Prabhawati v. Dr. Pritam Kaur

Hegde, J. though this appeal relates to a comparatively small maiter, it has exposed several disturbing features. Hence it is necessary to set out the facts of the case in some detail.

The appellant is a tenant of the respondent. She is occupying one of the premi 0.es belonging to the respondent. The respondent is seeking to evict her from the said premises. For that purpose she applied to the District Magistrate. Dehradun, who is also the Rent Controller, under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act,_ 1947 (to the hereinafter referred to as the Act) for permission to sue the appellanv for her eviction. The permission asked for was granted by the Rent Controller. As against that order, the appellant went up in revision to the Com-missioner, Meerut Division, Meerut who affirmed the order of the District Magistrate. Thereafter the appellant went up in revision to the State Government. During th~ pendency of that pro-ceeding the State Government passed an order of stay which reads :

"Operation of the permission under s. 3 of the Act granted by the Commissioner, Meerut Division, Meerut to the opposite party, landlady to tile the suit for the petitioner's ejectment from the house in question is stayed pending consideration of the case by the State Government."

Later the State Government allowed the revision petition and set aside the .Permiss.ion granted. , The respondent chall~n~ed the legalitj 'of: the O'rilet, made by· the State Government 1:1efore the High Court of Allahabad in a petition under Art. 226 of the Constitution. The High Court set aside the order of the Govern-ment on the ground that the State Government in deciding the revision petition had allowed itself to be influenced by irrelevant considerations. The concluding portion of the order of the High Court reads :

"The petition is allowed. The order of the ·-State Government dated 14-6-1966 ( Annexure E to the peti· tion) is quashed. The State Government is directed to rehear Smt. Prabhawati Devi's revision under section 7·F of (Temporary) Control of Rent and Eviction Act, according to law. The petitioner shall get costs of this petition from respondent No. 1."

This order was passed on Februa17 28, 1967. On the very next day, the respondent filed a suit for eviction of the appellant. _ When the n;vision petition came up for hearing before the State Government, the respondent submitted before the State Govem-ment that it was not competent to hear the revision petition in view of the institution of the suit and for that purpose, it relied on a decision of the High Court holding that a revision petition pend-ing before the State Government becomes infnlctuous orice a suit for eviction is filed in pursuance of the permission gi\len by the Commissioner. The State Government accepted that conten-tion and dismissed the revision petition on the sole ground that the proceedi n$ before it became infructuous in view of the institution ot the civil suit. The appellant challenged _that order by means of a writ petition before the Allahabad High Court. The High Court came to the conclusion that the stay granted by the State Government had lapsed when the revision petition was disposed of and the same did not stand revived when the High Court direct· ed the State Government to rehear the matter and dispose of the same according to Jaw. Consequently, on the institution of the . civil suit for eviction of the appellant, her revision petition before the State Government became infructuous. As agamst that order, . this appeal has been brought by special leave. ·

Before proceeding to discuss the points arising for decision, ft will be convenient to read the relevant provisions of the Act.

Though the Act purports to be a temporary measure, It hu continued to be in force from 1947. This Is but a smlll anomaly compared with the difficulties created. by some of ita. provisions. Now let us have a look at thoie provisions. They read :

ll "Restrictions on eviction.-

. (I) Subject to any order passed under sub- !lilctiOJ1_(3 ), iio suit·shall, without the permissiQ11 of the District Magistrate be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :

(a) that the tenant is in arrears OL rent for more

than three months and has failed to pay the same to the landlord within one month of the service upon him of notice of demand;

(b) that the t~nant has wilfully caused or permitted

to be caused suhstantiul damage to the accom· modation;

(c) that the tenant has, without the p.ermission in

writing of the landlord, made or permitted to he made any such construction as, in the opinion of the court, has materially altered the accom· modation or is likely substantially to dimi;h its value;

(d) that the tenant has created a nuisance or has

done any act which is inconsistent with the. pur· pose for which h·~ was admitted to the tenancy of the accommodntion, or which is likely to affect adversely and substar.tially the landlord's interest therein;

( e) that the tenant has on or after the I st day of

October, 1946, sub.·let the whole or any portion of the accommodntion without the permission of the landlord;

(f) that the tenant has renounced this character as

such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant;

(g) that the tenant was, allowed to occupy the

accommodation as a oart of his contract of employment under the landlord and his employ-ment has been determined.

Exp/anation.-For the purposes of sub-section (e) lodging a person in a hotel or a lodging house shall not be deemed to be subletting.

¶2Where any application has been made to the District Magistrate for permission to sue a tenant for eviction from any accommodation and the District Magistrate grants c;>r refuses to grant the permi~sion, the ~i'tY ,·a1'1'1e~ ·by his order. may withln.<10 clays ftW1

the date on which the order is communicated to him apply to the Commissioner to. revise the order.

¶3The Commissioner shall hear the application made under sub-section ( 2), as far as may be, within six weeks from the date of making it, and he may, if he is not satisfied as to the correctness, legality or propriety of the order passed by the District Magistrate' or as to the regularity of proceedings held before him, alter or reverse his order or make such other order as may be just and proper.

¶4The order of the Commissioner under sub-section ( 3) shall, ·subject to any order passed by the State Government under section 7-F be fin~!."

The only other relevant section for our present purpose u s. 7-F which says : / ·

"Power of State Government-The State Govern-ment may call for the record of any case granting or .refusing to grant permiflsion for the filing of a suit for eviction referred to in section 3 or requiring any accOl!l· modation to be let or not to be let to any person under section 7 or directing a person to vacate any accom!llO-dation under section 7 -A and may make such order as appears to it necessary for the ends of justice." . Providing against unlawful eviction is undoubtodly a laudable object. It is necessary in social interest that improper eviction of tenanats should be prohibited. Various States have enacted laws prohibiting the landlords from evicting . their tenants except on grounds mentioned in those laws. The implementation of those measures is left in the handiifof either regular courts or regularly constituted tribunals who are the principal repositories of the judicial power of the State and not with execuive authorities burdened with other duties. But strangely enough under the Act two rounds of litigations are provided for. A ·landlord sebkillg to evict a tenant must first go to the District Magistrate fer pet· mission. As against the order of the District Ma~strate the aggrieved party can go up i11 revision to the Commiss1oncr. The order of the Commissioner, subject to any order .passed by the State Government under section 7-F of the Act, is final. Section 7-F empowers the State. Government to revise the order of ·the order of the Commissioner at any time it pleases. There Is no time limit for exercising that power. This .entire Iona drawn out process is only for the purpose .of decidini.wh~ther tho perminlon should:be granted to !he landlord to sueibls wn0n(f91' -.i1G11Dent.

'SUPll!ME · OOlJRT REPORTS · [1!172] 3 s.c.a. If the permission sought is granted then starts· another round of litigation from one court to another. The principal function of courts and tribunals is to settle the dispute between the parties and thereby give a quietus te the .social frictions generated by the coli· un- . resolved disputes. As long as a litigatiort )asts, the tension tinues and useful energies will be wasted. . 'fhis is not all. Every litigation means heavy financjal burden.to the.parties. The merry-ll go-round of litigation provided by the Act instead of helping the tenants who ordinarily belong to the weaker sections·of the society is likely to result in their ruination. These problems are for the legislatures to consider.

The power conferred on the District Magistrate, the Commis-sioner an\! the State Government has been .held to be a judicial power by this Court-see Shri Bhagwan and anr. v. Ramachand and anr. (1). Therefore let us see how that power is required to be exercised. Neither s. 3 nor s. 7;p prescribes under what cir· cwilstances the pemiission asked for should be granted and on what grounds the same can be refused. Prima facie the power conferred on the authorities under ss. 3 and 7-F has no limits. It ·r.. is neither controlled nor guided. The validity of that p0wer can-not be and was not challenged in these proceedings. Hence we ~hall not go into it. If one desires to know how and to what extent the power conferred on the. authorities under those rrovi-sions can be misused, one has only to look to the· facts I) this case.. ·

The appellant filed the revision petition before the State Gov~ enunent on April 2, 1965. On the same day she sent a.copy of ihat petition alongwith an application to the Minlster.foYlrrigation whO had nothing to do with the revision petition in question as revision petitions under s. 7-F were being dealt with by the Minis-tty .of Civil Supplies. It is reasonable to inf~r that she.m)lst have done so because either she or. some of her fnends or relations had Pose SOllle influence with that Minister. Otherwise there was no pui'·

in sending a copy of. the r~vision petition to ·the Ii:rigation Mil)ister. The Irrigation Minister sent the copy received by him to the Secretary, Civil Supplies after making the following .note thereon;

· · "Pl. look into it. So much Is In mY knowledge that occupants are vetl very old tenant . of this shop. l .hope .•. proper view will be taken of the dispute."

·Thereafter some official in the Secretariat prepared a detailed note giving the history of the case. That office note concluded thus : ~l

"In this connection observations of Minister for ·. · ·Irrigation and Power on serial No. 12 and orders of J.S. 1rfi§~513 s-:-'c:-'R.. 21s. · ··

at the bottom thereon may also please be seen, sub-mitted. , J(.R may please see for orders."

In due course the Government allowed the revision petition. That order has its own special features. It reads :

"GOYERMENT OF UTTAR PRADESH

RENT CONTROL DEPARTMENT

No. 1696/E-1(10)II965, Dated Lucknow, June 14, 1966.

ORDER

Subject : Smt. Prabhawati versus Dr. Pritam Kaur.

regarding a portion of premises No. 11 Rarn-pur Mandi Road, Debra Dun.

With reference to her petition dated April 2, 196.5.

Smt. Prabhawati is informed that after a careful examination of the records of the case and considera-tion of the version of the opposite party and also in view of other facts relevant to the case, it appears expedient in the ends of justice that the petitioner should not be dispossessed from the disputed premises.

Therefore, in exercise of the powers conferred under Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 194 7, the Governor is please(! to _ revoke the permission under section 3 of the said Act granted by the Rent Control and Eviction Officer Debra Dun and confirmed by the Commissioner, Meerut Division, Meerut, vlde his orders dated March 30, 1965, passed in revision No. 13, to file a civil suit of ejectment . against the petitioner from the premises in dispute.

Sd - B. N. Chaturvedi Anu Sachiv.''

One would search this order in vain for the reason that per-suaded the State Government to allow the revision petition. Not a single reason is given for setting aside the order of the Commls-· ~ioner. But if one delves into the records of the Government as ~ High Court of Allaha\>ad did, one is left with a feeling that the note of the Irrigation Minister· must have weighed heavily on the concerned authority. Our ellperience in dealing with litigations of this case type does not embolden us to say. that what happened in this is a rare ellception to the rule;

998 SUPR5'4B GOUR}' lllil10R'lll [i.972] 3 S.C.R.

Ii!llilY also be noted that when tjle re~OJJ.p,etition was pend-ing before t~e State Government, some i>Q$y bOdy by . name Ramesh Pun wrote a letter to the Minister for Fciod and Civil Sup~ly on May 16, 1966 recommending the case of the appellant. In his letter he set forth his qualifications as a "'social worker aad a ligh~r. for freedom .since childhood''. T)iat letter appears to have found a resPeCtable place in .the records· qf the case. One 11: can only regret for this sorry state of alfaitS. · ·

The appellant has found a match in the res]:>oni!Cnt. It is' interosting to note how the respondent cleverly queered the pitch against the appellant. We h~YF· wlier noticed that it was at her instance the High Court had quashed the order of the · State Gov~ent and directei! the State Oove~nt to re)l!l!ll' 1111d dis-pose of tµe revision petition according to Jaw. Soon after getting that order, she tried to over-reach tl)at order by filing a· suit' for eviction the very next day after the High court passed its order. The High C!>µrt of Allahabad as we!! as th~ O:>urt have held that a suit validly instituted after obtaining the required permission under s. 3 ( 1) does not cease to be maintainable because of any order made by the State Government under s. 7-F during the pen· dency of the suit-see Bhagw(ln Das v. Paras Noth( 1) and' Mohamm(ld Ismail v. Nanney Lal('). In a rather desperate bid' to take some advanta~e from those decisiOns, tho re!!Jioodent appears to have rushed to the Civil court even before the ink on the I:ligh C<iint's. order had drie4. IJP· F111vjpg w h1stit11~ the suit I she m~nwd to Government what. a~j jle. r w~s a fait acco(l!pli; Tue State Oovepup~111111 pienttqne4 eiµ-Jier f~lt that .the r~. yis10. n ~ti\ipn before it be~.Ml!P. illfructµl)Us ~aus~ of the with tti~t view. · ·

Mr. Ta~unde, le~med Coun~l for the apl?«'llant ~ended before us th~t no sooner the Hi~ Court set asiae the order of the Goveinment ·and directed the State Government to ~ and dispOsC of the matter accor!fing to law, the inte$1 enler of stay passl!ll by . t)I~ St Ille. Government stood. revived. In s}lppOtt of that cont~n!iP!l of ~ts, he h~s placed reliance on the dectSlon of the Patna High Court m Bilnk1m Chandra and ors. v. Chand/ Pra-sad(•); the decisions of the Mi1dr;lll ffigil (:q9~ jn Tqvvple Veera-swami "· Pulim Raman1ia and ors.(') ll!l!l Sfll'.qngthn 4iYQllil!I' v .. . Muthiah Mooppanar and Rf'S.(') .an!! the ~i~Qll qf,.. ~""~' High Court in Sushi/a Bali . .Pasi v. G.uest J;,een WUli@Ws 44.(•). We do not think it is necessary to cOl)S. i\ler th~t CQllte.n.. . ti()!! .P,i. J1'js appeal. · The principle of law cpnt,ond!ICJ fgr by Mr .. 'fl\l'li:., fl ·" (I) ji9'69j '2. s.c.i\.' 297; '(2)' [1969) 3!'S.C.R. 894; (3) AIR 19,6 l'lt.f27t.

(4) 1:L.ll. ls, Mad. 721; (S) 6l, M.L.J. 844; .

{6) T.L.R. (1949) Vol. J Cal. 177.

has several facets; but there is no need to go into those facets in this appeal. In our opinion this appeal has to succeed on a much broader ground. No party to a litigation can be permitted to frustrate the decision rendered by having recourse to trickery. The true effect of the order made by the High Court in the writ petition was that the question whether the respondent should be permitted to tile a suit tor ejectment of the appellant or not must be gone into and decided afresh by the State Government. One of the unplicati~ns flowing from that order is that the respondent is pre-cluded from filing the intended suit for eviction till the Sta,te Government decides the revision petition. Otherwise the direction given by the High Court would remain unobeyed. The respon-dent cannot be permitted to obstruct th~ implementation of that direction and that to a direction given at her instance. Conse-quently it was not open to the respondent to file the suit before the revision petition was disposed of by the State Government. In our opinion, the suit filed by the respondent was a premature one. Such a suit does not bar the State Government from disposing of the revision petition in pursuance of the order made by the High Court. The State Government. was not justified in dismissing the o· revision petition as being infructuous.

In the resuit this appeal i.s allowed, the order of the High Court dismissing the writ petition as well as the order of the State Government dismissing the revision petition are set aside. Further the State Government is directed to restore the said revision and dispose of the same according to law. 'This, has been a long drawn out litigation. Hence it is necessary fell' us to direct the State Oovernmeat to dispose of the revision petition within four months frpm the date of the receipt of this order. Meanwhile it is open to the respondent to move the court in' which she has filed the civil suit to stay further proceedings. In the circumstances of the case, we direct the parties to bear their own costs both in the High Court as well as in this Court.

s.c. A />f'eal allowed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1813 of 1971. '

Appeal by special leave from the jud 0 ment and decree dated February 5, 1971 of the Allahabad High Court. in Special Appeal No. 1116 of 1969.

M. V. Ta.·k1mde and S.S. Shukla, for the appellant.

M. C. Chag/a and Rameshwar Nath, for the respondent.