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1974 DIGILAW 300 (ALL)

Shyamo Dei v. Durga Prasad Mukhtar

1974-07-29

D.S.MATHUR, N.D.OJHA

body1974
JUDGMENT D.S. Mathur, C.J. - This is an appeal by Smt. Shyamo Devi, landlady, to challenge the order of the learned Single Judge, who allowed the writ petition of Durga Prasad Mukhtar, respondent No. 1, and quashed the order of the State' Government under Section 7-F of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to be as the Act) and also the order of the Additional Commissioner passed, in the revision under Section 3(3). of the Act, 2. The material facts of the cafe are that Smt. Shyamo Devi moved an application under Section 3 of the Act before the District Magistrate for the grant of permission to sue for the ejectment of the tenant Durga Prasad Mukhtar. The application was opposed by the tenant and was dismissed. The appellant then preferred a revision before the Commissioner which was allowed by the Additional Com-missioner under circler dated. 6-12-1965 (Annexure II to the writ petition). The tenant moved the State Government under Section 7-F, but unsuccessfully. He then moved the High Court under Article 226 of the Constitution to challenge the orders of the Additional Commissioner and the State Government. The writ petition was moved on the 1st of May, 1968 when the appellant was directed until further orders not to institute the suit for ejectment. The injunction order was served on the landlady on 26-5-1968. Meanwhile, the landlady instituted a civil suit on 21-5-1968 `for the ejectment of the tenon. However on 22-8-1968 further proceedings in the suit. were stayed. 3. The learned Single Judge has quashed the orders of the State Government and `the Additional Commissioner on Iwo grounds : Firstly, that the Additional .Commissioner had not considered the comparative needs of the tenant and, secondly, while dismissing the application under Section 7-F the State Government did not, disclose reasons for taking that view. The learned Single Judge has quashed the orders and remanded the revision for a fresh hearing by the Additional Corn? 4. We have been taken through the impugned order of the Additional Commissioner allowing the revision and granting permission to the landlady to sue for ejectment of the tenant. The order is a lengthy one containing the version of the parties and the submissions made on their behalf. A reference has also been made to the case law. 4. We have been taken through the impugned order of the Additional Commissioner allowing the revision and granting permission to the landlady to sue for ejectment of the tenant. The order is a lengthy one containing the version of the parties and the submissions made on their behalf. A reference has also been made to the case law. It is rather `unfortunate that the Additional Commissioner did not thereafter make his comments and give reasons for the view taken by him. The observation made in this connection are contained in paragraph 11 of the order and are as below :- "I have carefully considered the arguments advanced by the learned counsel of parties and have also gone through the case law cited by them and I have come to the conclusion that the need of the landlady applicant is really genuine and the permission sought for (?) have been granted to her. The learned RC and EO has acted with material irregularity, illegality and incorrectness in refusing to grant the permission sought for by her." 5. The above observation makes it clear that the Additional Commissioner gave no reasons why he was regarding the need, of the landlady to be genuine. Similarly, there were no comments on the comparative needs of the tenant. It was necessary for he Additional Commissioner to make his own comments and not merely reproduce the statements of the parties. In the order' under Section 7-F also the State Government gave no reasons for affirming the order of the Additional Commissioner. In these circumstances, it must be held that the comparative needs of he tenant had not been duly considered and in accordance with the Full Bench decision of this Court in Asa Singh v. B.P. Sanwal, 1968 A.L.J. 713 the orders of both the State Government and the Additional Commissioner were rightly quashed. 6. The learned advocate for the appellant, however, contended on the basis of he observations made in Mohd. Ismail v. Nanney Lal, A.I.R. 1970 S.C. 1919. that it was not necessary for the District Magistrate or the Commissioner or the State Government to disclose any reasons which had influenced them in coming to a decision. 6. The learned advocate for the appellant, however, contended on the basis of he observations made in Mohd. Ismail v. Nanney Lal, A.I.R. 1970 S.C. 1919. that it was not necessary for the District Magistrate or the Commissioner or the State Government to disclose any reasons which had influenced them in coming to a decision. This observation is in conflict with the observation of the Supreme Court in Lala Shri Bhagwan v. Ram Chand, 1965 A.L.J. 353 In paragraph 11 of the report it was clearly mentioned that the District Magistrate should indicate his reasons why he makes an order under Section 3 (2) of the Act. Later, stress was laid on the fact that unless the District Magistrate indicates the reasons the Commissioner would not be able to consider the question as to whether the order passed by the District Magistrate was correct, legal and proper. 7. In Mohd. Ismail v. Nanney Lal, A.I.R. 1970 S.C. 1919 stress was laid upon the provisions of Section 16 of the Act which made it clear that no order made under the Act by the State Government or the District Magistrate shall be called in question in any court. Consequently, the order of the District Magistrate under Section 3 or of the Commissioner under Section 3 (3) or of the State Government tinder Section 7-F could not be challenged before the civil court unless the order was a nullity or without jurisdiction. Where there is violation of the principles of natural justice it can be said that the order is a nullity but where the authority does not give reasons it cannot be said that the order is without jurisdiction or is in the eye of law a nullity. The maximum that can be said is that the order passed is defective in that it is not a detailed one nor does it give the reasons for arriving at that decision. A defective order does not stand in the category of an order which is a nullity or without jurisdiction. Consequently if the District Magistrate or the State Government does not give reasons the civil court shall not have the jurisdiction to declare the order to be invalid. A defective order does not stand in the category of an order which is a nullity or without jurisdiction. Consequently if the District Magistrate or the State Government does not give reasons the civil court shall not have the jurisdiction to declare the order to be invalid. It shall be necessary for the civil court to give effect to the order and if anyone wishes to challenge the order he shall have to invoke the extra-ordinary jurisdiction of the High Court under Article 226. 8. The present appeal arises out of a writ petition under Article 226 and, therefore, we would be justified to quash the order if it does not give reasons. 9. The next point contended by the learned advocate for the appellant is that the trial court before whom the civil suit for ejectment is pending is pressing for early disposal of the suit and that if the revision is heard again by the Additional Commissioner or by the competent authority under the new Rent Control Act and the claim of the appellant is maintained it shall become necessary for her to institute a fresh suit as the present suit is likely to be dismissed as being barred by Section 3 of the Act or the corresponding provision of the new Act. Considering that the injunction order was served on the appellant after the institution of the suit, it shall be desirable to maintain the stay order so that she may not be put to unnecessary expenses if her prayer is eventually allowed. 10. The Special Appeal has no force and is dismissed. Costs of this Court both in appeal and the writ petition, shall be on the parties. The revision under Section 3 (3) of the U. P. (Temporary) Control of Rent and Eviction Act shall now be heard in accordance with law. It is further ordered that till the disposal of the revision the hearing of the Civil Suit No. 409 of 1968 pending in the Court of the Munsif City, Meerut, shall remain stayed.