Sheo Kishan Dass v. Prescribed Authority — 1980 DIGILAW 388 (ALL)

JUDGMENT : S.J. Hyder, J. This is a tenant's petition invoking the jurisdiction of this Court under Article 226 of the Constitution. It is prayed that this Court may issue a suitable writ, order or direction quashing the order of the Prescribed Authority dated 6th of October 1976. Certain other ancillary reliefs have also been claimed in the petition. 2. Respondent No. 2 filed an application u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as 'the Act', before the Prescribed Authority for the eviction of the Petitioner from the premises in dispute on the ground of his personal need. In response to the notice issued to him, the Petitioner appeared and contested the application by filing a written statement. The case was dismissed in default of Respondent No. 2 on March 5, 1975. He made an application for the restoration of the case and the Prescribed Authority fixed 14th April, 1975 for the disposal of the application. The Petitioner has stated that notice of restoration application was not served on him and the order dated 5th of March 1975 was set aside by the Prescribed Authority behind the back of the Petitioner on April 14, 1975, it is further alleged that the case was then fixed for hearing on 23, 1975 and the Petitioner had no knowledge of the said date in consequence the Prescribed Authority passed an ex part order of eviction toner. In pursuance of the said order, the Petitioner was forcibly evicted from the premises in dispute on June 18, 1975. The landlord Respondent no acting post-haste demolished the roof of the premises which is a shop. The Petitioner moved an application for setting aside the ex-parte order dated 23rd April, 1975. The said application was opposed by the Respondent No. 2 on the ground that the premises in dispute had ceased to be an accommodation The Prescribed Authority by its order dated August 4, 1975 overruled the objection of Respondent No. 2 and allowed the restoration application field by the Petitioner Aggrieved by the said order of the Prescribed Authority Respondent No. 2 preferred Civil Misc. Writ Petitioner No. 8668 of 1978 which was dismissed on August 14, 1975. Thereafter the Petitioner moved an application purporting to be u/s 144/151 CPC for restitution. Writ Petitioner No. 8668 of 1978 which was dismissed on August 14, 1975. Thereafter the Petitioner moved an application purporting to be u/s 144/151 CPC for restitution. The said application was opposed by Respondent No. 2 and he also made an application before the Prescribed Authority stating that since the premises in dispute had become roofless, the provisions of the Act were no longer applicable to it and as such he did not intend to proceed with his application u/s 21. However, Respondent No. 2 shifted his stand and he moved another application on October 5, 1976 stating that he would not press his application u/s 21 of the Act only if the Prescribed Authority accepted his connection that the provisions of the Act were not applicable to the premises in dispute After hearing the parties, the Prescribed Authority took the view that since the proof of the premises had admittedly been dismantled, it had ceased to be a building as defined in the Act and that it had no jurisdiction to order restitution in proceedings u/s 21 of the Act. In this view of matter the Prescribed Authority dismissed the application of Respondent No. 2 as not pressed and also rejected the restitution application filed by the Petitioner. This order was passed by the Prescribed Authority one-10-1976 and it is the validity of this order which has been strongly assailed before this court. 3. This writ Petitioner has been opposed by the Respondent No. 2 who has filed a counter-affidavit. The facts stated above have not been disputed in the counter-affidavit filed by him except in one respect which shall be presently noted. In paragraph 6 of the coulter-affidavit, it is stated that initially Mach 11, 1975 fixed for the hearing of the case and the notice of the said date was served on the Petitioner and he had sufficient knowledge of the dates fixed in the cases thereafter. In the rejoinder-affidavit filed by the Petitioner, the stand taken in the writ Petitioner has been reiterated. It is significant that the stand taken by the Petitioner on this point finds support from the order of the Prescribed Authority on August 4, 1975. In the said order it has been specifically observed that from the perusal of the notice it was evident that service of notice has not been properly affected on the Petitioner. It is significant that the stand taken by the Petitioner on this point finds support from the order of the Prescribed Authority on August 4, 1975. In the said order it has been specifically observed that from the perusal of the notice it was evident that service of notice has not been properly affected on the Petitioner. It would, therefore, be reasonable to conclude that the Petitioner had no knowledge about the proceedings in the case after it was dismissed on March 5, 1975, and until the order of eviction passed against the Petitioner was given effect to on June. 4. On behalf of the Petitioner, the counsel contends that the Prescribed Authority committed a manifest error of law in holding that the premises had ceased to be a building within the meaning of the Act after the demolition of its roof. He has further contended that the view of the Prescribed Authority that it had no jurisdiction to pass an order of restituting in proceedings u/s 21 of the Act is erroneous. 5. Before dealing with the submissions advanced on behalf of the parties in this case, certain provisions of the Act and the Rules framed thereunder which are germane to the controversy in this case may be briefly stated. Under Clause (d) of Section 3, the word 'prescribed' has been defined to mean prescribed by rules made under the Act. u/s 3(1) 'building' has been, inter alia, defined to mean a residential or non-residential roofed structure. Section 21 of the Act deals with the proceedings for the release of building under occupation of a tenant and it, inter alia, lays down that the Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that the building is bona fide required by the landlord for occupation by himself Section 34 of the Act deals with the powers of the various authorities and the procedure to be followed by them. According to this Section, the provisions' of the Code of Civil Procedure, 1908 shall apply to proceedings arising under the Act in relation to the various matters referred to in Clauses (a) to (g) of Sub-section (1) of that section. According to this Section, the provisions' of the Code of Civil Procedure, 1908 shall apply to proceedings arising under the Act in relation to the various matters referred to in Clauses (a) to (g) of Sub-section (1) of that section. Clause (g) is the residuary clause and it provides that the Code of Criminal Procedure may also be followed in such other matters as may be prescribed. Section 41 of the Act states that the State Government may by notification in the Gazette make Rules to carry out the purposes of this Act, including any rules prescribing fees in respect of proceedings under the Act. Section 42 of the Act makes it obligatory on the State Government to lay the rules framed under the Act before each House of the State Legislature, for a total period of 14 days before their publication in the Official Gazette. 6. In pursuance of its rule making powers, the State Government has framed U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. Rule 22 of the said Rules has an important bearing on the facts of this case and that portion of it which is relevant is quoted below: The District Magistrate, the Prescribed Authority or the Appellate Authority shall, for the proposes of holding any inquiry or hearing any appeal under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matter, namely- (a) the power to dismiss an application or appeal for default and to restore it for sufficient cause; (b) the power to proceed ex-parte, and to set aside, for sufficient cause, an order passed ex-parte, (c).... (d).... (e).... (f) the power referred to in Section 151 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of process of the authority concerned. 7. Now it is evident from the perusal of the provisions of law contained in Section 34 of the Act and Rule 22 quoted above that the power to grant restitution u/s 144 of the Code of Civil Procedure, 1908 has not been specifically conferred on the Prescribed Authority, the District Judge or the District Magistrate. 7. Now it is evident from the perusal of the provisions of law contained in Section 34 of the Act and Rule 22 quoted above that the power to grant restitution u/s 144 of the Code of Civil Procedure, 1908 has not been specifically conferred on the Prescribed Authority, the District Judge or the District Magistrate. Nevertheless the Prescribsd Authority has been constituted as a quasi judicial body and has been entrusted with some of the functions of a court as defined in the Code of Civil Procedure, 1908. 8. It is not in controversy between the parties that the shop in dispute was a building when the application u/s 21 of the Act was moved against the Petitioner by the Respondent No. 2. The proceedings under the said provisions of law, once they had commenced, could only be terminated by a final order passed by the Prescribed Authority. True it is that the application of Respondent No. 2 was allowed by the Prescribed Authority by its ex-parte order dated April 23, 1975. However, the said order was set aside on a motion made by the Petitioner under Clause (b) of Rule 22 of the Rules framed under the Act. The effect of the order dated August 4, 1975 setting aside the ex-parte order dated April 23, 1975 was to revive the proceedings u/s 21 of the Act and the Prescribed Authority retained jurisdiction to continue the said proceedings and to decide them finally. We are unable to subscribe to the view that it was open to any of the parties to the said proceedings to divest the Prescribed Authority of its jurisdiction by his unilateral act. 9. Merely because the landlord Respondent No. 2, after obtaining a surreptitious ex-parte order, managed to evict the Petitioner and dismantle its roof, he is not entitled to claim any benefit of his own wrongful act. Under Sub-section (2) of Section 26 of the Act, a landlord is bound to keep a building under tenancy wind-proof and water-proof and this obligation can be enforced against him u/s 28 of the Act. The Petitioner, therefore, had an option to treat his tenancy as subsisting and compel the Respondent No. 2 to relay the roof which he had hurriedly dismantled. 10. The Petitioner, therefore, had an option to treat his tenancy as subsisting and compel the Respondent No. 2 to relay the roof which he had hurriedly dismantled. 10. Sri S.P. Gupta appearing for Respondent No. 2 has strenuously urged that the jurisdiction of the Prescribed Authority u/s 21 of the Act is confined only in relation to buildings and when the premises in dispute ceased to be a building as defined in the Act, the jurisdiction of the Prescribed Authority automatically came to an end. For the reasons already stated we do not feel impressed by the submission. In our opinion, the relevant date for determining the jurisdiction of the Prescribed Authority to proceed with the case was a date on which the application u/s 21 of the Act was filed. If he had jurisdiction to entertain the application on the said date, the said jurisdiction could not be lost by any subsequent event. In this context one may also refer to Clause (e) of Section 108 of the Transfer of Property Act which lays down that if a building is destroyed by some irresistible force and if the injury is not occasioned by any wrongful act or default of the tenant, he may at his option treat the tenancy as void. In the instant case, the Petitioner has unequivocally exercised his option by treating the tenancy as subsisting. It is no body's case that the loss to the building was occasioned by any wrongful act or default of the Petitioner. In our view, the Prescribed Authority committed a manifest error the of law in coming to the conclusion that he had ceased to have jurisdiction in the matter. 11. The second submission of the learned Counsel for the Petitioner is equally well founded As already stated above Clause (f) of Rule 22 of the Rules framed under the Act empowered the Prescribed Authority to make any order in the ends of justice or to prevent the abuse of the process of the authority concerned. In the instant case, the Prescribed Authority in its order dated August 4, 1975, has specifically held that notice of the restoration application moved by Respondent No. 2 was not served on the Petitioner and has accepted his contention that he had no knowledge of the ex-parte order passed against him until he was evicted from the premises. 12. In the instant case, the Prescribed Authority in its order dated August 4, 1975, has specifically held that notice of the restoration application moved by Respondent No. 2 was not served on the Petitioner and has accepted his contention that he had no knowledge of the ex-parte order passed against him until he was evicted from the premises. 12. In kendall v. Hamilton (1879) 4 Appeal cases 504 it has been observed by Lord Penzance; Procedure is but the machinery of low after all the means machinery of law after all the channel and the means whereby law is administered and justice reached. It strangely departs from its proper office when in place of facilitating it is committed to obstruct and even extinguish the legal rights and it is made to govern where it ought to sub-serve. Similar views have been expressed by Mahmood, J. in the case of Nar Singh Das v. Mongol Dube ILR 5 All 163 (FB). We are unable to find a better case where the ends of justice required the court to pass an order of restitution in order to prevent the abuse of the process of the authority of the Prescribed Authority and to do justice to a tenant who had been wrongfully deprived of his property in doing so, the Prescribed Authority would have been acting on the principles of law enunciated in the cases referred to above. 13. The matter may be looked into from another angle. The Petitioner had been deprived of the possession of the premises on account of an order passed ex parte against him by the Prescribed Authority for no fault of his. The maxim of law expressed in the Latin phrase "Actus curae neminem gravabit" namely that the error of the Court will cause no harm to a litigant fully applies to the instant case. The maxim of law expressed in the Latin phrase "Actus curae neminem gravabit" namely that the error of the Court will cause no harm to a litigant fully applies to the instant case. In Rogers v. Comptoir-d' Escompte-departs (1871) 3 PC 475 Lord Cairus has admirably stated the Law on the subject in the following words; One of the first and the highest duties of all the courts is to take care that the act of the court, does no injury to any of the suitors and when the expression 'act of the court' is used, it does not mean merely the act of the primary court or of any intermediate court of appeal but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter upto the highest court which finally disposes of the case. 14. In view of this statement of law, which has never been called in question, the Prescribed Authority was clearly in error in throwing its hands in despair and saying that it had no jurisdiction to repair the damage which had been done to the Petitioner by an ex-parte order which has been passed against him without any notice. 15. In the case of Gangadhar and Others Vs. Raghubar Dayal and Others, AIR 1975 All 102 , a Full Bench of this Court has held that Section 145 of the Code of Criminal Procedure was not exhaustive of the power of the court to grant restitution and that such restitution can also be granted in a suitable case in the exercise of the inherent powers vested in it. Even though Section 144 of the Code of Criminal Procedure did not in terms apply to the proceedings before the Prescribed Authority, the Principles underlying Section 151 had been expressly made applicable to proceedings under the Act. In that view of the matter also, the Prescribed Authority was in error in refusing to exercise jurisdiction vested in it by law. 16. For the reasons stated above, this writ petition must succeed and is therefore, allowed. The order of Prescribed Authority dated October 6, 1976 is hereby quashed. The case is remanded to the Prescribed Authority, Pilibhit for decision in accordance with the observations made above and in accordance with law. The Petitioner will be entitled to receive his costs from the Respondent No. 2.