Virendra Swarup Johari v. State of Uttar Pradesh — 1961 DIGILAW 369 (ALL)

JUDGMENT A. P. Srivastava , J. - This is a petitioner's Special Appeal against an order of Mr. Justice Tandon rejecting his petition filed under Article 226 of the Constitution. 2. The appellant is a tenant of house No. 5 Lowther Road, Allahabad. The house was allotted to him by an order dated the 17th of May, 1956. At that time the owner of the house was Shri Faiyaz Ahmad. He sold the house in August, 1957 to the respondent No. 2 Shri A. K. Sanyal. Having purchased the house, the respondent No. 2 made an application to the Addl. District Magistrate who was functioning as R.C.E.O. under the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act) for permission to eject the appellant by bringing a suit against him in the civil court. The application was made under Section 3 of the Act. The ground on which permission was sought for was that the house was needed by the respondent for his personal occupation. The appellant opposed the application. The Addl. District Magistrate, however, granted the permission prayed for by the respondent. Against that order the appellant went up in revision to the Commissioner. The Commissioner heard the parties and set aside the order of the Addl. District Magistrate refusing to grant permission to the respondent to eject the appellant. The respondent No. 2 then made a representation to the State Government under Sec. 7-F of the Act and along with his representation he submitted an affidavit also. The State Government after receiving the representation and the affidavit sent them to the District Magistrate with a direction that they should be served on the appellant and should then be sent back to the State along with the version of the appellant and his counter affidavit. The District Magistrate directed the Addl. District Magistrate to serve copies of the representation and the affidavit of the respondent No. 2 on the appellant. Unfortunately for some reason though a copy of the representation was served on the appellant the copy of the affidavit was not given to him. In reply the appellant filed his version of the matter but did not file any counter affidavit. Unfortunately for some reason though a copy of the representation was served on the appellant the copy of the affidavit was not given to him. In reply the appellant filed his version of the matter but did not file any counter affidavit. The papers including the version which the appellant had submitted were then forwarded to the State Government which in the exercise of its powers under Sec. 7-F of the .Act decided on the 24th of December, 1958, that it was in the interest of justice that permission should be granted to the respondent No. 2. The permission prayed for by him was therefore granted. The appellant then filed the petition out of which this appeal has arisen for quashing the order of the State Government and urged three contentions in support of the petition. 3. The first point he raised was that under Sec. 7-F of the Act it was ,obligatory on the State Government to send for the record of the case and to peruse the same. In the present case. however, the State Government had passed the impugned order without getting the entire record including portion of it which related to the revision before the Commissioner. The second ground was that Sec. 7-F of the Act did not authorise the State Government to grant permission when the same had been refused by the Commissioner. The third ground was that the order of the State Government was bad and ineffective because no adequate opportunity had been given to the appellant to meet the representation which the respondent No. 2 had made to the State Government. In this connection grievance was made of the fact that the Appellant had not been able to file a counter affidavit to meet the affidavit which had been filed by the respondent No. 2 in support of the representation he had made to the State Government. 4. The learned Judge who heard the petition rejected all the three contentions urged on behalf of the appellant and as a result dismissed the petition. 5. In appeal before us, the first contention which did not find favour with the learned Judge has not been repeated because since the decision of the writ petition, the matter has been considered by a Full Bench in Kailash Chand Jain v. State of U.P. and others, 1961 ALJ 529. 5. In appeal before us, the first contention which did not find favour with the learned Judge has not been repeated because since the decision of the writ petition, the matter has been considered by a Full Bench in Kailash Chand Jain v. State of U.P. and others, 1961 ALJ 529. It has been held by the Full Bench that under Sec. 7-F of the Act it is not obligatory on the State Government to send for the record of the case and an order passed by it without having the entire record before it is not vitiated by any error of law. That decision practically concluded the first ground against the appellant and, therefore, it was not pressed before us. 6. The second ground too was not pressed before us apparently because the last few words of Sec. 7-F are wide enough to entitle the State Government to grant the permission which it has granted to the respondent No. 2. The section empowers the State Government to "make such order as appear to it necessary for the ends of justice." If, therefore, it appeared to the State Government that the ends of justice required that the permission prayed for by the respondent no. 2 should be granted to him, there was authority in the section to enable the State Government to grant the permission. 7. It is the third ground which has been strenuously pressed before us and in connection with it learned counsel for the appellant urged that the State Government functioning under Sec. 7-F of the Act really acted in a quasi-judicial capacity and not as purely administrative body. It was, therefore, bound to follow the rules of natural justice and could not pass any order without giving an effective opportunity to the appellant to have his say and to oppose the representation made by the respondent No. 2. In the present case, it was pointed out, the respondent No. 2 had filed not only a representation but also an affidavit. The State Government wanted both to be served on the appellant so that he could also file his reply and a counter affidavit. For certain reasons, however, only a copy of the representation had been served and no opportunity had been given to the appellant to file the counter affidavit. The State Government wanted both to be served on the appellant so that he could also file his reply and a counter affidavit. For certain reasons, however, only a copy of the representation had been served and no opportunity had been given to the appellant to file the counter affidavit. He could not, therefore, meet some of the points raised in the affidavit filed by the respondent No. 2 and it is quite possible that the State Government may have been led to pass the order which it has actually passed on account of that omission. 8. The important question which thus arises for decision is whether the State Government acts as judicial or quasi-judicial body while acting under Sec. 7-F of the Act or whether it acts only as an administrative body. 9. This question arose in this Court for the first time in Narottam Saran v. Government of State of U.P., AIR 1954 Allahabad 232. The Division Bench which was considering the case answered it thus : "It is clear that the State Government is given absolute discretion to pass any order it considers necessary for the ends of justice on perusal of the order. The State Government is not required to give notice to the parties or to afford them opportunities to lay their case before it or to argue their case before it. In passing such a discretionary order the State Government cannot be said to act in a quasi-judicial capacity. We are, therefore, of opinion that no writ of certiorari can issue to the Government in connection with its order under Sec. 7-F of the Act and that therefore this application is not maintainable." 10. There is in the same volume another decision of the same Bench reported at page 428 as Brij Kishore v. R.C.E.O., 1954 AIR Alld. 428 : 1954 ALJ 172. In that case also the nature of the powers possessed by the State Government under Sec. 7-F was considered. Answering a contention that Sec. 7-F of the Act provided an alternative remedy to a person aggrieved by an order of the Commissioner passed in respect of an application under Section 3 of the Act it was observed that : "We are of the opinion that this section does not afford any alternative remedy to the applicants. Answering a contention that Sec. 7-F of the Act provided an alternative remedy to a person aggrieved by an order of the Commissioner passed in respect of an application under Section 3 of the Act it was observed that : "We are of the opinion that this section does not afford any alternative remedy to the applicants. The applicants have not been given any right to approach the State Government to revise the order passed by the R.C.E.O. This section just empowers the State Government to call for the record and make suitable orders. The applicants, therefore, cannot approach the State Government by way of appeal or revision against the order of the R. C. E. O.". 11. The decision in Narottam Saran's case, A.I.R. 1954 Allahabad 232 was followed by Mr. Justice V.D. Bhargava in Sheikh Rafiuddin v. The Government of U.P., Lucknow, 1956 ALJ 329. 12. It thus appears that the view of this Court has been that the State Government does not act in a judicial or quasi-judicial capacity while functioning under Sec. 7-F of the Act but acts as an administrative body. 13. Considering the matter from point of view of principle we are in respectful agreement with the view taken, in Narottam Saran's case, A.I.R. 1954 Allahabad 232. 14. A reference to the provisions of the Act will show that by Section 3 a restriction has been placed on the landlord's right to file a suit for the ejectment of his tenants. Certain grounds are mentioned in Cls. (a) to (g). If one or more of these grounds exist the permission of the District Magistrate is not necessary for filing a suit for the ejectment of the tenant. If however none of the grounds exist no suit for ejectment can be filed without the permission. The discretion given to the District Magistrate to grant or refuse permission is absolute and it has been held by this Court more than once that the District Magistrate acts administratively while performing his functions under Sec. 3. 15. Against the order granting or refusing permission by the District Magistrate, sub-sec. (2) of Section 3 permits an aggrieved party to apply to the Commissioner in revision. A period of thirty days is prescribed for the making of the application and the way in which the Commissioner has to deal with the application in revision is mentioned in sub-sec. 15. Against the order granting or refusing permission by the District Magistrate, sub-sec. (2) of Section 3 permits an aggrieved party to apply to the Commissioner in revision. A period of thirty days is prescribed for the making of the application and the way in which the Commissioner has to deal with the application in revision is mentioned in sub-sec. (3) of Section 3 which reads thus: "(3) The Commissioner shall hear the application made under sub-sec. (2), as far as may be, within six weeks from the date of making it, and he may, 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 proceedings held before him, alter or reverse his order, or make such other order as may be just and proper." Then there is Sec. 7-F which says: "The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3 or requiring any accommodation to be let or not to be let to any person under Section 7 or directing a person to vacate any accommodation under Sec. 7-A and may make such order as appears to it necessary for the ends of justice." Cl. (4) of Section 3 makes the order of the Commissioner passed under sub-sec. (3) subject to any order passed by the State Government under Sec. 7-F. It declares that otherwise the order of the Commissioner is to be final. 16. It has been held by this Court Vide Majeed Uddin v. Ghulam Hasnain Naqvi, 1961 ALJ 32 that the Commissioner acts quasi judicially while performing functions given to him under sub-sec. (3) of Sec. 3. A comparison of the language used in sub-sec. (3) of Section 3 with the language used in Sec. 7-F of the Act will be profitable and will indicate whether the Legislature intended by enacting Sec. 7-F to confer on the State Government the same quasi-judicial capacity which according to the view of this Court it has conferred on the Commissioner under sub-sec. (3) of Sec. 3. The following points of distinction will be noticed : 1. Sub-Sec. (3) of Section 3 requires the Commissioner "to hear" an application that is made to him. (3) of Sec. 3. The following points of distinction will be noticed : 1. Sub-Sec. (3) of Section 3 requires the Commissioner "to hear" an application that is made to him. No such requirement is mentioned in Sec. 7-F of the Act. 2. A party aggrieved against the decision of a District Magistrate under sub-sec. (2) of Section 3 has been given a right to apply to the Commissioner in revision. No such right is conferred on any one so far as Sec. 7-F is concerned. 3. A limitation is provided for applying in revision to the Commissioner in sub Set.(2) of Sec. 3. There is no such limitation for approaching the State Government under Sec. 7-F of the Act or for the State Government taking action under that section. 4. The Commissioner has been required by the Statute to look into the correctness, legality and propriety of the order of the District Magistrate which he is being asked to revise and to see whether the proceedings before the District Magistrate have been regular. The State Government is not required to do these things. The only thing it is required to do is to call for the record if it considers necessary and then to pass such orders as appear to it to be for the ends of justice. 5. Sub Sec.(3) of Section 3 provides the period of limitation within which the Commissioner has to pass his orders as far as possible. There is no such period mentioned in-Sec. 7-F of the Act and the State Government may pass orders any time it likes. 6. In sub-sec. (3) of Section 3 the Commissioner can either "alter or revise the order of the District Magistrate or make such other order as may be just and proper". The State Government under Sec. 7-F is not required to alter or revise the order. The only thing it is required to do is to pass an order which appears to be just. 17. This difference in the language of the two provisions indicates with sufficient clarity that the nature of the jurisdisction which was being conferred by the Legislature on the Commissioner was not intended to be similar to the one which the State Government was to exercise. The Commissioner was required to act quasi-judicially but the State Govt. was not required to act in that manner. The Commissioner was required to act quasi-judicially but the State Govt. was not required to act in that manner. In the statute itself there-fore we do not find any indication to that while functioning under Sec. 7-F, the State Government was required to act judicially or quasi-judicially. 18. The tests which have to be applied for deciding whether under particular statute a body or tribunal acts purely administratively or in a judicial or quasi-judicial capacity have been considered and laid down by the Supreme Court in several recent cases. The question first arose in the Province of Bombay v. Khushaldas, A.I.R. 1950 SC 222, in that case the Court approved of the classic definition of a Tribunal acting quasi-judicially given by Atkin L. J. in Rex v. Electricity Commissioners, (1924) 1 KB 171 which had subsequently been accepted as correct, in Rex v. London County Council, 1931 (2) KB 215. Analysing that definition the Supreme Court observed that each of the three requisites must be fulfilled before it can be held that a Tribunal was to act quasi-judicially. These three requisites were : 1. The body must have legal authority; 2. to determine questions affecting the rights of parties; and 3. must have a duty to act judicially. This view was reiterated in Radhey Shyam Khare v. State of Madhya Pradesh, A.I.R. 1959 SC 107 and again in Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation, A.I.R. 1959 SC 308 and more recently in Shivii Nathubhai v. Union of India, A.I.R. 1960 SC 606. 19. If we apply the three tests to the present case and try to find out whether three essential characteristics of a judicial or quasi judicial body are to be found in the State Government while functioning under Sec. 7-F of the Act, we will find that the last two are missing. There is nothing in the section which requires a judicial approach. The State Government is not bound to hear anybody. It may or may not call for the record. It is not required to decide anything or to consider any rival cases put forward by parties. There is also no question of its determining any rights of the parties. There is nothing in the section which requires a judicial approach. The State Government is not bound to hear anybody. It may or may not call for the record. It is not required to decide anything or to consider any rival cases put forward by parties. There is also no question of its determining any rights of the parties. The conclusion at which it arrives and the direction which it issues in the exercise of its powers may affect the rights of some persons but it is not required by the statute to determine those rights. It cannot, therefore, be said that the State Government acts judicially or quasi judicially, while acting under Sec. 7-F of the Act. 20. It was argued in this connection by the learned counsel for the appellant that Sec. 7-F authorises the State Government to decide finally whether permission is to be granted to the landlord to eject his tenant or not, and must on that account be held to be acting quasi judicially. This identical argument was advanced in Khushaldas S. Advani's case and was rejected by Kania, C. J. when he observed: "The respondent's argument that whenever there is a determination of a fact which affects the rights of parties, the decision is quasi-judicial does not appear to be sound.......... It is broadly stated that when the fact has to be determined by an objective test and when that decision affects rights of someone, the decision or act is quasi-judicial. This last statement overlooks the aspect that every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari." It is, therefore, not possible to say that simply because the State Government has to arrive at some conclusion and that conclusion may affect the rights of certain parties it acts in a quasi-judicial capacity. 21. It is also urged that the position of the State Government under the relevant provisions of the Act is that of final court of appeal or revision. The argument does not appear to be sound. No appeal is really provided against an order of the District Magistrate granting or refusing permission under Sec. 3. The powers of revision granted to the Commissioner are wider than ordinary powers of revision. But so far as the State Government is concerned, it has not been given any powers of appeal or revision at all. It is not required to set aside or confirm the earlier order of the District Magistrate or the Commissioner. It may or may not pass any orders. It cannot therefore be said to be an appellate or revisional authority. The intention of the Legislature in enacting Sec. 7-F appears to be to give the State Government an over all power to do justice if it is satisfied that the circumstances of the case require an order different from one which the District Magistrate or the Commissioner have passed in the case. The reason possibly was that the Legislature realised that orders passed by the District Magistrate or the Commissioner may not in every case be found to be in the interest of justice. There may be circumstances or materials in the knowledge of the State Government which may not be there before the District Magistrate or the Commissioner and in the larger interest of the State and its people it may be necessary to pass orders which may have the effect of overriding the earlier orders passed by the District Magistrate or the Commissioner. 22. Reliance was placed by the learned counsel for the appellant on a decision of the Supreme Court in Nagendra Nath Bora v. Commissioner of Hills Division, A.I.R. 1958 SC 398. The decision cannot, however, be of much help to the appellant because in that case on the interpretation of the statute which had created the hierarchy of authorities it was held that the Excise Commissioner was really exercising appellate powers and was on that account acting in a quasi-judicial capacity. The very fact that a certain body is required to hear an appeal or to hear the matter as an appellate court implies that it is expected to act as judicial or quasi judicial body. Unlike the statute that was being interpreted in Nagendra Nath Bora's case in Sec. 7-F the State Government has not been given appellate powers and has not been even described as an appellate or revisional authority. 23. The appellant has therefore not been able to satisfy us that while functioning under Sec. 7-F the State Government acts in a judicial or quasi-judicial capacity and was on that account bound to hear the appellant or to give him opportunity to controvert the representation and the affidavit filed by the respondent before it. It is also not possible to accept the contention that the State Government should have passed a speaking order in the matter. That could have been necessary only if it was acting in a quasi-judicial capacity. 24. A grievance was, however, sought to be made of the fact that the appellant was, in fact, prejudiced because the respondent had filed an affidavit along with a representation be-fore the State Government but the appellant could not file a counter affidavit. It must be remembered in this connection that the State Government under Sec. 7-F was not required to adjudicate upon the rival versions put forward or to accept or reject the contention of one party on the basis of evidence. The question of filing or not filing of the affidavit was therefore not very relevant things; what the State Government found necessary was to have before it the two versions which were being put forward by the parties. It is conceded that both the appellant and the respondent put forward their own versions in the representations which they filed. The question of filing or not filing of the affidavit was therefore not very relevant things; what the State Government found necessary was to have before it the two versions which were being put forward by the parties. It is conceded that both the appellant and the respondent put forward their own versions in the representations which they filed. It is, however, said that in the affidavit which was filed by the respondent there were two paragraphs which contained allegations which were not there in the representation and as no counter-affidavit could be filed by the appellant, he was prejudiced inasmuch as the State Government had before it certain materials which could not be controverted by the appellant. We have, compared the representation filed by the respondent and the affidavit which he had filed along with it. We find nothing in the affidavit which was not there in the representation. Learned counsel in this connection pointed out paras 7 and 8 of the affidavit and said that the allegations made therein were not to be found in the representation. The allegations made in paras. 7 and 8 of the affidavit are to be found in paras. 4, 7 and 9 of the grounds mentioned in the representation. It cannot, therefore, be said in the circumstances that the appellant was, in fact, prejudiced because of the omission of the Rent Control authorities to serve on him a copy of the respondent's affidavit filed along with the representation. 25. The petition of the appellant did not therefore, make out any satisfactory case for the quashing of the order passed by the State Government under Sec. 7-F and was therefore bound to fail. The appeal is consequently dismissed with costs.