Bengali v. District Judge, Allahabad — 1985 DIGILAW 901 (ALL)

ORDER S.D. Agarwala, J. - This is a petition under Article 226 of the Constitution of India. The facts giving rise to the present petition briefly are as follows : The property in dispute is premises No. 73(new) 51 A(old), Meerganj, Allahabad. Originally the property was under the tenancy of Smt. Bauli. After her death it was inherited by Babu Singh, who is respondent No. 3 to the petition. It appears that on 21-12-1973 Babu Singh left Allahabad for Delhi. When he came back on 9th June, 1976, he made an application to the Superintendent of Police (City), Allahabad stating therein that he is the tenant of the premises in dispute. Thereafter, he filed an application in the Court of District Magistrate under S. 33 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, U.P. Act XIII of 1972, hereinafter referred to as the Act. The application was made on the ground that the petitioner, Bengali had contravened the provisions of the Act inasmuch as he is an unauthorised occupant of the property in dispute. He has come into possession of the property without an allotment order and he should be punished in accordance with the provisions of the Act. This application was registered as case No. 13/22/48 of 1979 Babu Singh v. Ratan Kumar and others The application came up for hearing before the Additional District Judge, Allahabad. The Additional District Judge. Allahabad by an order dated 9-10-1979 held that the property in dispute had been let out by the landlord to Bengali when Babu Singh had gone out of station in 1973 and that the monthly rent of Rs. 150/- per mensem is being paid by Bengali regularly thereafter which was supported by rent receipts filed by Bengali. The application moved by Babu Singh was consequently rejected and his request for evicting Bengali from the premises in dispute on the ground that he was an unauthorised occupant of the premises was not acceded to. The order dated 9th October, 1979 was challenged by Babu Singh before the Commissioner by way of revision. The Commissioner, Allahabad Division, Allahabad by an order dated 8th April, 1981 affirmed the decision dated 9th October, 1979. 2. The order dated 9th October, 1979 was challenged by Babu Singh before the Commissioner by way of revision. The Commissioner, Allahabad Division, Allahabad by an order dated 8th April, 1981 affirmed the decision dated 9th October, 1979. 2. After the decision by the Commissioner, Babu Singh filed suit No. 94 of 1982 in the Court of Munsif (West), Allahabad, inter alia, for a declaration that he may be declared as a tenant of the premises in dispute. It was also prayed that Bengali, defendant No. 8 in the suit, if he is found in possession over the house in dispute, be evicted and the possession of the premises be delivered back to him. A further prayer was made for recovery of Rs. 300/- as a price and damages from Bengali. 3. In the suit the trial Court framed the issues. The two preliminary issues framed by the trial Court were issues Nos. 10 and 11. Issue No. 10 which is relevant for the purposes of the present petition was to the effect as to whether the suit is barred by the principles of res judicata. 4. The trial Court by- order dated 30th May, 1983 held that the suit was not barred by the principles of res judicata and accordingly decided issue No. 10 against the petitioner, Bengali. The petitioner being aggrieved by the order dated 30th May, 1983 filed a revision before the District Judge in regard to the decision on issue of res judicata. The District Judge by an order dated 1-8-1973 dismissed the revision in limine, and upheld the order of the trial Court. While dismissing the revision, only the provisions of S. 14 of the Act were considered and the revision was not admitted on an observation being made that no finding was given about the tenancy and as such the suit in question cannot be barred by the principles of res judicata. Aggrieved by the decision dated 1-8-1983 as well as that of the trial Court the present petition has been filed in this Court. 5. I have heard the learned counsel for the parties at length. 6. Learned counsel for the petitioner has contended that the findings recorded by the authorities under the Act will operate as res judicata in a subsequent suit. 5. I have heard the learned counsel for the parties at length. 6. Learned counsel for the petitioner has contended that the findings recorded by the authorities under the Act will operate as res judicata in a subsequent suit. The argument in effect is that the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is a self-contained Code. The decisions given by the authorities under the said Code are final. They have exclusive jurisdiction to give the said decision and finality has been attached to those decisions. In the circumstances, any decision given in proceeding under the Act will have the effect of res judicata in a subsequent proceeding. 7. Learned counsel for the respondents, however, has urged in reply that the proceedings under S. 33(i) of the Act relate to the prosecution of a person under the provisions of the Act. Only the complaint has to be lodged on the authority given by the District Magistrate. No decision in regard to tenancy was necessary to be given and as such any decision given in these proceedings would not affect a suit filed subsequently for declaration of the tenancy rights in respect of the property in dispute. He has further urged that no application under S. 14 of the Act is maintainable and consequently any observation made treating it to be a proceeding under section 14 of the Act is wholly without jurisdiction and any decision given in a proceeding without jurisdiction cannot possibly operate as res judicata. He has further urged that in any case the finding given by the authorities under the Act was only for the purpose whether prosecution be launched against the petitioner, Bengali or not and as such findings given in these proceedings cannot operate as res judicata and the decision given by the Court below does not suffer from any manifest error of law. 8. 8. Section 11 of the Code of Civil Procedure lays down that no Court shall try an issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Admittedly, in the instant case S. 11 of the Code of Civil Procedure does not in terms apply as the earlier litigation in respect of which the argument of res judicata, has been raised was decision given by a authority under the U. P. Act XIII of 1972. 9. The question which I have to consider in the instant case is as to whether the principles of res judicata are applicable to the facts of the present case or not. In Smt Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 , it has been specifically laid down by the Hon'ble Supreme Court as follows :- "When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue Courts, land acquisition Courts, administration Courts, etc. It is obvious that these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the Statute." 10. In Ram Lal v. Vth Additional District Judge, 1978 U.P. Rent Control Cas 351, Hon'ble U. C. Srivastava, J. had an occasion to consider as to whether the findings given in a proceeding under the Rent Control Act would operate as res judicata in a subsequent suit. It was held by him as follows : "The legislation pertaining to the Rent Control matters has also conferred exclusive Jurisdiction on rent control Courts and in respect of such matters the provisions of Transfer of Property Act and certain other Acts do not apply. It was held by him as follows : "The legislation pertaining to the Rent Control matters has also conferred exclusive Jurisdiction on rent control Courts and in respect of such matters the provisions of Transfer of Property Act and certain other Acts do not apply. The Courts under the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act are Courts of exclusive jurisdiction and finality has been attached to their decisions. Section 37 of the said Act makes it clear that no order made in exercise of any power conferred by or under this Act shall be called in question in any Court." 11. In view of the above, it has been held that the principles of res judicata are also applicable in respect of the findings given under the U. P. Act XIII of 1972 by the Courts under the said Act, even though the said Court may not be competent to entertain the subsequent suit. 12. I, respectfully agree with the decision given by Hon'ble U.C. Srivastava, J. in the case of Ram Lal, 1978 U P Rent Control Cas 351 (supra). 13. The U.P. Act ' XI II of 1972 was promulgated by the legislature with a view to provide in the interest of general public for the regulation of letting and eviction of tenants from certain classes of buildings situated in urban areas and for matters connected therewith. Specific provisions are found in the Act in respect of those properties which come under the purview of-the Act as to the manner in which the property will be let out, whom it will be let out and what will be the rent payable in respect of the said building. In fact a statutory tenancy has been created by the Act. The entire letting of the properties as well as payment of rent is governed by the various provisions of the Act. If a person is aggrieved by a decision given by any authority under the Act, specific provisions are made as to where the aggrieved person can go for relief. On an analysis of the Provisions of the U.P. Act XIII of 1972 it is apparent that it is a complete Code by itself. It provides for appeals, revisions against the orders which the legislatures thought fit to be challenged by the persons aggrieved. As already indicated earlier. On an analysis of the Provisions of the U.P. Act XIII of 1972 it is apparent that it is a complete Code by itself. It provides for appeals, revisions against the orders which the legislatures thought fit to be challenged by the persons aggrieved. As already indicated earlier. S. 37 of the Act gives finality to the orders passed under the Act and consequently it was specifically provided that no order made in the exercise of any power conferred by or under the Act shall be called in question in any Court. This clearly shows that the courts exercising jurisdiction under the Act are courts of exclusive jurisdiction and consequently the principles laid down by the Hon'ble Supreme Court in Raj Lakshmi Dasi's case, AIR 1953 SC 33 (supra) fully apply to the decision given by the authorities concerned under the Act. In the circumstances the contention raised by the learned counsel for the petitioner that the general principles of res judicata would be applicable to the case is well founded. 14. In the instant case Babu Singh had made an application under S. 33(1) of the Act before the District Magistrate, as no prosecution can be launched for an offence under the Act unless it is authorised by the District Magistrate, the District Magistrate while considering the application of Babu Singh as to whether Bengali, the petitioner had committed an offence punishable under the Act had gone into the question as to whether he was a tenant of the premises in dispute, whether his tenancy was a valid tenancy and as to whether he contravened the provisions of the Act or not. The decision on this matter was a condition precedent for the decision on an application under S. 33 read with S. 31 of the Act. It was because of the application of Babu Singh that the parties led evidence on the question as to whether Bengali was a tenant of the premises or not. After examining the voluminous documentary evidence on record, the Additional District Magistrate by an order dated 9th October, 1979 recorded a finding that after 21st December, 1979 when Babu Singh left Allahabad, the landlord had let out the house to Bengali. The landlord admitted Bengali to be his tenant by his affidavit dated 3-10-1977 and that the monthly rent of Rs. The landlord admitted Bengali to be his tenant by his affidavit dated 3-10-1977 and that the monthly rent of Rs. 150/- per mensem was being paid regularly since December, 1973 by Bengali to the landlord. These findings were based on documentary evidence on record. Babu Singh thereafter challenged these findings before the Commissioner. The Commissioner by his order dated 8-4-1981 affirmed the finding recorded by the Additional District Magistrate. As I have already held above the Additional District Magistrate was an authority competent to decide the question which arose because of an application moved by Babu Singh and having come to a decision that Bengali was the tenant of the premises in dispute and the landlord accepted the rent from him were decisions which became final between the parties as the order of the Commissioner was not challenged by Babu Singh, thereafter, The findings, therefore, recorded in proceedings under S. 33(1) of the Act would clearly operate as res judicata on the principles mentioned above. 15. The argument of the learned counsel for the respondent that while authorising filing of complaint the court cannot go into the question of tenancy, in my opinion, cannot be accepted. Before the District Magistrate could consider as to whether any offence had been committed by a person, he has to find out whether the person against whom prosecution is sought to be launched has actually violated the provisions of the Act, as to whether he was a tenant of the premises in dispute and as to whether his occupation was authorised or unauthorised. 16. Great emphasis has been placed by the learned counsel for the respondents on the observations made by the learned Additional District Magistrate in his order dated 9th October. 1979 that by virtue of the provisions of S. 14 of the Act, the possession of Bengali had been regularised S. 14 of the Act confers benefit upon those tenants who have come in occupation of the building with the consent of the landlord prior to the commencement of 1976 Amendment Act, the legislature regularised such tenancies and made such tenants regular tenants in the eye of law. 17. Specific reliance has been placed by the learned counsel for the respondents on a Division Bench decision of this Court in Zarif Ahmad v. Rent Control and Eviction Officer, 1980 All Rent Cas 581. 17. Specific reliance has been placed by the learned counsel for the respondents on a Division Bench decision of this Court in Zarif Ahmad v. Rent Control and Eviction Officer, 1980 All Rent Cas 581. The Division Bench of this Court held that the application for regularisation of occupation under S. 14 of the Act is not maintainable and as such the prescribed authority had no jurisdiction to entertain such an application and consequently the entire proceedings before the prescribed authority are without jurisdiction. In my opinion, the principle laid down in this case does not apply to the facts of the present case at all. In the present case, no application has been made under S. 14 of the Act. The order which has been passed by the Additional District Magistrate is not under S. 14 of the Act. The order has been passed under S. 33(i) of the Act and as such it cannot be said that the order dated 9-10-1979 is without jurisdiction. In fact, in the present case, the Additional District Magistrate has recorded a categorical finding that Bengali was the tenant of the premises in dispute. The Additional District Magistrate further only observed that by virtue of the provisions of S. 14 of the Act the possession-of Bengali would be regularised, that is a benefit which was conferred by law on Bengali. No declaration was required in the eye of law. In the circumstances, it cannot be said that the order dated 9th October, 1979 is without jurisdiction. The principle laid down in the case of Zarif Ahmad (supra) does not apply to the facts of the present case. 18. Learned counsel for the respondents, however, has further supported the decision given by the courts below on the ground that whatever finding was recorded by the Additional District Magistrate would save the tenant from prosecution under the Act but that does not debar the civil Court to decide the question of tenancy. In my opinion, this argument is also fallacious. Once under the provisions of S. 33 of the Act the Additional District Magistrate had to go into the question whether a tenancy had been created or not in favour of the petitioner, Bengali and a finding to that effect was recorded, that would operate as res judicata in all subsequent proceedings. In my opinion, this argument is also fallacious. Once under the provisions of S. 33 of the Act the Additional District Magistrate had to go into the question whether a tenancy had been created or not in favour of the petitioner, Bengali and a finding to that effect was recorded, that would operate as res judicata in all subsequent proceedings. The Court of Additional District Magistrate, as observed earlier, is a Court of exclusive jurisdiction and if any finding was recorded after considering the evidence on record, that finding would clearly, in my opinion, operate as res judicata and the orders in question cannot be supported on that basis. 19. In the result, the petition is allowed, the orders dated 1-8-1983 and 30-5-1983 are hereby quashed. The findings recorded by the Additional District Magistrate in his order dated 9th October, 1979 to the effect that Bengali is a tenant of the premises in dispute shall operate as res judicata in the present suit. A writ of mandamus is issued to the trial Court for decision of the suit in accordance with the observations made above. In the circumstances of the case, the parties are directed to bear their own costs.