Full Judgment Text
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PETITIONER:
BHAGWAN DAS
Vs.
RESPONDENT:
PARAS NATH
DATE OF JUDGMENT:
27/09/1968
BENCH:
HEGDE, K.S.
BENCH:
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
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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
JUDGMENT:
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
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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
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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 wilfully 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 h:as 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
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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.
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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
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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
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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
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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.
(1) (1958) A.L.J., p. 584. (2) (1965) 1 All. 545,
307