the Criminal
Procedure Code 1898 had not been complied with.
Even assuming for argument’s sake that the conferment of
the powers of a First Class Magistrate on all Tehsildars was
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for the limited purpose of enforcement of law and order and
not for the trial of cases, the question will be whether the
experience gained by Shri Senger as a Second Class Magis-
trate while concurrently having the powers of a First Class
Magistrate would not satisfy the requirements of Section
3(e) of the Act. All that the Section says is that for being
conferred the powers of a Prescribed Authority an Executive
Magistrate should have had experience as such Magistrate for
a period of not less than three years. Having regard to the
terms of the stipulation, it would suffice if Shri Senger
had acquired experience in the trial of criminal cases,
albeit cases triable by a Second Class Magistrate, for more
than three years, while at the same time having the right to
exercise the powers of a First Class Magistrate. This is
because of the fact that as per Schedule III of the Code of
Criminal Procedure 1898 a Magistrate of the First Class is
also entitled to exercise all the powers of a Magistrate of
the Second Class. It would, therefore follow that a First
Class Magistrate can also gain experience by the trial of
cases triable by a Second Class Magistrate. What is of
relevance is the gaining of experience in trial of criminal
cases for a period of three years and more and at the same
time having the powers of a First Class Magistrate and not
necessarily the experience of trying cases triable by a
First Class Magistrate alone.
In the light of the aforesaid reasons we do not see any
merit in the contention of the appellant that Shri Senger
did not have the requisite qualification to be appointed a
Prescribed Authority under Clause (e) of Section 3 of the
Act and hence the release order passed by him is a nullity.
There is also another angle from which the matter needs
to be considered. Shri Senget was not’ appointed a Pre-
scribed Authority as persona designata. On the other hand he
exercised the powers of a Prescribed Authority by reason of
his posting as Additional City Magistrate II, Kanpur, in the
place of one Shri S.D. Sharma and by virtue of an earlier
Notification of the Government dated 9.9.1974 constituting
the Additional City Magistrate II, Kanpur, as the Prescribed
Authority for certain areas in Kanpur city including the
area falling within the limits of the Collector Ganj Police
Station. The
506
abovesaid Notification of the Government was a General
Notification and, therefore, whoever came to be posted as
Additional City Magistrate II, Kanpur, automatically became
a Prescribed Authority for the areas indicated in the Gov-
ernment Notification. Such being the case, as long as the
Government Notification dated 9.9.1974 is not challenged,
the exercise of powers by Shri Senger as a Prescribed Au-
thority cannot also be challenged. This position would then
call for the application of the ’de-facto doctrine’ to the
facts of the case. The principle of the ’de-facto doctrine’
has been considered in several cases. This Court had occa-
sion in G. Rangarajan v Andhra Pradesh, [1981] 3 S.C.R.474,
to which one of us (Sen, J.) was a party to refer to those
decisions and enunciate the law relating to the ’de-facto
doctrine’. In that case a criminal appeal filed by one
Gokaraju Rangaraju under Section 6(c) of the Essential
Commodities Act was dismissed by Shri G. Anjappa, Additional
Sessions Judge and a revision was preferred to the High
Court. One Shri Raman Raj Saxena, another Additional Ses-
sions Judge, had tried a Sessions case and awarded convic-
tion to two of the accused persons and they had filed ap-
peals to the High Court against their conviction and sen-
tence. By the time the Criminal Revision and the Criminal
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Appeal filed by the accused came to be heard by the High
Court, this Court had quashed the appointments of the above-
said two Additional Sessions Judges and two others as Dis-
trict Judges Grade II on the ground that their appointment
was in violation of Article 233 of the Constitution. There-
fore, the accused who had preferred the Criminal Revision
and the Criminal Appeals respectively raised a contention
before the High Court that the judgments rendered against
them by the concerned Additional Sessions Judges were void
and should therefore, be set aside. The High Court rejected
the contention on the ground that the Additional Sessions
Judges had held their offices under lawful authority and not
as usurpers and therefore, the judgments rendered by them
were valid and could not be questioned in collateral pro-
ceedings. Against the judgments of the High Court the ac-
cused preferred appeals by special Leave to this Court and
those appeals were dismissed by this Court on the ground the
’de-facto doctrine’ was clearly attracted. After referring
to severaL decisions rendered by the Courts in India and
England, Chinnappa Reddy, J. speaking for the Bench enunci-
ated the law relating to the ’de-facto doctrine’ as under:
"A judge, de facto, therefore, is one who is
not a mere intruder or usurper but one who
holds office under colour of lawful authority,
though his appointment is defective and may
later be found to be defective. Whatever be
the
507
defect of his title to the office, judgments
pronounced by him and acts done by him when he
was clothed with the powers and functions of
the office, albeit unlawfully, have the same
efficacy as judgments pronounced and acts done
by a Judge de jure. Such is the de facto
doctrine, born of necessity and public policy
to prevent needless confusion and endless
mischief. There is yet another rule also based
on public policy. The defective appointment of
a de facto judge may be questioned directly in
a proceeding to which he be a party but it
cannot be permitted to be questioned in a
litigation between two private litigants, a
litigation which is of no concern or
consequence to the judge except as a judge.
Two litigants litigating their private titles
cannot be permitted to bring in issue and
litigate upon the title of a judge to his
office. Otherwise as soon as a judge
pronounces a judgment a litigation may be
commenced for a declaration that the judgment
is void because the judge is no judge. A
judge’s title to his office cannot be brought
into jeopardy in that fashion. Hence the rule
against collateral attack on validity of
judicial appointments. To question a judge’s
appointment in an appeal against the judgment
is, of course, such a collateral attack."
The ensuing position therefore is that even if we are to
countenance the argument of the appellant’s counsel that
Shri Senger had not gained experience as an Executive Magis-
trate exercising First Class powers for a period of not less
than three years and could not therefore be appointed as a
Prescribed Authority under the Act, the validity and legali-
ty of the order of release passed by him cannot be impugned
because Shri Senger had not held the office as an usurper
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but only under colour of lawful authority. There is, there-
fore, no escape for the appellant from being governed by the
’de-facto doctrine’ and thereby being disentitled to impugn
the validity of the release order on the ground of want of
jurisdictional competence for Shri Senger to pass the order.
Furthermore, the appellant is also not entitled to question
the validity of the appointment of Shri Senger as a Pre-
scribed Authority in a collateral proceeding. These addi-
tional factors also militate against the contentions of the
appellant.
In view of our conclusion that Shri Senger’s experience
as an Executive Magistrate satisfied the requirements of
Section 3(e) of the Act and as such he was not incompetent
to act as a Prescribed Authority and pass the impugned order
of release, that secondly even if he
508
was not fully qualified to act as a Prescribed Authority and
pass the order of release the validity of the order cannot
be impugned because of the ’de-facto doctrine’ and thirdly,
the appellant is not entitled to question the competence of
Shri Senger to act as a Prescribed Authority in a collateral
proceeding, it is really not necessary for us to examine the
correctness of the view taken by the High Court that by
reason of the merger of the order of Shri Senger with the
order of the Appellate Authority, there is no room for the
appellant to contend that the release order is a nullity
because Shri Senger did not have jurisdiction to pass the
order. Even so we may make a brief reference to the argu-
ments of the counsel on that aspect of the matter and the
case law cited by them to be fair to the counsel and to
their arduous preparation of the case. Mr. Kacker’s argument
was that the High Court was not right in its view because
the rule of merger would not be attracted where there is a
total lack of jurisdiction in the Tribunal or Court of first
instance to pass an order. Mr. Kacker submitted that there
is a clear distinction between the manner of exercise of
jurisdiction and the existence of jurisdiction and whenever
an order was passed without jurisdiction by a Tribunal or
Court, the rule of merger will have no application. In
support of his contention the learned counsel referred us to
the following decisions. Hriday Nath Roy v. Ram Chandra
Barna Sarma, (ILR 48 Calcutta 138); Collector of Customs v.
A.H.A. Rahima, AIR 1957 Madras 496; The State of Uttar
Pradesh v. Mohammad Noon, [1958] SCR 595; Kumaran v. Kothan-
daraman, AIR 1963 Gujarat Page 6; Toronto Railway v. Toronto
Corporation, [1904] Appeal Cases 809 and Barnard v. National
Dock Labour Board, [1953] 1 All. E.R. 1113. Refuting the
contentions of Mr. Kacker, Mr. Lalit argued that in several
later judgments the view taken in Mohammad Noon’s case
(supra) has been explained as being confined to the peculiar
facts of that case and that the rule of merger has not
undergone any change and the consistent view that has been
taken is that even an order passed by a Tribunal or Court
without jurisdiction can be challenged before the Appellate
Authority or Court, that in such an appeal the question of
the initial Court’s jurisdiction can also be gone into and
that once the Appellate Authority or Court found jurisdic-
tional competence in the Tribunal or Court of first instance
and confirmed the order in appeal, then the rule of merger
of the order of the original authority with the order of the
Appellate Authority would be clearly attracted and thence-
forth the order of the original authority cannot be assailed
on the ground of jurisdictional error or incompetence. The
learned counsel further submitted that besides the rule of
merger the rule of finality of judgments would also be
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attracted and on that score too the order of the original
authority will attain immunity
509
from attack. Mr. Lalit cited several decisions in support of
his arguments but we need refer only to the decisions of
this Court. The decisions cited are:-
U.J.S. Chopra v. State of Bombay, [1955] 2 SCR 94; Madan
Gopal Rungta v. Secretary to the Govt. of Orissa, [1962]
Suppl. 3 SCR 906 and Collector of Customs, Calcutta v. East
India Commercial Co. Ltd., [1963] 2 SCR 563.
As we have already indicated we do not find any necessi-
ty to go into the merits of the contentions of the counsel
regarding the applicability of the rule of merger and the
rule of finality for rendering our decision in this appeal.
We, therefore, leave the rival contentions to rest there.
We have only to consider the grievance of the appellant
that the respondents had committed a breach of their under-
taking to the court and illegally dispossessed them from the
leased portions in their occupation and, therefore, the
respondents should be directed to restore possession to them
in the interests of justice. It appears to us that the
recovery of possession of the leased portions had taken
place due to a misunderstanding about the period of force of
the undertaking given by the respondents. From the records
we see that the High Court preferred to act on the undertak-
ing given by the respondents counsel not to disturb the
possession of the appellant rather than pass an order of
stay of the release order as the High Court was of the view
that the appeal itself can be heard and disposed of expedi-
tiously on merits. However, for one reason or other, the
appeal could not be heard expeditiously. In the meanwhile
since the undertaking had been given only for a limited
period i.e. 25.10.76, the respondents seem to have been
under the impression that the undertaking had come to an end
and hence they were entitled to recover possession. It is of
relevance to note that the respondents had not taken posses-
sion immediately after 25.10.76 but only on 23.12.76, i.e.
nearly two months later. In such circumstances it is diffi-
cult to sustain the charge levelled by the appellant that
the respondents had committed a breach of their undertaking
to the Court and had recovered possession illegally and
should therefore be called upon to restore possession.
In the light of our conclusion the appeal fails and will
accordingly stand dismissed. We, however, direct the parties
to bear their respective costs.
P.S.S. Appeal dis-
missed.
510