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1964 DIGILAW 281 (ALL)

Shyam Sunder Bajpai v. Commissioner Allahabad Division, Allahabad

1964-09-07

S.C.MANCHANDA

body1964
JUDGMENT S.C. Manchanda, J. - This is a writ petition under Article 226 of the Constitution by the landlord. The relief claimed is for the issue of writ of certiorari or other suitable writ for quashing the order of the Commissioner dated 22nd March, 1961, whereby he allowed the application of the tenant, and set aside the order of the Rent Control and Eviction Officer dated 22nd of August 1960 granting permission to the petitioner under Section 3 of the Rent Control and Eviction Act (hereinafter referred to as the Act) for ejecting the tenant - opposite party. 2. The Rent Control and Eviction Officer, after carefully considering the case of both the tenant and landlord and also after making personal inspection, came to the following conclusion: "Now in view of the above facts and after personal inspection of the premises I am fully satisfied that the need of the applicant for the disputed accommodation is perfectly genuine and most pressing. In the result, the requisites permission is accorded to the applicant under Section 3 of the Act." 3. Against the order of the Rent Control and Eviction Officer, the tenant-opposite party filed a revision which was beyond the period of limitation as prescribed under Section 3(2) of the Act by one day. The Commissioner, without any application by anyone or any affidavit, condoned the delay by observing: "The time-bar of one day is condoned." 4. On the merits he considered that the tenant had build up a good-will during the last seven years as a practising lawyer and was of the view that the Rent Control and Eviction Officer had not properly appreciated the needs of the tenant and therefore, the order of the Rent Control and Eviction Officer suffered from "impropriety" and as such it required to be set aside. Hence the writ petition. 5. The main contention of the learned counsel for the petitioner is that the entertainment of the revision by the Commissioner, when the revision was barred by time, was wholly without jurisdiction and he had no power to condone the delay. Hence the writ petition. 5. The main contention of the learned counsel for the petitioner is that the entertainment of the revision by the Commissioner, when the revision was barred by time, was wholly without jurisdiction and he had no power to condone the delay. On the merits, it was contended that in view of the full Bench decision in Parmeshwar Dayal v. Additional Commissioner, Lucknow, 1963 A.I.J. 296, it was not obligatory to consider the need of the tenant and in any event when the needs of the tenant had already been considered by the Rent Control and Eviction Officer, the Commissioner could not have interfered on the ground that the need of the tenant had not been "properly appreciated" by the Rent Control and Eviction Officer. 6. The main question, therefore, that falls to be considered is, as to whether the Commissioner had the necessary jurisdiction to condone the delay of one day? The provisions of Sec, 5 of the Indian Limitation Act have not specifically been made applicable to the Rent Control and Eviction Act and as such the provisions of Section 29 (1) of the Limitation Act could not have come to the rescue of the revisionist tenant before the Commissioner. Therefore, there could have been no question of jurisdiction to condone the delay of one day under the provisions of Section 5 of the Limitation Act. It is not also clear as to which provision of law was invoked by the learned Commissioner to condone the delay in the filing of the revision. Be that as it may, the tenant opposite party here. before me has taken shelter under the provisions of Section 29 (2) read with Sec, 12 of the Limitation Act and claims that if the period taken for obtaining a certified copy of the order of the Rent Control and Eviction Officer, which was of one day, is excluded, the revision before the Commissioner would have been within time and as such no question of condoning the delay by the Commissioner would have arisen. There is, however, difficulty in his way as there is a decision of this Court in Ram Lakhan v. Bishesharnath, 1959 A.L.J. 733 which, perhaps, is the only reported authority on the subject and is against the view contended for by him. There is, however, difficulty in his way as there is a decision of this Court in Ram Lakhan v. Bishesharnath, 1959 A.L.J. 733 which, perhaps, is the only reported authority on the subject and is against the view contended for by him. The point that arose in that case was whether the Commissioner had any power to condone the delay in filing the revision beyond the period of 30 days stipulated in sub-Sec, (2) of Section 3 of the U. P. Rent Control and Eviction Act. In that case also time was taken for obtaining a certified copy of the order of the Rent Control and Eviction Officer which was sought to be excluded by reference to the provisions of Section 12 of the Limitation Act. It was also contended as has been contended before me, that the word 'Appeal' in Section 12 (2) of the Limitation Act should be given a wide meaning so as to embrace a "revision" therein. Reliance was there placed on a decision by Desai, J. (as he then was) in Ram Singh v. Panchayati Adalat 1954 A.L.J. 18 and the decision of the Judicial Committee in the case Nagendra Nath Dev v. Suresh Chandra Dev, A.I.R. 1932 P.C. 165 for the proposition that the word 'Appeal' has to be given a wider significance than that which obtains under the Civil Procedure Code. Both these cases were held to be distinguishable. It was pointed out that an appeal is a creature of Statute and unless a specific provision has been made for an appeal, such a right cannot inferred or exercised. Moreover, the word 'revise' in Section 3(2) of the U. P. Control of Rent and Eviction 'Act could not be given a meaning which would make it co-extensive with the power exercisable under appeal. It was also observed that there is one essential difference between the two powers, namely the appellate power and the revisional power and that is that in an appeal it is a party's right to have the mistake corrected while in a revision the court or any other authority that has been approached is not bound to correct a mistake even if the court comes to the conclusion that there was a mistake, for the power of revision or the power to revise has in it inherent, discretionary power. As already observed this was the only direct authority on the point of limitation and as such, there was no alternative for the learned Commissioner but to accept this as the view of this Court on the point of limitation in the filing of a revision petition and to have followed it. 7. The main effort of learned counsel for the tenant opposite party has been to distinguish the aforesaid decision and to urge that certain the Division Bench decisions of is court had not been brought to the notice of Mukherji, J. who had given n the aforesaid judgment and erefore this was a fit case for reference to a larger Bench for an authoritative pronouncement. I cannot accede to this contention. It is true that the decisions in Ajudhia Prasad v. The U.P. Government, 1947 A.L.J. 79 and Amritsar Sugar Mill v. The Commissioner Sales Tax, Lucknow, 1952 A.L.J. 183 and in Dropadi v. Hira Lal, O.L.R. 34 p. 496 were not specifically considered by Mukherji, J., but the decision of the Judicial Committee which was followed and constituted the basis for the decision given by the Division Benches in the said three cases relied upon by the opposite party was duly considered and distinguished. The basic and leading authority having been duly considered and distinguished it is not possible to contend that the decision of Mukherji, J. would have been different if these other decisions had been brought to his notice. In any event Ajudhia Prasad's case deals with - the period of limitation for executing a decree under Article 183 and for the limited purpose of Art: 182, an appeal was held to be co-extensive with a revision. From this it cannot possibly be concluded that even a revision under Section 3(2) of the Rent Control and Eviction Act should also be equated with an appeal. Dropadi's' case was in respect of an appeal under the provisions of the Insolvency Act and not a revision as in the present case. The Amritsar Sugar Mills' case, is clearly distinguishable as that pertains to a reference under Section 11(2) (b) of the U. P. Sales Tax Act, and Section 12 of Limitation Act on general principles was held to be applicable. The Amritsar Sugar Mills' case, is clearly distinguishable as that pertains to a reference under Section 11(2) (b) of the U. P. Sales Tax Act, and Section 12 of Limitation Act on general principles was held to be applicable. It is quite clear that the learned judges who decided that case did not intend the decision to be of general application but required it to be confined to the facts of that case. It was there observed : "In view of what has gone before, it is in our view only just and equitable that the benefit of Section 12 of the Indian Limitation Act should be available to an applicant of the present character." 8. These cases relied upon by the learned counsel for the opposite party are of little or no avail in the face of a clear and direct authority of this Court that the provisions of Section 12(2) of the 'Limitation Act have no application to revisions under Section 3 (2) of the U. P. Rent Control and Eviction Act. That being the law as laid down by this court, it is manifest that the application for revision should never have been entertained as it was beyond the period of 30 days and no question of condoning the delay arose. The order of the learned Commissioner condoning the delay was, therefore, one without jurisdiction. 9. Learned counsel for the opposite party, then contended that the order of the Commissioner was an administrative order and therefore it could not be interfered with under Article 226 of the Constitution. For this proposition reliance was placed on a Division Bench decision in Murlidhar v. State of U.P., 1963 A.L.J. 1116 where it was held that the Commissioner's order is not a quasi-judicial but an administrative order as much as that of the Rent Control Eviction Officer. Against this there is another Bench decision of this Court in Majid Uddin v. Gulam Hasan Naqvi, 1961 A.L.J. 32 where it has been laid down that the order passed by the Commissioner in revision is of a quasi-judicial nature and, therefore, liable to be quashed if it suffers from an apparent error of law. The recent full Bench decision in Parmeshwar Dayal v. Additional Commissioner Lucknow, 1963 A.L.J. 296 left this matter undecided. The recent full Bench decision in Parmeshwar Dayal v. Additional Commissioner Lucknow, 1963 A.L.J. 296 left this matter undecided. It is, in the circumstances of this case not necessary to determine this question as such an order be it quasi-judicial or an administrative order if passed without jurisdiction would certainly be amenable to the writ jurisdiction of this Court. 10. It was next contended that even if the order was without jurisdiction it should not be interfered with unless manifest injustice had resulted by the entertainment of the belated petition by the Commissioner. There is no force in this contention as the Rent Control and Eviction Officer had found as a fact that the need of the landlord was genuine and pressing and to be deprived of the opportunity of filing a suit for ejectment against the tenant would undoubtedly amount to a manifest injustice. 11. Lastly, it was contended that the alternative remedy under Section 7(F) of the Act by approaching the State Government was available and that not having been availed of, the extraordinary writ jurisdiction of this Court should not be allowed to be invoked. There is also no force in this contention. As laid down in M.L. Goel v. S.K. Pehlwan 1958 A.L.J. 897 where' following the earlier case in Brij Kishore v. The Rent Control Officer, Kanpur, 1954 A.L.J. 172, it was observed : "We are of opinion that this Section 7-F of the Act 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 Rent Control and Eviction Officer." 12. In any event a revision unlike an appeal gives no right to a party to have the mistake corrected and in the very nature of a revision it is dependent on the discretion of the authority exercising such power. 13. For the reasons given above, a writ in the nature of certiorari will issue quashing the order of the Commissioner dated 22nd March, 1961. 14. Accordingly the petition is allowed but in the circumstances of the case there will be no order as to costs.