Allahabad High Court
Mata Prasad Jain S/O Sri Babu Lal Jain vs Vii Addl. Civil Judge/Prescribed ... on 13 April, 2007
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. The petitioner is a landlord of one shop of two Phars as described in the foot of release application filed under Section 21(1)(b) of the U.P. Act No. 13 of 1972 against the respondent No. 2, the tenant, which was numbered as P.A. Case No. 14 of 1985. The said release application was filed on the pleas inter alia that the shop in question is in a dilapidated condition and requires demolition and reconstruction. Indisputably a compromise application was jointly filed by the parties wherein the respondent No. 2, the tenant stated that he is fully convinced that the property in question is in dilapidated condition and agreed to vacate the property in question by 20th of October, 1988. It was further agreed in the compromise that in case of failure to vacate it by 20th of October, 1988 the landlord shall have a right to take possession by police force. The release application was decided in terms of the compromise and the shop in dispute was released by the order dated 31st of August, 1988. Having failed to honour the terms of the compromise, the present petitioner filed an application under Section 23 of the Act for delivery of possession of the property in question. An objection was filed by the tenant on the ground that the said compromise is not binding at all on him as it is penal in nature and is not enforcible and the same is void ab initio and cannot be acted upon being in violation of provisions of Rule 17 of the U.P. Act No. 13 of 1972 and Order 23 Rule 3 C.P.C. The said objection has been accepted by the Executing Court by the impugned order dated 14.5.1992(Annexure-5 to the writ petition).
2. The learned Counsel for the petitioner contends that the view taken by the court below is not legally tenable in as much as the court below was exercising the jurisdiction akin to the jurisdiction of the executing court and thus, it was not permissible for it to go behind the release order. Elaborating the argument he submits that the release order was passed by a court of competent jurisdiction, its legality and validity was not open to be challenged under Section 23 of the said Act.
3. I have carefully considered the impugned order of the court below. The court below has rejected the application filed under Section 23 of the Act solely on the ground that the court below while deciding the release application omitted to consider the requirements of Rule 17 of the Rules framed under the Act and thus, the said order of release is inappropriate and it was a mistake on the part of the court for which the tenant cannot be penalized. He took the view that since it is the case of the tenant objector that the landlord got the signatures on the compromise application by playing fraud, the court committed illegality in deciding a release application in terms of the compromise without taking care of Rule 17 of the Act.
4. The only point mooted in the present petition is, thus, whether a compromise entered into between the parties in a release proceeding that the building in dispute is in dilapidated condition, is valid or void when the provision of Rule 17 was not taken into consideration. To begin with, it is desirable to notice the relevant statutory provisions first. Section 34 of the Act enumerates power of various authorities including Prescribed Authority and the procedure to be followed by them. It provides that the authorities and the courts mentioned in the said section will have the same powers as arc vested in the Civil Court under the Code of Civil Procedure, when trying a suit in respect of the matters enumerated in Clause (a) to (g) of Section 34. Clause (f) of Section 34 (1) reads as follows:
(f). Recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith.
5. It implies mat the Prescribed Authority and the various other authorities and the court exercising jurisdiction under the Act possesses jurisdiction to record a lawful agreement or compromise. The word 'lawful' though has not been defined under the U.P. Act No. 13 of 1972, but in a para materia provision under the Code of Civil Procedure under Order 23 Rule 3 similar Explanation 'lawful agreement' or compromise has been used which also deals with the power of a court to decide suit where it is proved to the satisfaction of the court that there has been an adjustment wholly or part by any "lawful agreement" or compromise in writing and signed by the parties and their counsel. An agreement or compromise which is void or voidable under the Indian Contract Act shall not be deemed to be lawful within the meaning of the aforesaid provision vide Explanation which was inserted by the Code of Civil Procedure (Amendment) Act, 1976. Thus, there seems to be no difficulty that a proceeding under the provisions of the U.P. Act No. 13 of 1972 can be decided in terms of compromise and in this regard express provision has been made under Section 34 of the Act. The question whether such agreement or compromise is lawful or not is a different aspect. Section 23 of the Contract Act says that consideration or object of an agreement is lawful, unless (1) it is forbidden by law; (2) or is of such a nature that, it would defeat the provisions of any law; or (3) is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral; or opposed to public policy. Every agreement of which the object of consideration is unlawful is void.
6. Compromise by a tenant with landlord in a release proceeding can be said to oppose to public policy has been considered by the Apex Court with some detail with reference to Section 21 of the Act in Martin and Harris Ltds. v. Vith Additional District Judge and Ors. 1998 (1) ARC 109. The Apex Cou1rt has held that it is easy to visualize that the proceedings under Section 21(1)(a) of the Act would be between landlord on one hand and the tenant on the other. These proceedings are not of any public nature. Nor any public interest is involved therein. Only personal interest of landlord on the one hand and the tenant on the other hand get clashed and call for adjudication by the Prescribed Authority. The grounds raised by the landlord under Section 21(1)(a) would be personal to him and similarly the defence taken by the tenant would also be personal to him. "True, the above observations were made with reference to a case where the release was sought for on the ground of bonfide need but I see no reason as to why the aforesaid observations will not be applicable with equal force to a case where release has been sought under Section 21(1)(b) of the Act on the ground that the building in question is in a dilapidated condition. I am of the view that the aforesaid observations of the Apex Court are applicable with greater force in a matter under Section 21(1)(b) of the Act for the simple reason that under the aforestated Section, it is statutory obligation of a landlord to offer the newly constructed building to the tenant who was in occupation of the building said 10 be dilapidated.
7. At this stage it is apt to take note of Rule 17 of the Rules framed under the Act which provides that before allowing an application for release of a building under Section 21(1)(b) of the Act on the ground that it is required for the purposes of demolition and new construction, the Prescribed Authority shall satisfy itself that the building requires demolition etc. The said Rule is in the nature of machinery part and will have no overriding effect over Section 21(1)(b) of the Act which is a substantive provision. A plain reading of the said Rule also does not show that it has imposed any prohibition with a view to afford protection to a party or any public policy is underlying therein or any public policy is involved. At the best the said Rule provides a guideline to be followed by the Prescribed Authority before allowing a release application under Clause (b) to Section 21(1) of the Act. In the case on hand, the said Rule appears to have not been followed by the Prescribed Authority while deciding the release application in terms of the compromise.
8. A question now arises as to what would be the effect on the order releasing the disputed accommodation which has been passed without taking into account the said Rule, when the said order is sought to be enforced under Section 23 of the Act. Section 23 of the Act reads as follows:
Enforcement of eviction order. (1) The prescribed authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or o appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession.
(2) Every order of the prescribed authority in proceedings under this section shall be final.
9. The above provision is explicit and clear. The power conferred on the Prescribed Authority under the said section is in the nature of and akin to the power conferred on court to execute a decree or order. It does not contemplate that when an application for enforcement of eviction order is filed before the Prescribed Authority, the Prescribed Authority shall go into the legality or validity of the such order sought to be enforced. It is obvious, as a right of appeal against release order has been provided for under Section 22 of the Act. The Prescribed Authority is under a legal obligation to put a landlord into possession and the Prescribed Authority may use such force as may be necessary for evicting "any tenant against whom an order under Section 21 or under Section 22 of the Act has been passed". The Prescribed authority is required to see that an order under Section 21 or 22 of the Act for eviction against tenant has been passed. In other words, Section 23 contemplates that the Prescribed Authority dealing with an application under Section 23 has to give effect to the order made under Section 21 or under Section 22 of the Act. It follows that the exercise of power under Section 23 is microscopic and lies in a narrow inspection hole.
10. In the case in hand, the application under Section 23 filed by the petitioner was rejected by the Prescribed Authority solely on the ground that the Court while deciding the release application in terms of the compromise under Section 21(1)(b) of the Act overlooked Rule 17 of the Act and till a suit for its cancellation is filed separately it would not be proper to eject the defendant tenant on the basis of the said order. The mistake was committed by the court and no one should suffer for the mistake of the court.
11. Having delineated the relevant legal provisions as above, how far the above approach of the Prescribed Authority in rejecting an application under Section 23 of the Act is legally sound is to be examined.
12. The Apex Court in the case of Martin & Harris Ltd. (Supra) has held that if the prohibition imposed by a statute is with a view to afford a protection to a party, such protection can be waived by a party. He may avail of it. He may not avail of it as he may choose. In this case, it was held by the Apex Court that provision for giving six months notice to a tenant before filing release application by a purchaser landlord can be waived by the tenant as no public interest is involved.
13. Dhirendra Nath Corai v. Sudhir Chandra Ghosh and Ors. . controversy arose as to whether a sale by court is null or it is a case of irregularity when the sale took place in violation of Section 35 of Bengal Money Lenders Act which provided that only part of the property should be sold if the part is capable of satisfying the debt. Assuming that Section 35 of Bengal Money Lenders Act as mandatory, it was held by it that it is true that many provisions of the said Act were conceived in the interest of public, but the same cannot be said of Section 35 of that Act, which is really intended to protect interest of the judgment debtor to see that a larger extent of his property then is necessary to discharge the debt is not sold. A distinction between 'nullity' and 'irregularity' was pointed out by it, which reads as follows:
It is not correct to say that the sale held in contravention of the provisions of Section 35 of the Act was a nullity and therefore no question of setting aside the sale within the meaning of Order 21 Rule 90 Civil P.C. Would arise. The safest rule to determine what is an irregularity and what is nullity is to see whether the party can waive the objection; if he cannot it is a nullity. A waiver is an intentional relinquishment of a known right but obviously an objection to jurisdiction cannot be waived for consent cannot give a Court jurisdiction where there is none. Where such jurisdiction is not wanting a directory provision can be waived. But a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. Even it is assumed that the provisions in Section 35 is mandatory, on a true construction of that section, it is clear that it is intended only for the benefit of the judgment debtor and therefore he can waive the right conferred on him under that section. If that be the legal position Order 21 Rule 90 is immediately attracted.
14. In the case of Kiran Singh v. Chaman Paswan , question was raised, when decree passed by a Court isnullity and whether execution of such a decree can be resisted at the execution stage which would obviously mean by taking an objection under Section 47 of the Code. Venkatarama Ayyar, J. speaking for himself and on behalf of B.K. Mukherjee, Vivian Bose, Ghulam Hasan, JJ., observed at page 352 thus.
It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
15. In the case of Ittyavira Mathai v. Varkey Varkey , the question which fell for consideration before Apex Court was if a Court, having jurisdiction over the parties to the suit and subject matter thereof passes a decree in a suit which was barred by time, such a decree would come within the realm of nullity and the Court answered the question in the negative holding that such a decree cannot be treated to be nullity but at the highest be treated to be an illegal decree. While laying down the law, the Court stated at page 910 thus:
If the suit was barred by time and yet, the Court decreed it, the Court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a Court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong, and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.
16. Again, in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman , the Court was considering scope of objection under Section 47 of the Code in relation to the executability of a decree and it was laid down that only such a decree can be subject-matter of objection which is nullity and not a decree which is erroneous either in law or on facts. J. C. Shah, J. speaking for himself and on behalf of K.S. Hegde and A.N. Grover, JJ. laid down the law at pages 1476- 77 which runs thus:
A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.
17. The expressions 'void and voidable' have been subject-matter of consideration before English Courts times without number. In the case of Durayappah v. Fernando (1967) 2 All ER 152, the dissolution of Municipal Council by the Minister was challenged. Question had arisen before the Privy Council as to whether a third party could challenge such a decision. It was held that if the decision was complete nullity, it could be challenged by anyone, anywhere. The Court observed at page 158 thus:
The answer must depend essentially on whether the order of the Minister was a complete nullity or whether it was an order voidable only at the election of the council. If the former, it must follow that the council is still in office and that, it any councillor, ratepayer or other person having a legitimate interest in the conduct of the council likes to take the point, they are entitled to ask the Court to declare that the council is still the duly elected council with all the powers and duties conferred on it, by the Municipal Ordinance.
18. In the case of In re McC. (A minor) (1985) 1 AC 528, the House of Lords followed the dictum of Lord Coke in the Marshalsea Case quoting a passage from the said judgment which was rendered in 1613 where it was laid down that where the whole proceeding is coram non judice which means void ab initio, the action will lie without any regard to the precept or process. The Court laid down at page 536 thus:
Consider two extremes of a very wide spectrum. Jurisdiction meant one thing to Lord Coke in 1613 when he said in the Marshalsea Case (1613) 10 Co Rep 68b, at p. 76a: 'when a Court has jurisdiction of the cause, and, proceeds inverso ordine or erroneously, there the party who sues, or the officer or minister of the Court who executes the precept or process of the Court no action lies against them. But when the Court has not jurisdiction of the cause, there the whole proceeding is coram non judice, and actions will lie against them without any regard of the precept or process....
The Court of the Marshalsea in that case acted without jurisdiction because, its jurisdiction being limited to members of the King's household, it entertained a suit between two citizens neither of whom was a member of the King's household. Arising out of those proceedings a party arrested "by process of the Marshalsea" could maintain an action for false imprisonment against, inter alios, "the Marshal who directed the execution of the process." This is but an early and perhaps the most quoted example of the application of a principle illustrated by many later cases where the question whether a Court or other tribunal of limited Jurisdiction has acted without Jurisdiction (coram non Judice) can be determined by considering whether at the outset of the proceedings that Court had Jurisdiction to entertain the proceedings at all. So much is implicit in the Lard Coke's phrase "Jurisdiction of the cause".
19. Following the aforesaid decision of the Apex Court in Dhurandhar Prasad Singh (supra) has held that the expression "void and voidable" has been subject matter of consideration on numerous occasions by the court. The expression "void" has several faces. Where the transactions branding the decree without jurisdiction or a nullity, arc those which arc wholly without jurisdiction, ab initio void and for avoiding the same no declaration is necessary, law does not take any notice of the same and cannot be disregarded in collateral proceedings.
20. The exercise of power under Section 23 of the Act, already demonstrated above is a limited one and field of enquiry on such application by the Prescribed Authority is limited to the extent to find out the existence of an eviction order in favour of landlord against the tenant. The Prescribed Authority in such proceeding can ignore a release order provided it is void or a nullity. There is no such finding by the Prescribed Authority in the present case. The non observance of Rule 17 which is a machinery part will not in any way vitiate the release order and make it a void order. The said order may be illegal having been passed in ignorance of Rule 17 unless it is set aside in appeal or in some other proceeding by a competent court, the said order is binding and enforcable so long it is intact.
21. In Rafiquue Bibi v. Sayed Waliuddin and Ors. a distinction has been drawn by the Apex Court in illegal decree and null/void decree. Extending the power of executing court in this regard it has been held that if a decree is a nullity for want of jurisdiction is patent on the face of the decree then the executing court may take cognizance of the nullity otherwise normal rule is that the executing court cannot go behind the decree will prevail. This was also a landlord and tenant matter under Delhi and Ajmer Act. It was held that a tenant cannot be heard to urge any infirmity in the decree. Secondly accepting it at its face value, in the eyes of law the challenge seeks to expose a procedural irregularity which may, at the best may result decree being termed as an illegal decree but that in itself would not amount to branding the decree "without jurisdiction or a nullity. The distinction between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and the decree of court which is merely illegal or not passed in accordance with procedure laid down by the law was pointed out. Para 8 and 9 from the said judgment is reproduced below:
8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
9. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman it has been held (SCC pp. 672-73, para 7).
When the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.
22. Viewed from any angle the impugned order of the Prescribed Authority cannot be sustained and it suffers from a manifest error of law. The Prescribed Authority has exceeded in its jurisdiction in rejecting the application filed by the petitioner landlord under Section 23 of the Act for the execution of the release order passed against the respondent tenant for eviction. It is not in dispute that the said release order is in operation and has not been set aside, modified or reversed by any court or authority in any proceeding. The said order also cannot be termed or branded as a void order having been passed overlooking Rule 17 of the Rules. The Prescribed Authority was under a statutory obligation to give effect to the said order and has committed gross illegality in perpetuating the litigation for decades. It is also not out of place to mention here that when the application under Section 23 was filed on 9thof December, 1988 and Parwana for delivery of possession was issued, the opp. parties tenant set up Tikam Singh and Smt. Savitri Devi who filed O.S. No. 1276 of-1988 seeking an injunction against their alleged dispossession in execution of the compromise decree dated 31st of August, 1988. On 7th of April, 1989, interim injunction application in the suit was dismissed which was confirmed in misc. appeal No. 129 of 1989. The writ petition against the appellate order was dismissed on 4th of April, 1989. The matter was carried to the Apex Court in Special Leave Petition and the Special Leave Petition was dismissed by the Apex Court on 12st of February, 1991. In this Court also hearing of the writ petition was adjourned on earlier occasions on account of non availability of the learned Counsel for the tenant respondent, Shri Madhav Jain, and the matter was ultimately heard in his absence.
23. The impugned order dated 14th of May, 1992 is indefensible and is illegal and the Prescribed Authority has exceeded in its jurisdiction while passing the said order. The order dated 14th of May, 1992 is hereby set aside. The writ petition succeeds and is allowed. The application filed under Section 23 of the Act by the petitioner landlord is allowed and the Prescribed Authority is hereby commanded to execute the release order dated 31st of August, 1988 forthwith without any further delay as about 19 years have already passed away. Since nobody has appeared to contest the writ petition, no order as to costs.