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PETITIONER: SETH BALGOPAL DAS

       Vs.

RESPONDENT: THE STATE OF U.P. & ORS.

DATE OF JUDGMENT08/04/1976

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SINGH, JASWANT

CITATION:  1976 AIR 1800            1976 SCR  (3)1092  1976 SCC  (3) 394

ACT:      U.P. (Temporary) Control of Rent and Eviction Act 1947, S.3(2) requirement  of-Receipt of  revision  application  by Addtional District  Magistrate whether validated by practice in  absence   of  rules   or   specific   authorisation   by Commissioner.

HEADNOTE:      The Rent Control and Eviction officer Dehradun. granted permission to the respondent landlady under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, to file a suit for eviction of the appellant tenant, on the ground that the accommodation was  required for  her personal residence. The tenant filed  a revision  application under  s. 3(2)  of the Act, purporting  to be  made  to  the  Commissioner,  Meerut Division but  actually filed  before the Additional District Magistrate who  rejected it  as time  barred. The  appellant tenant’s further  revision application,  made under s. 7F of the Act.  was rejected by the State Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad  High  Court  on  two  grounds:  Firstly  that neither the  Act, nor  the rules  made  thereunder  had  any provision enabling  the Additional  District  Magistrate  to receive the tenant’s application under s. 3(2). and secondly that the  time spent  in obtaining the certified copy of the District Magistrate  order could  not be  excluded under  s. 12(2) of  the Limitation  Act; 1963. The appellant’s special appeal was  summarily rejected  by a  Division Bench  of the High Court.      In appeal  by special  leave, the  appellant  contended before the  Court that.  as  a  practice  had  grown  up  in Dehradun, that  the Additional  District Magistrate receives the revision  applications made  to  the  Commissioner,  the requirements of  s. 3(2)  should  be  deemed  to  have  been sufficiently complied with.      Dismissing the appeal, the Court, ^      HELD: There  is not even a rule on this subject made by the State  Government.  A  wrong  practice  cannot  possibly modify what naturally follows from the language if s.3(2) of the Act,  that the  party must  apply  to  the  Commissioner

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directly and  not through  some other authority or official. For that purpose proof of at least specific authorisation by the Commissioner,  after the  introduction of  s. 3(2),  was required. [1094C; 1095A & F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 222 of 1975.      Appeal by  special leave  from the  judgment and  order dated the  8th August,  1973 of  the Allahabad High Court in Special Appeal No. 189 of 1972.      B. Sen,  Mrs. Lela  Seth, B.  Mohan, Parveen  Kumar and O.P. Khaitan for the appellant.      T.  S.   Krishnamoorthy  lyer  and  P.  K.  Pillai  for Respondent No. 4      The Judgment of the Court was delivered by      BEG, J.  The appellant,  here, by  special leave,  is a tenant of  premises in  Dehradun in  respect  of  which  the landlord respondent  No.  4  had  sought  permission,  under Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act III of 1947 (hereinafter referred to as ’the 1093 Act’), to  sue for  his eviction. The permission was granted by the  Rent Control and Eviction officer, Dehradun, as long ago as  11 August,  1969,  and,  thereafter,  the  suit  for ejectment of the appellant was filed on 19th November, 1969.      Section 3,  sub. sec. (1) of the Act had merely imposed a bar  on suits in Civil Courts filed without the permission of the  District Magistrate  except on certain grounds which are given  there. The  plaintiff respondent, one Mrs. Sheila Kalha wife  of a  retired army officer, was given permission to file  her suit  on  the  ground  that  she  required  the accommodation for  personal residence.  She is  said to have been living  at considerable expense to her at New Delhi due to inability  to live in her own house at Dehradun as it has been occupied by the appellant.      The tenant  had applied  on 19th  August, 1969,  for  a certified copy  of the  order of  the Rent  Control  officer granting the  landlord permission to sue and got its copy on 25th August,  1969. Thereafter,  the tenant filed a revision application under  section 3(2) of the Act, purporting to be made to  the Commissioner,  Meerut  Division,  but  actually filed on 16th September, 1969, before an Additional District Magistrate of  Dehradun who  had  forwarded  it  on  to  the Commissioner. The  Revision Application  was received in the Commissioner’s  office  on  24th  September,  1969.  It  was rejected by the Commissioner on the ground that it was filed beyond the  time prescribed by Section 3(2) of the Act which reads as follows:           "(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."      The  State   Government  also   rejected  the  revision application of  the appellant tenant, filed under section 7F of the Act, against the Commissioner’s order.      The appellant tenant then approached the Allahabad High Court with a petition under Article 226 of the Constitution. The petition  was  rejected  by  a  learned  Judge  on  21st October, 1972,  on two  grounds: firstly, under Section 3(2)

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of the  Act; and, secondly, that the time spent on obtaining the certified  copy of  the order of the District Magistrate could not  be excluded under Section 12(2) of the Limitation Act of  1963. For the second proposition reliance was placed upon Shyam Sunder Bajpai v. Commissioner Allahabad Division, Allhabad &  Anr.and Ram  Lakhan  v.  Commissioner,  Varanasi Division, Varanasi & ors.      A Division  Bench  of  the  Allahabad  High  Court  had rejected the  tenant’s Special Appeal summarily. This Court, however, granted  special leave  to appeal under Article 136 of the Constitution on 20th 1094 July,  1975.   We  need  not  express  any  opinion  on  the correctness of  the second proposition here if we agree with the High  Court’s view  on the  first point because, in that case, the  tenant’s application would be time barred even if the time spent in obtaining the copy was excluded.      The only  contention, put  forward by  Mr.  B.  Sen  on behalf of  the tenani-appellant, on the first point, is that there is  a practice in Dehradun, acting on some instruction of the  Commissioner, Meerut  Division, to  receive revision applications  to  the  Commissioner  through  an  Additional District Magistrate  of Dehradun,  who has,  therefore,  the Commissioner’s authority  to receive  these applications. It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances,  to   be  sufficient   compliance  with   the requirements of  Section 3(2)  of the Act which provides, as it  clear  from  a  bare  look  at  it,  that  the  revision application lies before the Commissioner.      It is  difficult to  see how  a practice could possibly modify the  provisions of  the Act. There is not even a rule on this subject made by the State Govt. under the provisions of Section 17 of the Act which authorises the Govt. to "make rules to give effect to the purposes of this Act." There are rules on other matters but not on such a matter.      Mr. B.  Sen relied  on a Division Bench decision of the Allahabad High  Court in  T. C. Pasricha & Anr. v. The State of U.P.where it was held:           "It appears  that the  Commissioner had authorised      the District  Magistrate to receive revisions meant for      him. By  so  authorising,  the  Commissioner  was  only      indicating the  place and, the manner of representation      of the  revisions. Since  the Rent  Control Act did not      either by  itself or rules framed under it lay down the      precise procedure  in regard to the presentation of the      revision,  the   Commissioner  who  was  the  authority      entitled to  entertain and  decide  the  revisions  was      within his rights to prescribe the procedure in respect      of rep  resentation of  the  revisions.  The  direction      given by  the Commissioner  in 1946  with regard to the      presentation of revision was valid and enforceable".      In Pasrich’s case (supra), the Single Judge decision in Seth Bal  Gopal Das  v. State of U.P. on the case now before us, was  noticed by  the Division Bench and distinguished on the ground  that there  was no  evidence here  to prove that there was  any such  practice. Both  Pasricha’s case (supra) and the  case now before us come from the Dehradun District. We think  it is  difficult to  reconcile the  Division Bench decision in  Pasricha’s case,  decided on  5th April,  1973, with the  summary rejection of the Special Appeal No. 180 of 1973 on  8th August,  1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches. 1095

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    We prefer  the reasoning of the learned Single Judge in Seth Bal Gopal Das v. State of U.P. (supra) to the reasoning of the  Division Bench  in Pasricha’s  case (supra). A wrong practice cannot possibly modify what naturally and logically follows from  the language  in Section 3(2) of the Act. This provision says  that the  party aggrieved must "apply to the Commissioner to  revise the order". The natural inference is that the  party must  apply to the Commissioner directly and not through some other authority or official.      It is  true that  Section 3(2)  does not  prescribe the manner and  place  of  presentation  of  applications.  But, unless there is some rule made to confer authority, upon the District Magistrate  or the  Additional District  Magistrate concerned or  his  office,  to  act  as  the  agent  of  the Commissioner, or  a clear  and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed  to   amount  to   making  the   application  to  the Commissioner.      In Pasricha’s case (supra), the Division Bench had gone to the extent of holding that some communication made by the Commissioner in 1946 to the District Magistrate of Dehradun, even a  copy of which was not placed before the Court, could be shown  by means  of an affidavit of a party, to have been both established  and to be enough to confer an authority on an Additional  District Magistrate  of Dehradun  to  receive applications  on   behalf  of  the  Commissioner  under  the provisions of  Section 3(2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha’s case (supra)  itself. Primafacie,  an  authorisation  cannot relate to  a power  or right  conferred by a provision which could not  be present to the mind of the Commissioner at all at  the   time  when  he  is  supposed  to  have  made  some communication to  the District  Magistrate as  the provision for a  revision in  such a case did not even exist then. We, therefore, think that the reasoning of the Division Bench in Pasricha’s  case   (supra)  is   unacceptable.  The  alleged practice cannot  be held to have been even established. And, in any  event, such  a practice  was not  enough  to  confer authority  to   receive   petitions   on   behalf   of   the Commissioner. For  that purpose,  proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.      The result  is that  we are unable to find any merit in the case  of the  appellant who  has been  able to  hold  up proceedings for  his eviction  long  enough  in  respect  of accommodation which,  on the  allegations made  on behalf of the landlord  (this term includes the "land-lady"), has been required to meet the landlord’s dire personal needs since at least 1969.  We hope  that the  trial of  the suit in such a case will not be delayed now.      We dismiss this appeal with costs throughout. M.R.                                       Appeal dismissed. 1096