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1956 DIGILAW 72 (ALL)

Sri Bishambhar Nath Saxena v. District Magistrate

1956-02-14

AGARWALA, MOOTHAM

body1956
JUDGMENT Agarwala, J. - This is a special appeal against a judgment of a learned single Judge of this Court rejecting a writ petition. The case arises under U.P. (Temporary) Control of Rent and Eviction Act. 2. The Appellant is the proprietor of a cinema building, and of a power house situated in the compound of the cinema building in the town of Orai. On 1-1-1947 the cinema building was let out for a period of five years to one Sri L.N. Seth who carried on a cinema business under the name of Sri Govind Talkies. Before the expiry of the lease Sri L.N. Seth sub-let the cinema building to Sri Raghubir Singh Arora, brother of opposite party No. 3, Mahabir Singh Arora. On the expiry of the term of the lease the Appellant filed suit No. 404 of 1952 for possession over the building by ejectment of the lessees and for recovery of a sum of Rs. 5,000 for arrears of rent. The suit was decreed and on 25-3-53 the Appellant obtained delivery of possession over the building in execution of the decree. Since that time the Appellant has been in possession of the cinema building. He was already in possession of the power house. 3. On 31-3-1953 the Appellant applied to the Rent Control and Eviction Officer, who is arrayed as Respondent No. 2, for alloting the said cinema house to himself as he wanted to run the cinema of his own therein. The Rent Control and Eviction Officer accordingly passed an order of allotment in the Appellant's favour on 18 5-1953. 4. On 26-6-1953 Mahabir Singh Arora, Respondent No. 3, obtained a licence under the Cinematograph Act for running a cinema in the said building. According to the Appellant his licence was obtained upon a false representation to the Cinema Magistrate that he was a licensee of the building from the Appellant. 5. Thereafter Mahabir Singh Arora moved the Rent Control and Eviction Officer as well as the District Magistrate to allot the cinema building to him after cancelling the allotment order made in favour of the Appellant. The District Magistrate forwarded this application to the Rent Control and Eviction Officer who issued notice to both the parties and, after heaving them made an order on 21-5-1954, confirming the order of allotment which had already been made in favour of the Appellant. 6. The District Magistrate forwarded this application to the Rent Control and Eviction Officer who issued notice to both the parties and, after heaving them made an order on 21-5-1954, confirming the order of allotment which had already been made in favour of the Appellant. 6. Mahabir Singh Arora then applied to the District Magistrate to revise the order of the Rent Control and Eviction Officer and to set it aside. The District Magistrate went into the merits of the case and cancelled the order of allotment made in favour of the Appellant and directed the Rent Control and Eviction Officer to make a re-allotment of the premises after due publicity. 7. The Rent Control and Eviction Officer in pursuance of the District Magistrate's order made an order of allotment on 2-9-1954, in favour of Mahabir Singh Arora. The Appellant thereupon filed a writ petition Under Article 226 of the Constitution in this Court on 27-9-1954 praying that the order of the District Magistrate dated 30-7-ly54 and the order of allotment made by the Rent Control and Eviction Officer on 2-9-1954 be quashed. 8. The learned single Judge held that the District Magistrate had no power to revise the order of the Rent Control and Eviction Officer and that therefore his order dated 30-7-1954 must be held to be without jurisdiction, but he further held that in the circumstances of the case the cinema building must be deemed to be unoccupied and therefore capable of re-allotment. On this ground he held that the order of the Rent Control and Eviction Officer dated 2-9-1954 alloting the building to opposite party No. 3 was valid and that therefore it was unnecessary to quash the order of the District Magistrate dated 3-7-1954. In this view of the matter he dismissed the petition. Against the judgment of the learned single Judge the landlord has filed this special appeal. 9. We are in respectful agreement with the learned single Judge when he held that the District Magistrate had no power to set aside or cancel the order of the Rent Control and Eviction Officer and that as such his order dated 30-7-1954 was without jurisdiction. The true position of the Rent Control and Eviction Officer under the Control of Rent and Eviction Act is this. The Act confers certain powers on the District Magistrate. The true position of the Rent Control and Eviction Officer under the Control of Rent and Eviction Act is this. The Act confers certain powers on the District Magistrate. The District Magistrate is defined in the Act as including "an officer authorised by him to perform any of his functions under this Act." An officer authorised by the District Magistrate to perform the latter's functions under the Act is usually described as the Rent Control and Eviction Officer though this terminology is not used in the Act at all. Where an officer is authorised by the District Magistrate to exercise his powers under the Act such officer is nothing but an agent or delegate of the District Magistrate. Under the Act the District Magistrate is empowered to exercise administrative as well as quasi-judicial functions. It is a characteristic of a judicial or quasi-judicial power that it has to be exercised by the person upon whom the power is conferred, and that in the exercise of that power he cannot be controlled by superior authority. That is not so in the case of administrative functions. In the exercise of administrative functions there is scope for the officer exercising them being controlled by superior officer unless the exercise of the discretion is vested in the particular officer by a statutory provision. As already stated the Act authorises the District Magistrate to perform the functions mentioned therein. It also authorises an officer authorised by him to act on his behalf to do the same so far as his authority will extend. It follows therefore that in administrative matters the agent of the District Magistrate may be guided by the latter as to the manner in which he will exercise the functions entrusted to him, see Mannu Lal v. Chakradhar Hans 1952 A.W.R. (H.C.) 279 Before the Rent Control and Eviction Officer has exercised any of the powers vested in the District Magistrate under the Act he may be controlled and guided by the District Magistrate, his principal. Once he has so exercised his powers his order is an order under the Act, and it can be interfered with only as provided under the Act and not otherwise. Once he has so exercised his powers his order is an order under the Act, and it can be interfered with only as provided under the Act and not otherwise. In other words, when once an order has been made by the Rent Control and Eviction Officer it is beyond the jurisdiction of the District Magistrate to set aside or revise it unless the Act empowers him to do so. The Act however does not empower the District Magistrate to set aside or revise the order passed by the Rent Control and Eviction Officer. It follows therefore that under the Act the District Magistrate has no power to revise or set aside the order of the Rent Control and Eviction Officer which he has made in the Exercise of the powers delegated to him by the District Magistrate. 10. In the Full Bench case of this Court of Sri Syed Abdul Hamid v. Smt. Fatima Begum 1955 A.W.R. (H.C.) 194 the facts were peculiar. The case arose out of a suit for ejectment of a tenant by the landlord, Smt. Fatima Begum. The defence to the suit was that the permission of the District Magistrate had not been obtained for the suit and none of the grounds mentioned in Clauses (a) to (f) of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act existed. Smt. Fatima Begum had applied u/s 3 of the Act to the District Magistrate for permission to file a suit for ejectment of the tenant. The District Magistrate forwarded this application to the Rent Control and Eviction Officer, to whom he had delegated the power to act u/s 3 of the Act, with a direction that "this is a hard case and (the applicant) may be permitted to file a suit after two months. The occupant may be asked to make his arrangement in the meantime." The Rent Control and Eviction Officer granted permission to Smt. Fatima Begum to file a suit for ejectment after two months. The tenants then applied to the District Magistrate that the permission had been granted without issuing any notice to him and praying that the permission may be withdrawn. The tenants then applied to the District Magistrate that the permission had been granted without issuing any notice to him and praying that the permission may be withdrawn. The District Magistrate then ordered that as the tenant had not been given an opportunity to contest the landlord's application the permission granted to the landlord by the Rent Control and Eviction Officer was being cancelled and a fresh order might be passed by the Rent Control and Eviction Officer after hearing both the parties. The Rent Control and Eviction Officer then after hearing both the parties recommended to the District Magistrate that permission may be granted. On receipt of the report the District Magistrate refused permission as in his view the case of the landlord was not genuine. 11. It will be clear from the recital of the above facts that in he said Full Bench case the Rent Control and Eviction Officer was from the very beginning acting under the direction and control of the District Magistrate and therefore on those facts the Full Bench held that the District Magistrate had power to cancel the order of the Rent Control and Eviction Officer. The learned Judges made it clear that-- If the Rent Control and Eviction Officer had been acting independently and had passed final order which are now revise-able by the Commissioner and then by the Local Government the District Magistrate who has neither appellate nor revisional powers may not be entitled to interfere, but where, as in this case, the District Magistrate has all along been functioning through the Rent Control and Eviction Officer and bearing in mind that the orders passed were administrative or executive orders, it cannot be said that the order passed by the Magistrate on 6-4-1949, was without jurisdiction as by that order he was merely recalling a permission which had been granted at his instance. 12. The full Bench case therefore stands on its own particular facts and the learned Judges never intended their decision to be applied to cases in which the Rent Control and Eviction Officer acted independently in exercising the powers delegated to him by the District Magistrate. 13. 12. The full Bench case therefore stands on its own particular facts and the learned Judges never intended their decision to be applied to cases in which the Rent Control and Eviction Officer acted independently in exercising the powers delegated to him by the District Magistrate. 13. This distinction between the Rent Control and Eviction Officer acting under the direction and control of the District Magistrate and independently was clearly pointed out again by a Bench of this Court of which one of us was a member, vide Mahabir Prasad v. The District Magistrate, Kanpur 1955 A.W.R. (H.C.) 384 This was also the view taken by another Bench of this Court in R.N. Seth Vs. Girja Shanker Srivastava, AIR 1952 All 819 . 14. In the present case therefore the District Magistrate had no power to set aside the order of the Rent Control and Eviction Officer and his order dated 30-7-1954 was therefore illegal. As the subsequent order of the Rent Control and Eviction Officer dated 2-9-1954 was in compliance with the orders of the District Magistrate and contrary to his own considered opinion expressed in his earlier order of 21-5-1954 it was not an order made by him in the exercise of his own discretion. The order of the District Magistrate dated 30-7-1954 and that of the Rent Control and Eviction Officer dated 2-9-1954 have therefore to be quashed. 15. As to the question whether the building was vacant or not vacant, this is a question of fact which has to be determined by the authorities concerned. As there is no proceeding before us for quashing the order of the Rent Control and Eviction Officer dated 21-5-1954, we are not called upon to decide the question. But even if we were to consider this question it will be difficult for us to quash the aforesaid order. 16. In his order dated 21-5-1954 the Rent Control and Eviction Officer after considering all the facts and the evidence before him came to the conclusion that the premises were not vacant and were in the occupation of the Appellant. Unless we can set aside this order upon any of the grounds on which a writ of certiorari may issue, the order must stand. Unless we can set aside this order upon any of the grounds on which a writ of certiorari may issue, the order must stand. The jurisdiction of the Rent Control and Eviction Officer to make the order has not been questioned before us, and we think that it cannot be held that there is any error of law apparent on the face of the record. In his order the Rent Control and Eviction Officer pointed out that the validity of the allotment order dated 18-5-1953 in favour of the Appellant had not been questioned before him on behalf of Sri Mahahbir Singh Arora and that the main contention of Mahabir Singh Arora was that the building was vacant and as such it could be allotted to him. The Rent Control and Eviction Officer then stated that the Appellant had kept some of his articles in the building and that therefore it could not be said that the building was vacant. On behalf of Mahabir Singh Arora an admission made by the Appellant in an application presented to the Municipal Board on 8-10-1953 was relied on. In this application the Appellant had stated that his talkie house was lying vacant from the last six months and his constant efforts to get a suitable party for the Cinema business had failed, but that he hoped that within three months time the house would be occupied and that this fact should be considered when assessing the Municipal tax over the same. The Rent Control and Eviction Officer held that this application could not prevent the Appellant from proving that the house was not vacant within the meaning of Section 7 of the Rent Control and Eviction Act, and further held that the building was not vacant as the Appellant's furniture was kept in it. 17. It may be that on a consideration of the facts, we might have taken a view diffefent from that taken by the Rent Control and Eviction Officer as indeed the District Magistrate did; but it is not for this Court to substitute its own opinion on questions of fact in a matter concerning the. issue of a writ of certiorari. We do not think that the order of the Rent Control and Eviction Officer dated 21-5-1954 can be quashed or disregarded on any such ground. 18. issue of a writ of certiorari. We do not think that the order of the Rent Control and Eviction Officer dated 21-5-1954 can be quashed or disregarded on any such ground. 18. In the result, we allow the appeal, set aside the order of the learned single Judge and quash the orders of the District Magistrate dated 30-7-1954 and the Rent Control and Eviction Officer dated 2-9-1954. The Appellant will have his costs of this appeal as well as of the proceedings before the learned Single Judge from Respondent No. 3.