Ram Gopal v. Ram Kumar — 1961 DIGILAW 343 (ALL)

JUDGMENT Jagdish Sahai, J. - This special appeal is directed against the judgment and order of our brother Dhawan dated 22nd of September, 1959. The facts giving rise to this case are very short. The respondent No. 1 Sri Ram Kumar is the tenant and the appellant Sri Ram Gopal the landlord of a premises situated in the city of Etawah. Sri Ram Gopal applied under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) for permission to sue the respondent No. 1 for ejectment on the ground that the premises was needed for his own use. The R.C.E.O., who was exercising the powers of the District Magistrate, rejected the application whereupon the dissatisfied landlord went to the Commissioner, Allahabad Division. The Commissioner allowed the Revision and remanded the case for rehearing by the R.C.E.O. The Rent Control and Eviction Officer, after rehearing the case, granted Sri Ram Gopal permission to sue Sri Ram Kumar for ejectment from the premises in dispute. Sri Ram Kumar preferred a Revision to the Commissioner. Allahabad Division, which was allowed and the order granting permission was set aside. Thereafter Sri Ram Gopal filed a revision application before the U.P. Government (hereinafter called the State Government). On 20-9-1958 the State Government, quashing the order passed by the Commissioner, allowed the application of Sri Ram Gopal for permission to sue Sri Ram Kumar for his ejectment from the premises in dispute. A writ petition was filed against this order of the State Government which was heard by our brother Dhavan who by his judgment dated 22nd of September, 1959, as already mentioned above allowed the same and quashed the order passed by the Stale Government. The present appeal is directed against that order of our brother Dhawan. 2. The question that has been canvassed before us and requires consideration in the present case is a very short one, the same being as to whether the order passed by the State Government was one contrary to law or was based upon considerations extraneous to the merits of the case. The submission of the respondent No. 1 before the learned Single Judge was that the State Government only considered the need of the landlord and not that of the tenant. The submission of the respondent No. 1 before the learned Single Judge was that the State Government only considered the need of the landlord and not that of the tenant. This submission was based upon the following words in the order of the State Government: "Prarthi ko niji avashyakta ke adhar par prashnagat dukan se vipakshi ko bedakhal karne ke hetu diwani adalat men mukadma dayar karne ki anumati de di jae". Relying upon the above passage in the order of the State Government the learned Single Judge held that the order passed by the State Government was bad as the respective needs of the landlord and the tenant had not been considered. The sentence in the order of the State Government read as a whole is as follows : "Rajyapal Mahoday is mamle men nyay ki drishti se yeh uchit samjhte hain ke prarthi ko niji avashyakta ke adhar par prashnagat dukan se vipakshi ko bedakhal karne ke hetu diwani adalat men mukadma dayar karne ki anumati de di jae." Translated into English the sentence would read as follows: - "The Governor considers it from the point of view of justice that in view of the need of the landlord he may be given permission to file a suit in the Civil Court for the ejectment of the opposite party." There are two questions before us. The first is one of fact and that is, as to what is the exact meaning of the words quoted above. Do those words show that the State Government addressed themselves only to the consideration of the needs of the landlord or they carefully looked into the whole matter and then came to the conclusion that the interests of justice demanded that permission should be given to the landlord in view of his needs. It is not a matter of dispute that when the State Government decided the revision application filed by the appellant they had before them not only the orders passed by the R.C.E.O. and the Commissioner but the entire record of the case including the written revision application presented by the appellant. In this connection it would be relevant to notice the opening words of the order passed by the State Government which read as follows : "Sri Ram Gopal ko unke uprokt vishay par dinank 12 May, 1958 ke prarthana ke prasang men suchit kiya jata hai." 3. In this connection it would be relevant to notice the opening words of the order passed by the State Government which read as follows : "Sri Ram Gopal ko unke uprokt vishay par dinank 12 May, 1958 ke prarthana ke prasang men suchit kiya jata hai." 3. There is a clear, reference to the revision application made by the appellant. The order of the State Government read as a whole does not show that it did not look into the entire record of the case and did not consider the needs of the landlord and tenant both. There is a strong presumption that it would have considered not only the needs of both the landlord and the tenant but other relevant circumstances also. The presumption gets stronger in view of the fact that in the writ petition filed by Sri Ram Kumar it was not alleged that the State Government did not apply its mind to the facts of the case or that it did not peruse the material on the record of the case. Sec. 7-F of the Act which confers on the State Government the revisional powers does not provide that the order passed by them should be a speaking order. It is not analogous to Or. XX, C.P.C. or Section 367, Cr. P. C. which provide as to what a judgment should contain. Under these circumstances the State Government were not required to draft their order in a particular form. Inasmuch as it has not been contended or alleged that the State Government did not consider all the material placed in the record of the case, it is not possible to hold that they did not actually do so. We may also add that under the provisions of Section 114 of the Evidence Act there is a strong presumption that all official acts are properly done. Sec. 4 of the Evidence Act provides that whenever it is provided that the Court may presume a fact it may either regard that fact as proved, unless it is disproved, or may call for evidence of it. The law clearly is that once a presumption has got to be drawn under the provisions of the Evidence Act then the Court must either act upon that presumption or call upon the party to bring evidence. The law clearly is that once a presumption has got to be drawn under the provisions of the Evidence Act then the Court must either act upon that presumption or call upon the party to bring evidence. It is not possible for a court not to draw that presumption and also not to call upon the party to bring in evidence. In the case of Emperor v. Sibnath Banerji, A.I.R. 1945 P.C. 156 the Judicial Committee after considering the provisions of Section 4 and 114 of the Evidence Act held that it must be presumed that the Governor who passed the order of detention of Sibnath Banerji and others had complied with all the requirements of the law. Their Lordships observed as follows:- "Sub-Sec. (1) assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not Made in conformity with the power conferred, heavily though the burden of proof may lie on the challenger, as stated by the Chief Justice in the passage just cited, Sub-sec. (2) raises a presumption of fact, which may be displaced, though here again the burden is likely to be heavy. Sec. 4, Evidence Act, provides: `Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.' Accordingly, the contention of the Crown that the Court has no jurisdiction to investigate the validity of the orders fails." This case was approved and followed by our Supreme Court on more occasions than one, the most recent occasion being in Swadeshi Cotton Mills v. State Industrial Tribunal, A.I.R. 1961 SC 1381. We are, therefore, unable to accept the submission of the learned Counsel that in the present case the needs of the landlord alone were considered. 4. This conclusion of ours should really be sufficient for the disposal of the appeal before us. But in view of the long arguments that have been addressed to us on the question of law also we think it necessary that the question of law should also be decided by us. That question, briefly put is, as to what the District Magistrate, the Commissioner and the Government are required to consider before passing orders. But in view of the long arguments that have been addressed to us on the question of law also we think it necessary that the question of law should also be decided by us. That question, briefly put is, as to what the District Magistrate, the Commissioner and the Government are required to consider before passing orders. It cannot be denied that the the Act is a temporary one brought in as a measure of emergency. It was necessary to bring in such a legislation because of the extraordinary conditions created by the II World War. The Act as originally passed was to expire on the 30th of September, 1954 and thereafter it has been extended from time to time. The result of the passing of the Act is not that the private ownership over houses and accommodations has ceased to exist. Being a temporary Act it has got to be strictly construed. The relevant portion of Section 3 of the Act reads as follows: "3. (1) Subject to any order passed under sub-sec. (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 the following grounds." Thereafter occur Cis. (a) to (f) which deal with cases in which permission of the District Magistrate is not necessary. Admittedly a suit for ejectment on the ground of personal need is not provided for in any of the Cls. (a) to (f). Therefore permission has got to be obtained from the District Magistrate before a suit for the ejectment of the respondent No. 1 could be filed. Sec. 3 does not provide the manner in which the District Magistrate shall exercise his discretion. There is nothing in the section itself which may regulate the manner in which the District Magistrate has to consider the application for permission to sue a tenant for ejectment made by a landlord. The Act does not expressly mention the circumstances which he has to take into consideration. A Division Bench of this Court in Karam Chand Thapar & Bros. v. Vijay Anand, AIR 1952 Allahabad 699 while upholding the validity of Section 3 of the Act observed as follows: - "The District Magistrate acts under Section 3 of the Act not as a Court, but in his administrative capacity. A Division Bench of this Court in Karam Chand Thapar & Bros. v. Vijay Anand, AIR 1952 Allahabad 699 while upholding the validity of Section 3 of the Act observed as follows: - "The District Magistrate acts under Section 3 of the Act not as a Court, but in his administrative capacity. It is not necessary for him to give reasons in his order for granting or refusing permission . . . . Coming to the second ground firstly it is contended that an unfettered discretion has been given to the District Magistrate to grant or refuse permission to the landlord to file an ejectment suit, so the provision in Section 3 of the Act to that effect is bad. This is not the only Act, in which such a power has been given to a public officer or authority. There are numerous examples of the grant of such powers. Secs. 91 and 92, C.P.C. contemplate the previous consent of the Advocate General for the institution of certain classes of suits. The Land Acquisition Act provides that Government is to satisfy itself whether or not the land is required for a `public purpose.' Similar is the provision in the various Land Requisition Acts passed in the various States. Sec. 197, Cr.P.C. and a large number of the penal Acts passed both by the Central and State Legislatures, provide for the previous sanction of certain specified authorities before commencing a prosecution. No principles are laid down in these enactments for the exercise of the discretion in giving the consent, or making the declaration or according the sanction. The impugned law is no innovation. It is in accord with the legislative practice in this country. In the ultimate analysis, discretion in such matters has to be given to specified public authorities. Instances are so numerous and circumstances are so varied that it is not possible to lay down any hard and fast rule as to in what cases the District Magistrate should grant and in what cases he is to refuse permission under Section 3 of the Act. There is no presumption that the District Magistrate will exercise the discretion arbitrarily. On the other hand the presumption is that he will exercise it reasonably. There is no presumption that the District Magistrate will exercise the discretion arbitrarily. On the other hand the presumption is that he will exercise it reasonably. We see no force in the contention that the law is bad because of the unregulated discretion given to the District Magistrate in the grant of permission under Section 3 of the Act." 5. We agree that, instances are so numerous and circumstances are so varying that even if the Legislature wished to do so it could not provide any safe guide by means of any statutory provision in order to enable the District Magistrate to exercise the power conferred by Section 3 of the Act. The scheme of the Act discloses that the District Magistrate is responsible for the allotment of houses to needy persons. That there is shortage of house accommodation is not a matter of dispute. The Legislature therefore thought it proper to confer on him also the rower of granting permission for filing a suit for ejectment against tenants who were in occupation of an accommodation to which the Act applied. The effect of giving permission to file a suit for ejectment of a tenant is to release the accommodation in favour of the landlord and thus to exclude that accommodation from being allotted to other persons. Inasmuch as the District Magistrate is responsible for releasing the accommodation. Whether or not permission should be granted in a particular case would depend upon many factors e.g., the population of the town, the number of needy persons requiring accommodation and whether or not new houses are being built. Consequently there can never be any exhaustive enumeration of the circumstances in which the District Magistrate could be expected to act and therefore, to our mind, the Legislature intentionally refrained from doing so. There was a serious risk in making such a provision because once that was done no other circumstance could be taken into consideration and the Legislature, however foresighted it may be would have been able to visualise all the possible circumstances in the ever expending future with the result that there would have been difficulties in the administration of the Act. We have illustrated some of the circumstances which the District Magistrate may have to take into consideration There can be many more. We have illustrated some of the circumstances which the District Magistrate may have to take into consideration There can be many more. In each case the District Magistrate has to satisfy himself, considering all the factors and circumstances that may relevant for the decision of that case, whether or not the landlord should be permitted to file a suit for ejectment of the tenant. This court cannot sit in judgment over the Legislative policy and if the Legislature decided to confer on the District Magistrate the jurisdiction to decide as to whom he will grant permission and to whom he will grant permission and to whom he will refuse neither the legislation nor the orders passed by the District Magistrate can be impugned on the ground either of vagueness or of unguided discretion. That the orders passed under Section 3 of the Act are administrative has been several times held by this Court. It is well established that only ground on which an administrative order can be avoided is of mala fides. The leading case on the subject is Khushal Das Advani v. State of Bombay, 1950 SCR 621 . In the case of Bihar State v. D.N. Ganguly, A.I.R. 1958 SC 1018 and in that of State of Madras v. V.C.P. Sarathy, A.I.R. 1953 SC 53 it held by their Lordships that when the Government performs an administrative act and has to form an opinion about the factual position with regard to an industrial dispute it is none the less of an administrative character and no writ of certiorari can issue. Again in the case of Radheyshyam v. State of Madhya Pradesh, A.I.R. 1959 SC 107 it was held that- "The function of the State Government exercised under Sec. 63-A was administrative in nature and it is settled law that such action is not amenable to a writ of certiorari." 6. The Legislature in its wisdom thought it proper to leave the matter to be decided by the District Magistrate subject to interference by the Commissioner and the State Government. This Court would be extremely reluctant to interfere with the order passed by the District Magistrate the Commissioner or the State Government unless the same is mala fide. The Legislature in its wisdom thought it proper to leave the matter to be decided by the District Magistrate subject to interference by the Commissioner and the State Government. This Court would be extremely reluctant to interfere with the order passed by the District Magistrate the Commissioner or the State Government unless the same is mala fide. There are a long series of decisions and, if we may say so with respect, based on good principle, that if a decision is based on discretion interference by the High Court should be rare (see Attorney General for Canada v. Hallel & Carey Ltd., 1952 AC 427 at p. 431, Rex v. Comptroller General of Patents, Ex. Parte Bayer Products. Ltd., 1941 (2) KB 306 at p. 311, Carltone Ltd. v. Commissioners of Works, 1943 (2) AER 560 at p. 564 and AYR Collieries v. Lloyd George, 1943 (2) AER 546. 7. The Commissioner can revise the orders passed by the District Magistrate, and the State Government those of the District Magistrate and the Commissioner. Once the State Government interferes under Sec. 7-F. of the Act the order passed by it would be to substitute the order passed by the District Magistrate or the Commissioner as the case may be. The scheme of the Act therefore reveals that a matter like this has been left to the discretion of the District Magistrate, the Commissioner and the State Government. If the State Government, therefore, after considering the materials before it, came to the conclusion that permission should be granted to the appellant to file a suit against the respondent No. 1 for his ejectment, no serious complaint can be made. On the basis of two single Judge decisions of this Court reported in Shri Krishna v. Additional Commissioner, Allahabad, 1958 ALJ 234 and Dr. J.R. Bhatia v. Victoria Rani Saheba, 1957 ALJ 257 it was contended that the District Magistrate or the Commissioner or the State Government, as the case may be, is required to balance the needs of both landlord and tenant and then to decide as to whether or not the application for permission to sue the tenant for ejectment should be allowed. In our judgment the District Magistrate or the Commissioner or the State Government have to take all the relevant matters into consideration while deciding the case and that would also include the question whether or not the accommodation is genuinely required by the landlord or whether the application is mala fide and is made solely to get rid of the tenant. But we find it difficult to hold as a rule of law that the needs of the landlord and the tenant have got parity and should be weighed in golden scales. It appears to us that in case a landlord makes out a clear case of personal requirement of the accommodation the District Magistrate or the Commissioner or the State Government would have, if other difficulties do not supervene, to give him permission irrespective of the need of the tenant, but as we have already said above there are various factors to be taken into consideration. The need of the landlord may be perfectly genuine and yet there may be such a scarcity of accommodation that the District Magistrate may not think it proper to give him permission. 8. Our attention was invited to the case Majeed Uddin v. G.H. Naqvi, 1961 ALJ 32 where a Division Bench of this Court (Mootham, C.J., and Srivastava, J.), held that while disposing of an application under Sec. 3(1) of the Act the District Magistrate should weigh the respective claims of the landlord and the tenant and then grant or refuse permission. We have already said above that the District Magistrate has to consider a variety of matters including not only the need of the landlord and that of the tenant but also whether there is scarcity of accommodation and whether in larger public interest the accommodation should not be released. We would only be repeating ourselves when we say that inasmuch as the Legislature did not fetter the discretion of the District Magistrate by providing the circumstances in which he can grant permission, it intended to provide him with a power to investigate into all the circumstances before giving permission to a landlord. However, if the need of the landlord is genuine and if there are no insuperable difficulties facing the District Magistrate in giving permission to the landlord to file a suit for ejectment of the tenant, we cannot say that the order passed by him would be illegal. 9. However, if the need of the landlord is genuine and if there are no insuperable difficulties facing the District Magistrate in giving permission to the landlord to file a suit for ejectment of the tenant, we cannot say that the order passed by him would be illegal. 9. For the reasons mentioned above we find ourselves unable to agree with our brother Dhawan. We are satisfied that there is no ground to hold that the State Government did not consider the respective needs of the landlord and the tenant and that they did not take into consideration other relevant circumstances also. The mere fact that it is not stated in so many words in the order of the State Government does not mean that the state Government did not address themselves to these considerations. There is good authority for the proposition that if the law does not require it to be done it is not necessary that an authority exercising power must specifically state in its order that the conditions prerequisite to the exercise of jurisdiction were complied with in that particular case (See Swadeshi Cotton Mills v. S.I. Tribunal, A.I.R. 1961 SC 1381. 10. For the reasons mentioned above we are of the opinion that this special appeal must be allowed. We accordingly allow the same, set aside the order of the learned single Judge dated 22nd September, 1959, and dismiss the writ petition. Parties are however, directed to bear their own costs.