Basant Lal Shah v. Tarawati Shukla — 1959 DIGILAW 236 (ALL)

JUDGMENT B.N. Nigam, J. - Smt. Tarawati filed regular suit no. 285 of 1956 in the court of Munsif South Lucknow against Sri Basant Lal Shah seeking a decree for ejectment and arrears of rent. The suit was contested and on the pleadings of the parties the learned Munsif framed the following issues :- 1. Whether the permission was obtained by fraud as alleged ? 2. Whether the A. C. M. II had jurisdiction to give permission to sue for ejectment ? 3. To what relief, if any, is the plaintiff entitled ? He answered issue no. 1 in the negative and issue no. 2 in the affirmative. In the event, he decreed the suit for ejectment and for recovery of Rs. 260/- with costs against the defendant. Against that judgment and decree, the defendant Sri Basant Lal Shah preferred an appeal before the District Judge, Lucknow. This appeal was heard by the learned Civil (II Civil and Sessions) Judge, Lucknow who by his judgment dated 4th March, 1958 dismissed the appeal and maintained the order of the learned Munsif with the modification that he set aside the decree for arrears of rent in consideration of certain deposits having been made under Sec. 7(C) of U.P. Act III of 1947. Now the defendant Sri Basant Lal Shah has come up in second appeal. I have heard the learned counsel for the appellant. 2. Only one point has been urged before me. The contention of the learned Counsel is that the Additional City Magistrate II had no jurisdiction to grant any permission. The plaintiff had filed an application for permission to file a suit for ejectment against the defendant-appellant. This application was disposed of by the Rent Control and Eviction Officer, Lucknow, by his order dated 20th August, 1954. The permission was refused. Against that refusal, a revision was preferred to the Commissioner Lucknow Division. This revision was disposed by the Additional Commissioner Rohilkhand-Lucknow Divisions by his order dated 18th January, 1955. The operative portion of the order reads: "I would hence allow this revision application, set aside the order passed by the learned R. C. and E. O. and remand the case back to him for deciding it afresh after considering all the evidence available on the record and after allowing the parties an opportunity to be heard. The operative portion of the order reads: "I would hence allow this revision application, set aside the order passed by the learned R. C. and E. O. and remand the case back to him for deciding it afresh after considering all the evidence available on the record and after allowing the parties an opportunity to be heard. The learned Deputy Commissioner, Lucknow is requested to get the application disposed of by some officer other than the one who has expressed his opinion in the matter." 3. It is common case of the learned counsel that this order is not happily worded. Apparently the intention of the learned Additional Commissioner was that as the Rent Control and Eviction Officer had expressed his opinion in the previous order dated 20th August, 1954, it was desirable in the interest of justice to get the matter decided by some other officer. In the circumstances the proper order to pass was to remand the case not to the previous officer but to the District Magistrate and to permit him either to decide the case himself or to authorise some other officer to consider the application under Sec. 3 of Act III of 1947. 4. The language used by the Additional Commissioner has given rise to all these arguments. As the learned Additional Commissioner worded his order to indicate that he was remanding the case to the Rent Control and Eviction Officer with a request to the Deputy Commissioner, i.e. the District Magistrate Lucknow, to get the case disposed of by some other officer, I take the order to be only one of remand and a plain request to the District Magistrate. 5. Subsequently the District Magistrate did pass an order a copy of which is Ex. 5 on the record. This order reads : "This case will be tried and heard by Shri Sharma, I. A. S., A. C. M. II and disposed of by him. Sd. S.N.M. Tripathi 31-1-55. 6. The first contention of the learned counsel is that the District Magistrate had no authority to pass any such orders. I am unable to agree with this suggestion. "District Magistrate," is defined in Sec. 2 (d) of U.P. Act III of 1947 as including an officer authorised by the District Magistrate to perform any of his functions under this Act. The first contention of the learned counsel is that the District Magistrate had no authority to pass any such orders. I am unable to agree with this suggestion. "District Magistrate," is defined in Sec. 2 (d) of U.P. Act III of 1947 as including an officer authorised by the District Magistrate to perform any of his functions under this Act. This means that the District Magistrate may authorise any officer to perform his functions under the Act. That means that the District Magistrate has been authorised to delegate his powers. But delegation does not mean divestment. It, therefore, necessarily follows that while the District Magistrate may have authorised some other officer to perform his functions under the Act, he himself all the time retains the powers to exercise his functions. The necessary corollary is that the District Magistrate will also have the power to withdraw any case from the file of the officer who had been authorised by him,. This also follows from the fact that powers had been delegated by the District Magistrate and he is normally presumed to have also the power to cancel that delegation. That power must be taken to be inherent in the District Magistrate who had the power to confer authority and therefore also had the power to withdraw that authorisation. 7. The next contention of the learned counsel is that the District Magistrate has no power to entrust any particular case to any particular officer. The learned counsel relies on the view taken by Dayal, J. in Dwarka Prasad v. Central Talkies, AIR 1956 Allahabad 187. Dealing with the point in paragraph 9 of his judgment the learned judge stated - ".... even if such an order of transfer could be deemed to imply the District Magistrate's deliberate authorisation of another officer to perform the District Magistrate's functions under the Act, such an order is not probably contemplated by Sec. 2 (d) of the Control of Rent and Eviction Act. This provision does not empower the District Magistrate, to authorise any particular officer to try any or any class of cases which be made over by the District Magistrate to such officer. This provision contemplates a District Magistrate's authorising an officer to perform any of the District Magistrate's functions under the Act. This provision does not empower the District Magistrate, to authorise any particular officer to try any or any class of cases which be made over by the District Magistrate to such officer. This provision contemplates a District Magistrate's authorising an officer to perform any of the District Magistrate's functions under the Act. It follows therefore that the order of authorisation should be of a general kind either with respect to all the functions of the District Magistrate under the Act or with some of them. The order should not be just restricted to one particular case." 8. I consider it a misfortune to be unable to agree with the learned Judge. It appears to me that there is no justification for putting a narrow or a restricted meaning on the provisions of law. Sec. 2 (d) merely defines the term "District Magistrate." It says that the term includes an officer authorised by a District Magistrate. It makes no reference to the authorisation being general or special. Where the law does not envisage any restriction I would consider it improper for the courts to add any restriction to the language of the provision. That would be legislation and not interpretation. The function of the courts must be strictly limited to interpretation. The plain meaning must be adhered to unless there is a confusion or doubt created by the language used by the Legislation. In this particular section the term "District Magistrate" is to include an officer authorised by the District Magistrate to perform any of his functions under this Act. Now the term "any function" may relate to functions in respect of a case or any particular kind of functions generally. There is no reason why only one meaning should be attached to the term. I am, therefore, of opinion that the language of the section is consonant with special authorisation in respect of any particular case and is not restricted only to a general authorisation. I find support for my view in the opinion expressed by Brij Mohan Lal, J. in the same case. Unfortunately there was no reference to a third Judge and there is no other division bench ruling on this point. 9. The next contention of the learned counsel is that the District Magistrate passed his order, copy of which is Ex. 5, as a routine order without being conscious of the facts that were involved. Unfortunately there was no reference to a third Judge and there is no other division bench ruling on this point. 9. The next contention of the learned counsel is that the District Magistrate passed his order, copy of which is Ex. 5, as a routine order without being conscious of the facts that were involved. I am unable to see any point in this contention. It is again true that the contention of the learned counsel finds support in the view taken by R. Dayal, J. in the case cited above. I am, however, of opinion that cases of transfer of particular cases under Sec. 3 of Act III of 1947 were not so common that there could be any possibility of a routine order having been passed without attention to the facts of a particular case. The learned counsel has himself conceded that the selection of the officer to whom the case was transferred must have been a deliberate selection made by the District Magistrate. There is also the presumption of Sec. 114 of the Indian Evidence Act available in respect of official acts. There is no reason to suspect that this particular official act was performed either negligently or without due care and caution. It should not be necessary to insist on the order indicating the District Magistrate's reasons for the order and thereby compelling him to write longer orders so that the courts may be in a position to decide that the order had been passed after due consideration of the facts of a particular case. There is a presumption available under the law and there is no reason to suspect that the act was not done with all due care and caution. I am, therefore, of opinion that it must be held, unless the contrary is proved, that the District Magistrate did perform his functions with full knowledge of the facts involved. It is not necessary to add that in the particular case there is no evidence to indicate the contrary. 10. No other point has been pressed. I, therefore, see no force in this second appeal and dismiss it. There will be no order as to costs in view of the point of law involved. Stay order dated 28th November, 1958, is discharged.