Kailash Chandra Jain v. State of U. P. — 1959 DIGILAW 262 (ALL)

JUDGMENT D.S. Mathur, J. - This is a petition under Article 226 of the Constitution of India by Kailash Chandra Jain and two others for the issue of a writ, direction or order to quash the order dated 26-12-1958 and also order dated 1-5-59 of the State Government passed on the review application (Annexure `M' to the petitioners' affidavit); and to direct it to decide the application for review dated 14-2-1959 (in the petition the date has been wrongly typed as 24-2-1959) made by the present petitioners for review of the order passed on 26-12-1958, whereby permission was granted to Bihari Lal, respondent no. 4, to sue for ejectment of the petitioners who were occupying his house as tenants. 2. The record of the case has become bulky, but there no longer exists any dispute on the material facts of the case. The questions raised by the petitioners now amount to almost pure questions of law. 3. The facts of the case can be summarised as below :- Bihari Lal, respondent No. 4, is the landlord and owner of house No. 12, Sheo Charan Lal Road, Allahabad, residential portion of which on the first floor is in the tenancy of Kailash Chandra Jain petitioner no. 1, on a monthly rent of Rs. 52.50 nP. Firm Hinga Mal Kalyan Chand Sumer Chand, petitioner no. 2, carries on business in a part of the ground floor towards the back of the house. The Firm carries on business through its proprietor, Kailash Chandra Jain, petitioner no. 1, on payment of a monthly rent of Rs. 25/-. The front portion of the ground floor is in the occupation of `Naveen Vastralaya,' petitioner no. 3, which carries on cloth business in this portion on payment of a monthly rent of Rs. 35/-. Another portion of the house was previously in the tenancy of Behari Lal, barber, who is since dead. This Behari Lal is not a party to the present proceeding. Bihari Lal, respondent no. 4, made an application before the Additional District Magistrate, Allahabad, for grant of permission under Sec. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, to sue for ejectment of all the four tenants on the ground that he required the house for his own use and occupation. The application was registered as case No. 194 of 1956. The application was registered as case No. 194 of 1956. The Additional District Magistrate did not grant the permission (vide his order dated 30-5-1957). Bihari Lal then moved a revision application before the Commissioner under Sec. 3 (2) of the Act against the refusal to grant permission as contemplated by Sec. 3. Bihari Lal, respondent no. 4, adduced or attempted to adduce before the Commissioner certain additional documentary evidence to show that the Additional District Magistrate was acting under a misapprehension that the respondent was being ejected from 17, S. C. Basu Road, on the ground of nonpayment of rent, and also to show that the decree for his ejectment from that house had been confirmed by the appellate court. The case of the petitioners is that no copy of the two documents filed along with an affidavit were supplied to them. These documents were meant to show that the permission granted under Sec. 3 to the owner of 17, S.C. Basu Road, was on the ground that the owner wanted that accommodation for his own personal use. The Additional Commissioner dismissed the revision application under order dated 27-7-1957. Thereafter Bihari Lal moved an application under Sec. 7-F of the Act before the State Government. This application is dated 24-8-1957 (Annexure `G' to the petitioners' affidavit). The State Government summoned the record of the Additional District Magistrate, and not of the Additional Commissioner; and it appears that from the second supplementary counter-affidavit of respondent no. 4 that a report of the Additional District Magistrate was also called for. 4. After his ejectment from 17, S. C, Basu Road, Bihari Lal, respondent no. 4 shifted, as he says, to 68, Mahabiran Lane, to reside there as a licensee at the sweet will of his friends. The respondent was carrying on his soap manufacturing business in 302-B, Sultanpur Bhawa. The Additional Commissioner was apparently under the impression that there was residential accommodation available in the above Sultanpur Bhawa building and there was no genuine need for the respondent to shift to 12, Sheo Charan Lal Road, after the ejectment of the petitioner. After the Additional Commissioner dismissed the revision under Sec. 3 (2) of the Act, the owner of Sultanpur Bhawa building moved the District Magistrate under Sec. 3 for grant of permission to institute a suit for the ejectment of respondent no. 4. After the Additional Commissioner dismissed the revision under Sec. 3 (2) of the Act, the owner of Sultanpur Bhawa building moved the District Magistrate under Sec. 3 for grant of permission to institute a suit for the ejectment of respondent no. 4. It was by way of an additional ground that the moving of this application under Sec. 3 was brought to the notice of the State Government by making a separate affidavit. However, the Additional District Magistrate, Allahabad, brought to the notice of the State Government that this application under Sec. 3 was dismissed under order dated 20-11-1957. When the State Government summoned the record of the Additional District Magistrate, he not only sent the record of the present case, but also the record of the proceedings with regard to Sultanpur Bhawa house. 5. The notice of the application under Sec. 7-F was given to the present petitioners so that they may show cause against the revision application and explain the various points raised by the respondent either in the revision application or in affidavits. The State Government allowed the application under Sec. 7-F, and granted permission to respondent no. 4 to sue for ejectment of the petitioners under order dated 26-12-1958. After permission was granted, the respondent served a notice under Sec. 106 of the Transfer of Property Act on the petitioners and when they did not vacate the house, he instituted a suit for their ejectment. The suit is said to have been presented in the Court of the Munsif on 21-2-1959. It was on 14-2-1959 that the present petitioners moved an application before the State Government for review of the order already passed but the application was dismissed under order dated 1-5-1959. While rejecting the application it was mentioned that it was not possible to modify the orders already passed. The Hindi words used are: "Parivartan Karna Sambhava Nahi Hai" It was after dismissal of the review application that the petitioners invoked the extraordinary jurisdiction of this Court by moving the present writ petition. 6. While rejecting the application it was mentioned that it was not possible to modify the orders already passed. The Hindi words used are: "Parivartan Karna Sambhava Nahi Hai" It was after dismissal of the review application that the petitioners invoked the extraordinary jurisdiction of this Court by moving the present writ petition. 6. Three questions of law have been raised by the learned counsel for the petitioners; firstly, that the summoning of the record was a condition precedent to the exercise of jurisdiction under Sec. 7-F of the Act and consequently when the State Government did not summon the record of the Additional Commissioner, it had no jurisdiction to pass final orders on the application under Sec. 7-F. In this connection it was also urged that the present petitioners were prejudiced by the non-summoning of the record of the Additional Commissioner in view of the fact that it was not in the mind of the State Government that the Additional Commissioner had refused to grant permission under Sec. 3 even though it was brought to his notice that the Additional District Magistrate was under a wrong impression that the owner of 17, S. C. Basu Road, was granted permission under Sec. 3 on the ground that respondent no. 4 had not paid the rent within time. It was said, as already mentioned above that the permission was granted to that owner to sue for ejectment of respondent no. 4 not on the above ground but because the owner wanted that accommodation for his own personal use. The second point raised is that the State Government could not take into consideration any additional evidence and it was necessary for the State Government to pass an order on the revision application under Sec. 7-F on the basis of such material as existed on the record, that is, had been brought to the notice of the Additional District Magistrate and the Additional Commissioner. The third point contended is that the State Government was under a wrong impression that it had no power to revise an order already passed under Sec. 7-F. 7. On the first point the learned counsel for the petitioners' has placed reliance upon a decision of this court in the case of Rabindra Nath Mitra v. The State of Uttar Pradesh and another, 1959 A.L.J. 263. On the first point the learned counsel for the petitioners' has placed reliance upon a decision of this court in the case of Rabindra Nath Mitra v. The State of Uttar Pradesh and another, 1959 A.L.J. 263. With the final order passed in this case, I am in full agreement, but with regard to certain observations made, especially the condition precedent to the exercise of jurisdiction I am in respectful disagreement. The facts of the reported case are somewhat different to those of the present one. Therein the State Government passed the impugned order without calling for the record of the case, and without hearing the party against whom the order was being passed. The State Government merely called upon the owner of the house Shri Khattri to file copies of the orders of the District Magistrate and the Commissioner and it was on the basis of these two documents that the orders of the Rent Control and Eviction Officer and of the Commissioner were set aside. When the Rent Control and Eviction Officer refused to grant the permission under Sec. 3, he must have taken into consideration the application of the owner, the objection, raised by the tenant and any other material which the parties may have brought to his notice. The Rent Control and Eviction Officer may also have inspected the locality and made inquiries which an administrative officer can always do. When the Commissioner rejected the revision application, he would have had this material before him and also a fresh report from the District Magistrate, if necessary. Under sub-Sec. (3) of Sec. 3, the Commissioner can, if he so desires, admit additional evidence. Sub-Sec. (3) nowhere restricts the jurisdiction of the Commissioner. It enumerates the powers' of the Commissioner, that is, the order which he can pass on feeling satisfied on the merits of the case. The Commissioner can pass any just or proper order 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 the proceedings held by him. In other words, the Commissioner acts more or less as a Court of Appeal, and can, in exercise of his powers, inherent or otherwise, pass any order and take such steps as may be necessary for doing justice in the case. In other words, the Commissioner acts more or less as a Court of Appeal, and can, in exercise of his powers, inherent or otherwise, pass any order and take such steps as may be necessary for doing justice in the case. Consequently, if the State Government were merely to obtain copies of orders of the Rent Control and Eviction Officer and the Commissioner, as was done in the above case, it would not know on which material the two subordinate officers had refused to grant the permission. 8. In the present case, however, the record of the Additional District Magistrate had been summoned by the State Government and respondent no. 4 had filed before the State Government copy of his revision application made before the Commissioner and also a copy of the order of the Commissioner. The only documents which were thus not produced before the State Government consisted of four documents produced before the Commissioner which merely showed that respondent no. 4 had been ejected from 17, S. C. Basu Road, and that the permission to sue for ejectment of the respondent from 17, S. C. Basu Road, was granted on the ground that that house was needed by its owner, and not because the respondent was in arrears of rent. These documents were not helpful to the present petitioners and if they were before the State Government they may have supported the cause of the respondent. In other words, by these documents not being before the State Government or by the non-summoning of the record of the Additional Commissioner, no prejudice was caused to the petitioners. It was, however, mentioned in this connection that the State Government could have been under the impression that the subordinate officers acted wrongly when they were under a misapprehension that the permission under Sec. 3 with regard to 17, S. C. Basu Road was granted on a different ground. The ground on which the permission to sue for ejectment from 17, S. C. Basu Road was granted was immaterial for determining the needs of respondent no. 4. After his ejectment from that house, he would have required a shelter in some house of course, preferably his own. I would, therefore, not regard the non-summoning of the record of the Additional Commissioner to have prejudiced the petitioners. 9. 4. After his ejectment from that house, he would have required a shelter in some house of course, preferably his own. I would, therefore, not regard the non-summoning of the record of the Additional Commissioner to have prejudiced the petitioners. 9. In Rabindra Nath Mitra v. The State of Uttar Pradesh and another, 1959 A.L.J. 263 not only was the record of the case not called for, but Shri Mitra was not given any hearing. In the present case, however, the petitioners were given a proper hearing, in the sense that they were given an opportunity to make a representation against the application which respondent no. 4 had moved before the State Government under Sec. 7-F and also against the other documents including affidavits which had been filed along with that application. 10. Whenever a party is likely to be prejudiced by the non-compliance of the provisions of the law, or there has been any violation of the principles of natural justice, High Courts must in exercise of jurisdiction under Article 226 remedy the injustice caused to an aggrieved person. In the present case, however, there was a disregard of the rule in the sense that the record of the Additional Commissioner had not been summoned, but it will amount to an irregularity which would not vitiate the order of the State Government considering that the petitioners were not in any way prejudiced, nor was there a violation of the principles of natural justice. 11. Brother James, J. was apparently of opinion that the statutory object of Sec. 7-F could not be achieved unless the record was called for, and for that reason the summoning of the record was a condition precedent to the passing of a valid order under the section. Brother James, J. also regarded this clause to be of a mandatory nature and held that the word `may' used in Sec. 7-F should be given the meaning ordinarily assigned to the mandatory word `shall'. The courts of law have the power to substitute a word or to omit a word in order to carry out the object of the Legislature. Consequently, where jurisdiction cannot be exercised without complying with a certain provision of the law, that provision can be deemed to be a condition precedent to the exercise of jurisdiction. The courts of law have the power to substitute a word or to omit a word in order to carry out the object of the Legislature. Consequently, where jurisdiction cannot be exercised without complying with a certain provision of the law, that provision can be deemed to be a condition precedent to the exercise of jurisdiction. But in many cases revisional court can pass an order without summoning the record, e.g., in criminal cases the applicant may merely pray for the reduction of sentence. If the facts of the case are apparent from the judgments of the lower courts, and the grounds for awarding a sentence by the trial court and also by the appellate court are apparent on perusal of the judgments, the revisional jurisdiction can be exercised without perusing the record. Of course, the judgments of the two lower courts shall have to be looked into before dealing whether the discretion with regard to the award of sentence had been properly exercised or not. When the summoning of the record is not necessary for the decision of the revision application, it need not be summoned and the revisional court can pass suitable orders on the revision application without the record being before it. It cannot therefore be said that the record must be called for before the revisional court can decide a revision application under the provisions of the Cr. P. C. A similar view can be taken under Sec. 115, C. P. C. and Sec. 25 of the Provisional Small Cause Court Act. I am, therefore, of opinion that the object of the Legislature can be achieved and carried out if the word `may' is given its ordinary meaning. P. C. A similar view can be taken under Sec. 115, C. P. C. and Sec. 25 of the Provisional Small Cause Court Act. I am, therefore, of opinion that the object of the Legislature can be achieved and carried out if the word `may' is given its ordinary meaning. In other words, it is discretionary for the State Government to summon or not to summon the record, but where any party is prejudiced by the non-summoning of the record, it would be a case where the State Government shall be deemed to have acted arbitrarily, and consequently committed an error in the exercise of jurisdiction and this Court would be justified to interfere with that order and to direct the State Government to reconsider the application under Sec. 7-F. In the circumstances, the summoning of the record shall not be treated as a condition precedent to the exercise of jurisdiction under Sec. 7-F. In the present case, the petitioners were not in any way prejudiced by the non-summoning of the record of the Additional Commissioner and consequently, the non-compliance of the provision contained in Sec. 7-F, to call for the record of the case, would be a mere irregularity which cannot and should not be deemed to have in any way affected the jurisdiction of the State Government. 12. In the circumstances of the present case, it cannot rightly be said that the State Government had taken any additional evidence into consideration while passing orders on the application under Sec. 7-F of the Act. Respondent no. 4 did bring to the notice of the State Government that the owner of Sultanpur Bhawa house had moved an application under Sec. 3 for the grant of permission to sue for his ejectment; but the Additional District Magistrate while submitting a report along with the record did bring to the notice of the State Government that the application under Sec. 3 had been dismissed. In other words, at the time the State Government passed the order u/s 7-F, it was aware of the fact that the above application under Sec. 3 had been dismissed. In other words, at the time the State Government passed the order u/s 7-F, it was aware of the fact that the above application under Sec. 3 had been dismissed. An application which has been dismissed is, in the eye of law, an application which had not been made, and there is no reason to hold that the State Government had regarded the application to be pending or that the grounds enumerated therein had some substance even though the application had been dismissed and the order of rejection had not been challenged. In other words, the additional evidence which respondent no. 4 sought to adduce before the State Government had in substance stood withdrawn and the State Government shall be deemed to have passed an order without taking this additional evidence into consideration. 13. Sec. 7-F does not give the power to the State Government to revise the order already passed under this section, but it is by virtue of Sec. 21 of the U.P. General Clauses Act that the State Government shall be deemed to have the power to and, amend, vary or rescind any order already issued. The power of review or the power to modify or alter an order already passed is conferred upon the State Government under Sec. 21 of the U.P. General Clauses Act, though in all fairness before revising the order the party likely to be affected by the modification of the order should be given a hearing in the same manner as is necessary for the exercise of jurisdiction under Sec. 7-F. As Sec. 7-F does not confer a power of review on the State Government, it is doubtful that the review of the order by the State Government after the institution of a civil suit for ejectment would be covered by the provisions of sub-Sec. (4) of Sec. 3, and would thereby make a suit already instituted for the ejectment of a tenant infructuous. No final opinion is being expressed on this point. 14. The third contention can, however, be dismissed on merits. It was conceded by the learned counsel for the petitioners that it had not been brought to the notice of the State Government at the time of the application for review had been made that respondent no. No final opinion is being expressed on this point. 14. The third contention can, however, be dismissed on merits. It was conceded by the learned counsel for the petitioners that it had not been brought to the notice of the State Government at the time of the application for review had been made that respondent no. 4 had already instituted a suit for ejectment, consequently the order communicated under the letter Annexure M to the petitioners' affidavit, shall be deemed to have been passed on perusal of the review application made by the petitioners without taking into consideration the fact that the respondent had already instituted a suit for ejectment. It may here be mentioned that the suit for ejectment was filed a week after the application was made and at that stage no suit for ejectment would have been pending. When the State Government declined to exercise the power of review at a time they were not aware of the suit for ejectment, it shall have to be presumed that the review application was dismissed on merits and not because a suit for ejectment had already been filed by the owner. The learned counsel for the petitioners had based his argument upon words used in the letter Annexure M to the petitioners' affidavit, wherein it was said that it was not possible to amend the orders already passed. It would have been more appropriate to use the word `uchit,' but at the same time the word `Sambhava' cannot show that the State Government was under a wrong impression that it had no power to revise an order already passed. In the circumstances, the order of the State Government communicated under the letter dated 1-5-1959, Annexure M, cannot be set aside. 15. The petition is hereby dismissed. Costs on parties.