# MUNNI DEVI & ANR v. GOKAL CHAND & ORS

- **Citation:** [1970] 2 S.C.R. 363
- **Court:** Supreme Court of India
- **Decided:** 1969-09-12
- **Bench:** J. C. Shah, V. Ramaswami, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munni-devi-anr-v-gokal-chand-ors-4818
- **Pages:** 5

## Headnote

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Jurisdictional Fact-Power to allot premises
on
the
existence
of
vacancy-Statute enacting orders passed un•der the statute shall not be
called in question in any court-District Magistrate deciding
premises
vacant-If final-Court exclusion of Jurisdiction of -U.P. (Temporury) Control of Rent and Eviction Act, 1947, ss. 7, 7A, 16.
By s. 7(2) of the U.P. (Temporary) Control of Rent and_Eviction
Act, 1947, "the District Magistrate may require a landlord to Jet or not
to let to any ·person any accommodation which is or has fallen vacant"
and s. 16 of the Act provides that "no order made under this Act by
the State Government or the Dislrict Magistrate shall be called in question
in any court."
The first appellant appEed for an order in ejectrnent of the first res-
,pondent 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 ded.aration
that he was an allottee of the shop and was in possession in that capacity.
The trial court held that the appellant . neve'r 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 -C9urt 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 exoress enactmeμt in s. 16,. the order of the District Magistrate
was decl3:red final.
Rejectirig the contention.
HELD : The Legislature while investing the District Magist!rate with
power to allot the pr~inises 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 s. 7 or s. 7 A which confers jurisdiction
upon the District Magistrate to conclusively determine the facts
on the
existence of which his iurisdiction 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 possess.
It is only when the order is with jurisdiction that
the order is not liable to he challenged in a civil court by virtue of s. 16
of the Act. [36S H-369 CJ
Reg v. Commissioner of Income-tax, 21 Q.B.D. 313, and Ebrahim
Aboobakar & Anr. v. Custodian-General of Evacuee Property, [1952)
S.C.R. 696, referred to.

## Text

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363
MUNNI DEVI & ANR.
v.
GOKAL CHAND & ORS.
September 12, 1969
R
[J. C. SHAH, V. RAMASWAMI AND A. N. GROVER, JJ.]
c
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F
G
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Jurisdictional Fact-Power to allot premises
on
the
existence
of
vacancy-Statute enacting orders passed un•der the statute shall not be
called in question in any court-District Magistrate deciding
premises
vacant-If final-Court exclusion of Jurisdiction of -U.P. (Temporury) Control of Rent and Eviction Act, 1947, ss. 7, 7A, 16.
By s. 7(2) of the U.P. (Temporary) Control of Rent and_Eviction
Act, 1947, "the District Magistrate may require a landlord to Jet or not
to let to any ·person any accommodation which is or has fallen vacant"
and s. 16 of the Act provides that "no order made under this Act by
the State Government or the Dislrict Magistrate shall be called in question
in any court."
The first appellant appEed for an order in ejectrnent of the first res-
,pondent 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 ded.aration
that he was an allottee of the shop and was in possession in that capacity.
The trial court held that the appellant . neve'r 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 -C9urt 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 exoress enactmeμt in s. 16,. the order of the District Magistrate
was decl3:red final.
Rejectirig the contention.
HELD : The Legislature while investing the District Magist!rate with
power to allot the pr~inises 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 s. 7 or s. 7 A which confers jurisdiction
upon the District Magistrate to conclusively determine the facts
on the
existence of which his iurisdiction 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 possess.
It is only when the order is with jurisdiction that
the order is not liable to he challenged in a civil court by virtue of s. 16
of the Act. [36S H-369 CJ
Reg v. Commissioner of Income-tax, 21 Q.B.D. 313, and Ebrahim
Aboobakar & Anr. v. Custodian-General of Evacuee Property, [1952)
S.C.R. 696, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 899 of
1966.
364
SUPREME COURT REPORTS
[1970] 2 S.C.R.
Appeal by special leave from the judgment and decree dated
.A
May 14, 1965 of the Allahabad High Court in Second Appeal
No. 4136 o.f 1964.
Y ogeshwar Prasad and Hardev Singh, for the appe!lants.
S. N. Anand, for the respondents.
B
The Judgment of the Court was delivered by
Shah, J.
Gokal Chand-first respondent in this appeal-.
was a tenant of shop No. 34/2, Dispensary Road, Debra Dun,
which belongs to Munni Devi-the first appellant in this appeal.
Munni Devi applied to the Rent Control & Eviction Officer. J)ehra c
Dun, for an order in ejectment on the plea that Gokal Chand had
committed defa~lt in paying rent.
T~e RC. & E. Officer passed
an order observmg 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.
D
The RC. & E. Officer allotted the shop to Kishori!al. Kishorilal then applied to the R.C. & E. Officer that the shop allotted to
him was in the illegal occupation of Rawe! Chand s/ o Gokal
Chand. On May 22, 1957, the RC. & E. Officer declared that
Gokal Chand the preyious tenant had vacated the shop and that
E
Rawe! Chand was in illegal occupation of the shop. He accordingly issued a notice under s. 7 A (3) of the Act.
Gokal Chand then filed a civil suit in the Court of the Munsif,
Debra 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
F
defendants.
The Trial Court held that Gokal Chand had at no
time vacated the shop, nor was his tenancy terminated. He accordingly made an orde.r 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 unG
successful.
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 U.P. (Temporl\fY) Control of Rent and
Eviction Act, 1947, imposes certain restrictions on eviction of
tenants. Bys. 7(1)(a) it is provided:
"Every landlord shall, within 7 days after an accommodation becomes vacant by his ceasing to occupy it or
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MUNN! DEVI V. GOKAL CHAND (Shah,. J.)
365A
by th-~ 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 s. 7 provide :
B
"(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
C
in writing of the landlord and of the District Magistrate
previously obtained."
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Section 7A 'Yhich was added by Act 24 of 1952 provides, in se>
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 required to 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 ih 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 Aci provides :
"No order made under this Act by the State Government or the District Magistrate shall be called in question in any Court."
366
SUPREME COIJRT REPORTS
(1970] 2 S.C.R.
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 s. 16, the order of the District Magistrate is declared
final. We are unable to agree with that contention. Lord Esher,
M.R., in Reg. v. Commissioner of Income-tax('), observed :
"When an inferi.or 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 thingr, it shall have jurisdiction to do such
things but not otherwise. There it is not for them conclusively to decide whethe~ that state of facts exists, and,
if they exercise the iurisdiction 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 bocty 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 .iurisdiction."
'This rule was approved by this Court in Ebrahim Aboobakar and
Anr. v. Custodian-General of Evacuee Property(').
Munni Devi applied for an order in ejectment against Gokal
Chand on the plea that he had committed default in paying rent.
The R.C. & E. Officer held that Gokal Chand had vacated the
premise and had inducted a sub-tenant. The Legislature has in-
.(l) 21 C.B.D. 313.
(1) [1952] S.C.R. 696.
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MUNN! DEVI v. GOKAL CHAND (Shah, J.)
367
vested !he District Magistrate with power on the existence of a
vaeancy'to allot the premises to another person, but the Legislature
has. not made the determil)ation 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 s. 7 or s. 7 A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which
his jurisdiction arises.
Undoubtedly he has jurisdiciion to make
orders under ss. 7 & 7 A 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 C'nly when the order is with jurisdiction that the order
is not liable to be challenged in a Civil Court by virtue of s. 16
of the Act.
In Chaube Jagdish Prasad v. Ganga Prasad Chaturvedi('), the
reilpondent had obtained on rent the "accommodation" in dispute
from the appellant. The appellant submitt.~d an aprlicatlon under
s. 3A of the U.P.)1'emporary) Control of Rent and Eviction Act,
1947, 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 appeilant then
instituted a suit under s. 5 ( 4) of the Act for the enhancement of
"reasonable annual rent".
Th~ 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 s. 5(4). In revision, the
High Court held that though the construction was new, the "accommodation" in the occupation of the respondent was noi new,
and therefore s. 3A of the Act was inapplicable. In appeal, this
Court held that a wrong decision made By the House Allotment
Officer who ex.~rcised the power of the District Magistrate under s.
3A of the Act. or an order made by him in excess of his power
under that sectlon could be rectified by a suit under s. 5(4) 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
t~e s~op, the. Distri.ct Magistraie had no power to pass orderSd1rectmg forcible eiectment and allotting the sl;!op to another
person.
The appeal fails and is dismissed with costs.
Y.P.
Appeal dismissed.
(!) (1959) Supp;(!) s.C.R. 733.