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Ratanbai Vs. Chetandas - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberC.R. No. 1038 of 1984
Judge
Reported inAIR1986MP16
ActsMadhya Pradesh Accommodation Control Act, 1961 - Sections 12, 23 and 28
AppellantRatanbai
RespondentChetandas
Appellant AdvocateB.L. Pavecha, Adv.
Respondent AdvocateD.D. Vyas and ;N.K. Sanghi, Adv.
DispositionRevision allowed
Cases ReferredIn Jai Kumar v. State
Excerpt:
- - the rent controlling authority rejected the application for eviction holding that the applicant failed to prove that she requires the tenanted accommodation for starting the business of her major son. 12. the contention of the learned counsel for the applicant is well founded. the doctrine is now well established that 'the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure'.as one of us had occasion to point out earlier,'the doctrine is founded on good sense, sound policy and practical experience......(hereinafter referred to as 'the act') is directed against the order dated 31-8-1984 passed by the rent controlling authority, mandsaur, in case no. 5/83-84.2. the material facts giving rise to this revision are as follows: the applicant is a widow. the applicant submitted an application before the rent controlling authority, for eviction of the non-applicant from the tenanted accommodation on the ground that the applicant requires the tenanted accommodation for starting the business of her major son rajkumar and that she was not in possession of any other accommodation of her own available to her for that purpose in the town of mandsaur. on an application made by the non-applicant, the rent controllingauthority granted leave to defend the action. the non-applicant contested the claim of.....
Judgment:

R.K. Vijay Vargia, J.

1. This revision under Section 23(3) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as 'the Act') is directed against the order dated 31-8-1984 passed by the Rent Controlling Authority, Mandsaur, in case No. 5/83-84.

2. The material facts giving rise to this revision are as follows: The applicant is a widow. The applicant submitted an application before the Rent Controlling Authority, for eviction of the non-applicant from the tenanted accommodation on the ground that the applicant requires the tenanted accommodation for starting the business of her major son Rajkumar and that she was not in possession of any other accommodation of her own available to her for that purpose in the town of Mandsaur. On an application made by the non-applicant, the Rent Controlling

Authority granted leave to defend the action. The non-applicant contested the claim of the applicant. The Rent Controlling Authority rejected the application for eviction holding that the applicant failed to prove that she requires the tenanted accommodation for starting the business of her major son. Aggrieved by the order passed by the Rent Controlling Authority, the applicant has submitted this revision.

3. The learned counsel for the applicant contended that the Rent Controlling Authority has not appreciated the evidence properly and has acted unreasonably in dismissing the claim for eviction.

4. The learned counsel for the non-applicant supported the order passed by the Rent Controlling Authority and further contended that the Rent Controlling Authority had no jurisdiction to entertain and try the application because he was not duly appointed to act as the Rent Controlling Authority.

5. In my opinion, the contention of the learned counsel for the applicant that the Rent Controlling Authority has not appreciated the evidence properly and has acted unreasonably in dismissing the applicant's claim for eviction has force.

6. The Rent Controlling Authority has observed that the applicant has not made out a solid basis for her claim for eviction. The applicant stated on oath that she required the tenanted accommodation for starting the business of her major son Rajkumar, who, is unemployed and has left his education. Rajkumar has stated on oath that he wants to start the business of electrical appliances and that he is not employed and he has left the education. The Rent Controlling Authority has not accepted the evidence of the applicant and her son on the ground that Rajkumar had no experience of electrical appliances and that he has also admitted that he sits on a 'Kirana' shop of his brother. The Rent Controlling Authority has further observed that the applicant had increased the rent of the accommodation earlier and that she was only interested in enhancing the rent.

7. In my opinion, the Rent Controlling Authority was not justified in negativing the requirement of the applicant on the evidenceon record. Rajkumar stated that he has acquired knowledge about the electrical appliances. Even if it is not so and Rajkumar had no experience of electrical appliances that cannot be a ground for holding that he does not require the tenanted accommodation for starting his business. Rajkumar has left his education and is unemployed. In the circumstances, if the applicant and Rajkumar have pledged their oath that the tenanted accommodation is required for starting the business of Rajkumar, there is no reason not to accept their testimony.

8. One of the reasons given by the Rent Controlling Authority is that the applicant had enhanced the rent of the accommodation earlier. Now the last enhancement was 7 or 8 years prior to the filing of the application and when Rajkumar was a minor. There is no evidence that the applicant enhanced rent after Rajkumar has become major and required the tenanted accommodation for starting his business. Moreover, the Rent Controlling Authority has not taken into consideration the statutory presumption contained in Section 23(d)(3) of the Act which provides that in respect of an application by a landlord it shall be presumed, unless the contrary is proved, that the requirement by the landlord with reference to Clause (a) or (b), as the case may be of Section 23A of the Act is bona fide.

9. In my opinion, the Rent Controlling Authority has, therefore, acted unreasonably in holding that the applicant's requirement for the tenanted accommodation is not proved. In my opinion, it is made out that the applicant requires the tenanted accommodation for starting the business of her major son Rajkumar and that she has no other accommodation of her own available to her for that purpose in the town of Mandsaur. The applicant is, therefore, entitled to an order for eviction of the non-applicant from the tenanted accommodation.

10. The learned counsel for the non-applicant then contended that the Rent Controlling Authority had no jurisdiction to entertain the application and to enquire into it.

11. The learned counsel for the applicant contended that this objection was not raised before the Rent Controlling Authority andhas been raised for the first time in this revision and that whether the objection is raised in this Court or before the Rent Controlling Authority it is not open to the non-applicant to challenge the jurisdiction of the Rent Controlling Authority in these collateral proceedings and that the question about the legality of the appointment of the Rent Controlling Authority can only be raised in direct proceedings to which the Rent Controlling Authority is a party.

12. The contention of the learned counsel for the applicant is well founded. It may be stated that in the present case the Rent Controlling Authority is not an intruder or usurper. It is however contended that he has not been appointed by the Collector with the previous approval of the Government as required by Section 28 of the Act.

13. In Gokaraju Rangaraju v. State of Andhra Pradesh, AIR 1981 SC 1473. Their Lordships of the Supreme Court have held as follows:

'The doctrine is now well established that 'the acts of the Officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as if they were the acts of officers de jure'. As one of us had occasion to point out earlier,' the doctrine is founded on good sense, sound policy and practical experience. It is aimed at the prevention of public and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussion and confusing sequels if attempted to be undone.'

It was further held by Their Lordships in para 15 of the Judgment as follows :

'A Judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers andfunctions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless contusion and endless mischief. There is yet another rule also based oh public policy. The defective appointment of a de facto Judge may be questioned directly in a proceeding to which it may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise no soon a Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is not a Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack.'

14. The aforesaid decision of the Supreme Court was sought to be distinguished by the learned counsel for non-applicant on the ground that it related to a Judge and not to a Public Officer and, therefore, it is not applicable to the present case.

15. This contention has no merit. In paragraph 4 of the Judgment the Supreme Court has not made any distinction between a Judge and a Public Officer. Moreover the Supreme Court has approved the Judgment of the Andhra Pradesh High Court in Immedisetti Ramkrishaiah Sons, Anakapalli v. State of Andhra Pradesh, AIR 1976 Andh Pra 193 in which the de facto doctrine was applied to the members of the Marketing Committee appointed under a statute.

16. In Jai Kumar v. State, 1968 All LJ 877 a Full Bench of the Allahabad High Court held as follows:

'The first rule establishes that the acts of a de facto judge are not suffered to be questioned because of the want of valid appointment, in a collateral proceeding. His title may be challenged only in a proceeding for a writ of quo warranto or in a suit for declaration of his status or legal character, to which he is aparty. These two proceedings are direct proceedings to challenge his title. Any other proceeding is a collateral proceeding. Accordingly, his title cannot be challenged in a proceeding before him, or in appeal or revision from his order or in a proceeding for certiorari. The second rule establishes that the acts of a de facto judge are suffered to be valid as to the public and the litigants before him until his title is investigated and determined against him in a direct proceeding. A de facto judge is one who has the reputation of being the judge although he is not a judge in the eye of law.

17. Thus the legality of the appointment of the Rent Controlling Authority cannot be challenged either before the Rent Controlling Authority himself or before this Court in revision. Both these are collateral proceedings. The legality of the appointment can only be challenged in a direct proceeding to which the Rent Controlling Authority is a party. The de facto doctrine applies to the present case. The contention of the learned counsel for the non-applicant regarding the jurisdiction of the Rent Controlling Authority is, therefore, negatived.

18. As a result of the discussion aforesaid, this revision is allowed. The order passed by the Rent Controlling Authority is set aside and the application filed by the applicant is allowed. The non-applicant is directed to deliver possession of the tenanted accommodation to the applicant. In the circumstances of the case, the parties shall bear their own costs of this revision,

19. Before signing this order, the learned counsel for the non-applicant prayed that some time may be allowed to the non-applicant to vacate the tenanted accommodation. This request is allowed. The non-applicant shall vacate the tenanted accommodation on or before 31-12-1985 subject to this furnishing an undertaking within 15 days from today before the Rent Controlling Authority to the following effect:

(1) that the non-applicant shall deliver vacant possession of the tenanted accommodation to the applicant on or before 31-12-1985.

(2) that the non-applicant shall pay to the applicant arrears of rent, if any, within 15 days from today.

(3) that the non-applicant shall pay future rent to the applicant month by month by 15th of the succeeding month.

(4) that the non-applicant shall not sublet or part with possession of the tenanted accommodation to any one.

If no such undertaking is furnished within the time specified or if any of the terms hereof is contravened by the non-applicant the applicant shall be entitled to evict the non-applicant from the tenanted accommodation forthwith.


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