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1958 DIGILAW 36 (ALL)

Dwarka Prasad v. Mohammad Zahur

1958-02-04

B.UPADHYA

body1958
JUDGMENT B. Upadhya, J. - This is a Defendant's appeal arising out of a suit for ejectment. 2. The Plaintiff applied to the District Magistrate u/s 3 of the UP Control of Rent and Eviction Act for permission to bring a suit against the Defendant for ejectment. The Rent Control and Eviction Officer exercising the powers of the District Magistrate rejected the application by an order dated 15-12-1952. The Plaintiff then moved the Commissioner in revision u/s 3(2) of the Act. The Addl. Commr. who heard the application passed an order dated 4-4-1953 setting aside the order of the Rent Control and Eviction Officer and granted the plain tiff permission to sue the Defendant for ejectment. The suit was contested but was decreed by the learned Munsif. On appeal the learned District Judge upheld the decision. 3. The only contention urged in this appeal is that the suit has not been instituted with the permission of the District Magistrate as required by S. 3 of the UP Control of Rent and Eviction Act as the said Act does not empower the Commr. to grant any permission to a landlord to eject a tenant. The only question therefore is whether the Commissioner has powers u/s 3 of the UP Control of Rent and Eviction Act to grant permission to a landlord to eject a tenant when such permission has been refused by the District Magistrate. Subsequent amendments to Act XXIV of 1954 have clarified the position and have given the Commr. the powers to alter or revise the order of the District Magistrate and to make such other order as may be just and proper. The relevant provisions of the statute as it stood at the time when the suit was instituted read as follows: 3. (1) Subject to any order passed under Sub-section (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 accommodation except on one or more of following grounds: (2) The party aggrieved by the order of the District Magistrate granting or refusing to grant the permission referred to in Sub-section (1) may, within 30 days from the date of the order or the date on which it is communicated to him, whichever is later, apply to the Commr. to revise the order. (3) The Commr. to revise the order. (3) The Commr. shall as far as may be, hear the application within six weeks from the date of its making and if he is satisfied that the District Magistrate has acted illegally or with material irregularity or has wrongly refused to act he may confirm or set aside the order of the District Magistrate. (4) The order of the Commr. passed under Sub-section (3) shall subject to any order passed by the State Government u/s 7-F be final. 4. Learned Counsel for the Appellant contends that the powers of the Commr. mentioned in sub-S (3) are onlv to confirm or set aside the order of the District Magistrate and that the Commr. is not competent to replace the order of the District Magistrate by his own order. 5. The powers of the Commr. under Sub-section (3) may be exercised both when the District Magistrate grants permission and when the District Magistrate refuses to grant the permission asked for. If the order of the District Magistrate is one granting the permission the Commr. may either confirm that order or set aside that order. In either case no difficulty obviously arises and the powers exercised by the Commr. would be covered fully by the expression "confirmed or set aside" used in the section. When the order passed by the District Magistrate is one refusing to grant the permission the Commr's. order confirming the refusal would also not necessitate doing anything not strictly covered by the statute. When, however the Commr. sets aside an order refusing to grant the permission the question arises as to whether all that the Commr. may do is to vacate the order of refusal passed by the District Magistrate or can he, while doing so, pass an order granting the permissson required by the landlord. It is contended that it would not be correct to interpret the statute so as to enlarge the powers of the Commr. and the literal meaning of the expression confirmed or set aside should be taken to be the real meaning of the statute. 6. In construing the provisions of the statute the context in which the language is used cannot be ignored. Sub-section (1) says that no suit shall without the permission of the District Magistrate be filed except on the grounds enumerated in that section. 6. In construing the provisions of the statute the context in which the language is used cannot be ignored. Sub-section (1) says that no suit shall without the permission of the District Magistrate be filed except on the grounds enumerated in that section. But this Rule is expressly made 'subject to any order passed under Sub-section (3)'. The permission of the District Magistrate is thus subject to any order passed under Sub-section (3) by the Commr. Sub-section (4) says that the order of the Commr. passed under Sub-section (3) shall be final subject to any order passed by the State Government. Under S. 7F the powers of the State Government are very wide. The Government may make such order as appears to it necessary in the ends of justice. All orders therefore passed under Sub-section (3) by the Commr. may be interferred with by the State Government u/5. 7F. If the District Magistrate refuses to grant permission and the Cnmmr. disagrees and sets aside that order and if the Commr. does not possess the power to grant the permission himself, two courses would be open to the aggrieved party. He may either go in revision to the State Government u/s 7F and request that the State Government may intervene in the interest of justice or he may again approach the District Magistrate with a fresh application u/s 3(1). In going up to the State Government u/s 7F the landlord cannot in such a case say that he is aggrieved by the order passed by the Commr. for the Commr. does set aside the order passed by the District Magistrate refusing to grant permission of the landlord. The commissioner's order in such a case would obviously be one in favour of the landlord and there would hardly be any justification for the landlord to pray for an interference with that order. There appears to be no justification for the view that the legislature intended to confer exclusive jurisdiction on the District Magistrate to grant the permission u/s 3 (1) of the Act. The expression 'District Magistrate' has been defined in the Act as including an officer authorised by the District Magistrate to perform any of his functions under this Act. There appears to be no justification for the view that the legislature intended to confer exclusive jurisdiction on the District Magistrate to grant the permission u/s 3 (1) of the Act. The expression 'District Magistrate' has been defined in the Act as including an officer authorised by the District Magistrate to perform any of his functions under this Act. If it was considered desirable to permit the District Magistrate to authorise any of his subordinate officers to exercise his powers, there appears to be absolutely no justification for the view that a more senior officer such as the Commr., should not be granted the power of doing what the District Magistrate or even his subordinate officer might do under the Act. In confirming an order passed by the District Magistrate and in setting aside that order the Commr. is expected normally to examine the relevant facts and to decide whether the order passed by the District. Magistrate is a proper order. There appears to be hardly any reason for saying that though the Commr. could set aside the order, and in the case of an order granting permission could confirm that order, he could not grant the permission himself. Sub-section (2) enables an aggrieved party to apply to the Commr. to revise the order of the District Magistrate granting or refusing to grant the permission. The word 'revise', according to Chambers's Dictionary means. Revise-To review and amend to examine with a view to correction ; to go over in renewed study, with a view to refreshing and repairing gaps in the memory. The Concise Oxford Dictionary says: Revise-Read or look over or re-examine or reconsider and amend faults." The powers of the Commissioner therefore to revise implied the powers to re-examine and reconsider and amend the order passed by the District Magistrate. The party concerned, therefore may apply to the Commissioner to reconsider and modify or alter the order passed by the District Magistrate. This apparently implies the power to substitute his own order for the order passed by the District Magistrate. The provisions of sub Ss. (1) to (4) mentioned above do indicate that in the heirarachy of authorities empowered to act in this behalf the Commissioner holds the second position higher than that of the District Magistrate and lower than the state Government. The provisions of sub Ss. (1) to (4) mentioned above do indicate that in the heirarachy of authorities empowered to act in this behalf the Commissioner holds the second position higher than that of the District Magistrate and lower than the state Government. The fact that the District Magistrate and the State Government do possess the power of granting permission also lends support to the view that the Commissioner too possesses that power. 7. Learned Counsel at the Bar stated that they do not know of any case in which this particular point has been decided. Learned Counsel for the Respondent referred me to a decision of a learned Single Judge of this Court in Dr. B. N. Bhalley v. B. P. Gupta 1957 AWR (HC) 662. In that case it was contended that if a revision be pending against the order of a District Magistrate granting permission the suit may not be instituted until the revision is decided. Reliance had been placed on the words 'subject to any order passed u/s ub S. (3)' used in S. 3 (1). It was held that this expression did not indicate that the order of the District Magistrate could not be acted upon until the revision had been decided and that until the Commissioner set aside that order the permission granted by the District Magistrate could form a valid basis for the institution of a suit by the landlord. This case affords no help in the decision of the question arising in the present appeal. 8. The other case cited was Pt. Joti Prasad Bajpai v. Dau Dayal 1956 AWR (HC) 159 . This was a decision by a Bench of this Court. One of the questions raised related to the jurisdiction of the Commissioner u/s 3 of the U. P. (Temporary) Control of Rent and Eviction Act as it was in force in l953. The Bench took the view that the powers of the Commissioner were restricted to cases in which the District Magistrate had acted illegally or with material irregularity or had wrongly refused to act. In the case before the Bench the learned Chief Justice took the view that the order passed could not be said to be without jurisdiction. This case also furnishes no authority bearing on the question now before me. 9. In the case before the Bench the learned Chief Justice took the view that the order passed could not be said to be without jurisdiction. This case also furnishes no authority bearing on the question now before me. 9. In the light of the above observations it appears that the Commissioner did not act ultra vires in granting permission to the Plaintiff to institute the suit and the institution of the suit cannot be said to be bad in law. This appeal fails and is dismissed with costs. Leave to appeal is refused.