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PETITIONER: MOHAMMAD ISMAIL,

       Vs.

RESPONDENT: NANNEY LAL

DATE OF JUDGMENT: 07/03/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1970 AIR 1919            1969 SCR  (3) 894  1969 SCC  (1) 727  CITATOR INFO :  R          1972 SC1910  (13)

ACT: U.P.  (Temporary) Control of Rent & Eviction Act (U.P. 7  of 1947),  s.  7-F-Suit  for  eviction  filed  after  obtaining permission  by  Commissioner--Permission  revoked  by  State Government-Whether suit incompetent.

HEADNOTE: The  U.P. (Temporary) Control of Rent & Eviction Act,  1947, restricts  the  rights of landlords to institute  suits  for eviction  of their tenants to cases covered by s. 3 (1)  (a) to   (g)  except  with  the  permission  of   the   District Magistrate.   The  District Magistrates order  granting  the permission  is  expressly made subject to any order  by  the Commissioner  under  s. 3(2) provided  the  aggreived  party applies  within  30 days to the Commissioner to  revise  the order.   The  Commissioner must ordinarily  dispose  of  the application  within  six  weeks.  Section  7-F  of  the  Act confers  revisionary powers on-the State Government  in  any case granting or refusing to grant permission, and under  s. 3(4)  the order of the Commissioner under s. 3 (3) is to  be final  subject to the order under s. 7-F.   The  respondent- landlord  obtained permission of the District Magistrate  to file  a suit for eviction of the appellant-tenant  under  s. 3(1)  of  the Act.  The tenant applied to  the  Commissioner under   s.   3(2)  and  the   Commissioner   dismissed   the application.   The  tenant  then filed  a  further  revision application  to the State Government under s.  7-F.   Before the disposal of the last revision application, the  landlord filed  a suit for ejectment in pursuance of  the  permission given by the Commissioner.  Thereafter the State Coovernment set  aside  the order of the Commissioner  and  revoked  the permission granted to the landlord.  On the question whether the  suit  filed,  after obtaining  the  permission  of  the Commissioner became incompetent on the making of an order by the State Government under s. 7-F cancelling the  permission to sue given by the Commissioner, this Court,

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HELD   :  The  suit  validly  instituted   after   obtaining permission  as  required  by  s.  3  did  not  cease  to  be maintainable even if the State Government thereafter revoked the permission granted. Under  sub-s. (1) of s. 3 the maintainability of a  suit  on grounds  other  than those mentioned in cls. (a) to  (g)  is made  expressly ’subject to an order under sub-s. (3).   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 s. 3(3). [898 A] When  a  landlord files a suit for eviction  only  with  the permission  of the District Magistrate, he is  conscious  of the  fact  that  such  permission  may  be  revoked  by  the Commissioner at the instance of the tenant within ten  weeks of its institution.  But ’so far as the revisional powers of the  State Goverment are concerned, there is no  time  limit fixed  either for application by an aggrieved party  or  for 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 cannot be  held that the landlord must wait indefinitely  and  find out whether the 895 permission  granted  to  him will be  upheld  by  the  State Government  should  the  tenant  make  an  application   for revision of the order of the Commissioner. [898 C] Apart  from  the above consideration, the words  in  s.  7-F indicate  that  the State Government can only  exercise  its Jurisdiction to revise the order of the Commissioner  before the actual institution of the suit.  The language of s.  7-F does  not seem to be aimed at invalidating a  suit  already instituted  and  can  only operate at  a  stage  before  the landlord launches his proceedings.  There is nothing in sub- s.  (4) of s. 3 read with s. 7-F to show that  the  landlord should  wait  till the powers of the  revising.  authorities have been exhausted.  If the Legislature had so intended, it could  have  used suitable words in 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. [898 F] The Legislature 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 provided for a similar result in  a  case where the State Government had revoked the permission to sue granted by the Commissioner.  It would make a mockery of the judicial  process if it were to be held on the  language  of the  sections as they stood,. 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 Government   would  nullify  all  proceedings.    Once   the jurisdiction  under s. 16 was properly exercised  the  Court cannot  examine the propriety of the order made  thereunder. [899 B-D; 900 B] Bhagwan Das v. Paras Nath, [1969] 2 S.C.R. 297, followed. Shri Bhagwan v. Ram Chand [1965] 3 S.C.R. 218 and Bansi  Ram v. Mantri Lal, I.L.R. [1965] 1 Allahabad 545, referred to.

JUDGMENT: 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  Second

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Appeal No. 3474 of 1963. J.P.  Goyal,  G. N. Wantoo and V. C.  Parashar,  for  the appellant. K. P. Gupta, for the respondent. The Judgment of the Court was delivered by Mitter, J. The question in this appeal by special leave  is, whether a suit for eviction of a tenant by a landlord, after obtaining  the permission of the Commissioner  under  sub-s. (3) of s. 3 of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 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 896 Magistrate to file a suit for eviction against the appellant under  s. 3(1) of the Act on May 29, 1961.  The tenant  went up to the Commissioner of Agra Division 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 January  18,  1962  in  the court of  the  Munsif,  Etah  in pursuance  of the permission given by the Commissioner.   On June  16, 1962 the, State Government set aside the order  of the  Commissioner and revoked the 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 September 28, 1963.   The  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(1).  Learned counsel  for the  appellant contended that some aspects of  the  question had  not been 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 submissions.   We  respectfully agree with the  decision  in Bhagwan Das’s case(2) 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 an order passed by the  State Government contrary to the Commissioner’s order on the basis of  which 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(2).  This Court while not concurring with  all that was said in Bansi Ram’s case(3)  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 thereafter revoked the permission granted. Section 3(1) of the Act restricts the rights of landlords 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 subsection 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 eviction of a monthly tenant is the service of a proper notice to quit.  The

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(1) [1969] 2 S.C.R. 297. (2) I.L.R. [1965] 1 Allahabad 545. 897 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 District Magistrate for  permission to  sue.   It  follows that  the  District  Magistrate  must consider the justification for the institution of a suit  in all other cases.  His order is expressly made subject 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 for the aggrieved party to apply to the Commissioner to revise the order of the Magistrate by making 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 but 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  necessary 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  subsection  (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 accommoda- tion, except on one or more of the following grounds (a)   to   (g)........................................... (2)Where  any  application has been made to  the  District Magistrate for permission to sue a tenant for eviction  from any  accommodation  and the District  Magistrate  grants  or refuses to grant the permission, the party aggrieved by his. order  may, within 30 days from the date on which the  order is communicated to him, apply to the Commissioner to  revise the order. (3)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. (4)The  order  of the Commissioner under  subsection,  (3) shall,  subject to any order passed by the State  Government under section 7-F be final. 7-F.-Revision  to State Government-Me 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  or directing a person to vacate any accommodation under Section 7-A  and may make such order as appears to it necessary  for the ends of justice. 898

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Under  sub-s: (1) the maintainability of a suit  on  grounds other  than  those  mentioned in cls. (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 reasons 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(1) for coming to, the conclusion that s. 7-F was not to be construed in the same way as s. 3(3) and we are in entire agreement  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  application  to  the Commissioner  within 30 days from the communication  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  permission  to  find out  whether  he  can  safely institute  a suit.  But so far as the revisional  powers  of the  State Government are concerned, there is no time  limit fixed  either for application by an aggrieved party  or  for 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 find out whether the permission granted  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  opinion,  indicate that the State Government  can  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 already instituted and  can only  operate  at a stage before the landlord  launches  his proceeding.   There  is nothing in sub-s. (4) of s.  3  read with  s.  7-F to show that a landlord should wait  till  the powers of the revising authorities have been exhausted.   If the Legislature had so intended, it could have used words in 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 (1)  [1969] 2 S.C.R. 297. 8 99 Government  made an order under s. 7-F contrary to  that  of the Commissioner. Once  a suit is validly instituted it must take  its  course and the decree passed therein must be given 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(1) 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

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Legislature’  might,  if  so advised, have  provided  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(1)  that  it would  make a mockery of the judicial 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  Government  would nullity all proceedings. There  is  nothing  in the judgment of this  Court  in  Shri Bhogwan  v. Ram Chand(2) read with section 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  id  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 Government beyond the pale  of scrutiny by a court of law.  We cannot see any force in this argument.   The permission to sue given by the  Commissioner 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  and 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  Magistrate  nor  the Commissioner nor the State Government is obliged to disclose any  reasons  which may influence the  said  authorities  in coming to their decision and the court is not called upon to examine   whether  the  conclusion  of  any  of   the   said authorities was properly arrived ’at. Learned counsel for the appellant would have us hold that (1) [1969] 2 S.C.R. 297. (2) [1965] 3 S.C.R. 218. L11 Sup.Cl/69-8 900 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 a reasonable opportunity to both  the parties while it exercises its jurisdiction under s. 7-F and an  order  which is made in violation of the  principles  of natural justice may be quashed.  Once the jurisdiction under s.  16  is properly exercised the court cannot  examine  the propriety of the order made thereunder. In the result, 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 handed over peacefully within that time. Y.P.                                  Appeal dismissed. *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 Magistrate shall be  called  in question in any court. 901

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