Abdul Rashid Ansari v. Syed Mahmood Hussain — 1971 DIGILAW 247 (ALL)

JUDGMENT K.N. Srivastava, J. - This second appeal and the contended two civil revisions arise out of the following facts :- The disputed house is situated in Mohalla Tambacoo Walan, Moradabad. Syed Mahmood Hussain is admittedly the owner of this house. This house, according to the plaintiff Abdul Rashid Ansari, was in the tenancy of Akhlaq Ahmad. After Akhlaq Ahmad vacated this house, it was allotted in the name of Abdul Rashid Ansari, but before Abdul Rashid Ansari entered the house, a Kothri of the house was wrongfully occupied by the Syed Mahmood Hussain who put some furniture therein and the other portion was wrongfully occupied by Mohammed Umar, a relation of Syed Mahmood Hussain. The allotment order in favour of Abdul Rashid Ansari was passed on 8.6.1962. Thereupon, Abdul Rashid Ansari plaintiff filed an application for the removal of the unauthorised occupation by Sued Mahmood Hussain and Mohammad Umar as provided under Section 7 of the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act). This application was allowed and against this order, Mohammad Umar filed a revision on 4.9.1962. It was dismissed in default. It was restored on 7.9.1962. Thereupon the landlord made an application on 12.9.1962 that he should also be added as a party in the revision. In this revision, Abdul Rashid Ansari was made a party but it is contended that the plaintiff could not put in appearance as no notice had been given to him. This revision was allowed on 19.1.1963. While allowing the revision-application and ordering the remand the Commissioner observed that as a portion of the accommodation was in the possession of the landlord himself, therefore, the allotment was defective and illegal as no compliance of Section 7 of the Act had been made. Earlier the plaintiff had taken possession over the house on the strength of the order passed by the District Magistrate on his application under Section 7-F of the Act. The possession over the house was taken by the plaintiff on 8.9.1962. On 3.2.1965, the allotment order in favour of the plaintiff was set aside. A writ petition was filed for restoration of the possession by Syed Mahmood Hussain and Mohammad Umar. In this writ petition, the question as to whether the restitution could be claimed was referred to a larger Bench. The larger Bench decided this question in the affirmative. On 3.2.1965, the allotment order in favour of the plaintiff was set aside. A writ petition was filed for restoration of the possession by Syed Mahmood Hussain and Mohammad Umar. In this writ petition, the question as to whether the restitution could be claimed was referred to a larger Bench. The larger Bench decided this question in the affirmative. The writ petition was then decided. 2. The plaintiff then filed the present suit that he was not liable to be ejected from the premises as it had been validly and legally allotted to him. 3. This suit was dismissed by the trial Court holding that the allotment in favour of the plaintiff was not a legal and valid allotment. The plaintiff then filed an appeal. This appeal was also dismissed by the lower appellate Court who agreed with the finding of the trial Court that allotment in favour of the plaintiff was not valid. The lower appellate Court also held that the claim made by the plaintiff was barred by the principle of res judicata also being dissatisfied, the plaintiff has filed this second appeal. 4. The learned counsel for the appellant contended that the Rent Control and Eviction Officer had no jurisdiction to set aside the allotment order unless the allotment order was obtained by misrepresentation or fraud and unless a notice was served on the allottee to show cause as to why the allotment order be not set aside. According to the learned counsel for the appellant, unless these two conditions are satisfied, the order setting aside the allotment order would be an order without jurisdiction. He also contended that under Section 7-A of the Act, the Commissioner had the power to revise the order passed by the District Magistrate only if a ground was made out that the person occupying the house had a right to do so. He urged that in a proceeding under Section 7-A of the Act, the allotment order passed by the District Magistrate under Section 7(2) of the Act could not be challenged nor an order against it could be passed. He urged that in a proceeding under Section 7-A of the Act, the allotment order passed by the District Magistrate under Section 7(2) of the Act could not be challenged nor an order against it could be passed. He contended that in this view of the matter, the Commissioner's observation in his order dated 19.1.1963 that portion of the accommodation was in possession of the landlord and as the wishes of the landlord was not ascertained, as laid down in Rule 7, therefore, the allotment was illegal, should not have been made by the Commissioner. 5. The main question in this case is as to whether the order passed by the Rent Control and Eviction Officer setting aside the allotment in favour of the plaintiff could be challenged in this case. In other words, whether the Civil Court had jurisdiction to try the dispute and to give a finding that the order of allotment was not liable to be set aside by the Rent Control and Eviction Officer. There can be no dispute that even if the enactment does not provide so, the authority passing the order has the inherent jurisdiction to recall the order but that order of recall must be passed according to the established principles of natural justice i.e., the party against whom that order is passed must be given a notice and he should be heard before the order is passed. Obviously, in the instant case, no notice was given to the plaintiff by the Rent Control and Eviction Officer that he intended to set aside the allotment order in favour of the plaintiff. The plaintiff, therefore, could not get an opportunity to show cause against this proposed order. In my opinion, this order setting aside the allotment order was without jurisdiction and against the principles of natural justice. The view I have taken is also supported by a decision of this Court in Ram Prakash (petitioner) v. Government of Uttar Pradesh, Lucknow, 1967 ALJ 635. In the above case, it was held that if the order was passed without giving an opportunity to the allottee to show cause, it was an order without jurisdiction. 6. The learned counsel for the respondent relied on a decision of the Supreme Court in Ramji Das (Appellants) v. Trilok Chand (Respondents), 1970 ALJ 1143. In the above case, it was held that if the order was passed without giving an opportunity to the allottee to show cause, it was an order without jurisdiction. 6. The learned counsel for the respondent relied on a decision of the Supreme Court in Ramji Das (Appellants) v. Trilok Chand (Respondents), 1970 ALJ 1143. In this case, the Supreme Court held that the Civil Court had no jurisdiction to try a suit where an order by a Rent Control and Eviction Officer or Commissioner under the Control of Rent and Eviction Act is passed. It was further held that such an order can only be challenged in a writ petition under Article 226 of the Constitution of India and not in any civil suit. On the basis of this decision, the learned counsel for the respondent contended that the jurisdiction of the Civil Court was barred from holding that the Rent Control and Eviction Officer's order setting aside the allotment was illegal or bad in law. 7. It is a well settled principle of law that the Civil Court had jurisdiction to try all suits unless the trail of the same is excluded by some special law. It is true that Section 16 of the Act provides that the order passed under the Act cannot be challenged in a Civil Court but does these provisions go to show that even such orders which are not passed within the four corners of the Act are also barred from the jurisdiction of the Civil Court. It should be noted here that the order setting aside the allotment order passed without notice to the plaintiff and without hearing him was an order without jurisdiction. That order, therefore, did not have any value in the eye of law. The plaintiff was, therefore, not called upon to challenge that order in any Court of law because being void, it was ineffective. He was forced to file the suit when after the restitution, the authorities took steps to eject the plaintiff. 8. That order, therefore, did not have any value in the eye of law. The plaintiff was, therefore, not called upon to challenge that order in any Court of law because being void, it was ineffective. He was forced to file the suit when after the restitution, the authorities took steps to eject the plaintiff. 8. In Ramji Das's case (supra), the Supreme Court was dealing with a case where the order had been passed by the Commissioner within the four corners of Section 3(3) and there was no plea that the order of the Commissioner under Section 3(3) of the Act was beyond jurisdiction and not in conformity with the requirement of the aforesaid section and other provisions of the Act. 9. On the other hand, in Ram Swaroop v. Shikar Chand, AIR 1966 Supreme Court 893, the Supreme Court held that the jurisdiction of the Civil Court to entertain a suit was not barred where the matter goes to the very root of the matter and the impugned order is a nullity. While dealing with this aspect of the case, the Supreme Court observed as below :- "It cannot be seriously disputed that the jurisdiction of the Civil Courts to deal with civil causes can be excluded by the Legislature by special Acts which deal with special subject-matter; but the exclusion of jurisdiction of the Civil Courts must be made by a statutory provision which expressly provides for it, or which necessarily and inevitably leads to that inference. In other words, the jurisdiction of the Civil Courts can be excluded by statutory provision which is either express in that behalf or which irresistibly leads to that inference". "Likewise, in the absence of such a statutory provision, if it is held that the proceedings before the appropriate authorities contemplated by Section 3 are in the nature of quasi-judicial proceedings and they must be tried in accordance with the principles of natural justice, and it is shown that in a given case and order has been passed without notice to the party affected by such order, it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and its existence should be ignored by the Civil Court. Such a plea cannot in our opinion, be excluded by a reason of the provision contained in Section 3(4) and Section 16 of the Act". The same has been held by the Supreme Court in Smt. Munni Devi v. Gokal Chand, 1970 ALJ 1066 : 1970 Rent Control Reporter 997. In this case, it was observed as below :- "The jurisdiction to pass an order in ejectment only raises if there is a vacancy. The right of a tenant in possession is a valuable right and there is nothing in Section 7 or Section 7-A of the U.P. (Temporary) Control of Rent and Eviction Act 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 vacancy is a jurisdictional fact which could not to 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 in a Civil Court by virtue of Section 16 of the Act. In both these Supreme Court cases the question was as to whether an order passed in contravention of the provision of the Act and without jurisdiction could be challenged in a Civil Court and the reply was in affirmative. Therefore, the principle laid down in Ram Swaroop's case (supra), and Munni Devi's case (supra), apply to the facts of the present case. 10. On behalf of the respondent, reliance was placed on Single Judge decision of this Court Kashi Agarwal (Petitioner) v. Regional Inspectress of Girls School, 1970 ALJ 1238. In this case, it was held that where the petitioner's service were terminated by illegal order, the mere fact that it had been set aside by another illegal order should be sufficient in not exercising the discretionary jurisdiction vested in the High Court. This ruling too do not apply to the facts of the present case because this decision was given where the question arose as to whether Article 226 of the Constitution of India applied to the facts or not and, therefore, this ruling too does not apply to the facts to the present case. 11. This ruling too do not apply to the facts of the present case because this decision was given where the question arose as to whether Article 226 of the Constitution of India applied to the facts or not and, therefore, this ruling too does not apply to the facts to the present case. 11. The learned counsel for the respondent next contended that the respondent was ordered to be in possession of the accommodation under Section 7-A of the Act on 2.1.1967. Against this order, the plaintiff-allottee filed a revision which was dismissed on 25.7.1967 and as the earlier order dated 2.1.1967 has merged in the order dated 25.7.1967 and as this latter order has not been challenged, therefore, the plaintiff cannot challenge the order dated 2.1.1967. 12. In support of this contention, the learned counsel for the respondent relied on a decision of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 Supreme Court 1 : 1970 Rent Control Reporter 311. This ruling too does not apply to the facts of the present case. I have already held that the order setting aside the allotment order in favour of the plaintiff was without jurisdiction. The landlord was ordered to be put in possession over the premises on the basis of this order setting aside the allotment order in favour of the plaintiff. As this very order was void and without jurisdiction, therefore, and other subsequent order passed either ordering that the landlord be put in possession or dismissing the revision against this order would not in any way, affect the case because the very foundation of these order was based on an order which was illegal and without jurisdiction. In this view of the matter, Shankar Ramchandra Abhyankar (supra), case too does not apply to the facts of the present case. 13. It was next contended that a portion of the accommodation was already in possession of the landlord and, therefore, it was absolutely necessary that the Rent Control and Eviction Authorities to have considered the wishes of the landlord while making the allotment order and as this allotment order was made in contravention of Rule 7, therefore, it was an illegal and inoperative order of allotment. There is no evidence on the record that when this premises was in the tenancy of Akhlaq Ahmad, the landlord was occupying any portion of the building. There is no evidence on the record that when this premises was in the tenancy of Akhlaq Ahmad, the landlord was occupying any portion of the building. The only evidence on the record in regard to this fact is that at the time the delivery of possession was given to Abdul Rashid Ansari, plaintiff, it was found that there was some furniture and other belongings of the landlord in one of the rooms. As inventory of the articles and furniture's were prepared, it could be possible that when Akhlaq Ahmad left the premises and before Abdul Rashid Ansari entered into it, the landlord in order to defeat the allotment order, might have surreptitiously put some furniture's in one of the rooms. Mohammad Umar had no concern with this allotment. He is a relation of the landlord. There is no evidence that he was in possession of any portion of the premises when the premises was in the tenancy of Akhlaq Ahmad. In this view of the matter, there is no convincing and satisfactory evidence that the landlord was in occupation of a portion of the premises from before the date of the allotment and as such there was no need of taking his consent as required under Section 7 of the Act before ordering the allotment of the premises to Abdul Rashid Ansari, plaintiff. In this view of the matter, it cannot be said that the order of allotment which was made in favour of the plaintiff on 8.6.1968 was an illegal or inoperative order. 14. In view of the above discussion the judgment and decree passed by the trial Court and the lower appellate Court cannot be maintained. 15. In the result the appeal succeeds. It is here by allowed. The plaintiff's suit stands decreed. In the special circumstances of this case, the parties shall bear their respective costs of this appeal. 16. So far as the revisions are concerned, in view of the above discussion, they only succeed in this respect that the amount decreed in favour of the defendant-landlord should be not as way of mesne profit but should be deemed to be as to a decree for rent. With thus exception, the two revisions stand dismissed in all other respects. The parties shall bear their respective costs of these revisions.