Shiv Kumar Garg v. Bhudevi — 1970 DIGILAW 419 (ALL)

ORDER J.S. Trivedi, J. - The Plaintiff-Appellant filed the suit for an injunction restraining the Defendant from demolishing the shop and from interfering with his possession as a tenant. According to the Plaintiff, the shop in suit was originally in the occupation of one Ramesh Chand who, by his letter dated 1-4-1966, intimated the Rent Control and Eviction Officer that he would be vacating the shop within a week. It is further stated that on 5-4-66 the inspector made the report that the shop was vacant and consequently the Rent Control and Eviction Officer on 11-4-66 allotted the shop to the Plaintiff. The Plaintiff further stated that he was given peaceful possession by the landlord Respondent on 13-4-66 and the rent was agreed at Rs. 50/- per month, but, subsequently, the Defendant-Respondents became greedy and wanted to increase the rent to Rs. 200/- per month on the refusal of the Plaintiff to pay the aforesaid increased rent, the Defendant-Respondents have begun to demolish the shop, hence the suit. 2. The suit was contested by the Defendant-Respondents who are admittedly the landlords of the premises in suit. According to them, the allotment order was the result of fraud and misrepresentation and was subsequently cancelled by the Rent Control and Eviction Officer. It was also stated that possession of the shop in dispute was never taken by the Plaintiff and that the shop being in a dilapidated condition, required to be demolished and the roof of the shop was already demolished. 3. The trial court decreed the Plaintiff's suit holding that the cancellation of the allotment order by the Rent Control and Eviction Officer was unjustified and that the Plaintiff was in possession on the basis of a valid allotment order. The trial court further directed that the shop be re-roofed within a period of two months. The lower appellate court allowed the appeal with the result that the suit of the Plaintiff stood dismissed, hence this second civil appeal. Two points have been urged by the learned Counsel for the Appellant. His first contention is that the lower appellate court has gone wrong in holding that the civil court has no jurisdiction to see if the ingredients of fraud were proved or not. 4. Two points have been urged by the learned Counsel for the Appellant. His first contention is that the lower appellate court has gone wrong in holding that the civil court has no jurisdiction to see if the ingredients of fraud were proved or not. 4. It is not disputed that the allotment order was cancelled by the Rent Control and Eviction Officer on 17-6-66 on a finding that the allotment order dated 11-4-66 was obtained fraudulently. It cannot be disputed that the Rent Control and Eviction Officer had jurisdiction to cancel the allotment order if the same was obtained by fraud, misrepresentation or mistake. 5. The question for determination is whether the civil court has jurisdiction to determine whether fraud or misrepresentation was proved or not, that is whether preliminary state of facts investing the Rent Control and Eviction Officer with the jurisdiction to cancel the allotment order existed or not. A suit in the civil court will always lie to question the order of a Tribunal even if the order is expressly or impliedly made final, if the said Tribunal abuses its power or does not act under the Act but in violation of its provisions. In Addanki Tiruvenkata Thata Desika Charyulu (Since deceased) and after him his legal representatives Vs. State of Andhra Pradesh and Another, AIR 1964 SC 807 , while reproducing the observations of Lord Esher in The Queen v. Commissioner for Special Purposes of the income tax (1888) 21 QBD 313, it was laid down that it is for the Parliament to consider what powers it will give to the tribunal or the body: It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. 6. There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. 6. In Smt. Munni Devi v. Gokul Chand 1970 AWR 26, it was laid down by their Lordships of the Supreme Court: The Legislature has invested the District Magistrate with power on the existence of a vacancy to allot the premises to another person, but the legislature has not made the determination of the preliminary state of facts by the District Magistrate conclusively. The jurisdiction to pass an order is inconclusive. The right of a tenant in possession is a valuable right and there is nothing in Section 7 or 7-A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises. Undoubtedly he has jurisdiction to make orders Under Sections 7 and 7-A of the Act, if there be a vacancy. But whether there is a vacancy is a jurisdictional fact which could not be decided by him finally. By reaching an erroneous decision he cannot clothe himself with jurisdiction which he does not possess. It is only when the order is with jurisdiction that the order is not liable to be challenged is a civil court by virtue of Section 16 of the Act. 7. In Chaube Jagdish Prasad v. Ganga Prasad 1959 AWR 287 SC, also it was laid down that a Wrong decision made by the house Allotment officer who exercised the power of the Distt. Magistrate u/s 3-A of the Act or an order made by him in excess of its power u/s could be rectified by a suit u/s 5(4) of the said Act. 8. In Ram Swarup v. Shikhar Chand (1966 AWR 77 SC), while considering the bar of jurisdiction of Civil Courts in relation to matters covered by the orders u/s 3(4), it was remarked by their lordships of the Supreme Court that the jurisdiction was excluded in matters covered by the provisions, but not where the order was a nullity. 9. 8. In Ram Swarup v. Shikhar Chand (1966 AWR 77 SC), while considering the bar of jurisdiction of Civil Courts in relation to matters covered by the orders u/s 3(4), it was remarked by their lordships of the Supreme Court that the jurisdiction was excluded in matters covered by the provisions, but not where the order was a nullity. 9. The result of the observations and decisions referred above is that' if the conclusions of the Rent Control and Eviction Officer are based on facts which are irrelevant or are based on facts not borne out from the record or amount to an abuse of power, or, are in violation of any of the provisions of the Act, the civil suit will not be barred. But if the conclusions of the Rent Control and Eviction Officer are based on relevant facts on which a finding could be given, even though the civil court may not agree with that finding, the jurisdiction of the civil court to interfere with that finding would be barred. Examining, therefore, the case in the light of the above principles, it cannot be said that the finding of the Rent Control and Eviction Officer to the effect that the allotment order was fraudulently obtained was erroneous. Apart from the circumstances given by the Rent Control and Eviction Officer in cancelling the allotment order, a mere inspection of the record would disclose that papers have been surreptitiously introduced and the file has been tampered with. If, therefore, the cancellation of the allotment order was right, the Plaintiff can claim no title to the shop in dispute. 10. The second submission of the learned Counsel for the Appellant that the finding of the lower appellate court about possession suffers from error of law, has also no force. According to the finding of the lower appellate court, the Appellant was never delivered possession in pursuance to the allotment order. The circumstances arid the reasons discussed by the lower appellate court, with which I agree, go to prove that the Plaintiff's case about delivery of possession is false. If possession was not delivered to the Plaintiff, the allotment order could be withdrawn without even proof of fraud or misrepresentation. The circumstances arid the reasons discussed by the lower appellate court, with which I agree, go to prove that the Plaintiff's case about delivery of possession is false. If possession was not delivered to the Plaintiff, the allotment order could be withdrawn without even proof of fraud or misrepresentation. The Plaintiff having no title, therefore, to the shop in suit, his suit for the injunction sought for was misconceived and the lower appellate court was, therefore, right in dismissing the suit. 11. For the reasons given above, this appeal has no force and is accordingly dismissed wish costs. The stay order shall stand vacated.