1. This is an application by Motichand Balubhai against whom an order has been made by the District Magistrate of Surat directing him, under Rule 81(2) of the Defence of India Rules, 1939, to refrain from asking Lallubhai Bechardas, his tenant, to vacate any part or the whole of the premises not occupied by him as tenant or from doing anything to disturb his peaceful possession, enjoyment and occupation of the said premises during the pendency of the present war or until such earlier time as the said tenant may choose to vacate the said premises, provided he continues to pay the rent. The order purports to have been made under Rule 81(2) of the Defence of India Rules. The applicant filed a suit, viz. Small Cause Suit No. 1046 of 1943, in the Court of the First Class Subordinate Judge of Surat in October, 1943, for certain arrears of past rent and for possession from the tenant. The Court made a decree in favour of the applicant on February 21, 1944, granting him possession and the arrears of rent. Some time before that date the tenant approached the District Magistrate alleging that his landlord was seeking to evict him without any proper ground justifying such action and asking the District Magistrate to use his powers under the Defence of India Rules. It appears that the applicant for some reason or other failed to appear before the District Magistrate and the order complained of came to be passed about the same date as the date of the decree.
2. Coming to the merits of the application, it is necessary to refer to the material parts of Sub-rule (2) of Rule 81 under which the order in question purports to have been made. Sub-rule (2), so far as material, reads thus :
The Central Government or the Provincial Government, so far as appears to it to be necessary or expedient for securing the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, may by order provide
(bb) for regulating the letting and sub-letting of any accommodation whether residential or non-residential, whether furnished or unfurnished and whether with or without board, and in particular-(ii) for preventing the unreasonable eviction of tenants and sub-tenants from such accommodation.
Those powers have now been delegated to the District Magistrate of Surat under the provisions of Section 2(5) of the Act.
3. The learned Magistrate in his order of February 21, 1944, said that whereas it appeared to him that Mr. Motichand Balubhai had made unreasonable demand upon Mr. Lallubhai Bechardas to vacate a portion or the whole of the premises occupied by the latter as tenant he ordered under Rule 81(2) of the Defence of India Rules that Mr. Motichand Balubhai should refrain from asking Mr. Lallubhai Bechardas to vacate a part or the whole of the premises, etc. It will be seen that the words 'unreasonable demand' in this order are! in conformity with the expression 'unreasonable eviction' used in Clause (bb)(ii) of Sub-rule (2) or Rule 81. Before the learned Magistrate could deal with the matter under the said clause, it was certainly necessary for him to see whether the conditions mentioned in the earlier part of Sub-rule (2) had been satisfied; that is to say, it was essential for him to be satisfied that it Was necessary or expedient to make the kind of the order that he contemplated 'for securing the defence of British India or the efficient. prosecution of the war, or for maintaining the supplies and services essential to the life of the community' ; and only when he was so satisfied, would he be competent to deal with the application before him and make an order under Clause (bb)(ii) of Sub-rule (2). Prima facie it hardly seems to us possible that an order requiring a landlord not to interfere with the possession of his tenant can ordinarily have any connection with the defence of British India or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community. It is contended that in this case the third condition must have been regarded as satisfied by the learned Magistrate in view of the fact that he has expressly referred to Rule 81(2) in his order. It is difficult for us to accept this contention. It does not appear to us that there could be any connection in this case between maintaining supplies and services essential to the life of the community and the question whether this particular tenant should be allowed to stay on in the premises. If the learned Magistrate had applied his mind to the earlier part of Sub-rule (2), we would have expected some mention of it in his order, whereas he begins his order by express reference to the phraseology of Clause (bb)(ii). If none of the conditions appearing in Sub-rule (2) were satisfied, the older of the District Magistrate must be held to be without jurisdiction and he must be held to have dealt with a matter with which he was not authorised to deal. Under Section 14 of the Defence of India Act, except as may be provided in the Act or in any rule made thereunder or in any order made under any such rule the ordinary civil and criminal Courts are to continue to exercise their jurisdiction. In the absence of any such provision as has been excepted in the said section, it seems to us that the learned Magistrate has really; dealt with a matter within ordinary jurisdiction of the civil Courts, and his order must, therefore, be held to be ultra vires. In this view of the case it is unnecessary for us to examine the more fundamental argument that the absence of any such words in the order as appear in the first part of Sub-rule (2) is itself sufficient to show or to raise the presumption that the District Magistrate has acted without jurisdiction.
4. In the present case there is an additional ground of objection to the order in that it refers to the demand made by applicant on his tenant to vacate the premises in question as 'an unreasonable demand.' Prima facie that is clearly a wrong description of the demand made in view of the legal order obtained by the petitioner in his favour from a competent Court.
5. The rule will, therefore, be made absolute and the order of the District Magistrate set aside. We do not intend that our order should be regarded as a bar to any application the tenant may intend to make in future, if so advised, for obtaining art appropriate order under the Defence of India Rules in his favour.