PETITIONER: LALA RAM SWARUP AND OTHERS Vs. RESPONDENT: SHIKAR CHAND AND ANOTHER DATE OF JUDGMENT: 10/11/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P. CITATION: 1966 AIR 893 1966 SCR (2) 553 CITATOR INFO : R 1971 SC 530 (253,237,387) ACT: U.P. (Temporary) Control of Rent and Eviction Act, 1947 (U.P. 3 of 1947), ss. 3(3), 3(4) and 16-Jurisdiction of Civil Court--If barred--Revisionary powers of Commissioners- Scope. HEADNOTE: The appellants sued the-respondents-their tenants for ejectment from their shop. They had applied to the District Magistrate for the requisite permission to institute the suit under s. 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act. When the permission was refused they moved the Commissioner in his revisional jurisdiction under s. 3(2) of the Act and the Commissioner gave the permission.. The Munsif decreed the suit. This was confirmed in appeal by the District Judge. The High Court, on appeals, upheld the respondents contention that the permission granted by the Commissioner under s. 3 (3) of the Act, was invalid in law, and so concluded that the appellants' suit was incompetent. In this Court the appellants contended - (i) ss. 3(4) and 16 of the Act totally excludes the jurisdiction of civil courts in relation to the question as to whether permission has been properly or validly granted or refused by the appropriate authority exercising their powers under the relevant provisions of the Act, and (ii) the decision of the High Court that the permission granted by the Commissioner was invalid in law was inconsistent with the true scope and effect of the provisions prescribed by s. 3(3) of the Act. HELD:(i) Section 3 (4) and 16 of the Act create a bar against pleas which challenge the correctness or propriety of the orders in question. [558 G] The two tests, which are often considered relevant in dealing with the question about the exclusion of civil courts' jurisdiction are (a) whether the special statute which excludes such jurisdiction has used clear and unambi- guous words indicating that intention; and (b) does that statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions. Applying these tests the inference is inescapable that the jurisdiction of the civil courts is intended to be excluded. [558 D-G] This conclusion, however, does not necessarily mean that the plea against the validity of order passed by. the District Magistrate, or the Commissioner, or the State can never be raised in a civil court. The bar excluding the jurisdiction of 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. [558 G-H] (ii)The High Court was not justified, in introducing a limitation pertaining to questions of jurisdiction in determining the scopeof the width of the revisional power conferred on the Commissionerby s. 3 (3). There are three categories of cases in which the commissioner'can interfere with the order passed by the District Magistrate :(a) if the District Magistrate has acted illegally; (b) if he has acted with material irregularity and(c) if he has wrongly refused to act. This last ground is wide enough 5 54 to empower the Commissioner to correct the error committed by District Magistrate in making an order brought before it; clearly if the District Magistrate refused to grant permission and the Commissioner thinks that in doing so, he has committed an error, that would be a case where the District Magistrate "has wrongly refused to act" and that would give the Commissioner jurisdiction to exercise his revisional powers. [562 C-E, H] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 116. of 1964.
Appeal from the judgment and order dated September 13, 1960,
of the Allahabad High Court in Special Appeal No. 212, of
1956.
J. P. Goyal and B. P. Jha, for the appellants.
A. V. Ranganadham Chetty and A. V. Rangam, for the res-
pondents.
The Judgment of the Court was delivered by
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
situated in Qasba Chandausi, Bazar Waram, on the allegation
that the said premises had been let out to the respondents
to conduct their shop on a monthly rent with effect from the
11th April, 1952, for a year. At the time when the present
suit was brought, the U.P. (Temporary) Control of Rent and
Eviction Act, 1947 (U.P. Act III of 1947) (hereinafter
called ‘the Act’) was in force. Section 3 of the Act
imposes certain restrictions on the landlord’s right to
eject his tenant from the premises to 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, the appellants pleaded that they needed the
premises in suit to carry on their own business in the shop,
and they alleged that they had applied for permission-to the
District Magistrate, Moradabad, under S. 3 (1 ) of the Act;
that the said permission had been refused by him, whereupon
they had moved the Commissioner in his revisions
jurisdiction under S. 3(2) of the Act; and that the
Commissioner had given them permission to file the suit.
That is how the appellants claimed to have satisfied both
the, conditions prescribed by S. 3 (1). The appellants
further claim-
555
ed 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 Rs. 35/- per month.
The suit (No. 349, of 1954) was filed on the 14th July,
1954.
The respondents resisted the claim made by the appelants on.
several grounds. They urged that the suit was bad for non-
joinder of necessary parties; that the permission to sue
granted to the appellants by the Commissioner was not valid
in law; that the rent note executed by them was not
admissible in evidence; and that the notice given by the
appellants under section 106 of the Transfer of Property Act
was also invalid in law.
On these pleadings, the learned Munsif, Chandausi, framed
appropriate issues. Evidence wag led by both the parties in
support of their respective contentions. The learned trial
Judge recorded findings in favour of the appellants on all
the issues and decreed their 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 of 1955). The learned single Judge
of the said High Court who heard this appeal, upheld the
respondents’ contention that the permission granted by the
Commissioner under s. 3(3) of the Act was invalid in law;
and so, he came to the conclusion that the appellants’ suit
was incompetent. This judgment was delivered on the 26th
July, 1956. The learned Judge, however, allowed the
appellants leave to file a Letters Patent Appeal.
The Letters Patent Appeal was placed before a larger Bench
of three learned 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 13th
September, 1960. The appellants then applied for
556
and obtained a certificate from the High Court and it is
with the said certificate that this appeal has come to this
Court.
At the hearing of this appeal, the first point which Mr.
Goyal for the appellants has raised for our decision is that
the courts below had no jurisdiction to consider the
question about the validity of the permission granted by the
Commissioner. He contends that s. 3 of the Act provides a
self-contained code for the grant of 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 the order of the Commissioner under sub-
section (3) shall subject to any order passed by the State
Government under s. 7-F, be final. Similarly, S. 16
provides that no order made under this Act by the State
Government or the District Magistrate shall be called in
question in any Court. The combined effect of these two
provisions, according to Mr. Goyal, is to exclude the
jurisdiction of the civil courts to entertain the question
about the correctness, propriety or legality of the order
passed by 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 more of
the following grounds”.
It is unnecessary to cite the said grounds, because it is
not disputed that the ground of personal need set out by the
appellants justifies their claim for the respondents’
ejectment. Section 3(2) and (3) as they stood at the
relevant time read thus :-
“(2) The party aggrieved by the order of
District Magistrate granting or refusing to
grant the permission referred to in sub-
section (1) may, within 30days from the date
of the order or the date on which it is
communi-
5 57
cated 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 if a
landlord wants to bring a suit to eject his tenant, he has
to apply to the District Magistrate for permission to do so.
The District Magistrate may grant or refuse to grant such
permission. After the District Magistrate makes an order on
the landlord’s application, the party aggrieved by the order
can apply in revision to the Commissioner within 30 days;
and the Commissioner, in exercise of his revisional
jurisdiction, has to deal with the revision application
under s. 3(3). If he is satisfied 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 for the filing of a suit for
eviction referred to in section 3 or requiring
any accommodation to be let or not to be let
to any person under section 7 and may make
such order as appears to it necessary for the
ends of justice”.
It is clear that the power conferred on the State Government
by s. 7-F to revise the orders passed by the
Commissioner under s. 3 (3 ) is very wide. In the first
place, the State Government need not necessarily be moved by
any party in that behalf. It may call for the 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
558
scheme of. the relevant provisions of the Act relating to
the grant of permission to the landlord to sue his tenant in
ejectment.
Mr. Goyal contends that the words of s. 3 (4) read with s.
16 are clear and unambiguous, and they indicate that the
jurisdiction of the civil courts is completely excluded in
relation to the question as to whether permission has been
properly or validly granted or refused by the appropriate
authorities exercising their powers under the relevant
provisions of the Act. It cannot be seriously disputed that
the jurisdiction of 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 inference.
One of the points which is often treated as relevant in
dealing with the question about the exclusion of civil
courts’ jurisdiction, is whether the special statute which,
it is urged, excludes such jurisdiction, has used clear and
unambiguous words indicating that intention. Another test
which is applied is : does the said statute provide for an
adequate and satisfactory alternative remedy to a party that
may be aggrieved by the relevant order under its material
provisions ? Applying these 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. Therefore, we are satisfied that Mr. Goyal
is right in contending that the jurisdiction of the civil
courts is excluded in relation to matters covered by the
orders included within the provisions of s. 3 (4) and s.
16.
This conclusion, however, does not necessarily mean that the
plea against the validity of the order passed by the
District Magistrate, or the Commissioner, or the State
Government, can never be raised in a civil court. In our
opinion, the bar created by the relevant provisions of the
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,
559
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 not a District Magistrate,-the
order in law would be a nullity, and such a plea cannot be
ruled out on the ground of the exclusion of the jurisdiction
of the civil court. Similarly, if an order granting
permission to a landlord is passed by a District Magistrate
of one District when the property in question is situated in
another district outside his jurisdiction, a party would be
entitled to urge before a civil court that the permission
purported to have been granted by the District Magistrate 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 such a case, the failure of
the District Magistrate to comply with the mandatory
provision% prescribed in that behalf, would render the order
passed by him completely invalid, and a plea that an order
has been passed by the District Magistrate without complying
with the mandatory provision of the Act, would be open for
examination before a civil court. Likewise, in the absence
of such a statutory provision, if it is held that the
proceedings before the appropriate. authorities contemplated
by S. 3 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 contained
in S. 3 (4) and S. 16 of the Act.
In this connection, we may incidentally refer to a recent
deciSion of this Court in Lala Shri Bhagwan & A nr. v. Shri
Ram Chand and Another(1). In that case, -this Court upheld
the decision of the Allahabad High Court which had set aside
the order passed by the appropriate authority under the
relevant provisions the Act on the ground that in passing
the said order, principles of natural
(1) [1965] 3 S.C.R, 218
560
justice had not been followed. The view which 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 and has not been considered.
We ought to point out that the provisions contained in sec-
tions 3(4) and 16 undoubtedly raise a bar against pleas
which ,challenge the correctness or propriety of the orders
in question. The merits of the order are concluded by the
decision of the ,appropriate authorities under the Act and
they cannot be agitated in a civil -court. But where a plea
seeks to prove that the impugned order is a nullity in the
true legal sense, that is a plea -which does not come within
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 A nr., (1) 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
conditions; the first was that the said orders -should not
suffer from any fundamental irregularity, that is to -say,
“a defiance or noncompliance with the essentials of the
procedure”; and the second condition was that the alleged
defiance or non-compliance, with the essentials of the
procedure must be strictly proved by the party alleging it.
This decision show that if the special statute prescribes
certain mandatory conditions -subject to which the orders in
question can be passed, and the 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.(1). In that case, though
the words used in sections 188 and 191 of the Sea Customs
Act (1878) were held to exclude the jurisdiction of the
civil courts,
(1) A.I.R. 1924 P.C. 175.
(2) 67 1. A. 222
561
the Privy Council observed that even where jurisdiction is
excluded, the civil courts have jurisdiction “to examine
into cases where the provisions of the Act have not been
complied -with, or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial
procedure”. This latter clause presumably covers cases
where orders are passed in violation of the principles of
natural justice.
In M/s Kamala Mills Ltd. v. The State of Bombay(1), 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.(1), and the other in Raleigh
Investment Company Ltd.. v. Governor General in Council(3).
The conclusion reached by this Court in M/s. Kamala Mill’s
case(1) also supports the view which we are taking in the
present appeal.
Therefore, while upholding the contention raised by Mr.
Goyal that the jurisdiction of the civil- courts is barred,
we wish to make it clear that this contention will not avail
Mr. Goyal if the respondents’ plea, if upheld, would render
the permission granted by the Commissioner totally invalid
land a nullity.
The second point which then calls for our decision in the
present appeal is: is the permission granted by the
Commissioner without jurisdiction and as such, a nullity ?
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. It will be
recalled that. 115 of the Code confers revisional
jurisdiction on the High Court to make such order as it
thinks fit in a given case, if the subordinate court whose
order is brought before the High Court under s. 115 “appears
(a) to have exercised a jurisdiction not vested in it by
law, or (b) to have failed to exercise a jurisdiction so
vested, or- (c) to have acted in exercise of its
-jurisdiction illegally or with material irregularity”.
There is no doubt that the requirements 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
(1) (1966) 1 S.C.R. 64.
(3) 74 T. A. 50, at pp. 62-63.
(2) 67 I.A. 222.
56 2
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
jurisdiction at all.. In fact, it is not easy to conceive of
a limitation as to jurisdiction being relevant in s. 3(3),
because the said provision deals with .orders passed by
District Magistrates, and the District Magistrates normally
would have jurisdiction to deal with applications made by
landlords. But quite apart from this aspect of the matter,
the words used in S. 3(3) are unambiguous. There are ‘three
,categories of cases in which the Commissioner can interfere
with the order passed by the District 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 before it; quite clearly if the District Magistrate
refuses to grant permission and the Commissioner thinks that
in doing so, he has committed an error, that would be a case
where the District Magistrate has wrongly refused to act,
and that would give the,Commissioner jurisdiction to
exercise his revisional power.
It is significant that the revisional application can be
made to the Commissioner only against orders passed by the
District Magistrate granting or refusing to grant such
permission. It 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 a case does
not appear to be competent under s. 3 (3). Besides, the
illegality or the irregularity to which s. 3 (3) refers need
not necessarily be correlated with questions of jurisdic-
tion. Therefore, we are satisfied that the High Court was
not justified in introducing a-limitation pertaining to
questions of jurisdiction in determining the scope of the
width of the revisional-,visional power conferred on the
Commissioner by S. 3 (3). That is why it must be held that
the High Court was in error in coming to the conclu-
563
sion 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.
In this connection, we may incidentally point out that by a
subsequent amendment of s. 3(3), the Legislature has made it
clear that its intention is to confer wide jurisdiction on
the Commissioner. The amendment in question has been
introduced by Act 17 of 1954. The amended provision reads
thus :-
“‘The Commissioner shall hear the application
made under sub-section (2), as far as may be,
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 reverse his order, or make
such other order as may be just and proper”.
There is no doubt that under this amended provision, the
Commissioner can deal not only with the legality, but also
with the correctness and propriety of the order passed by
the District Magistrate. In our opinion, the position about
the Comissioner’s powers was not different even under the
unamended provision.
It may also be relevant to point out that the power
conferred on the State Government at all material times by
s. 7-F was very wide. As we have already indicated, in
exercise of its powers under s. 7-F, the State Government
can pass such orders as appear to it to be necessary in the
ends of justice. Therefore, there is no doubt that the
relevant provisions of the Act did not intend, even prior to
the amendment of 1954, to limit the jurisdiction of the
Commissioner only to cases where irregularity or illegality
bad been committed by the District Magistrate in granting or
refusing, to grant permission.
The result is, the appeal is allowed, the order passed by
the High Court in the Letters Patent Appeal is set aside,
and that of the District Court restored with costs
throughout.
Appeal allowed.
564