Appeal No 899 of 1966
364 Appeal by special leave from the judgment and decree dated May 14 1965 of the Allahabad High Court in Second Appeal No 4136 of 1964
Yogeshwar Prasad and Harder Singh for the appellants
SN Anand for the respondents
The Judgment of the Court was delivered by Shah J
Gokal Chand first respondent in this appeal was a tenant of shop No 342 Dispensary Road Dehra Dun which belongs to Munni Devi the first appellant in this appeal
Munni Devi applied to the Rent Control  Eviction Officer
Dehra Dun for an order in ejectment on the plea that Gokal Chand had committed default in paying rent
The RC  E Officer passed an order observing that the tenant did not lead any evidence to show that he had not vacated the shop and it was clear on the evidence that the tenant was not in occupation of the shop and had let it out to one Alladia
He accordingly declared that the shop was vacant
The RC  E Officer allotted the shop to Kishorilal
Kishorilal then applied to the RC  E Officer that the shop allotted to him was in the illegal occupation of Rawel Chand so Gokal Chand
On May 22 1957 the RC  E Officer declared that Gokal Chand the previous tenant had vacated the shop
and that Rawel Chand was in illegal occupation of the shop
He accordingly issued a notice under section 7A 3 of the Act
Gokal Chand then filed a civil suit in the Court of the Munsif
Dehra Dun for a declaration that he was an allottee and a tenant of the shop and that he was in possession in that capacity
To that suit were impleaded Munni Devi and Kishorilal as party defendants
The Trial Court held that Gokal Chand had at no time vacated the shop nor was his tenancy terminated
He accordingly made an order declaring that Gokal Chand was an allottee and a tenant of the shop
and was entitled to remain in occupation of the same
An appeal against that order to the District Court was dismissed
A second appeal to the High Court was also unsuccessful
In this appeal with special leave counsel for Munni Devi and Kishorilal urges that the order of the civil court was without jurisdiction
Section 3 of the UP Temporary Control of Rent and Eviction Act 194 7 imposes certain restrictions on eviction of tenants
By section 71a it is provided Every landlord shall within 7 days after an accommodation becomes vacant by his ceasing to occupy it or 365 by the tenant vacting it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever give notice of the vacancy in Writing to the District Magistrate
 Sub sections 2  3 of section 7 provide 2 The District Magistrate may by general or special order require a landlord to let or not to let to any person any accommodation which is or has fallen vacant or is about to fall vacant
3 No tenant shall sub let any portion of the accommodation in his tenancy except with the permission in writing of the landlord and of the District Magistrate previously X X obtained Section 7A which was added by Act 24 of 1952 provides in so far as it is material 1 Where in pursuance of an order of the District Magistrate under sub section 2 of section 7 the vacancy of any accommodation is require
be reported and is not reported or where an order requiring any accommodation to be let or not to be let has been duly passed under sub section 2 of Section 7 and the District Magistrate believes or has reason to believe that any person has in contravention of the said order occupied the accommodation or any part thereof he may call upon the person in occupation to show cause within a time to
be fixed by him why he should not be evicted therefrom Provided 2 If such person fails to appear in reply to the notice served under sub section 1 or if he appears but fails to satisfy the District Magistrate that the order under sub section 2 of Section 7 was not duly passed and that he is entitled to remain in occupation of the accommodation the District Magistrate may without prejudice to any other action which may be taken against him under this Act or any other law for the time being in force direct him to vacate the premises within a period to be specified
 Section 16 of the Act provides No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court 366 Counsel for the appellants urged that the suit filed by Gokal Chand was not maintainable for the Act sets up a complete machinery for determining after enquiry whether any premises governed by the Act have fallen vacant and for making an order calling upon the person or persons in wrongful occupation to vacate and deliver possession of the premises and that by express enactment in section 16 the order of the District Magistrate is declared final
We are unable to agree with that contention
Lord Esher MR in Reg
vs Commissioner of Income tax1 observed When an inferior court or tribunal or body which has to exercise the power of deciding facts is first established by Act of Parliament the legislature has to consider what powers it will give that tribunal or body
It may in effect say that if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things it shall have jurisdiction to do such things but not otherwise
There it is not for them conclusively to decide whether that state of facts exists and if they exercise the jurisdiction without its existence what they do may be questioned and it will be held that they have acted without jurisdiction
But there is another state of things which may exist
The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as
the jurisdiction and on finding that it does exist to proceed further to do something more
When the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider whatever jurisdiction they give them whether there shall be any appeal from their decision for otherwise there will be none
In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist because the legislature gave them jurisdiction to determine all the facts
including the existence of the preliminary facts on which the further exercise of their jurisdiction depends and if they were given jurisdiction so to decide without any appeal being given there is no appeal from such exercise of their jurisdiction
 This rule was approved by this Court in Ebrahim A boobakar and Ant
vs Custodian General of Evacuee Property 2
Munni Devi applied for an order in ejectment against Gokal Chand on the
plea that he had committed default in paying rent
The RC  E Officer held that Gokal Chand had vacated the premise and had inducted a sub tenant
The LegiSlature has in 1 21 CBD 313
2  367 vested the District Magistrate with power on the existence of a vacancy to allot the premises to another person but the Legislature has not made the determination of the preliminary state of facts by the District Magistrate conclusive
The jurisdiction to pass an order in ejectment only arises if there is a vacancy
The right of a tenant in possession is a valuable right and there is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises
Undoubtedly he has jurisdiction to make orders under sections 7  7A of the Act if there be a vacancy
But whether there is a vacancy is a jurisdictional fact which could not to be decided by him finally
By reaching an erroneous decision he cannot clothe himself with jurisdiction which he does not possess
It is only when the order is with jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of section 16 of the Act
In Chaube Jagdish Prasad vs Ganga Prasad Chaturvedi1 the respondent had obtained on rent the accommodation in dispute from the appellant
The appellant submitted an application under section 3A of the UP Temporary Control of Rent and Eviction Act 947 to the House Allotment Officer on whom the power of the District Magistrate was conferred for increase in rent
That Officer passed an order increasing the rent payable by the tenant on the ground that there was a new construction
The appellant then instituted a suit under section 5 4 of the Act for the enhancement of reasonable annual rent
The respondent contended inter alia that there was no new construction of accommodation after June 30 1946 and that therefore the suit was not maintainable
The Trial Court found that there was a new accommodation and the Court could determine its rent under section 54
In revision the High Court held that though the construction was new the accommodation in the occupation of the respondent was not new
and therefore section 3A of the Act was inapplicable
In appeal this Court held that a wrong decision made by the House Allotment Officer who exercised the power of the District Magistrate under section 3A of the Act or an order made by him in excess of his power under that section could be rectified by a suit under section 54 of the Act
In the present case the civil court has come to the conclusion that Gokal Chand had never vacated the shop and no vacancy had occurred
By wrongly deciding that Gokal Chand had vacated the shop the District Magistrate had no power to pass orders directing forcible ejectment and allotting the shop to another person
The appeal fails and is dismissed with costs
YP Appeal dismissed
1 1959 Supp
1 SCR 733


Summary:
By section 72 of the UP Temporary Control of Rent and Eviction Act 1947 the District Magistrate may require a landlord to let or not let to any person any accommodation which is or has fallen vacant and section 16 of the Act provides that no order made under this Act by the State Government or the District Magistrate shall be called in question in any court
 The first appellant applied for an order in ejectment of the first respondent on the plea that he had committed default in paying rent
The District Magistrate held that the respondent was not in occupation of the shop declared the shop vacant and allotted it to another person
The respondent brought an action in the civil court for a declaration that he was an allottee of the shop and was in possession in that capacity
The trial court held that the appellant never vacated the shop nor was his tenancy terminated and was therefore entitled to remain in occupation of the same
An appeal to the District Court and a second appeal to the High Court were unsuccessful
In appeal to this Court the appellants contended that the suit filed by the respondent was not maintainable for the Act set up a complete machinery for determining after enquiry whether any premises governed by the Act had fallen vacant
and that by express enactment in section 16 the order of the District Magistrate was declared final
Rejecting the contention
HELD The Legislature while investing the District Magistrate with power to allot the premises to another person on the existence of a vacancy has not made his determination of the preliminary state of facts conclusive
There is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises
Whether there is a vacancy is a jurisdictional fact which could not be decided by him finally
By reaching an erroneous decision he cannot clothe himself with jurisdiction which he does not posses section It is only when the order is with jurisdiction that the order is not liable to be challenged in a civil court by virtue of section 16 of the
368 H 369 C Reg vs Commissioner of Income tax  and Ebrahim Aboobakar  Anr
vs Custodian General of Evacuee Property   referred to