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Madhya Pradesh High Court · body

2016 DIGILAW 301 (MP)

Avdhesh Mani Nema v. G. P. Pathak

2016-04-12

SUSHIL KUMAR PALO

body2016
ORDER : Sushil Kumar Palo, J. This revision has been preferred under Section 23 (E) of M.P. Accommodation Control Act, 1961 whereby order dated 02.08.2010 passed in Revenue Case No. 185/B-121-2006-2007 is under challenge. 2. To appreciate the contentions, brief facts of the case are elucidated as under:- The respondents filed a case under Section 23 of the Rent Control Act before the Rent Controlling Authority, Narsinghpur. The RAC proceeded with the case against the present applicant (non-applicant in the rent control case). During the pendency of the trial, Shri M.K. Thakur, the Sub-Divisional-Officer, Narsinghpur moved a letter to the Collector on 25.02.2009 for making notification about his appointment as Competent Authority under the Rent Control Act, in the official gazette of M.P. Subsequently, the Collector, Narsinghpur moved to the Principal Secretary, Revenue Department, Bhopal for publication of the same in the gazette of M.P. Meanwhile, parties approached the High Court and on 13.5.2008, the proceedings were stayed. 3. On perusal of order sheet dated 4.5.2010, it is evident that in Writ Petition No. 3978/2000 vide order dated 16.4.2010, the High Court referred the case back to the Rent Controlling Authority and directed to dispose the same within a period of three months. Pursuant to that S.D.M and RAC, Narsinghpur passed the impugned order on 2.8.2010 and directed the non-applicant/petitioner to evict the rented house within a period of two months and to hand over the vacant possession and deposit the arrears of rent. 4. The petitioner/non-applicant has assailed the impugned order on the ground that the order passed by the Sub-Divisional-Officer (Revenue) is null and void, ab initio as no notification was published of his appointment as Rent Controlling Authority, as required under the Accommodation Control Act, 1961. It is also claimed by the petitioner that the Sub-Divisional-Officer cannot exercise the powers of Rent Controlling Authority, hence, the order impugned has no force of law. 5. Per contra, counsel for the applicant/respondent vehemently opposed the same and contends that the impugned order is a valid order passed after availing opportunity to both the parties. This objection was never raised before the Rent Controlling Authority and, therefore, the non-applicant/petitioner is precluded to raise such objection at this stage of revision. It is also contended that the doctrine of de facto is applicable and the order passed by the S.D.M has no legal flaw. 6. This objection was never raised before the Rent Controlling Authority and, therefore, the non-applicant/petitioner is precluded to raise such objection at this stage of revision. It is also contended that the doctrine of de facto is applicable and the order passed by the S.D.M has no legal flaw. 6. Heard the parties and perused the record. No doubt notification in the official gazette was not published on the date of the impugned order. 7. In the case of Ratanbai v. Chetandas reported in AIR 1986 M.P. 16 , a Single Bench of this Court has considered a similar matter. The order of the RAC was challenged as having no jurisdiction to entertain and try the application for he was not duly appointed to act as the Rent Controlling Authority. The Learned Single Judge relying upon the law laid down in the case of Gokaraju Rangaraju v. State of Andhra Pradesh reported in 1981 AIR 1473 SC : 1981 SCR (3) 474 held that "the legality of the appointment of RAC cannot be challenged either before the RCA himself or before the High Court in revision. Both these are collateral proceedings. The legality of the appointment can only be challenged in a direct proceeding to which the RAC is a party. The de facto doctrine applies to the present case. The contention of the learned counsel for the non-applicant regarding the jurisdiction of the RCA was, therefore, negatived." 8. It would be appropriate to reproduce the observation made in the case of Gokaraju Rangaraju (Supra) for the benefit of better understanding in the present case. "The doctrine is now well established that "the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure." As one of us had occasion to point out earlier, the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussion and confusing sequels if attempted to be undone." 9. In the above circumstances, this Court has no hesitation stating that the law of the appointment of the RCA cannot be challenged in the proceeding initiated before him. It can be done so in a direct proceeding which the Authority is a party. Moreso an officer, de facto is one who is not an intruder or usurper but one who holds office under colour of lawful Authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, orders pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit, unlawfully have the same efficacy as judgment pronounced and acts done by a Judge de jure. Such is the de facto to doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. For the above reasons, the defective appointment of a de facto Judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between the two private litigants. Otherwise as soon as a Judge pronounces a judgment, allegation may be commenced for a declaration that the judgment is void because the Judge is no Judge. See [Messers Vyapar Sahayak Private Ltd. v. Vishwanath 1987 MPRCJ 365 (SC)]. 10. In the case of Gokaraju Rangaraju Etc. v. State of Andhra Pradesh (Supra) it is held that the Rule against the collateral attack on validity of judicial appointments has been drawn. A Judge's title to his office cannot be brought into jeopardy in that fashion. The question of judges' appointment in an appeal against the judgment is such collateral attack. 11. In the above premises, the present revision sans merit and is, therefore, dismissed. Incidental orders passed in the case are vacated.