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PETITIONER: MUNNI DEVI & ANR.

       Vs.

RESPONDENT: GOKAL CHAND & ORS.

DATE OF JUDGMENT: 12/09/1969

BENCH: SHAH, J.C. BENCH: SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR 1727            1970 SCR  (2) 363  1970 SCC  (2) 879

ACT: Jurisdictional  Fact--Power  to  allot  premises   on    the existence vacancy--Statute enacting orders passed under  the statute   shall   not   be  called  in   question   in   any court--District   Magistrate  deciding  premises  vacant--If final--Court    exclusion   of   Jurisdiction   of    --U.P. (Temporary)  Control of Rent and Eviction Act, 1947, ss.  7, 7A, 16.

HEADNOTE: By  s.  7(2)  of the U.P. (Temporary) Control  of  Rent  and Eviction  Act, 1947, "the District Magistrate may require  a landlord  to let or not let to any person any  accommodation which is or has fallen vacant" and s. 16 of the Act 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 first appellant applied for an order in ejectment of the  first  respondent on the plea that  he  had   committed default  in  paying  rent. The District Magistrate held that the  respondent was not in occupation of the shop,  declared the  shop  vacant  and allotted it to  another  person.  The respondent  brought  an  action in the  civil  court  for  a declaration  that he was an allottee of the shop and was  in possession  in that capacity. The trial court held that  the appellant  never  vacated  the shop,  nor  was  his  tenancy terminated,   and  was  therefore  entitled  to  remain   in occupation of the same.  An appeal to the District Court and a  second appeal to the High Court were unsuccessful.     In appeal to this Court, the appellants contended that the suit filed  by the respondent was not maintainable, for  the  Act set  up a complete machinery for determining  after  enquiry whether any premises governed by the Act had fallen  vacant. and  that  by express enactment in s. 16, the order  of  the District  Magistrate  was  declared  final.   Rejecting  the contention.     HELD:  The  Legislature while  investing  the   District Magistrate  with  power  to allot the  premises  to  another person  on  the  existence of  a vacancy has  not  made  his determination of the preliminary state of facts  conclusive. There is nothing in s. 7 or s. 7A which confers jurisdiction

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upon  the District Magistrate to conclusively determine  the facts   on the existence of which his  jurisdiction  arises. Whether  there is a vacancy is a jurisdictional  fact  which could  not  be  decided  by him  finally.   By  reaching  an erroneous   decision,   he  cannot   clothe   himself   with jurisdiction  which he does not posses’s.  It is  only  when the order is with jurisdiction that the order is not  liable to be challenged in a civil court by virtue of s. 16 of the. Act. [368 H--369 C]     Reg  v. Commissioner of Income-tax, 21 Q.B.D.  313,  and Ebrahim  Aboobakar & Anr. v. Custodian-General  of   Evacuee Property,  [1952] S.C.R. 696., referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 899 of 1966. 364     Appeal  by  special leave from the judgment  and  decree dated  May  14, 1965 of the Allahabad High Court  in  Second Appeal No. 4136 of 1964. Yogeshwar Prasad and Harder Singh, for the appellants. S.N. Anand, for the respondents. The Judgment of the Court was delivered by     Shah, J.  Gokal Chand--first respondent in this  appeal- was  a tenant of shop No. 34/2, Dispensary Road, Dehra  Dun, which  belongs  to Munni Devi--the first appellant  in  this appeal.  Munni Devi applied to the Rent Control  &  Eviction Officer.  Dehra Dun, for an order in ejectment on  the  plea that Gokal Chand had committed default in paying rent.   The R.C. & E. Officer passed an order observing that the  tenant did  not lead any evidence to show that he had  not  vacated the  shop and it was clear on the evidence that  the  tenant was not in occupation of the shop and had let it out to  one Alladia.  He accordingly declared that the shop was vacant.     The  R.C. & E. Officer allotted the shop to  Kishorilal. Kishorilal  then applied to the R,C. & E. Officer  that  the shop allotted to him was in the illegal occupation of  Rawel Chand  s/o  Gokal  Chand.  On May 22, 1957, the  R.C.  &  E. Officer  declared that Gokal Chand the previous  tenant  had vacated  the  shop.  and that Rawel  Chand  was  in  illegal occupation  of  the shop.  He accordingly  issued  a  notice under s. 7A (3) of the Act.     Gokal Chand then filed a civil suit in the Court of  the Munsif. Dehra Dun, for a declaration that he was an allottee and  a tenant of the shop and that he was in  possession  in that  capacity.  To that suit were impleaded Munni Devi  and Kishorilal  as party defendants.  The Trial Court held  that Gokal  Chand had at no time vacated the shop, no.r  was  his tenancy terminated.  He accordingly made an order  declaring that  Gokal Chand was an allottee and a tenant of the  shop. and  was entitled to remain in occupation of the  same.   An appeal  against  that  order  to  the  District  Court   was dismissed.   A  second  appeal to the High  Court  was  also unsuccessful.     In  this  appeal with special leave, counsel  for  Munni Devi and Kishorilal urges that the order of the civil  court was without jurisdiction.  Section 3 of the U.P. (Temporary) Control  of  Rent and Eviction Act, 194-7,  imposes  certain restrictions  on eviction of tenants.  By s. 7(1)(a)  it  is provided:                   "Every landlord shall, within 7 days after               an accommodation becomes vacant by his ceasing               to occupy it or               365

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             by the tenant vacting it or otherwise  ceasing               to occupy it or by termination of a tenancy or               by  release from requisition or in  any  other               manner whatsoever, give notice of the  vacancy               in Writing to the District Magistrate."               Sub-sections (2) & (3) of s. 7 provide:                   "(2)   The  District  Magistrate  may   by               general or special order require a landlord to               let   or  not  to  let  to  any   person   any               accommodation which is or has fallen vacant or               is about to fall vacant.                   (3) No tenant shall sub-let any portion of               the; accommodation in his tenancy except  with               the permission in writing of the landlord  and               of the District Magistrate previously                     X       X               obtained." Section 7A which was added by Act 24 of 1952 provides, in so far as it is material:                   "(1) Where in pursuance of an order of the               District  Magistrate under sub-section (2)  of               section 7, the vacancy of any accommodation is               require.   d  to.  be  reported  and  is   not               reported,  or  where an  order  requiring  any               accommodation  to be let or not to be let  has               been  duly  passed under  sub-section  (2)  of               Section 7 and the District Magistrate believes               or  has reason to believe that any person  has               in  contravention of the said order,  occupied               the accommodation or any part thereof, he  may               call  upon  the person in occupation  to  show               cause, within a time to. be fixed by him,  why               he should not be evicted therefrom:               Provided                   (2)  If  such person fails to   appear  in               reply  to the notice served under  sub-section               (1)  or,  if he appears but fails  to  satisfy               the; District Magistrate that the  order under               sub-section  (2)  of Section 7  was  not  duly               passed  and that he is entitled to  remain  in               occupation  of the accommodation the  District               Magistrate may, without prejudice to any other               action  which may be taken against  him  under               this  Act or any other law for the time  being               in  force, direct him to vacate  the  premises               within a period to be specified."               Section 16 of the Act provides:                   "No order made under this Act by the State               Government or the District Magistrate shall be               called in question in any Court."               366     Counsel for the appellants urged that the suit filed  by Gokal  Chand  was not maintainable,  for the Act sets  up  a complete  machinery  for determining after  enquiry  whether any  premises governed by the Act have.. fallen vacant,  and for making an order calling upon the; person or persons   in wrongful occupation to vacate and deliver possession of  the premises, and that by express enactment in s. 16, the  order of the District Magistrate is declared final.  We are unable to agree with that contention.  Lord Esher, M.R., in Reg. v. Commissioner of Income-tax(1), observed:                     "When  an inferior court or tribunal  or               body  which  has  to  exercise  the  power  of               deciding facts, is first established by Act of               Parliament,  the legislature has  to  consider

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             what  powers  it will give  that  tribunal  or               body.  It may in effect say that, if a certain               state  of  facts exists and is shown  to  such               tribunal  or  body before it  proceeds  to  do               certain things, it shall have jurisdiction  to               do such things but not otherwise.  There it is               not  for them conclusively to  decide  whether               that  state  of  facts exists,  and,  if  they               exercise   the   jurisdiction   without    its               existence, what they do may be questioned, and               it  will be held that they have acted  without               jurisdiction.  But there is another  state  of               things  which may exist.  The legislature  may               entrust   the   tribunal  or   body   with   a               jurisdiction  which includes the  jurisdiction               to determine  whether the preliminary state of               facts  exists, as well as.  the  jurisdiction,                             and  on finding that it does exist, to   proceed               further  to  do  something  more.   When   the               legislature  are establishing such a  tribunal               or  body with limited jurisdiction, they  also               have  to consider whatever  jurisdiction  they               give  them, whether there shall be any  appeal               from their decision, for otherwise there  will               be  none.   In the second of the two  cases  I               have mentioned it is erroneous application  of               the  formula to say that the  tribunal  cannot               give   themselves  jurisdiction   by   wrongly               deciding  certain facts to exist, because  the               legislature   gave   them   jurisdiction    to               determine   all  the  facts.   including   the               existence  of the preliminary facts  on  which               the  further  exercise of  their  jurisdiction               depends,  and if they were given  jurisdiction               so to decide, without any appeal being  given,               there is no appeal from such exercise of their               jurisdiction." This  rule was approved by this Court in Ebrahim A  boobakar and Ant. v. Custodian-General of Evacuee Property (2).     Munni  Devi  applied for an order in  ejectment  against Gokal  Chand on the. plea that he had committed  default  in paying rent. The R.C. & E. Officer held that Gokal Chand had vacated  the  premise and had inducted  a  sub-tenant.   The LegiSlature has in- (1) 21 C.B.D. 313. (2) [1952] S.C.R. 696. 367 vested  the District Magistrate with power on the  existence of  a vacancy to allot the premises to another  person,  but the  Legislature  has  not made  the  determination  of  the preliminary  state  of  facts  by  the  District  Magistrate conclusive.  The jurisdiction to pass an order in  ejectment only arises if there is a vacancy.  The right of a tenant in possession is a valuable right and there is nothing in s.  7 or  s.  7A  which confers  jurisdiction  upon  the  District Magistrate  to  conclusively  determine  the  facts  on  the existence of which his jurisdiction arises.  Undoubtedly  he has jurisdiction to make orders under ss. 7 & 7A of the Act, if there be a vacancy.  But whether there is a vacancy is  a jurisdictional  fact  which could not to be decided  by  him finally. By reaching an erroneous decision, he cannot clothe himself  with jurisdiction which he does not possess. It  is only  when the order is with jurisdiction that the order  is not liable to be challenged in a Civil Court by virtue of s.

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16 of the Act.     In Chaube Jagdish Prasad v. Ganga Prasad  Chaturvedi(1), the  respondent had obtained on rent the "accommodation"  in dispute  from  the appellant.  The  appellant  submitted  an application  under s. 3A of the U.P. (Temporary) Control  of Rent and Eviction Act,     947,  to the House Allotment Officer (on whom the  power of  the District Magistrate was conferred) for  increase  in rent.   That  Officer passed an order  increasing  the  rent payable  by  the tenant on the ground that there was  a  new construction. The appellant then instituted a suit under  s. 5  (4) of the Act for the enhancement of "reasonable  annual rent".   The respondent contended, inter alia,  that   there was  no  new  construction  of  "accommodation"  after  June 30,   1946,   and  that,  therefore,  the   suit   was   not maintainable.  The  Trial Court found that there was  a  new "accommodation" and the Court could determine its rent under s.  5(4). In revision, the High Court held that  though  the construction was new, the "accommodation" in the  occupation of  the respondent was not new. and therefore s. 3A  of  the Act  was  inapplicable.  In appeal, this Court held  that  a wrong  decision  made  by the House  Allotment  Officer  who exercised  the power of the District Magistrate under s.  3A of  the Act or an order made by him in excess of  his  power under  that  section could be rectified by a suit  under  s. 5(4) of the Act. In     the  present  case the civil court has  come  to  the conclusion  that Gokal Chand had never vacated the shop  and no  vacancy  had occurred.  By wrongly deciding  that  Gokal Chand  had vacated the shop, the District Magistrate had  no power  to  pass  orders  directing  forcible  ejectment  and allotting the shop to another person. The appeal fails and is dismissed with costs. Y.P.               Appeal dismissed. (1) (1959) Supp. (1) S.C.R. 733. 368