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PETITIONER: THE CENTRAL TALKIES LTD., KANPUR

       Vs.

RESPONDENT: DWARKA PRASAD.

DATE OF JUDGMENT: 16/01/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C.

CITATION:  1961 AIR  606            1961 SCR  (3) 495  CITATOR INFO :  RF         1966 SC1888  (3)  D          1969 SC 483  (12)  R          1978 SC   1  (8)

ACT: Rent  Control-Ejectment  suit with  Permission  of  District Magistrate-Additional  District  Magistrate,  if  can  grant permission Persona designata-U.  P. (Temporary) Control  of Rent  and Eviction Act, 1947 (U.  P. III of 1947)  ss.  2(d) and 3 Code of Criminal Procedure, 1898 (V of 1898), S. 10.

HEADNOTE: Section  3  of  the U. P. (Temporary) Control  of  Rent  and Eviction  Act, 1947, enabled a landlord to file a  suit  for eviction  of the tenant with the permission of the  District Magistrate.   Section  2(d)  of  the  Act  defined  District Magistrate as including an    officer   authorised  by   the District Magistrate to perform any of   his functions  under the Act.  By a notification issued under s.  10(2)  of   the Code  of Criminal Procedure the U. P.  Government  appointed Mr. Seth to be an Additional District Magistrate " with  all the powers of a District Magistrate under the said Code  and under  any  other  law for the time  being  in  force."  The respondent applied to the District Magistrate for permission to  file  a suit for ejectment against the  appellant.   The District Magistrate transferred the application to Mr.  Seth the   Additional   District  Magistrate  who   granted   the permission.   The appellants contended that  the  permission granted was invalid as the District Magistrate mentioned  in s.  3 of the Act was a persona designata and the  permission could  have  been  granted  only by him  or  by  an  officer authorised  by him to perform his functions and not  by  the Additional District Magistrate. Held, that the permission granted by the Additional District Magistrate  was  valid.   The  notification  issued  by  the Government  invested  Mr. Seth with all the  powers  of  the District  Magistrate  under the Code as well  as  under  any other law including the Eviction Act and he was competent to grant  the  permission under s. 3. The  District  Magistrate mentioned  in S. 3 was not a persona designata.   A  Persona designata  is  a  person selected as an  individual  in  his

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private  capacity,  and  not in his capacity  as  filling  a particular character or office, Kedar Nath v. Moot Chand, A.I.R. 1953 All, 62, disapproved. Parthasaradhi Naidu v, Koteswara Rao, (1923) I.L.R. 47  Mad. 369 (F.B.), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 374 of 1957. Appeal from the judgment and decree dated September 21, 1955 of the Allahabad High Court in First Appeal No. 251 of  1954 &rising out of the judgment 64 496 and  decree dated May 24, 1954, of the Civil Judge,  Kanpur, in Suit No. 35 of 1949. A.   V.  Viswanatha Sastri, G. S. Pathak and Naunit Lal  for the appellant. N.   C. Chatterjee, S. N. Andley, J. B. Dadachanji and P.   L. Vohra, for the respondent. 1961.  January 16.  The Judgment of the Court was  delivered by HIDAYATULLAH, J.-This is an appeal against the judgment  and decree  of  the High Court of Allahabad with  a  certificate granted  by  the  High Court under Art.  133(1)(b) of  the Constitution.  The High Court, reversing the decision of the trial Court, decreed the present suit for ejectment  against the  appellants, and also awarded damages to the  plaintiff- respondent at the rate of Rs. 593-12-0 per month.  The  suit was  filed by the respondent,, Babu Dwarka  Prasad,  against the  appellants, Central Talkies Ltd., Kanpur, and Lala  Ram Narain Garg, the Managing Director of the Company. The facts, briefly stated, are as follows: Dwarka Prasad was the  sole owner of a plot of land No.73/22 (old  No.  73/28) situated in Collector gunj, Kanpur.  In 1933 an agreement of lease  was  executed  by  five persons  in  favour  of  Lala Rameshwardas,   the  predecessor-in-title  of  Babu   Dwarka Prasad, by which the five lessees took over on lease a  hall and  other con structions, which the lessor agreed to  build at a cost of Rs. 16,000/- within four months.  It was agreed that,  if  the  lessor was required to spend  an  amount  in excess of Rs. 16,000/-, he would be entitled to interest  at the  rate  of 12 annas per cent. per month from  the  second party  till the end of tenancy.  The tenancy was from  month to month, and the period of the tenancy was fixed at 5 years in   the  first  instance.   This  tenancy  continued   with variations in the amount of rent till the year 1946, and  on January  15,  1946,  Dwarka  Prasad sent  a  letter  to  the defendants  that  the  period  of lease  was  to  expire  on February 28, 1946, and that the Central Talkies Ltd.  should vacate  the  premises by that date, The defendants  did  not vacate the 497 premises,  and  a suit for ejectment was filed  against  the Central  Talkies Ltd.During the pendency of that  suit,  the United  Provinces (Temporary) Control of Rent  and  Eviction Act, 1947 (referred to in the judgment as the Eviction Act), came into force.  Under s. 3 of the Eviction Act, permission of the District Magistrate was required to file in any Civil Court a suit for the eviction of a tenant, except on grounds which were enumerated in the section.  Admittedly, that suit was  filed  on  a ground which was  not  enumerated  in  the section, and Dwarka Prasad withdrew it.  He then applied  to the District Magistrate for permission to eject the  Central

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Talkies Ltd., from the premises, and permission was  granted by  the Additional District Magistrate (Rural Area) on  July 7, 1948.  It is not necessary to state the pleas which  were taken by the defendants in the newly filed suit, because the only   point  argued  before  us  was  that  the  suit   was incompetent,  because permission of the District  Magistrate as required by s. 3 had not been obtained. The  Divisional Bench of the High Court held that  the  suit was competent.  The two learned Judges,who heard the appeal, reached  the same conclusion, though on  slightly  different grounds.   Raghubar  Dayal,  J.  held  that  the  Additional District  Magistrate, who granted permission, was  empowered by  the Provincial Government under s. 10(2) of the Code  of Criminal Procedure to exercise all the powers of a  District Magistrate  under  the Code and all the laws  for  the  time being  in force, and the requirements of s. 3 were  complied with.   Brij Mohan Lal, J. came to the conclusion  that  the District   Magistrate  by  transferring  the  case  to   the Additional  District Magistrate (Rural Area) had  authorised him  to perform his functions under the Act in  this  behalf and  that  the Additional District  Magistrate,  being  thus included in the definition of "District Magistrate" under s. 2(d),  was competent to grant the  permission.   Concurring, therefore, that the suit was instituted with the  permission of the District Magistrate as required by the Eviction  Act, the Divisional Bench held that the suit was competent. 498 It  may be pointed out that, at first, the  application  for permission was made over by the District Magis. trate to Mr. Hadi Hasan, who was also an Additional District  Magistrate; but the latter sent the case back to the District Magistrate asking  for  a transfer, because he had been  approached  on behalf   of   the  defendants.   The   District   Magistrate thereafter  passed  an order on February 11,  1948,  to  the following effect: "  Transferred to Additional District Magistrate (R.A.)  for disposal.  " The  application  for  permission was  disposed  of  by  Mr. Brijpal  Singh Seth, Additional District  Magistrate  (Rural Area), on July 7, 1948.  This Officer, who was previously  a City   Magistrate,  Kanpur,  was  appointed  an   Additional District Magistrate by Notification No. 3400/11-276-48 dated May  22,  1948.  The material portion of  this  Notification read as follows:               " With effect from the date on which he  takes               over  charge  Shri Brijpal  Singh  Seth,  City               Magistrate,  Kanpur,  is appointed  vice  Shri               Sheo Ramdas Saksena-               (a)   under  sub-section (2) of section 10  of               the Code of Criminal Procedure, 1898 (Act V of               1898), to be an Additional District Magistrate               of   Kanpur   District,   with    jurisdiction               extending over the whole of the said  district               and   with  all  the  powers  of  a   District               Magistrate  under the said Code and under  any               other law for the time being in force..." The  appellants  contended before us that both  the  reasons given  by  the Divisional Bench of the High Court  were  not valid, and that the suit was not brought in accordance  with the Eviction Act.  At first, the appellants wished to  raise a  question as to the invalidity of the notice;  but  during the  course  of  the arguments, that  ground  was  expressly abandoned.   The  case was thus argued only on  the  footing that the permission given by Mr. Brijpal Singh Seth did  not comply with s. 3 of the Eviction Act.

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The  material portion of s. 3, as it stood on  the  relevant date, read as follows:               "No suit shall, without the permission of  the               District  Magistrate,  be filed in  any  civil               court               499               against  a  tenant for his eviction  from  any               accommodation,  except on one or more  of  the               following grounds..."               "District Magistrate" is defined by s. 2(d) of               the Act, which reads:               District   Magistrate’  includes  an   officer               author  rized  by the District  Magistrate  to               perform any of his functions under this Act." The  argument  of  the  appellants  was  that  the  District Magistrate  mentioned in s. 3 was a persona  designata,  and that  either he or an officer authorised by him, to  perform his     functions     could     grant     permission.Accord- ring to them, in view of the provisions quoted above and  in view  also  of the provisions of s. 1(2) of  the  Code’  ’of Criminal  Procedure, no Additional District  Magistrate  was competent  to grant the permission, unless authorised to  do so  by the District Magistrate.  The order of  the  District Magisistrate  by  which  the  case  was  made  over  to  the Additional    District   Magistrate   (Rural    Area)    was characterised  as a mere transfer and not an  authorisation. It was contended that a transfer could only take place to  a person possessing jurisdiction, and that jurisdiction  under the present Act was confined only to the District Magistrate or an officer authorised by him.The transfer of the case, it was  contended,  did  not  constitute  such   authorisation. Reliance  was  placed on the decision of  a  learned  single Judge  of  the Allahabad High Court reported in  Kedar  Nath ’V.’ Mool Chand (1) and on the decision of the Nagpur  High. Court referred to therein, P. K. Tare v. Emperor (2). Section  10  of  the  Code of  Criminal  Procedure,  at  the relevant time, provided as follows:               "10(1),   In   every  district   outside   the               presidency,  towns the  Provincial  Government               shall  appoint  a:  Magistrate  of  the  first               class,  who  shall  be  called  the   District               Magistrate.                (2) The Provincial Government may appoint any               Magistrate  of  the  first  class  to  be   an               Additional   District  Magistrate   and   such               Additional District, Magistrate shall have all               or any of the powers of a District  Magistrate               under this Code or under any               (1) A.I.R. 1953 All. 62.               (2) A.I.R. 1943 Nag. 26.               500               other law for the time being in force, as  the               Provincial Government may direct." The  Notification, which was issued about Mr. Brijpal  Singh Seth  and which has been quoted already, invested  him  with all the powers of the District Magistrate under the Code  of Criminal  Procedure as well as under any other law  for  the time being in force.  He was thus competent to deal with  an applica.  tion under the Act for permission to file a  civil suit without special authorisation from the District  Magis- trate.   Learned counsel for the appellants  contended  that the  definition  of " District Magistrate "  clearly  showed that in addition to the District Magistrate, only an officer specially  authorised  by him could act under  the  Eviction Act,  and he referred to sub-s. (2) of s. 1 of the  Code  of

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Criminal Procedure, which provided:               "It  extends  to the whole of  British  India;               but, in the absence of any specific  provision               to  the  contrary,  nothing  herein  contained               shall  affect any special or local law now  in               force,  or any special jurisdiction  or  power               conferred,  or any special form  of  procedure               prescribed,  by  any other law  for  the  time               being in force..." The  argument was that the special jurisdiction  created  by the  Eviction Act was not affected by s. 10(2) of the  Code, in view of the provisions of this sub-section.  The argument overlooks  the  words  "  in the  absence  of  any  specific provision  to  the contrary ", and because there is  in  the Code  of Criminal Procedure such a pro. vision in s.  10(2), sub-s.  (2) of s. 1 is excluded, and an Additional  District Magistrate  must be regarded as possessing the powers  under any other law including the Eviction Act. The  argument  that the District Magistrate  was  a  persona designata  cannot  be accepted.  Under the definition  of  " District  Magistrate  ", the special  authorisation  by  the District  Magistrate  had the effect  of  creating  officers exercising  the  powers of a District Magistrate  under  the Eviction  Act.   To that extent, those  officers  would,  on authorisation,  be  equated to the District  Magistrate.   A persona designata is " a 501 person who is pointed out or described as an individual,  as opposed  to a person ascertained as a member of a class,  or as  filling a particular character." (See  Osborn’s  Concise Law Dictionary, 4th Edn., p. 253).  In the words of Schwabe, C.J., in Parthasaradhi Naidu v. Koteswara Rao (1),  personae designatae  are " persons selected to act in  their  private capacity  and  not in their capacity as  Judges."  The  same consideration applies also to a well-known officer like  the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also  exercise and  who can create other officers equal to himself for  the purposes of the Eviction Act.  The decision of Sapru, J., in the Allahabad case, with respect, was erroneous. Reference   was  made  to  the  definition  of  "   District Magistrate   "   in   the   United   Provinces   (Temporary) Accommodation  Requisition  Act, 1947, which includes  an  " Additional  District Magistrate ". This definition has  been made wide for obvious reasons, because under s. 10(2) of the Code   of  Criminal  Procedure,  the   Additional   District Magistrate has to be specially empowered.  By including  the Additional  District  Magistrate  in  the  definition  of  " District Magistrate ", power is conferred by the Requisition Act   itself  whether  or  not  the  Provincial   Government specially   empowers  any  particular  Additional   District Magistrate  in that behalf.  The Eviction Act, on the  other hand,,  gave power to the District Magistrate  to  authorise officers  other  than the  Additional  District  Magistrates empowered  by the Provincial Government, by defin.  ing  the term  "  District Magistrate " differently.In  view  of  the above,  it is hardly necessary to into the reasons given  by Brij Mohan Lal, J.; but even those reasons are, with all due respect, equally valid.  By the act of transferring the case to   the  Additional  District  Magistrate,   the   District Magistrate must be deemed to have authorised him to exercise his  powers under s. 3 of the Eviction Act.  However, it  is not necessary to rely upon this aspect of the case  because, in our opinion, s. 10(2) of the Code of (1)  (1923) I.L.R. 47 Mad. 369, 373 (F.B.).

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502 Criminal  Procedure gave ample powers to Mr.  Brijpal  Singh Seth  to  accord permission for bringing the suit,  and  the order  of  the  District Magistrate, even if  treated  as  a transfer, was valid. In  the  result,  the appeal fails, and  is  dismissed  with costs. Appeal dismissed.