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Bashi Ram Vs. Mantri Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 988 of 1961
Judge
Reported inAIR1965All498
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1), 3(3), 3(4) and 7F; Code of Civil Procedure (CPC) - Sections 151 - Order 41, Rule 27
AppellantBashi Ram
RespondentMantri Lal
Appellant AdvocateS.N. Sahai, Adv.
Respondent AdvocateKrishna Sahai, Adv.
Excerpt:
tenancy - sections 3 and 7f of u.p. (temporary) control of rent and eviction act, 1947 - decree passed in the suit for eviction of tenant - after permission from district magistrate - held, neither a subsequent order under section 7f by state government suspending the operation of the permission nor an order making the permission operative from a date which is after the date of decree can have the effect on the decree. - - clearly, within the limits of the legislation. i am not convinced that the legislature intended that a suit for ejectment, filed after permission was granted, must fail because subsequently the order granting permission was quashed or modified by a superior administrative authority. 14. if the legislature intended to provide (1) that a suit may be filed with the.....dwivedi, j.1. two questions referred to this bench are :1. if in a suit instituted by a landlord for ejectment of his tenant with the permission of the district magistrate obtained under section 3 (1) of the u. p. (temporary) control of rent and eviction act, the state government on being moved by the tenant to pass an appropriate order under section 7f on the record of the case granting permission passes an order suspending the operation of the permission, what is its effect on further proceedings in the suit pending in court ?2. if the above mentioned suit is decreed in the landlord's favour and the tenant files an appeal and during its pendency the state government passes an order purporting to be one in exercise of the power conferred by section 7-f directing that the permission.....
Judgment:

Dwivedi, J.

1. Two questions referred to this Bench are :

1. If in a suit instituted by a landlord for ejectment of his tenant with the permission of the District Magistrate obtained under Section 3 (1) of the U. P. (Temporary) Control of Rent and Eviction Act, the State Government on being moved by the tenant to pass an appropriate order under Section 7F on the record of the case granting permission passes an order suspending the operation of the permission, what is its effect on further proceedings in the suit pending in court ?

2. If the above mentioned suit is decreed in the landlord's favour and the tenant files an appeal and during its pendency the State Government passes an order purporting to be one in exercise of the power conferred by Section 7-F directing that the permission granted by the District Magistrate would have effect after a certain date, which date is subsequent to the date of the decree under appeal, what is its effect on the decree ?

2. I do not propose to answer the first question in this case. The answer to the second question is determinative of the case. There has been little argument at the bar about the power of the State Government to pass an interim order suspending the operation of the permission of the District Magistrate. As at present advised, I am inclined to the view that the State Government has no such power.

3. On the second question I am of opinion that the order of the Slate Government would have no effect on the decree under appeal. My opinion is based on a very simple reasoning which I had indicated at the time of arguments. I still adhere to it.

4. The order of the State Government, it may be observed, affirms the grant of permission by the District Magistrate; only the date of its operation is varied. The lower appellate Court could not take on record the order of the State Government under Rule 27 of Order 41 of the Code of Civil Procedure. The order could not be admitted on record under Section 151 of the Code of Civil Procedure, as such admission would encourage multiplicity of proceedings and would not he in the interests of justice. The lower appellate Court wrongly admitted the order as additional evidence. As the order cannot be read in evidence, it can have no effect on the decree under appeal.

5. Plurality opinions traverse a wider ground in answering the second question. If the State Government had cancelled the permission of the District Magistrate, it would have been necessary to cover that ground. But that is not so in this case, The second question has a narrow range. I would reserve opinion on the wider aspect for a suitable case. I am not in favour of expressing opinions which may after all be no more than obiter dicta. I doubt if the obiter dictum of a Full Bench is binding on a single Judge or Division Court.

Pathak, J.

6. This is a defendant's appeal arising out of a suit for possession, arrears of rent and mesne profits.

7. The respondent, who is the landlord of the premises in suit, sued the appellant for ejectment alter obtaining permission on October 17, 1958 from the District Magistrate under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 and after terminating the appellant's tenancy by a notice under Section 106 of the Transfer of Property Act. Against the grant of permission the appellant proceeded in revision before the Commissioner but the revision application was dismissed on March 3, 1959. He then filed an application under Section 7-B of the Act before the State Government on April 6, 1959.

Pursuant to the permission granted by the District Magistrate, the respondent filed the instant suit when the application under Section 7-F was pending before the State Government. On May 19, 1959 the State Government passed an order purporting to suspend the operation of the permission granted by the State Government during the pendency of the application under Section 7-F, but the trial court rejected the contention of the appellant that it had no jurisdiction to proceed further with the suit and passed a decree for ejectment on April 13, 1960. Against the trial court decree an appeal was filed before the learned Additional Civil Judge, Dehradun and during the pendency of this appeal, on July 23, 1960, the State Government passed an order purporting to be under Section 7-F directing that the permission granted by the District Magistrate would have effect only after December 31, 1960. It was contended before the learned Additional Civil Judge that this order had the effect of invalidating the proceedings in the suit as no suit could be filed before December 31, 1960.

8. Two questions have been raised on behalf of the appellant. It is contended that the effect of the order dated May 19, 1959 purporting to suspend the permission granted by the District Magistrate was to prohibit the court from proceeding further with the trial of the suit and, therefore, all proceedings taken thereafter were invalid. It is next urged that the order under Section 7-F resulted in nullifying the proceedings in the suit altogether as the permission to institute the suit could be effective only after December 31, 1960. On behalf of the respondent it was submitted that when the orders purporting to suspend the permission granted by the District Magistrate and subsequently making the permission effective only after December 31, 1980 were passed the suit had already been instituted, and no subsequent order could have any effect upon the validity of the proceedings in the suit. It was urged that, therefore, the State Government had no jurisdiction to pass the aforementioned order under Section 7-F. A further argument raised on behalf of the respondent to meet the second contention of the appellant is that the State Government had no jurisdiction to attach any condition to the permission granted by the District Magistrate.

9. It appears to me that the central issue in controversy is whether upon a suit being instituted upon permission duly obtained from the District Magistrate a subsequent order made by the State Government under Section 7-F could have any legal effect upon the proceedings in the suit.

10. Section 3 of the Act declares :

'Subject to any order passed under Sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil court against the tenant for his eviction from any accommodation, except on one or more of the following grounds. ....'

Learned counsel for the appellant contends that the permission granted by the District Magistrate under Section 3(1)is dependent for its validity upon an order passed in revision by the Commissioner under Section 3(4) and an order passed by the State Government under Section 7F and that it is immaterial that the suit for ejectment has already been instituted before the orders under Section 3(4) and 7F were passed. We have been referred to the decisions in Dr. S.L. Khoparji v. State of U.P., 1958 All LJ 724 and Munshi Lal v. Shambhu Nath Ram Kishan, 1958 AH L J 584, both of which were influenced by the consideration that if the contention advanced by the landlord in those cases were accepted, a landlord securing the permission of the District Magistrate could nullify the effect of the statutory provisions of Section 3 (4) and Section 7F by rushing to court and instituting his suit for ejectment. Reference was also made to the decision in Raghunath Saran v. State of U. P., Civil Misc. Writ. No 910 of 1957, D/. 20-3-1959 (All) which reaffirmed the view taken in Dr. S.L. Khoparji's case, 1958 All L J 724 (supra). Reliance was also placed upon a decision of Dhavan. J., in Basant Lal Sah v. Bhagwati Pd. Sah, 1963 All LJ 620 : (AIR 1964 All 210). On the other hand reliance is placed for the respondent on the view taken by one of us in D. N. Munshi v. Gayatri Devi. 1961 All L J 353 and it is urged that the provisions of the section merely bar the institution of a suit for ejectment, that the bar is removed if the District Magistrate grants permission and that once permission is granted the bar is raised and a landlord can enter a court and that any subsequent order can have no effect.

11. I am inclined to accept the contention of the respondent. The bar being to the institution of the suit, the moment the suit is filed the permission exhausts itself, and the suit has to be decided in accordance with law on the basis of the pleadings of the parties and the evidence on the record. It is true that the permission to sue granted by the District Magistrate is subject to any order passed in revision by the Commissioner under Section 3 (4) and thereafter by the State Government under Section 7F, but it the order under Section 3 (4) or Section 7F is to have any effect in law it must be passed before the suit is instituted. There is nothing in the Act which expressly makes the proceedings in a suit dependent upon an order subsequently passed under Section 3 (4) or Section 7F, and the words 'subject to any order passed under Sub-section (3) 'in Section 3 (1) do not make the validity of the proceedings in a pending suit dependent upon any such order. There is nothing in the Act, it appears to me, which requires the landlord to wait before he institutes a suit, and that being so, there can be no question of a landlord 'hurrying or rushing' to a court to institute the suit.

It the contrary view is accepted, then it must be logically held that the landlord should wait until the tenant has exhausted his remedy before the Commissioner and subsequently before the State Government. There is no period of limitation within which the tenant must have recourse to the remedy under Section 7F and upon a suit instituted by the landlord for ejectment a tenant may prolong the proceedings by resorting to the remedies available to him by appeal to the first appellate court, and then to this court and even further to the Supreme Court, and he may at a very late stage of the litigation approach the State Government under Section 7F and succeed in obtaining an order quashing the permission and thus nullifying the entire proceedings in the litigation. If the fear of haste on the part of the landlord in instituting the suit without waiting for the Commissioner's order or the State Government's order is the basis of the view in support of the appellant, equally can much be said for the view against it where the ultimate decision in a suit for ejectment can depend entirely upon a tenant who tarries in applying to the State Government under Section 7F.

11A. The question is not free from difficulty, especially if the matter be viewed from the respective disadvantages which are bound to be suffered by the landlord or the tenant according as one contention or the other is preferred. But where the language of the statute is plain, as it seems to be here, the Court would not be justified in paying excessive regard to the loss of advantage Or convenience of either party. It is said that acceptance of the contention advanced for the respondent would frustrate the object of the enactment, and that object, we are told, is the protection of the tenant from the rapacity of the landlord. But how far should this protection be construed? Clearly, within the limits of the legislation. In their task of protecting the tenant, executive and judicial authorities have not been conferred powers carte blanche. They must be guided by the language of the statute. If there is a lacuna in the statute or if the statute contains a detective provision, it is a matter for the Legislature to remedy. As the provision stands, it merely imposes a ban upon the institution of the suit and it does not make the validity of the proceedings in the suit dependent upon any order passed alter the suit has been instituted. I am not convinced that the Legislature intended that a suit for ejectment, filed after permission was granted, must fail because subsequently the order granting permission was quashed or modified by a superior administrative authority.

12. My answer to the two questions referred is that, the suit having been instituted after permission to do so was granted, neither the subsequent order under Section 7F by the State Government suspending the operation of the permission nor the later order under that provision purporting to make the permission operative after a certain date can have any effect on the proceedings in the suit or the decree passed in it.

Desai, C.J.

13. I agree with my brother Pathak. The words ''subject to any order passed under Sub-section (3)' govern the ban on the filing of a suit in civil court without the District Magistrate's permission. Only the filing of a suit is subject to any order passed under Sub-section (3) of Section 3. Obviously the order contemplated is one which conflicts with the ban on the filing of a suit without the District Magistrate's permission. There can be a question of the ban being subject to an order only it the order has something to do with the ban. There is no sense in saying that the ban is subject to an order which has no connection with it. The only order that has a connection with or bearing on the ban is one which refers to the banned act, i.e. refers to the filing of a suit without the District Magistrate's permission. The ban is not on the filing of a suit in a civil court but on the filing of a suit without the District Magistrate's permission. It must be this ban which is affected by the order passed under Sub-section (3) in order that it is subject to it. When an order contemplated by the provision is passed the ban will apply subject to it, i.e. in respect of a conflict between the ban and the order, the order will operate and not the ban. In order that the order operates and not the ban the order must deal with the filing of a suit without the District Magistrate's permission. No such order, however, is contemplated by Section 3 (3) at all. The only order that can be in conflict with the ban is one which says that a suit can be filed without the permission of the District Magistrate, or with the permission of an authority other than the District Magistrate. No other order can possibly conflict with the ban.

The words ''subject to... Sub-section (3)' are not to be read with the words 'without the permission of the District Magistrate'; they do not mean that the permission granted by the District Magistrate is subject to any order under Sub-section (3). They must be read with the whole clause 'no suit shall...... from any accommodation' and not with only some of the words taken at random. It is not possible to read the words 'subject to ..... Subsection (3)' simply with the words 'without the permission of the District Magistrate'. The provision deals with not the permission of the District Magistrate but with the absence of such a permission. Therefore, even if the words 'subject to ... .Sub-section (3)' were to be read only with the words ''without the permission of the District Magistrate' it is the absence of the permission that has to be subject to an order under Sub-section (3) and not the granting of the permission. Consequently an order under Sub-section (3) cancelling the permission granted by the District Magistrate is an order not conflicting with the words 'without the permission of the District Magistrate' but agreeing with them and cannot be said to control them. In any case whatever order controls the ban on the filing of a suit must exist before the suit is filed. The ban is only on the filing of a suit and if the filing of a suit is not within the ban the provision in Section (3) (1) becomes inapplicable. The circumstances on which the ban rests must exist at the time of the filing of the suit; they cannot come into existence subsequently in the absence of an express provision giving retrospective effect to them. Now no retrospective effect is given to an order passed under Sub-section (3). When there is the District Magistrate's permission at the time of the filing of the suit the ban does not operate and there is nothing in Sub-section (3) (1) to suggest that any subsequent event such as the passing of an order under Sub-section (3) can bring it into operation. Sub-section (3) does not deal with the passing of an order affecting the ban, either imposing it or restricting it. When it is realised that it is the filing of a suit without the District Magistrate's permission that is subject to an order under Sub-section (3), it would become obvious that the cancellation of the permission by an order under Sub-section (3), whether before or after the filing of the suit, has no effect on it.

14. If the legislature intended to provide (1) that a suit may be filed with the permission of the Commissioner granted under Sub-section (3) or the State Government under Sub-section (4) or that (ii) a suit may not be filed with the permission of the District Magistrate or the Commissioner if in the meanwhile it is cancelled by the Commissioner by an order under Sub-section (3) or the State Government under Sub-section (4) respectively or that (iii) even if a suit has been filed with the permission of the District Magistrate or the Commissioner it cannot be decreed it is cancelled by an order under Sub-section (3) or under Sub-section (4), it has wholly failed to carry out its intention through the provision in Sub-section (1). It is impossible to read Sub-section (1) as containing these provisions or any of them. There is absolutely nothing in the Act barring the provisions under consideration suggesting that the legislature had such an intention and it is not open to the Court to make a wild guess at the legislature's intention and to place upon the words used by it the interpretation to effectuate it even though they are not capable of bearing it. The court cannot change the language used by a legislature and cannot give to it a meaning which it is not capable of bearing. A Court can only construe a statute and cannot construct one and there is no problem of construing when the words used in a statute bear only one meaning.

15. The provision in Sub-section (3) (1) imposes a Restriction upon a landlord's right to sue for ejectment of a tenant whose tenancy has been terminated in accordance with the provisions of the Transfer of Property Act. A tenant, who does not surrender possession even though his tenancy has been terminated is liable to be used and the landlord has a right to sue him. Section 3(1) imposing a restriction upon this right can be said to restrict his right to hold and dispose of property and also to discriminate him from another person who has been kept out of possession by the trespasser, it section 3 (1) infringes the rights guaranteed by Articles 19 and 14 of the Constitution it must be reasonable in order to be valid. It cannot be said to be reasonable if the landlord is required to wait indefinitely for an order under Sub-section (3) or Sub-section (4) or Section 3. A tenant is required to apply to the Commissioner to revise the District Magistrate's order granting permission within thirty days but the Commissioner can delay the revision of the order indefinitely. No limit is placed upon the time for a tenant's applying to the State Government to revise the Commissioner's order under Sub-section (4).

16. Sub-section (1) of Section 3 does not refer to any order passed by the State Government under Sub-section (4); the ban is not expressed to be subject to such an order. Sub-section (3) refers only to an order that the Commissioner passes to revise the District Magistrate's order granting or refusing to grant the permission. It is immaterial that an order passed by the Commissioner under Sub-section (3) is declared to be subject to the State Government's order; this provision does not make the ban subject to the State Government's order. An order by the State Government may control the Commissioner's order but does not thereby take its place and the words 'any order passed under Sub-section (3)' do not mean an order passed under Sub-section (41 revising 'any order passed under Sub-section (3).' Consequently as far as the filing 01 a suit is concerned Sub-section (1) does not make it dependent upon any order under Sub-section 4. In this case we are concerned with the effect of an order under Sub-section 4 and not with the effect of an order passed under Sub-section 3 on the filing of a suit.

17. The provisions in Sub-section 2 that an application can be made to the Commissioner to revise the District Magistrate's order granting or refusing to grant permission and the provisions in Sub-section 3, that the Commissioner can alter or reverse the District Magistrate's order or make such other order as may be just and proper do not lay down the effect of the order passed by the Commissioner under Sub-section 3. One provision simply empowers a person to apply to the Commissioner to revise the District Magistrate's order and the other simply empowers the Commissioner to alter or reverse the District Magistrate's order or to make any other just and proper order. If the permission granted by the District Magistrate is cancelled by the Commissioner before the suit is filed it may be said that the ban comes into operation and that it is a case of 'without the permission of the District Magistrate' because of the cancellation. In such a case the words 'subject to any order passed under Sub-section 3' are redundant; even without them the ban would exist. If the Commissioner cancels the permission after the suit has been instituted, in the absence of an express or necessarily implied provision that it must be deemed to be a suit filed without the permission of the District Magistrate or that it must not be decreed, the cancellation is of no effect.

The power to pass an order is one thing and the effect of the order another. The effect of the order depends upon its words. The only order that would have any effect on a suit already filed is one directing that it must be deemed to have been filed without the permission or that it must be dismissed. An order simply cancelling the District Magistrate's permission has not the effect of such an order. The question whether the Commissioner has power under Sub-section 3 to pass an order that the suit, though filed with the District Magistrate's permission must be deemed to hive been filed without it, or that it must be dismissed has not been raised before us. The District Magistrate if concerned only with the question whether the filing of the suit should be permitted or not; he has no other jurisdiction under Sub-section 1. The Commissioner when trying to revise his order has not any greater jurisdiction than him and cannot pass any order which could not have been passed by him. Since the District Magistrate has no jurisdiction over the suit after it has been instituted, the Commissioner also has no jurisdiction after it has been instituted and cannot in his order under Sub-section 3 require it to be dismissed. He has also not been authorised by Sub-section 3 to enact the legal fiction that the suit must be deemed to have been filed without the District Magistrate's permission.

So it appears to me that though what he can do under Sub-section 3 is expressed in wide language he cannot pass either of the orders which only would have effect upon the suit already filed. If the District Magistrate has refused permission the ban comes into operation and no suit can be filed. There can be no question of an order affecting the ban unless it lays down that a suit can be filed even without the District Magistrate's permission, either unconditionally or on the fulfilment of certain conditions. In the absence of such a provision it cannot be said that any order affects the filing of a suit without the permission of the District Magistrate. Naturally the order must be one allowing a suit to be filed without the District Magistrate's permission and neither Sub-section 3 nor Sub-section 4 authorises such an order. Neither of them gives a landlord a right to file a suit without the District Magistrate's permission. Neither deals with the Bling of a suit at all. Both deal with the District Magistrate's order (granting or) refusing permission. They authorize revision but the authority does not comprehend a direction that a suit may be filed without the District Magistrate's permission. They do not give the right to give a direction contrary to the ban on the filing of a suit without the District Magistrate's permission.

18. When the State Government passes an order under Sub-section 4 there are several possibilities. One is that the District Magistrate granted the permission, it was maintained by the Commissioner and it is maintained by the State Government or is cancelled by it. Another is that the District Magistrate and the Commissioner both refused permission and the State Government maintain their refusal or grant the permission. Third is that the District Magistrate granted the permission, the Commissioner cancelled it and the State Government restores it or upholds the Commissioner's order. Fourth is that the District Magistrate refused the permission, the Commissioner granted it and the State Government maintains the grant or cancels it. Sub-section 1 does not refer to any of the orders that may be passed by the State Government and, the ban is not made subject to any of them. An order passed under Sub-section 3 by the Commissioner may be subject to any order passed by the State Government but not the ban imposed by Sub-section 1. Sub-section 1 does not use even these words 'subject to any order passed under Sub-section 4'; thus the effect of such an order is even less than that of an order passed under Sub-section 3.

19. Under Section 7-F the State Government has jurisdiction, in a case 'granting or refusing to grant permission for the filing of a suit for eviction referred to in Section 3'. Section 3 (1) applies to all suits against tenants for their eviction from any accommodation; therefore, it cannot be said that the Bling of certain suits for eviction is referred to in it and not the filing of other suits for eviction. The words 'referred to in Section 3' must, therefore, govern the words 'granting or refusing to grant permission.' The State Government has jurisdiction under Section 7-F over the case granting or refusing to grant the permission referred to in Sub-section (1). Though Section 7-F speaks of the permission referred to in Section 3 actually it is referred to in Sub-section (1) and Sub-section (2) only. Neither Sub-section (3) nor Sub-section (4) refers to any permission at all (Neither of them refers to the filing of a suit also). Both Sub-section (1) and Sub-section (2) refers to the permission of the District Magistrate; neither of them refers to the permission of any other authority such as the Commissioner or the State Government.

In the instant case the permission was granted by the District Magistrate and the State Government had jurisdiction under Section 7-F to call for the record of the case disposed of by him and to make such order as it thought necessary. I am not concerned with the question whether the State Government has jurisdiction under Section 7-F to call for the record of the case disposed of by the Commissioner granting the permission refused by the District Magistrate. Though the power conferred by Section 7-F upon the State Government is wide (''e. g. make such order as appears to it necessary for the ends of justice') it cannot be wider than the District Magistrate's. When the whole provision in Sub-section (1) deals with the stage of the filing of a suit and the District Magistrate has no jurisdiction to pass any order after the suit has been filed the State Government can have no jurisdiction to interfere with a suit after it has been filed, such as that of staying further proceedings in it. Without an express provision empowering it to do so it cannot stay further proceedings. Even if an order under Sub-section (4) were treated as coming within the scope of the words 'order passed under Sub-section (3)' it would affect only the filing of the suit and not further proceedings.

Section 7-F deals not only with a casa of granting or refusing to grant permission but also with an order passed under Section 7 or under Section 7A; because power has been conferred upon it over the records of any of these three kinds of cases what it can do is expressed in such wide language. The legislature had to use wide language to cover all possible orders that it permitted the State Government to pass. The width of the power conferred by Section 7-F must be limited by the scope of Sub-sections (1), (3) and (4) of Section 3.

20. The State Government exercising jurisdiction under Section 7-F in respect of permission granted under Section 3 does not exercise jurisdiction over the civil Court in which a suit has been filed on the basis of the permission. The civil Court is not subordinate to it and no order passed by it is under appeal or revision before it. Consequently it has no jurisdiction to pass any order against it or directing it to do or not to do a certain act. It has no jurisdiction to stay proceedings in the suit or to direct that it should not be decreed. The proceedings remain unaffected by the jurisdiction assumed by the State Government under Section 7-F. This means that any order passed by the State Government has no effect on them.

21. In Durga Prasad v. Rama Kant, 1951 All L J 285, Sankar Saran and Bind Basni Prasad, JJ. held on p. 287 as follows ;

'Subsequent event cannot re-impose a bar against the plaintiff which was removed by the grant of permission to him by the District Magistrate. The bar once removed cannot be re-imposed.'

In Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Bao, (S) AIR 1956 S C 213 the principle laid down by Venkatarama Ayyar, J. was :

'The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. In our opinion, the withdrawal of consent by 13 of the members, even if true, cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the Court to dispose of it on its own merits.' (at p. 215).

An application under Section 153-C of the Companies Act could be made if consent of a certain number of share-holders have been obtained. In the case consent of the requisite number had been obtained and after the application was made some of the shareholders withdrew their consent. The Supreme Court repelled the argument that the application thereupon became un-maintainable. The same principle applies in the instant case. The share-holders had a right to revoke the consent given by them just as a Commissioner or the State Government has a right to revoke the permission granted by the District Magistrate. The effect of the revocation on the suit filed must be the same in the two cases. In Kripashanker Shastri v. Banwari Lal, AIR 1952 All 414, Bind Basni Prasad and Mushtaq Ahmad JJ. held that 'if permission has been acted upon and a suit has been instituted on its basis' (and even a decree has been obtained in it) it is not 'competent for the Controller at that stage to recall the permission.' The reason given was that the permission he had granted had spent itself out.

In Gopi Chand v. State of Uttar Pradesh, Special Appeal No. 870 of 1982, D/- 9-11-1262 (All), I sitting with Mukerji J. held that cancellation of a permission under Sub-section (3) or Sub-section (4) had no effect on the suit already filed. I respectfully disagree with the view expressed by Dhavan-J. in 1983 All L J 620 : (AIR 1964 All 210). I have explained in 1961 All L J 353 (infra) that the interpretation that I have placed on Sub-section (1) of Section 3 does not militate against the provisions of Sub-section (3) and Sub-section (4) and does not necessarily render them nugatory. When the permission is cancelled under Sub-section (3) or Sub-section (4) it may not be availed of for the purpose of filing a suit; so the provisions in the sub-sections are not nugatory. The provisions of Sub-sections (3) and (4) have not been given retrospective effect and there is no justification for implying that orders under these sub-sections cancelling the District Magistrate's permission renders the suit filed on its basis one filed without it. Our learned brother has not considered the meaning of the words 'subject to' used in Sub-section (1) and has not considered what is subject to an order passed under Sub-section (3).

With great respect I also disagree with the decision in the case of Khoparji, 1958 All LJ 724 (infra). In Jamiluddin Khan v. Niaz Ahmad, AIR 1964 All 393, S.D. Singh, J. disagreed with my decision in Dwarka Nath Munshi's case, 1961 All LJ 353 because 'the order which a District Magistrate may pass under Sub-section (1) has been specifically made subject to the order which may be passed by the Commissioner under Sub-section 3.' With great respect I am unable to take this view which is against the structure of the sentence. I have explained above that according to the rules of grammar the words 'subject to any order passed under Sub-section (3)' can be read only with the words 'no suit shall be filed.' In re K. Muniswami Chetti, AIR 1958 Andh Pra 66, Krishna Rao J. observed that whether a sanction for instituting a legal proceeding is required or not is to be determined at the time when the Court first takes cognizance of the matter. If sanction is required if certain circumstances exist it is to be seen whether they exist or not on the day on which the legal proceeding is taken cognizance of. This supports the view that the question of sanction is relevant only at the time of taking cognizance.

22. My answers to the two questions are as follows :

1. No effect.

2. No effect.

BY THE COURT

23. Our answers to the two questions referred to the Full Bench are ' No effect' and 'No effect' respectively. Lay the case before the bench concerned with these answers.


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