# THE CENTRAL TALKIES LTD., KANPUR v. DW ARKA PRASAD

- **Citation:** [1961] 3 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** CIVIL APPELLATE JUBISDICTION: Civil Appeal No. 374 of 1957
- **Bench:** J. L. Kapur, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-central-talkies-ltd-kanpur-v-dw-arka-prasad-2035
- **Pages:** 8

## Headnote

Rent Control-Ejectment suit with permission of District
Magistrate-Additional District Magistrate, if can grant permission
-Persona designata-U. P. (Temporary) Control of Rent and Eviction Act, I947 (U. P. Ill of I947), ss. 2(d) and 3-Code of Criminal Pro~edure, r898 (V of I898), s. ro.
Section 3 of the U. P. (Temporary) Control of Rent and
Eviction Act, 1947, enabled a landlord to file a suit for eviction
of the tenant with the permission of the District Magistrate.
Section 2(d) of the Act defined District Magistrate as including
an officer authorised by the District Magistrate to perform any
, 'O! his functions under the Act. By a notification issued under
s. 10(2) of the Code of Criminal Procedure the U. P. Government appointed Mr. Seth to be an Additional District Magistrate
"'with all the powers of a Dist~ict Magistrate under the said Code
andn'iiaer any,other law for the time being in force." The respondent applied to the District Magistrate for permission to file a
suit for ejectment against the ·appellant. The District. Magistrate transferred the application to Mr. Seth the Additional
District Magistrate who granted the permission, The appellants
contended that the permission granted was invalid as the District
Magistrate mentioned. in s. 3 of the Act was a persona designata
and the permission could have been granted only by him or by
an officer authorised by him to perform his functions and not by
the Additional District Magistrate.
H eU, that the permission granted by the Additional District
Magistrate was valid, The notification issued by the Govern.
ment invested Mr. Seth with all the powers of the District
Magistrate under the Code as well as under any other law includ.
ing the Eviction Act 1md he was competent to grant the permission under s. 3. The District Magistrate mentioned ins. 3 was
not a tersona designata. A persona designata is a person selected
as an mdividual in his private capacity, and not in his capacity
as filling a particular character or office.
Kedlw Nath v. A!ool Chand, A.I.R. 1953 All. 62, disapproved.
Partllasaradhi Naidu v. KoteSfllara Rao, (1923) I.L.R. 47 Mad.
369 (F.B.), referred to.
CIVIL
APPELLATE
JUBISDICTION: Civil Appeal
No. 374 of 1957.
Appeal from the judgment and decree dated September 21, 1955, of the Allahabad High Court in First
Appeal No. 251of1954 arisin& out of the judgment
6+
January 16,
Centrat Talkies
Ltd., Kanpur
v.
Dwarka Prasad
Hidayatullah ].
496
SUPREME COURT REPORTS
[1961]
and decree dated May 24, 1954, of the Civil Judge,
Kanpur, in Suit No. 35 of 1949.
A. V. Viswanatha Sastri, G. S. Pathak and Naunit
Lal for the appellant.
N. C. Chatterjee, S. N. Andley, J. B. Dadachanji and
P. L. Vohra, for the respondent.
196l. January 16. The Judgment of the Court was
delivered by
HIDAYATULLAH, J.-This is an appeal against the
judgment aud decree of the High Court of Allahabad
with a certificate granted by the High Court under
Art. 133(l)(b) of the Constitution. The High Court,
reversing the decision of the trial Court, decreed the
present suit for ejectment against the appellants, and
also awarded damages to the plaintiff-respondent at
the rate of Rs. 593-12-0 per month. The suit was filed
by the re~pondent, Babu Dwarka Prasad, against the
appellants, Central Ta.Ikies Ltd., Kanpur, and Lala
Ram Narain Garg, the Managing Director of the
Company.
The facts, briefly stated, are as follows:
Dwarka
Prasad was the sole owner of a plot of land No.73/22
(old No .. 73/28) situated in Collectorgunj, Kanpur. In
1933 an agreement of lease was executed by five
persons in favour of Lala Rameshwardas, the predecessor-in-title of Babu Dwarka Prasad, by which the
five lessees took over on lease a hall and other constructions, which the lessor agreed to build at a cost of
Rs. 16,000/- within four months. It was agreed that,
if the lessor was required to spend an amount in excess
of Rs. 16,000/-, he would be entitled to interest at the
rate of 12 annas per cent. per month from the second
party

## Text

3 S.C.R.
SUPREME COUR~REPORTS
495
THE CENTRAL TALKIES LTD., KANPUR
v.
DW ARKA PRASAD.
(J. L. KAPUR, M. HIDAYATULLAH and J. c. SHAH, JJ.)
Rent Control-Ejectment suit with permission of District
Magistrate-Additional District Magistrate, if can grant permission
-Persona designata-U. P. (Temporary) Control of Rent and Eviction Act, I947 (U. P. Ill of I947), ss. 2(d) and 3-Code of Criminal Pro~edure, r898 (V of I898), s. ro.
Section 3 of the U. P. (Temporary) Control of Rent and
Eviction Act, 1947, enabled a landlord to file a suit for eviction
of the tenant with the permission of the District Magistrate.
Section 2(d) of the Act defined District Magistrate as including
an officer authorised by the District Magistrate to perform any
, 'O! his functions under the Act. By a notification issued under
s. 10(2) of the Code of Criminal Procedure the U. P. Government appointed Mr. Seth to be an Additional District Magistrate
"'with all the powers of a Dist~ict Magistrate under the said Code
andn'iiaer any,other law for the time being in force." The respondent applied to the District Magistrate for permission to file a
suit for ejectment against the ·appellant. The District. Magistrate transferred the application to Mr. Seth the Additional
District Magistrate who granted the permission, The appellants
contended that the permission granted was invalid as the District
Magistrate mentioned. in s. 3 of the Act was a persona designata
and the permission could have been granted only by him or by
an officer authorised by him to perform his functions and not by
the Additional District Magistrate.
H eU, that the permission granted by the Additional District
Magistrate was valid, The notification issued by the Govern.
ment invested Mr. Seth with all the powers of the District
Magistrate under the Code as well as under any other law includ.
ing the Eviction Act 1md he was competent to grant the permission under s. 3. The District Magistrate mentioned ins. 3 was
not a tersona designata. A persona designata is a person selected
as an mdividual in his private capacity, and not in his capacity
as filling a particular character or office.
Kedlw Nath v. A!ool Chand, A.I.R. 1953 All. 62, disapproved.
Partllasaradhi Naidu v. KoteSfllara Rao, (1923) I.L.R. 47 Mad.
369 (F.B.), referred to.
CIVIL
APPELLATE
JUBISDICTION: Civil Appeal
No. 374 of 1957.
Appeal from the judgment and decree dated September 21, 1955, of the Allahabad High Court in First
Appeal No. 251of1954 arisin& out of the judgment
6+
January 16,
Centrat Talkies
Ltd., Kanpur
v.
Dwarka Prasad
Hidayatullah ].
496
SUPREME COURT REPORTS
[1961]
and decree dated May 24, 1954, of the Civil Judge,
Kanpur, in Suit No. 35 of 1949.
A. V. Viswanatha Sastri, G. S. Pathak and Naunit
Lal for the appellant.
N. C. Chatterjee, S. N. Andley, J. B. Dadachanji and
P. L. Vohra, for the respondent.
196l. January 16. The Judgment of the Court was
delivered by
HIDAYATULLAH, J.-This is an appeal against the
judgment aud decree of the High Court of Allahabad
with a certificate granted by the High Court under
Art. 133(l)(b) of the Constitution. The High Court,
reversing the decision of the trial Court, decreed the
present suit for ejectment against the appellants, and
also awarded damages to the plaintiff-respondent at
the rate of Rs. 593-12-0 per month. The suit was filed
by the re~pondent, Babu Dwarka Prasad, against the
appellants, Central Ta.Ikies Ltd., Kanpur, and Lala
Ram Narain Garg, the Managing Director of the
Company.
The facts, briefly stated, are as follows:
Dwarka
Prasad was the sole owner of a plot of land No.73/22
(old No .. 73/28) situated in Collectorgunj, Kanpur. In
1933 an agreement of lease was executed by five
persons in favour of Lala Rameshwardas, the predecessor-in-title of Babu Dwarka Prasad, by which the
five lessees took over on lease a hall and other constructions, which the lessor agreed to build at a cost of
Rs. 16,000/- within four months. It was agreed that,
if the lessor was required to spend an amount in excess
of Rs. 16,000/-, he would be entitled to interest at the
rate of 12 annas per cent. per month from the second
party till the end of tenancy.
The tenancy was from
month to month, and the period of the tenancy was
fixed at 5 years in the first instance. This tenancy
continued with variations in the amount of rent till
the year 1946, and on January 15, 1946, Dwarka
Prasad sent a letter to the def Pndants that the period
of lease was to expire on February 28, 1946, and th:it
the Central Talkies Ltd. should vacate the premisC's
by that date. The defendants did not vacate the
3 S.C.R.
SUPREME COURT REPORTS
497
premises, and a suit for ejectment w'
0 1nn "~ainst the
Central Talkies Ltd.
During the pendency of that suit, the United Provinces (Temporary) Control of Rent and Eviction Act,
1947 (referred to in the judgment as the Eviction Act),
came into force,
Under s. 3 of the Eviction Act,
permission of the District Magistrate was required to
file in any Ci vii Court a suit for the eviction of a
tenant, except on grounds which were enumerated in
the section. · Admittedly, that suit was filed on a
ground whlQ.h was not enumerated in the section, and
Dwarka Prasad withdrew it. He then applied to the
District.Magistrate for permission to eject the Central
Talkies Ltd., from the premises, and permission was
granted by the Additional District Magistrate (Rural
Area) on July 7, 1948. It is not necessary to state the
pleas which were taken by the defendants in the newly
filed suit, because the only point argued before us was
that the suit was incompetent, because permission of
the District Magistrate as required by s. 3 had not
been obtained.
The Divisional Bench of the High Court held that
the suit was competent. The two learned Judges, who
heard the appeal, reached the same conclusion, though
on slightly different grounds. Raghubar Dayal, J. held
that the Additional District Magistrate, who granted
permission, was empowered by the Provincial Government under s. 10(2) of the Code of Criminal Procedure
to exercise all the powers of a District Magistrate
under the Code and all the laws for the time being in
force, and the requirements of s. 3 were complied with.
Brij Mohan Lal, J. came to the conclusion that the
District Magistrate by transferring the case to the
Additional District Magistrate (Rural Area) had authorised him to perform his functions under the Act in
this behalf and that the Additional District Magistrate, being thus included in the definition of "Distriet
Magistrate" under s. 2(d), was competent to grant the
permission. Concurring, therefore, that the suit was
instituted .with the permission of the District Magistrate as required by the Eviction Act, the Divisional
Bench held that the suit was competent.
Central Talkies
Lti.., Kanpur
v.
Dwarka Prasad
Hidayalullah ].
Central Talkies
Ltd., If anpur
v.
Dwarka Prasad
Hidayatullah ].
498
SUPREME COURT REPORTS
[1961]
It may be pointed out that, at first, the application
for permission was made over by the District Magistrate to Mr. Ha.di Hasan, who was also an Additional
District Magistrate; but the latter sent the case back
to the District Magistrate asking for a transfer, because
he had been approached on behalf of the defendants.
The District Magistrate thereafter passed an order on
February 11, 1948, to the following effect:
"Transferred to Additional District Magistrate
(R.A.) for disposal."
The application for permission was disposed of by
Mr. Brijpal Singh Seth, Additional District Magistrate
(Rural Area.), on July 7, 1948. This Officer, who was
previously a City Magistrate, Kanpur, was appointed
an Additional District Magistrate by Notification No.
3400/Il-276-48 dated May 22, 1948. The material
portion of this Notification read as follows:
" With effect from the date on which he takes
over charge Shri Brijpal Singh Seth, City Magis.
trate, Kanpur, is appointed vice Shri Sheo Ramdas
Saksena-
(a) under sub-section (2) of section 10 of the
Code of Criminal Procedure, 1898 (Act V of 1898), to
be an Additional District Magistrate of Kanpur
District, with jurisdiction extending over the whole
of the said district and with all the powers of a
District Magistrate under the said Code and under
any other law for the time being in force ... "
The appellants contended before us that both the
reasons given by the Divisional Bench of the High
Court were not valid, and that the suit was not
brought in accordance with the Eviction Act. At first,
the appellants wished to raise a question as to the
invalidity of the notice; but during the course of the
arguments, that ground was expressly abandoned.
The oase was thus argued only on the footing that the
permission given by Mr. Brijpal Singh Seth did not
comply with s. 3 of the Eviction Act.
The material portion of s. 3, as it stood on the rele.
vant date, read as follows :
"No suit shall, without the permission of the ·
District Magistrate, be filed in any civil court
3 S.C.R.
SUPREME COURT REPORTS
499
against a. tenant for his eviction from a.ny accommodation, except on one or more of the follow-
.
d
"
mg groun s ...
"District Magistrate" is defined by s. 2(d) of the
Act, which reads :
"'District: Magistrate' includes a.n officer authorized by the District Magistrate to perform a.ny
of his functions under this Act."
The argument of the a. ppellants wa.s that the District
Magistrate mentioned in s. 3 wa.s a. persona designata,
a.nd that either he or a.n officer authorised by him to
perform his functions could grant permission. According to them, in view of the provisions quoted a.hove and
in view also of the provisions of s. 1(2) of the Code of
Criminal Procedure, no Additional District Magistrate
was competent to grant the permission, unless autho·
rised to do so by the District Magistrate. The order of
the District Magistrate by which the case wa.s made
over to the Additional District Magistrate (Rural Area)
was characterised as a mere transfer and not an authorisation. It was contended that a transfer could only
take place to a person possessing jurisdiction, and that
jurisdiction under the present Act was confined only to
the District Magistrate or an officer authorised by him.
The transfer of the case, it was contended, did not
constitute such authorisation. Reliance was placed
on the decision of a learned single Judge of the
Allahabad High Court reported in Kedar Nath v.
Mool Chand (1) and on the decision of the Nagpur High
Court referred to therein, P. K. Tare v. Emperor (').
Section 10 of the Code of Criminal Procedure, at the
relevant time, provided as follows:
"10(1). In every district outside the presidency.
towns the Provincial Government shall appoint a
Magistrate of the first class, who shall be ca.lied the
District Magistrate.
(2) The Provincial Government may 11.ppoint any
Magistrate of the first class to be an Additional
District Magistrate and such Additional District
Magistrate shall have all or any of the powers of
a. District Magistrate under this Code or under any
(1) A.l.R. 1953 All. 62.
(2) A.l.R. r943 Nag. 260
r96r
Ce1tlral TalkU,
Ltd., Kanpur
Vo
Dwarka Pras.4cl
Hidayalull4h j,
r961
Ceniral Talkies
Ltd., Kanpur
v.
Dwarka Prasad
Hidayatullah ].
500
SUPREME COURT REPORTS
[1961]
other law for the time being in force, as the Provincial Government may direct."
The Notification, which was issued about Mr. Brijpal
Singh Seth and which has been quoted already,
invested him with all the powers of the District
Magistrate under the Colle of Criminal Procedure as
well as under any other Jaw for the time being in
force. He was thus competent to deal with an applica.
tion under the Act for permission to file a civil suit
without special authorisation from the District Magistrate. Learned counsel for the appellants contended
that the definition of "District Magistrate" clearly
showed that in addition to the District Magistrate,
only an officer specially authorised by him could act
under the Eviction Act, and he referred to sub-s. (2)
of s. 1 of the Code of Criminal Procedure, which
provided:
"It extends to the whole of British India; but,
in the absence of any specific provision to the contrary, nothing herein contained shall affect any
special or local law now in force, or any special
jurisdiction or power conferred, or any special form
of procedure prescribed, by any other law for the
time being in force ... "
The argument was that the special jurisdiction created
by the Evict.ion Act was not affected by s. 10(2) of the
Code, in view of the provisions of this sub-section.
The argument overlooks the words "in the absence of
any specific provision to the contrary ", and because
there is in the Code of Criminal Procedure such a provision in s. 10(2), sub-s. (2) of s. 1 is excluded, and an
Additional District Magistrate must be regarded as
possessing the powers under any other law including
the Eviction Act.
The argument that the District l\ifagistrate was a
persona designata cannot be accepted. Under the
definition of" District Magistrate", the special authorisation by the District Magistrate had the effect of
creating officers exercising the powers of a District
Magistrate under the Eviction Act.
To that extent,
those officers would, on authorisation, be equated to
the District Magistrate. A persona designata is " a
3 S.C.R.
SUPREME COURT REPORTS
501
person who is pointed out or described as an individual, as opposed to a person ascertained as a member
of a class, or as filling a . particular character." (See
Osborn's Concise Law Dictionary, 4th Edn., p. 253).
In the words of Schwabe, C.J., in Parthasaradhi Naidu
v. Koteswara Rao ( 1 ), personae designatae are "persons
selected to act in their private capacity and not in their
. capacity as Judges." The same consideration applies
also to a well-known officer like the District Magistrate
named by virtue of his office, and whose powers the
Additional District Magistrate can also exercise and
who can create other officers equal to himself for the
purposes of the Eviction Act.
The decision of
Sapru, J., in the Allahabad case, with respect, was
erroneous.
Reference was made to the definition of " District
Magistrate" in the United Provinces (Temporary)
Accommodation Requisition Act, 1947, which includes
an "Additional District Magistrate". This definition
has been made wide for obvious reasons, because
under s. 10(2) of the Code of Criminal Procedure, the
Additional District Magistrate has to be specially
empowered. By including the Additional District
:Magistrate in the definition of " District Magistrate ",
power is conferred by the Requisition Act itself whether or not the Provincial Government specially empowers any particular Additional District Magistrate
in that behalf. The Eviction Act, on the other hand,
gave power to the District Magistrate to authorise
offi'cers other than the Additional District Magistrates
empowered by the Provincial Government, by defining the term "District Magist,rate" differently.
I In view of the above, it is hardly necessary to go
into the reasons given by Brij Mohan Lal, J. ; but
even those reasons are, with all due respect, equally
valid. By the act of transferring the case tu the
Additional District Magistrate, the District Magistrate
must be deemed to have authorised him to exercise
his powers under s. 3 of the Eviction Act.
However,
it is not necessary to rely upon this aspect ·of the
case because, in our opinion, s. 10(2) of the Code of
(I) (1923) l.L.R. 47 Mad. 369. 373 (F.B.).
Cenlt'al Talkies
Ltd., Kanpur
v.
Dwarka Prasad
HidayafulJah ].
Cl•lral Talkies
Ltd., Kpnpur
v.
Dwarha Prasad
Hidayatullah ],
January z7.
502
SUPREME COURT REPORTS
(1961]
Criminal Procedure gave ample powers to Mr. Brijpal
Singh Seth to accord permission for bringing the suit,
a.nd the order of the District Magistrate, even if
treated as a. transfer, was valid.
In the result, the appeal fails, and is dismissed with
costs.
Appeal dismissed.
NATIONAL CEMENT MINES INDUSTRIES, LTD.
v.
COMMISSIONER OF INCOME-TAX,
WEST BENGAL, CALCUTTA.
(J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)
Income-tax-Conveyance with reservation of rights-Category
of-Receipts under the conveyance, if income or capital.
The appellants were carrying on the bnsiness of cement and
lime manufacture and supply thereof. By a deed dated May 7,
1935, the appellants conveyed to the Associated Cement Ltd.
the rights which had vested in them under an earlier conveyance
made in their favour by a company known as Karanpura Co.
Under the deed the appellants reserved to themselves the right
to receive from the Associated Cement Company a sum equal to
thirteen annas in respect of every ton of cement sold by it which
shall have been manufactured from the limestone won by it
from the lands transferred and comprised in the leases and
agreements.
Pursuant to this stipulation in the year_ of account, the
appellants received from the Associated Cement Ltd. Rs. 77,820.
The Income-tax Officer included this amount in the total assessable income of the appellants in the assesment year and his order
was confirmed l>y the Appellate Assistant Commissioner and by
the Income-tax Appellate Tribunal. The contention of the
appellants before the High Court in_ a reference under s. 66 of
the Indian Income-tax Act that on a proper construction of
the deed and on the facts and circumstances of the case the sum
of Rs. 77,820 did not represent receipt of a revenue nature
in the hands of the appellants and was not assessable as such,
was negatived.
Held, that the deed 1iid not incorporate a transaction of
·either sale or lease. The conveyance was· subject to several
restrictions and the'appellants retained in part, rights in the
land conveyed. The transaction was substantially a transaction
for sharing the profits of the commercial activities of the Associated Cement Ltd. and the receipt under cl. I of the deed was of
the nature ·of income and not capital and as such assessable
to tax,
·