# Mahipal Verma v. Rent Control and Eviction Officer & Ors

- **Citation:** (2014) 1 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-23
- **Case number:** Civil Misc. Writ Petition No. 12162 of 2013
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahipal-verma-v-rent-control-and-eviction-officer-ors-42759
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Allotment
of shop-RCEO rejected on ground shop
being new construction under section
196 INDIAN LAW REPORTS ALLAHABAD SERIES
2(2) of Act no. 13 of 1972-provisions of Act
not applicable-argument that in earlier
petition the land lord had given consent for
allotment-held-once the finding of RCEO
neither perverse-nor statute applicable-by
consent jurisdiction can not be conferred.

Held: Para-4
The submission is thoroughly misconceived.
Once a statute itself is not applicable upon a
subject matter, even by consent of the
parties, jurisdiction cannot be conferred.

Case Law discussed:
AIR 1951 SC 230; AIR 1954 SC 340; [1964]52
ITR 220(All); 1985(2) ARC 533; AIR 1986 All.
132; (1995) 5 SCC 159; AIR 1996 SC 1373;
AIR 2007 SC 2499; AIR 2012 SC 1239;
2013(1)AWC 566(All).

## Text

1 All] Mahipal Verma Vs. Rent Control and Eviction Officer & Ors.
195
related to governmental functions, it would
be a relevant factor in classifying the
corporation as an instrumentality or agency
of Government. (SCC p. 509, para 16)

(6) ''Specifically, if a department of
Government
is
transferred
to
a
corporation, it would be a strong factor
supportive of this inference' of the
corporation being an instrumentality or
agency of Government. (SCC p. 510, para
18)"

In para 9 at page 467-648 the Apex
Court concluded as follows:

"This being the position in that case,
this Court held that the High Court has no
jurisdiction to entertain an application
under Article 226 of the Constitution. In
the present case, the Mill is engaged in
the manufacture and sale of sugar which,
on the same analogy, would not involve
any public function. Thus, we have no
difficulty in holding that the jurisdiction
of the High Court under Article 226 of the
Constitution
could
not
have
been
invoked."

14. In Ghaziabad Zila Sahkari Bank
Ltd. v. Addl. Labour Commissioner,
(2007) 11 SCC 756, at page 778, the
Apex Court ruled as under :

"61. The general legal principle in
interpretation of statutes is that "the
general Act should lead to the special
Act". Upon this general principle of law,
the intention of the U.P. Legislature is
clear, that the special enactment U.P.
Cooperative Societies Act, 1965 alone
should apply in the matter of employment
by cooperative societies to the exclusion
of all other labour laws. It is a complete
code in itself as regards employment in
cooperative societies and its machinery
and provisions. The general Act, the U.P.
Industrial Disputes Act, 1947as a whole
has and can have no applicability and
stands excluded after the enforcement of
the U.P. Cooperative Societies Act. This
is also clear from necessary implication
that the legislature could not have
intended head-on conflict and collision
between authorities under different Acts."

15. The aforesaid pronouncement of
Highest Court of India leaves no room to
doubt that the remedy, if any lies for
petitioners, the same would be within the
four corners of U.P. Cooperative Societies
Act and not in this Court.

16. In view of the aforesaid
discussions made both the writ petitions
deserve
to
be
dismissed,
hence
accordingly dismissed but with no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 12162 of 2013

Mahipal Verma.... Petitioner
Versus
Rent Control and Eviction Officer & Ors...
 Respondents

Counsel for the Petitioner:
Sri Sharad Kumar Pandey

Counsel for the Respondents:
--

Constitution of India, Art.-226-Allotment
of shop-RCEO rejected on ground shop
being new construction under section
196 INDIAN LAW REPORTS ALLAHABAD SERIES
2(2) of Act no. 13 of 1972-provisions of Act
not applicable-argument that in earlier
petition the land lord had given consent for
allotment-held-once the finding of RCEO
neither perverse-nor statute applicable-by
consent jurisdiction can not be conferred.

Held: Para-4
The submission is thoroughly misconceived.
Once a statute itself is not applicable upon a
subject matter, even by consent of the
parties, jurisdiction cannot be conferred.

Case Law discussed:
AIR 1951 SC 230; AIR 1954 SC 340; [1964]52
ITR 220(All); 1985(2) ARC 533; AIR 1986 All.
132; (1995) 5 SCC 159; AIR 1996 SC 1373;
AIR 2007 SC 2499; AIR 2012 SC 1239;
2013(1)AWC 566(All).

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri S.K.Pandey, learned
counsel for the petitioner and perused the
record.

2. It is not in dispute that petitioner's
application
for
allotment
of
shops
No.13/807/9 and 13/366/4 (New Number
13/500) situated in Mohalla Sheikh
Farookh, Saharanpur, has been rejected
by Rent Control and Eviction Officer/City
Magistrate,
Saharanpur
(hereinafter
referred to as "RCEO") by impugned
order dated 6.3.2010 on the ground that
these shops are new constructions and by
virtue of second proviso to Section 2(2) of
U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as "Act, 1972"),
construction having been raised in 1991,
are not within the ambit of Act, 1972
therefore, application for allotment before
RCEO itself is not maintainable and shops
cannot be allotted by applying power
under Act, 1972 on account of the fact
that shops are outside the purview of the
said Act.

3. On the merits of the question that
shops are not new and within the ambit of
Act, 1972, no argument could be
advanced by learned counsel for the
petitioner and he could not show that the
findings recorded by RCEO are perverse
or incorrect. He, however, said that there
is a settlement made by landlord in
another matter relating to some other
shops, which came to this Court in Writ
Petition No.27260 of 2008 stating that
tenants may seek allotment of shops in
disputed in the present case. It is also true
that Writ Petition No.27260 of 2008 has
been dismissed by this Court but it is said
that landlord has already made statement
therein that shop in question is liable to be
allotted to the petitioner under Act, 1972.

4. The submission is thoroughly
misconceived. Once a statute itself is not
applicable upon a subject matter , even by
consent of the parties, jurisdiction cannot
be conferred.

5. As early as in 1951 the Apex
Court in United Commercial Bank
Limited versus Their Workmen AIR 1951
SC 230 held:

"No acquiescence or consent can
give a jurisdiction to a court of limited
jurisdiction which it does not possess."

6. In Kiran Singh versus Chaman
Paswan AIR 1954 SC 340, the Court said:

"A defect of jurisdiction ... strikes at
the very authority of the Court to pass any
decree and such a defect cannot be cured
even by consent of parties."

7. In Benarsi Silk Palace Vs.
Commr. of Income Tax [1964] 52 ITR
220 (All), this Court held:
1 All] Mahipal Verma Vs. Rent Control and Eviction Officer & Ors.
197

"Jurisdiction could be conferred only
by statute and not by consent and
acquiescence.
Since
jurisdiction
is
conferred upon Income Tax Officer to
proceed under Section 34 (1) only if he
issues a notice an assessee cannot confer
jurisdiction upon him by waiving the
requirement
of
a
notice
because
jurisdiction cannot be conferred by
consent or acquiescence."

8. In Kali Das Wadhwani & Anr.
Vs. Jagjiwan Das and another 1985 (2)
ARC 533, this Court observed as under:

"It is well settled that a jurisdiction
cannot be conferred on a court by consent,
acquiescence or waiver where there is none,
nor can it be ousted where it is. Acquiescence,
waiver or consent of the parties may be
relevant in objections relating to pecuniary or
territorial jurisdiction of the Court, but these
factors have no relevance where the Court
lacks inherent jurisdiction which strikes at the
very root or authority of the Court to pass any
decree and renders the decree, if passed a
nullity."

9. In Sardar Hasan Siddique Vs.
State Transport Appellate Tribunal, AIR
1986 All. 132, the Division Bench of this
Court observed:

"A Tribunal of limited jurisdiction
cannot derive jurisdiction apart from the
statute. No approval or consent can confer
jurisdiction upon such a tribunal. No amount
of acquiescence waiver or the like can confer
jurisdiction of a Tribunal is lacking, the
doctrine of nullity will come into operation
and any decision taken or given by such a
Tribunal will be a nullity."

10. In Karnal Improvement Trust
Vs. Prakashwanti, (1995) 5 SCC 159, the
Hon'ble Supreme Court observed that
acquiescence does not confer jurisdiction
and an erroneous interpretation equally
should not be perpetuated and perpetrated
defeating of legislative animation. A
similar view has been taken in U.P.
Rajkiya Nirman Nigam Ltd. Vs. Indure
Pvt. Ltd., AIR 1996 SC 1373.

11. In S. Sethuraman Vs. R.
Venkataraman and Ors. AIR 2007 SC
2499, the Apex Court observed that if
jurisdiction cannot be conferred by
consent, it cannot clothe the authority to
exercise the same in an illegal manner.
The above authority has been referred to
and relied on by Apex Court recently in
AIR 2012 SC 1239 Collector, Distt.
Gwalior and another Vs. Cine Exhibitors
P. Ltd. and another.

12. Looking into this very question
and considering the authorities, discussed
above, this Court also in Ramesh Chandra
Yadav Vs. IInd Additional District Judge,
Jalaun & Ors., 2013(1) AWC 566 (All.),
where a similar question was involved, in
para 7, held:

7. He, however, could not dispute that
the building in question having been
constructed and completed in 1977, in 1983,
ten years having not passed, Act No. 13 of
1972 was not applicable by virtue of Section
2 (2) of Act, 1972. That being so the
Prescribed Authority under Section 21 of
Act, 1972 lacked patent jurisdiction. A
jurisdiction cannot be conferred even by
consent of parties. It is an elementary
principle. Where a Court has no jurisdiction
over the subject matter of the action in which
an order is made, such order is wholly void,
for jurisdiction cannot be conferred by
consent
of
parties.
No
waiver
or
acquiescence on their part can make up the
198 INDIAN LAW REPORTS ALLAHABAD SERIES
patent lack or defect of jurisdiction. If the
decision/order of Court/authority is void for
want of jurisdiction over the subject matter, it
cannot operate as res judicata; so as to make
that judgment conclusive between the
parties, since the essential pre-requisite is that
it should be the judgment of a Court of
competent jurisdiction within the meaning of
Section 11 of the Civil Procedure Code.
Something
which
is
wholly
without
jurisdiction, that is nullity in the eyes of law,
no principle of law would come to confer
any kind of effectiveness to such proceedings
so as to have any legal consequences.

13. In view of the aforesaid
discussion as also exposition of law, I do
not find any reason to interfere.

14. Dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Civil Misc. Writ Petition No. 23055 of 2013

Paresh Yadav & Ors..... Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Bhagwati Prasad Singh, Sri Vivek
Srivastava, Sri Vivek Kumar Singh

Counsel for the Respondents:
C.S.C.

Financial Hand Book-Vol.-II-Part-II to IVChapter VI-Para 49-claim of salary of higher
post-beyond 90 days-without concurrence
of
finance
department-working
on
officiating basis-whether entitled for salary
of higher post?-held-case relied in Prem
Chandra Srivastava case-not considered
this aspect-even dismissal of SLP by Apex
Court-can not be relied upon-considering
validity of direction of Division Benchmatter referred to larger bench.

Held: Para-14
14. In our opinion the following
substantial questions of law needs to be
examined by a Larger Bench:

(a) whether the proviso to para 49 of
Chapter VI of Financial Hand Book Vol. II
(Para II
to
IV) which requires
the
concurrence of the finance department, if
officiating appointment is to be continued
beyond 90 days would be applicable in
respect of appointments covered by Clause
I & III of para 49 or the said proviso would
be applicable to appointments under Clause
III only.

(b) whether the law laid down by the
Division Bench of the High Court in the case
of Prem Chand Srivastzva which direct that
merely on holding additional charge of an
additional post, the incumbent would
become entitled to salary of higher post
even in absence of sanction from the
finance department lays down the correct
law or not.

Case Law discussed:
1448(S/B) dis.On. 20.10.08; 563 of 2012(S/B).

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Shri B.P.Singh, Senior
Advocate assisted by Shri V.K.Singh,
Advocate on behalf of the petitioner and
the learned Standing Counsel on behalf of
the State.

2. Petitioners, who are seven in
number, claim that they were appointed as
Passenger Tax Officer /Superintendent in
the transport department of the State of
U.P. They were asked to work on
officiating basis as Assistant Regional