Mohammad Ismail v. Nanney Lal

Mitter, J, The question in this appeal by special leave is, whether a suit for evictiom of a tenant by a landlord, after obtain-ing the permission of the Commissioner under sub-s. (3) of s. 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 194 7 becomes incompetent, on the making of an order by the State Government under s. 7 -F cancelling the permission to sue given by the Commissioner.

The relevant facts for disposal of this appeal are as follows. The respondent-landlord obtained permission of the District

Magistrate to file a suit for eviction against the appellant under s. 3(1) of the Act on May 29, 1961. The ten.ant went up to the Commissioner of Agra Divisi~ under s. 3 ( 2) of the Act. On July 26, 1961 the Commissioner dismissed the revision application. The tenant then filed a further revision application to the State Government under s. 7-F of the Act. Before the disposal of the last revision application, the landlord filed a suit for ejectment on J ainuary 18, 1962 in the court of the Munsii, Etah in pursuance of the permission given by the Commissioner. On June 16, 1962 rhe State Government set aside the order of the Commissioner and revoked !he permission granted to the landlord. The suit was dismissed by the Munsif of Etah on November 17, 1962. The Civil Judge of Etah allowed the appeal of the landlord on Sep-tember 28, 1963. Th~ tenant went up in Second Appeal to the High Court. On December 13, 1968 a learned single Judge of the Allahabad High Court dismissed the tenant's appeal following a judgment of this Court in Bhagwan Das v. Paras Nath('). Learned counsel for the appellant contended that some aspects of the question had not bee.n raised before and/ or considered by this Court on the prior occasion which might have induced the Court to come to a different conclusion. Having heard counsel at some length, we are convinced that there is no-merit in his sub-missions. We respectfully agree with the decision in Bhogwan Das's case(') and are satisfied that counsel has not been able to show that any relevant aspect of the question was not considered on the former occasion.

There was no unanimity of opinion in the Allahabad High Court as regards the effect of run order passed by the State Gov-ernment contrary to tlie Commissioner's order on the basis of whiGh a suit for eviction was filed in the subordinate courts. So far as the High Court was concerned, the matter was laid at rest by a Full Bench decision in the case of Bansi Ram v. Mantri Lal('). This Court while not concurring with all that was said in Bansi Ram's case(2) agreed with the Full Bench that a suit validly instituted after obtaining permission as required by s. 3 did not cease to be maintainable even if the State Government there-after revoked the permission granted.

Section 3 ( 1) of the Act restricts the rights of la.oolords to institute suits for eviction of tenants to cases covered by clauses (a) to (g) of that sub-section except with the permission of the District Magistrate. The words of this sub-section are imperative ·and show that no such suit can be filed without the permission of the said authority. Under the Transfer of Property Act the only pre-requisite to the institution of a valid suit .for evictiOill of a monthly tenant is the service of a proper notice to quit. The

(I) [1969] 2 S.C.R. 297. (2) I.L.R. [1965[ I Allahabad 545. ,A landlord is not obliged to make out any ground for such eviction.

Where he seeks to eject a tenant and can make out a case which falls within any of the sub-clauses (a) to (g), he need not approach the Distrkt Magistrate for permission to sue. It follows that the District Magistrate must consider the justification for the institu-tion of a suit in all other cases. His order is expressly made sub-ject to any order under sub-s. ( 3) of the section. In order that power under the latter sub-section can be exercised, it is neces-sary {or the aggrieved party to apply to the Commissioner to revise the order of the Magistrate by 111aht1g ·an application under sub-s. ( 2) of the section within 30 days from the date on which the order is communicated to him. Sub-s. (3) enjoins upon the Commissioner to hear the application, as far may be, within six weeks from the date of making it and his powers in this regard are not subject to any limitation. A landlord may file a suit for eviction on getting the permission of the District Magistrate to do so bnt he runs the risk of such permission being revoked by the Commissioner in which case his suit will become infructuous as by the.express words of sub-s. (1) the permission of the District Magistrate is made subject to revision by the Commissioner. The question arises whether the same result will follow if the order of the Commissioner is in its turn upset by the State Government acting under s. 7-F and whether sub-s. (4) of s. 3 should be so construed. In our opinion, an order under s. 7-F cannot affect a suit filed prior thereto if the landlord has obtained the neces-sary sanction from the Commissioner. The relevant portion of the sections are quoted below* for facility of reference.

*(3) Restrictions on eviction.-(1) Subject to any order passed under sub-section (3) no suit shall, without the permission of the District Ma&:istrate, be filed in any civil court against a tenant for his eviction from any accommoda-tion, except on one or more of the following grounds :-

(a) to (g) (2) Whe~e any application has been made to the District M;gi.strate for permission to sue a tenant for eviction from any accommodation and tbe. District Magistrate grants· or refuses to grant the permission, the party aggrieved by his order mf:Y, within 30 days from the date on which the order is communi· cated to him, apply to the Corn.missioner to revise the order.

(3) The Commissioner shall hear the application made under ~ab-section (2), as far as may .be, within six weeks from the. date of m~king it, and he may. if he is not satisfied as to the correctness. legality O! propriety of !he order passed by the District Magistrate or as to the regularity of proceed1ng·s held before him alter or reverse his order, or make such other order as may be just and proper.

( 4) The order of the Commissioner under sub-section (3) shall, subject to any order passed by the State Government under section 7-F be final.

7-F.-Revision to State Government-The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring anv accommodation to be let or not to be let to any person under Section 7 or directing a person to vacate anv accommodation under Section 7-A and maiy make such order as appears to it. necessary for the ends of justice.

Under sub-s. ( l) the maintainability of a suit on grolllll!ds other than those mentioned in els. (a) to (g) is made expressly subject to an order under sub-s. ( 3). It will be noted that the Legislature has conferred various powers on the State Government besides the power to reverse orders under section 3. . For reasQDS of its own the Legislature did not provide that the right to file a suit would be subject to or dependent upon an order under s. 7-F in the same way as an order under section 3 ( 3 ) .

Various· reasons were given by this Court in Bhagwan Das's case(') for coming to the conclusion thats. 7-F was not to be con-strued in the same way as s. 3 ( 3) and we are .in entire agi:eement therewith. When a landlord filed a suit for eviction only with the permission of the District Magistrate he knows that it would be open to the tenant to ask for revocation of the permission by an applicatiQl'.1 to the Commissioner within 30 days from the com-munication of the order of the District Magistrate to him. He is also aware that the Commissioner must, except for unavoidable reasons, hear the application and dispose of it within six weeks thereafter. At the most, therefore, he has to wait for about ten weeks from the order of the District Magistrate granting permis-sion to find out whether he can safely institute a suit. But so far as the revisional powers of the State Gover1DJIIlent are concerned, there is no time limit fixed either for application by an aggrieved party or tor the disposal thereof. It may be made at any time and the State Government is further authorised by this section (s. 7-F) to act suo motu. In such a state of affairs, it would not be right to hold that the landlord must wait indefinitely and ljnd out whe-ther the permission graimed to him will be upheld by the State Government should the tenant make an application for revision of the order of the Commissioner.

Apart from the above consideration, the words of s. 7-F in our r opinion, indicate that the State Government cain only exercise its jurisdiction to revise the order of the Commissioner before the actual institution of the suit.. The language of s. 7-F shows that on the facts of the case before it the State Government must consider whether the grant of or refusal to grant permission for the filing of a suit should be upheld or not. The section does not seem to be aimed at invalidating a suit a\ready instituted and can only operate at a stage before the landlord launches his proceed-ing. There is nothing in sub-s. ( 4) of s. 3 read with s. 7-F to show that a lancllo~d should wait till the powers of the revising authorities have been exhausted. If the Legislature had so intend-ed, it could have used words iini sub-s. ( 1) of s. 3 to indicate that the grant of permission by the District Magistrate would also be subject to an order under s. 7-F. The same result might have been achieved by providing for the stay of a suit in case the State Government made an order under s. 7-F contrary to that of the Commisllioner.

Once a suit is validly instituted it must take its course and the decree passed therein must be givC\11 effect to .unless the words of the statute render the decree inexecutable or liable to re-opening in a proper case· on grounds mentioned in the statute. It was pointed out by this Court in Bhagwan Das's case(') that the Legislautre had provided for a decree for eviction of a tenant passed before the commencement of the Act liable to be rendered inexecutable unless it was based on any of the grounds mentioned in sub-s. (3). The Legislature might, if so advised, have pro-vided for a similar result in a case where the State Government had revoked the permission to sue granted by the Commissioner.

It was also pointed out in Bhagwan Das's case(') that it would make a mockery of the jm:licial process if we were to hold on the language of the sections as they stand at present, that irrespective of a decree being passed by the trial court being upheld in appeal by the High Court or by this Court, the order of the State Gov-ernment would nullify all pro~gs.

There is nothing in the judgment of this Court in Shri Bhagwan v. Ram Chand(') read with secti!lll 16(3) of the Act which would incline us to come to any different conclusion. On the strength of the decision in that case read iJli the light of s. 16, it was argued that the order of the State Government being quasi-judicial in nature s. 16 (inset) placed the order of the State Gov-ernment beyond the pale of scrutiny by a court of law. We can-not see any force in this argumCill't. The permission to sue given by the Commissione~ has no effect on the course of the trial of the issues involved in that suit. That permission is only a pre-requisite to a suit as a notice under s. 80 of the Code of Civil Procedure. The court trying the suit for eviction has to find out whether a proper notice to quit was given aind whether the tenancy was properly determined. It must also examine the grounds on the basis of which the landlord seeks to evict the tenant and decide for itself whether such grounds exist. Neither the District Magis-trate nor the Commissioner nor the State Government is oblieed to disclose any reasons which may influence the said authorities in coming to their decision and the court is not called upon to exa-mine whether the conclusion of any of the said authorities was properly arrived at.

Learned counsel for the appellant would have us hold that

(I) [1969] 2 S.C.R. 297. (2) (1965] 3 S.C.R. 218.

Lil Sup ;Cl/69-8 s. 16• ousted the jurisdiction of the Court to consider the propriety of any order of the State Government. In our view, that is not the effect of that section. The decision in Shri Bhagwan v. Ram Chand (supra) shows that the State Government must offer area-sonable opportunity to both the parties while it exercises its jurisdic-tion under s. 7-F and an order which is J!lade in violation of the principles of natural justice may be quashed. Once the jurisdic-tion under s. 16 is properly exercised the court cannot examine the propriety of the order made therell\ll.der.

In the resu!t, the appeal fails and is dismissed with costs. Two is only exercisable at a point of time anterior to the filing of a suit and courts of law can therefore disregard any order under that section which is made after the filing of a suit.

In the result, the appeal fails and is dismissed with costs. Two months time granted from today for vacating subject to payment of rent and an undertaking given that the property would be hand-ed over peacefuliy within that time.

•Section 16. Orders under the Act not to be questioned in any Court.- No order' made under this Act by the State Government or the District Magis. trate shall be called in question in any court.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 263 of 1969.

Appeal by special leave from the judgment and order dated December 13, 1968 of the Allahabad High Court in SecQ.nd Appeal No. 3474 of 1963.

J. P. Goyal, G. N. Wantoo and V. C. Parashar, for the appellant.

K. P. Gupta, for the respondent.