Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

1965 (11) TMI 149 - SUPREME COURT

1965 (11) TMI 149 - SUPREME COURT - 1966 AIR 893, 1966 SCR 553 - Appeal (civil) 116 of 1964 - Dated:- 10-11-1965 - GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P. JUDGMENT: J. P. Goyal and B. P. Jha, for the appellants. A. V. Ranganadham Chetty and A. V. Rangam, for the respondents. Gajendragadkar, C.J Appellant No. 1, Lala Ram Swaruup, and five other members of his family sued the two respondents, Shikar Chand and his son, for ejectment from the shop .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which the Act applies. Broadly stated, the effect of the provisions contained in S. 3(1) is that a landlord can evict his tenant if he satisfies two conditions. The first condition is that he must obtain the permission of the District Magistrate to file such a suit; and the second condition is that he must provethe existence of one or the other of the seven grounds; enumeratedin clauses (a) to (g) of S. 3(1). We shall presently refer to therelevant provisions of this section. In their plaint, th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he, conditions prescribed by S. 3 (1). The appellants further claimed ejectment of the respondents and asked for a decree for damages. for use and occupation of the suit premises from 11th April, 1953 to 11th July, 1954 ₹ 35/- per month. The suit (No. 349, of 1954) was filed on the 14th July, 1954. The respondents resisted the claim made by the appellants on. several grounds. They urged that the suit was bad for non-joinder of necessary parties; that the permission to sue granted to the ap .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ir suit with costs on the 25th March, 1955. The respondents then preferred an appeal (Civil Appeal No. 213 of 1955) in the Court of the District Judge, Moradabad, and urged that the findings recorded by the trial Judge were erroneous and asked for the reversal of the decree passed by him. The learned District Judge rejected the respondents contentions and confirmed the decree under appeal on the 2nd June, 1955. That took the respondents to the High Court at Allahabad in second appeal (No. 1106 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Judges of the High Court, because it was thought that the question raised by the appellants was of some importance. On the question as to whether the permission granted by the Commissioner was valid or not, the learned Judges who heard the appeal differed. Two of the learned Judges held that the said permission was invalid, whilst the third learned Judge held that it was valid. In accordance with the majority opinion the Letters Patent appeal.preferred by the appellants was dismissed on the 13t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f permission, and all questions in relation to the grant or refusal of the said permission have to be decided by the appropriate authorities constituted under the Act. Once the question about the grant of permission asked for by a landlord is determined by the appropriate authorities, their decision is final and cannot be questioned in a civil court. In support of this argument, Mr. Goyal has based himself on the provisions contained in S. 3 (4) and s. 16 ,of the Act. Section 3 (4) provides that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Commissioner in the present case whereby he granted permission to the appellants to bring the present suit. In order to appreciate the validity of this argument, it is necessary to consider the scheme of the, relevant provisions of the Act. Section 3(1) reads thus.:- "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 mo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

communicated to him, whichever is later, apply to the Commissioner to revise the order. (3) The Commissioner shall, as far as may be, hear the application within six weeks from the date of its making, and, if he is satisfied -that the District Magistrate has acted illegally or with material irregularity or has wrongly refused to act, he may confirm or set aside. the order of the District Magistrate". We have already referred to s. 3(4). It would thus be seen that the scheme of s. 3 is that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fied that the District Magistrate has acted illegally or with material irregularity, or has wrongly refused to act, he can make an appropriate order; and the order thus made by him is final under sub-s. (4), subject to any order that the State Government may pass under s. 7-F of the Act. Section 7-E provides for the revisional powers of the State Government in very wide terms. It reads thus :- "The State Government may call for the record of any case granting or refusing to grant permission .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he record suo moto and it can exercise its powers in the interests of justice. In other words, whenever it is brought to the notice of the State Government either by a party aggrieved by the order passed by the Commissioner, or otherwise, that the order passed by the Commissioner is unfair or unjust, the State Government may in the ends of justice pass an appropriate order revising -the order made by the Commissioner. That, in brief, is the scheme of. the relevant provisions of the Act relating .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f the civil courts to deal with civil causes can be excluded by the Legislature by special Acts which deal with special subject-matters; but the exclusion of the jurisdiction of the civil courts must be made by a statutory provision which expressly provides for it, or which necessarily and inevitably leads -to that inference. In other words, the jurisdiction of the civil courts can be excluded by a statutory provision which is either express in that behalf or which irresistibly leads to that inf .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e two tests, it does appear that the words used in s. 3 (4) and s. 16 are clear. Section 16 in terms provides that the order made under this Act to which the said section applies shall not be called in question in any court. this is an express provision excluding the civil courts jurisdiction. Section 3 (4) does not expressly exclude the jurisdiction of the civil courts, but, in the context, the inference that the civil courts jurisdiction is intended to be excluded, appears to be inescapable. T .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Act excluding the jurisdiction of the civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity. Take,, for instance, the case of an order purported to have been passed by a District Magistrate who is not a District Magistrate in law. If it is shown by a party impeaching the validity of the order in a civil court that the order was passed by a person who was .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is wholly invalid and a nullity in law. Let us take another case to illustrate the position. If S. 3 had provided that before a District Magistrate grants permission to the landlord to sue his tenant, he shall issue notice to the tenant and give him an opportunity to represent his case before the application of the. landlord is dealt with on. the merits; and in the face of such a statutory provision, the District Magistrate grants permission ex parte without issuing notice to the tenant; in suc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

are in the nature of quasi-judcial proceedings and they must be tried in accordance with the principles of natural justice, and it is shown that in a given case, an order has been passed without notice to the party affected by such order, it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and it existence should be ignored by the civil court. Such a plea cannot, in our opinion, be excluded by reason of the provisions .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h was taken by this Court in that case was that the proceedings taken by a landlord under S. 3 are proceedings of a quasi-judicial nature and the appropriate authorities, in exercising their powers in relation to such proceedings, must act in accordance with the principles of natural justice. It must, however, be made clear that in that ,case, the question as to whether such a plea can be raised in a civil court having regard to the bar created by sections 3 (4) and 16 of the Act, was not raised .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the mischief of the bar created by sections 3(4) and 16 of the Act. Similar questions have often been considered by judicial, decisions to some of which we will now refer. In The Secretary ,of State for India in Council v. Roy Jatindra Nath Chowdhury -and Anr., (A.I.R. 1924 P.C. 175.) dealing with the effect of s. 6 of the Bengal Alluvion and Diluvion Act (IX of 1847), the Privy Council observed that -the finality of the orders specified in the said section had to be read subject to two conditi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

said mandatory provisions are violated, the validity of the said orders, can be challenged in a civil proceeding. Similarly, if principles, of natural justice are not complied with, the orders passed in violation of the said principles would be wholly inoperative in law and their validity can be impeached in civil proceedings. The same principle has been emphasised by the Privy Council in Secretary of State v. Mask & Co.(67 1. A. 222 ). In that case, though the words used in sections 188 an .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s of natural justice. In M/s Kamala Mills Ltd. v. The State of Bombay((1966) 1 S.C.R. 64.), while dealing with a similar point, this Court has considered the effect of the two decisions of the Privy Council, one in -the case of Mask & Co.(67 I.A. 222.), and the other in Raleigh Investment Company Ltd.. v. Governor General in Council(74 T. A. 50, at pp. 62-63. ). The conclusion reached by this Court in M/s. Kamala Mill s case((1966) 1 S.C.R. 64.) also supports the view which we are taking in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

The majority decision of the Allahabad High Court is in favour of the respondents; and Mr. Goyal s argument is that the said decision is inconsistent with the true scope and effect of the provisions prescribed by s. 3 (3) of the Act. The decision of this point lies within a very narrow compass. The majority decision is that the jurisdiction conferred on the Commissioner under s. 3(3) is exactly similar to the jurisdiction conferred on the High Court under s. 115 of the Code of Civil Procedure. I .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ents of clauses (a), (b) & (c) all centre round the question about the jurisdiction of the subordinate court, and the view which has been accepted by the majority decision under appeal is that the same limitation must be imported in construing the scope of the authority and power conferred on the Commissioner by S. 3(3). Let us examine whether this conclusion is right. In construing the provision of s. 3 (3), one factor which is patent is that it ,does not refer to any considerations of juri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

strict Magistrate. If the District Magistrate has acted illegally, the Commissioner can interfere with his order; so can he interfere with the order if the District Magistrate has acted with material irregularity; and lastly, the Commissioner can interfere with the order of the District Magistrate if the District Magistrate has wrongly refused to act. This last -clause is wide enough to empower the Commissioner to correct the error committed by the District Magistrate in making an order brought .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t is, we think, fallacious to assume that a party can move the Commissioner under s. 3(3) in cases where the District Magistrate just refuse- to make an order on the application made by the landlord for permission to bring a suit against the tenant. If a District Magistrate just does not deal with the application and passes no, order on it, the party aggrieved may be justified in applying for an appropriate writ to the High Court or adopt some other suitable remedy in law; but a revision in such .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r in coming to the conclusion that the permission granted by the Commissioner in exercise of the powers conferred on him by s. 3 k 3) is invalid in law. As we have already emphasised, the only plea which can be raised before a civil court in relation to orders passed under the relevant provisions of the Act can be a plea which, if sustained, would render the order wholly invalid and as such, a nullity. No other plea can be raised, because all other pleas are barred by ss. 3 (4) and 16 of the Act .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version