Than Singh Etc. vs The Sav-Avalambi Co-Operative ...
1969 Latest Caselaw 211 Del

JUDGMENT

S. Rangarajan, J.

(1) The parties in both the appeals are different but the facts out of which they arise are common. Letters Patent appeals No. 52 and 53 of 1969 have,been filed against the decision of our learned brother Deshpande J. in Regular Second Appeals No. 17 and 18 respectively, which were disposed of together, confirming concurrent decisions of two courts below which held that the order passed by the Revenue Assistant dated 31st July 1963, restoring possession of the said land to one Jiwan Singh, predecessor-in-interest of the appellants in both the appeals under section 5(2) of the Delhi (Urban Areas) Tenants' Relief Act 1961 (hereinafter called the Act) was one without jurisdiction and, therefore, null and void.

(2) The facts lie in a very short compass. Two Muslim owners together owned the suit land, which was leased to Jiwan Singh for a period of seven years under a registered lease deed dated 19th December 1949 (registered on 30th March 1950) for a period of seven years. The same was extended for another year, i.e. till 19th December 1958. On 12th December 1958, Jiwan Singh filed civil suit No. 640 of 1958 seeking a permanent injunction against his landlords. An interim injunction was granted but it was ultimately vacated on 5th January 1959. On 9th January 1959, Jiwan Singh filed an application in the civil court, in which the suit was pending, staling that he had delivered possession of the land to the landlord on the expiry of the period of the lease and that he was nto interested in pursuing the suit. The suit was dismissed as withdrawn. At the same time he had made an application to the Revenue Officer, before whom certain proceedings were pending to correct certain revenue entries, that he did nto want these entries to be corrected since he did nto claim any interest in the land. The landlords thereupon sold the suit land, in two portions, to the Sav-Avalambi Co-operative House Building Society Limited, (respondent in Lpa No. 52 of 1969) and to Chandu Ram (respondent No. 1 in Lpa No. 53 of 1969). The Society approached the Delhi Administration for sanction of lay out plan for building houses. It had cleared the land of all trees. Chandu Ram waited till 19th March 1961, when he contracted with others for cutting of the trees from his portion of the land. It was in these circumstances that the Delhi (Urban Areas) Tenants' Relief Act (30 of 1961) was passed. It received the assent of the President on 20th August 1961 and came into force from 4th December 1961.

(3) A land-holder was defined (vide section 2(c) of the Act) as meaning "a person under whom 'a tenant holds land and to whom the tenant is, or but for a special contract would be, liable to pay rent for the land". Section 2(e) defines a 'tenant' as "including a sub-tenant". The expressions landlord' and 'tenant' were used in the same sense as the Punjab Tenancy Act of 1887.

(4) The grounds of ejectment were stated in section 3 which, in so far as it is material for the present case, reads as follows :- "3(1)-AFTER the commencement of this Act, no person shall be liable to be ejected from any land held by him as tenant except on one or more of the following grounds, namely; (a) that a decree for arrear of rent due in respect of the land remains unsatisfied after the expiry of the period allowed therefor; (b) where rent is payable in kind, that he has without sufficient cause failed to cultivate the land; (c) that he has sub-let or otherwise transferred the whole or any part of the tenancy in contravention of any law for the time being in force or of any contract; (d) that he has used the land in a manner which renders it unfit for the purpose for which it was let."

(5) Sections 4, 5(2), 5(3) and 7 of the Act are important : "4. Save as provided in section 3, no tenant of land shall, whether in execution of a decree or order of a court or otherwise, be ejected from the land, and if there is any proceeding for ejectment of such tenant pending immediately before the commencement of .this Act and the proceeding could nto have been instituted had-this Act been in force at the time of the institution of such proceeding, then, notwithstanding anything contained in any law, such proceeding shall, on such commencement, abate. 5(2)-Where, on or after the 1st July 1958 and before the commencement of this Act, any tenant of land has been ejected from the land and the ejectment could nto have taken place if this Act had been in force on the date of such ejectment, the officer specified in this behalf by the Chief Commissioner may, either on his own motion or on application made by the tenant, restore him to possession of the land from which he has been ejected, on the same terms on which he held it at the time of ejectment. 5(3)-Nothing in this section shall be construed as entitling a tenant to be restored to possession of any land if it is under cultivation by the owner who is a person under disability or has, on or before the 28th day of March 1961, ceased to be used for agricultural purposes. 7.-The provisions of this Act shall, save as otherwise expressly provided, have effect notwithstanding anything to the contrary contained in any other law, custom or usage or agreement or decree or order of court."

(6) By order dated 31st July 1963 the Revenue Assistant allowed the application of Shri Jiwan Singh which he made under section 5(2) of the Act holding that he had been forcibly ejected and, therefore, thrown out of possession on 3rd February 1959 and, therefore, he should be restored to his old possession of his property (field No. 484/124-125).

(7) It was to set aside these orders that the Respondent 1n both the appeals filed suits which were decreed by the courts below and confirmed by our learned brother V. S. Deshpande J. The finding of the learned single Judge, as a fact, was that the relationship of landlord and tenant between the parties had been established.

(8) Shri S. N. Chopra contends on behalf of the appellants in both the appeals that once it was found that the relationship of landlord and tenant was established, the controversy before the Revenue Assistant fell entirely within his jurisdiction and, therefore, it was nto open to judicial review, by way of a civil suit. This result is said to flow, strictly, from section 7 of the Act, set out above.

(9) The learned single Judge found that the Revenue Assistant (the officer specified in this behalf by the Chief Commissioner, under section 5(2) of the Act) could restore possession to the applicant only if the following conditions are fulfillled :- (i) that the applicant was nto a tenant; (ii) that the land had nto ceased to be used for agricultural purposes till 28th March 1961; (iii) that the tenant had been ejected from the land; and (iv) that such ejection could nto have taken place if the Act had been in force on the date of the said ejectment.

(10) The grounds on which the ejectment could be made after the commencement of the Act, set out in section 3(1), have already been noticed.

(11) The argument of Shri S. L. Sethi on behalf of the respondent is that if the condition postulated by sub-clauses (a) to (d) of sub- section (1) of section 3 were nto present the revenue Assistant had no jurisdiction to make an order of ejectment under section 5(2) of the Act. But this point is sought to be met by Shri S. N. Chopra by relying upon section 7 of the Act (also read above). According to him the provisions of this Act should have effect, save as 'otherwise expressly provided, notwithstanding anything contrary in any other law which, in his submission, includes section 9 of the Code of Civil Procedure. Shri S. N. Chopra bases this argument upon the observations of Wanchoo CJ. speaking for the Supreme Court in Custodian, Evacuee Property, Punjab and others v. Jafran Begum Col. 2 to the following effect:- "IT may be added that the only question to be decided under section 7 is whether the property is evacuee property or nto and the jurisdiction of the Custodian to decide this question does nto depend upon any finding on a collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannto give itself jurisdiction on a wrong finding of that state of fact. Here under section 7 the Custodian has to decide whether certain property is or is nto evacuee property and his jurisdiction does nto depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances section 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under section 7. This conclusion is reinforced by the provision contained in S.4(l) of the Act which provides that the Act overrides other laws and would thus override Section 9 of the Code of Civil Procedure on a combined reading of sections 4, 28 and 46. But as we have said already, section 46 or section 28 cannto bar the jurisdiction of the High Court under Article 226 of the Constitution, for that is a power conferred on the High Court under the Constitution."

(12) It will be seen, by referring to the Administration of Evacuee Property Act, that section 28 provides for a right of appeal and section 46 expressly excludes the jurisdiction of the civil Court. It was in this context that section 4(1) of the said Act, which provides that the said Act overrides other laws, was held to also override section 9 of the Code of Civil Procedure, on a combined reading of sections 4, 28 and 46 of that Act; section 28 attached finality to orders passed under the said Act and section 46 barred the jurisdiction of civil courts in certain matters. If we look at the provisions of the present Act there are no express words excluding the jurisdiction of the Civil Court. In this context, it will be useful to set out the observations of Hidayatullah CJ" in Dhullabhai v. State of Madhya Pradesh and another (2) :- "THE result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does nto exclude those cases where the provisions of the particular Act have nto been complied with or the statutory tribunal has nto acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is nto decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statutes or not. . . . " etc.

(13) When it is borne in mind that the statute does nto provide remedies normally associated with actions in civil courts, (one of the normal remedies in relation to an action in a civil court is the right to appeal). In the absence of any such right against the decision of Revenue Assistant and having regard to the summary nature of the inquiry to be made by the Revenue Assistant the absence of express exclusion of the jurisdiction of the civil Court is decisive. Without multiplying authorities, it will be sufficient to notice the following observations of Gajendragadkar J. (as he then was in Magiti Sasamal v. Pandab Bissoi and others') : "WHERE serious disputes about title are entrusted to special tribunals usually the Legislature contemplates a formal enquiry and makes the provision of the Code of Civil Procedure applicable to such an enquiry and provides for appropriate appeals,"

and in Firm of Illuri Subbayya Chetty and Sons v. State of Andhra Pradesh: "IN dealing with the question whether Civil Courts' jurisdiction to entertain a suit is barred ir not, is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil courts to a citizen claiming that an amount has been recovered from him illegally 'and that such a remedy can be held to be barred only on a very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of civil courts to entertain civil causes will nto be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may nto by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute."

(14) The learned single Judge referred to the analysis of the concept of jurisdiction by Diplock L.J. in Anisminic Ltd. v. Foreign Compensation Commission to the effect that jurisdiction was an expression which was used in a variety of senses and takes its colour from its context. Though this observation was nto dissented from by the House of Lords, while reversing the decision of the Court of Appeal by a majority of 3 : 2 vide 1969-1-All England Law Reports 208), Lord Reid observed at page 216 as follows :- "BUT if they reach a wrong conclusion as to the width of their powers, the court must be able to correct that -nto because the tribunal has made an error of law, but because as a result of making an error of law they have dealt with and based their decision on a matter with which, on a true construction of their powers, they had no right to deal."

(15) We need nto be detained by the position in England in view of the authoritative pronouncement of the Supreme Court in Dhulabhai's case.

(16) In the result we are in respectful agreement with the view of the learned single Judge that the Revenue Assistant exceeded his jurisdiction when he ordered restoration-on a ground on which he could not, under the Act, order restoration of possession-to Jiwan Singh. Both the appeals are, therefore, dismissed with costs.