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Suraj Narain v. District Magistrate
Factual and Procedural Background
This is an application under Article 226 of the Constitution by Suraj Narain (the applicant), who claimed to be the allottee of a two-room shop at premises no. 49/62, Nayaganj, Kanpur. The petition originally sought a writ of certiorari to quash two orders: the District Magistrate's order dated 1 April 1954 and the Rent Control and Eviction Officer's order dated 3 April 1954. The petition also sought a writ of mandamus commanding the opposite parties nos. 1 and 2 to restore the allotment dated 18 November 1953 in the applicant's favour.
During the writ's pendency, the shop was allotted by the Rent Control and Eviction Officer on 8 January 1955 to the firm Harswarup Chandradeo (impleaded as opposite party no. 6). The Court by order dated 29 April 1955 permitted impleading that firm and adding a prayer quashing the January 1955 allotment.
Relevant factual chronology (as set out in the supporting affidavit and largely uncontested):
- January 1953: Ram Pratap Sharma obtained an allotment order for the shop; he sought delivery of possession.
- Prior occupants Sarveshwar Prasad and Radha Kishan challenged that allotment in revision; revisions were dismissed on 29 September 1953.
- 18 November 1953: Shop allotted to Suraj Narain (the applicant).
- Ram Pratap Sharma applied to the District Magistrate for delivery of possession and alleged that the allotment to Suraj Narain involved misrepresentation.
- The Rent Control and Eviction Officer reported that the allotment to Suraj Narain appeared to have been obtained by misrepresentation and passed his papers to the District Magistrate, asking the District Magistrate to pass final orders.
- 1 April 1954: The District Magistrate passed an order indicating the allotment in favour of Suraj Narain appeared to have been obtained by misrepresentation and that Ram Pratap Sharma's prior allotment was valid.
- 3 April 1954: The Rent Control and Eviction Officer passed an order cancelling the allotment to Suraj Narain and directing delivery of possession to Ram Pratap Sharma.
- During pendency of the writ petition, possession was at first stayed but later delivered to Ram Pratap Sharma; he subsequently vacated and sought to sublet the shop, leading to the 8 January 1955 allotment to the firm Harswarup Chandradeo.
Legal Issues Presented
- Whether the District Magistrate's order dated 1 April 1954 was without jurisdiction because the District Magistrate cannot sit as an appellate or revisional authority over the Rent Control and Eviction Officer's administrative allotment order.
- Whether the Rent Control and Eviction Officer's order dated 3 April 1954 cancelling the allotment to Suraj Narain was valid or was in substance an order made at the instance of, or under the control of, the District Magistrate (i.e., whether the Rent Control and Eviction Officer applied his independent mind).
- Whether the subsequent allotment dated 8 January 1955 in favour of opposite party no. 6 (the firm Harswarup Chandradeo) can be quashed on the basis that it was made during the pendency of the writ petition or was otherwise invalid (for example, obtained by misrepresentation).
Arguments of the Parties
Applicant's Arguments
- The order of the District Magistrate dated 1 April 1954 is without jurisdiction because the District Magistrate has concurrent but not appellate/revisional jurisdiction over the Rent Control and Eviction Officer, and therefore cannot set aside an allotment order passed by that officer.
- The order of the Rent Control and Eviction Officer dated 3 April 1954 cancelling the allotment to Suraj Narain was passed at the instance of the District Magistrate and is therefore invalid.
- The allotment made on 8 January 1955 in favour of the firm Harswarup Chandradeo should be quashed (the petitioner suggested it may have been obtained by misrepresentation, though no specific facts in support were set out in the affidavit).
Opposite Parties' Arguments
The opinion does not contain a detailed account of the opposite parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mababir Prasad v. The District Magistrate, Kanpur, 1955 A.L.J. 252 | The principle that an administrative allotment order made by an officer (here, the Rent Control and Eviction Officer) can only be cancelled by that officer and a superior officer cannot set aside such an order by assuming appellate or revisional power not conferred by statute. | The Court relied on this principle to frame the legal question whether the Rent Control and Eviction Officer's subsequent cancellation was truly his independent decision (valid) or merely the District Magistrate's order in substance (invalid). The Court applied the principle by examining whether the Rent Control and Eviction Officer had applied his mind and therefore could validly cancel his earlier order. |
| Commissioner of Police, Bombay v. Gordhandas Bhanji, 1952 S.C.R. 135 | The rule that where a statute requires an officer to exercise discretion, that discretion must be exercised by that officer alone; a superior authority should not exercise the subordinate's discretion. It was also noted that a subordinate officer may consider views of a superior provided the subordinate does not surrender his own judgment. | The Court used this authority to underscore that the crucial inquiry is factual: whether the Rent Control and Eviction Officer surrendered his discretion or merely considered the District Magistrate's views and then exercised his independent judgment. The Court examined the Rent Control and Eviction Officer's report and subsequent order in that light. |
Court's Reasoning and Analysis
The Court proceeded by identifying two distinct legal inquiries:
- Whether the District Magistrate's order of 1 April 1954 unlawfully set aside the Rent Control and Eviction Officer's allotment (i.e., whether the District Magistrate improperly acted as an appellate/revisional authority). The Court acknowledged the legal proposition (drawn from Mababir Prasad and Gordhandas) that a superior officer cannot assume appellate or revisional power not granted by statute, but that a superior may suggest reconsideration and the original officer may validly change his mind.
- Whether the Rent Control and Eviction Officer, in passing the 3 April 1954 order cancelling Suraj Narain's allotment, had applied his independent mind or merely transmitted the District Magistrate's decision.
On the facts disclosed in the Rent Control and Eviction Officer's report (annexure B) and the record, the Rent Control and Eviction Officer indicated he thought the allotment to Suraj Narain appeared to have been obtained by misrepresentation but that not all essential facts had been brought to his notice. He expressed doubt about his power to cancel and accordingly placed the matter before the District Magistrate. The District Magistrate indicated that the allotment could be cancelled and possession given to Ram Pratap Sharma; however, the Rent Control and Eviction Officer himself then passed an order cancelling the allotment.
Applying the cited authorities, the Court concluded that it is a question of fact in each case whether the subordinate officer exercised independent discretion. Here, because the Rent Control and Eviction Officer did apply his mind and passed an order cancelling his earlier allotment, the cancellation could not be characterized as an order without jurisdiction merely because the District Magistrate had been consulted. Thus the 3 April 1954 order was not invalid for want of jurisdiction.
On the contention that an allottee who has entered into possession cannot have his allotment cancelled, the Court noted the settled rule (as in the case relied upon by the petitioner) that an allotment entered into possession can nonetheless be cancelled if it was obtained by misrepresentation. But whether misrepresentation had occurred is a question of fact; the writ court cannot determine that factual question on the material before it.
Regarding the subsequent allotment dated 8 January 1955 to opposite party no. 6, the Court examined the factual position: on that date Ram Pratap Sharma had entered into possession and was going to vacate; Suraj Narain was out of possession. Therefore the premises were, on 8 January 1955, admittedly vacant and the Rent Control and Eviction Officer had jurisdiction under Section 7 to make a fresh allotment. The mere fact that a third party's interest arose during the pendency of the writ petition did not render that allotment invalid. Finally, there were no facts in the affidavit supporting an allegation that the January 1955 allotment was obtained by misrepresentation.
Holding and Implications
Holding: Petition rejected. The Court rejected the writ petition and assessed costs of Rs. 200 to opposite party no. 6.
Implications and direct consequences:
- The Court held that the Rent Control and Eviction Officer's order dated 3 April 1954 cancelling the allotment in favour of Suraj Narain was not, on the material before the Court, invalid for want of jurisdiction because the officer applied his independent mind in passing the cancellation.
- The District Magistrate cannot, by his own order, exercise appellate or revisional power over the Rent Control and Eviction Officer's administrative allotment; however, consultation by a superior and consequent reconsideration by the original officer does not by itself render the subsequent order invalid so long as the original officer truly exercises his discretion.
- The subsequent allotment dated 8 January 1955 in favour of the firm Harswarup Chandradeo could not be quashed on the facts before the Court because the premises were vacant on that date and no specific facts of misrepresentation were alleged against that allotment in the affidavit.
- No broader or novel precedent was announced by this opinion; the decision applied established principles to the facts and produced the direct effect of dismissing the petitioner’s claims and awarding costs to opposite party no. 6.
Order: Petition rejected with costs assessed at Rs. 200 in favour of opposite party no. 6.
Gopalji Mehrotra, J.:— This is an application under Article 226 of the Constitution on behalf of Suraj Narain who claimed to be an allottee of a two room shop in premises no. 49/62, Nayaganj, Kanpur. The original prayer in the petition was that a writ of certiorari be issued quashing the order of 1st April, 1954 passed by the District Magistrate Kanpur and also the order of 3rd April, 1954, passed by the Rent Control and Eviction Officer, Kanpur. It was further prayed that a writ of mandamus be issued to command the opposite parties nos. 1 and 2 restore the allotment order dated the 18th of November, 1953 passed in favour of the petitioner. During the pendency of the writ petition, it appears that the shop was allotted by an order passed by the Rent Control an a Eviction Officer dated 8th January, 1955 in favour of the firm Harswarup Chandradeo and consequently an application was made for impleading the firm Harswarup Chandradeo through their partners, Harswarup, Chandradeo and Ram Swarup as opposite party to the present petition. It was further prayed that a further relief be granted to the applicant in the nature of a writ of certiorari quashing the order of allotment in favour of the opposite party no. 6. By an order dated 29th April, 1955 of this Court the prayer asking for impleading the firm Harswarup Chandradeo as an opposite party and for adding a relief of certiorari quashing the, order of allotment was granted.
2. The facts, which are set out in the affidavit filed in support of the petition and which are not substantially controverted by the opposite parties, are that on the 18th of November, 1953, the shop in dispute was allotted to the applicant Suraj Narain. Ram Pratap Sharma, opposite party no. 3, had an allotment order, in his favour which was passed sometime in January, 1953. He applied for delivery of possession of the shop. Sarveshwar Prasad Radha Kishan, who were in possession of the shop prior to the allotment in favour of Ram Pratap Sharma, made two applications in revision before the Commissioner on the 19th January, 1953 against the order of the Rent Control and Eviction Officer dated 7th January, 1953 allotting the shop to Ram Pratap Sharma. The revisions were dismissed and after the dismissal of the revisions by the Commissioner on the 29th September, 1953, Ram Pratap Sharma applied for delivery of possession through police aid. On this 22nd October, 1953 was fixed for orders. The Rent Control and Eviction Officer thereupon fixed 9th November, 1953 for orders and it was found that the file was not traceable and the case was adjourned to 23rd December, 1953.
3. Ram Pratap Sharma, in the meantime, applied to the District Magistrate for delivery of possession to him as he could not obtain possession under the allotment order in his favour. It was also pointed out to the District Magistrate that the order of allotment in favour of Suraj Narain was obtained my misrepresentation of certain facts. The District Magistrate called for a report from the Rent Control and Eviction Officer. The report has been filed along with the application as annexure B and in that report the Rent Control and Eviction Officer has set out all the circumstances and on a perusal of the report it appears that he has found that the allotment order in favour of Suraj Narain was obtained by misrepresentation. All the facts were not before the Rent Control and Eviction Officer which would show that the premises were not vacant but in his report he has said that if the allotment in favour of Suraj Narain was to be cancelled, it would lead to complications and litigation. He submitted all the papers for necessary orders to the District Magistrate and he asked the District Magistrate to pass final orders himself. The District Magistrate passed an order saying that the allotment order in favour of Ram Pratap Sharma was a valid allotment order and the allotment in favour of Suraj Narain, the applicant, appeared to have been obtained on certain misrepresentation of facts. He, therefore, was of opinion that the allotment in favour of Suraj Narain should be cancelled and possession be given to Ram Pratap Sharma. After the order of the District Magistrate, the Rent Control and Eviction Officer, on the 3rd April, 1954 passed an order cancelling the allotment in favour of Suraj Narain and directing him to deliver possession to Ram Pratap Sharma. Against these two orders, the present writ petition was filed. During the pendency of the petition, delivery of possession to Ram Pratap was at first stayed but by a subsequent order the interim order was vacated and as a consequence of that, possession was obtained by Ram Pratap Sharma. Subsequently Ram Pratap Sharma vacated the premises and he applied to the District Magistrate that he was intending to vacate the shop and that it be sublet to firm Harswarup Chandradeo. It was in these circumstances that the allotment was made on the 8th January, 1955 in favour of the firm Harswarup Chandradeo. The question whether the shop was in possession of Sarveshwar Prasad Radha Kishan and not Suraj Prasad is a matter which need not be considered in these proceedings. The main contention of the applicant is that the order of the Rent Control and Eviction Officer dated 3rd April, 1954 should be quashed as it has been passed at the instance of the District Magistrate. It is further contended that the order of 1st April, 1954 passed by the District Magistrate is without jurisdiction. The District Magistrate has concurrent jurisdiction with that of the Rent Control and Eviction Officer. He has no right to sit in appeal against an order of the Rent Control and Eviction Officer. He has, therefore, no power to set aside the order passed by the Rent Control and Eviction Officer. No objection can be taken to this proposition of law. The District Magistrate has no power to sit in appeal against an order of the Rent Control and Eviction Officer but the District Magistrate, as a superior officer, can always suggest to the Rent Control and Eviction Officer to reconsider an order passed by him and also to give his opinion about the facts. If, acting on that suggestion, the Rent Control and Eviction Officer reconsiders the matter, applies his independent mind to the question, it cannot be said that the order of the Rent Control and Eviction Officer passed subsequently is without jurisdiction. The applicant by merely getting a relief quashing the order of the District Magistrate can get no benefit unless the order of the Rent Control and Eviction Officer dated 3rd April, 1954 is set aside and in order to set aside the order of the 3rd April, it will have to be considered whether that order has been passed by the Rent Control and Eviction Officer himself or has been passed by the District Magistrate and secondly whether in passing the order the Rent Control and Eviction Officer applied his mind independently to the question. Reliance has been placed on the case of Mababir Prasad v. The District Magistrate, Kanpur 1955 A.L.J 252.. That is a case where the Rent Control and Eviction Officer had made an order of allotment. The allottee, in pursuance of that order, had entered into possession of the allotted premises. The landlord then made an application to the District Magistrate that the order of allotment should be cancelled and the Distriet Magistrate cancelled the order of allotment. A petition was filed in this Court challenging the order of the District Magistrate cancelling the order of allotment and it was held by this Court that the order of cancellation could only be passed by the Rent Control and Eviction Officer himself, and it could not be passed at the instance of the District Magistrate. It was held in that case that an order of allotment is an administrative order and can be cancelled by the officer who had passed the order and it was not open to a superior officer, who had a concurrent jurisdiction, to set aside the order of allotment passed by a subordinate officer. It was, however, observed at page 256 of the Report that—
“Where a power is exercised by a public servant under statutory sanction, that power can be exercised by him alone and not by any superior authority. The superior authority may give him suggestion and may even ask him to reconsider his decision leaving to him the freedom to change its mind or not. If in such circumstances the officer who originally passed the order, changes his mind and arrives at a contrary conclusion, the order will be perfectly valid because it would be the order of the original authority and not of the higher authority. But the higher authority cannot by its own order set aside the order of the inferior authority and assume to itself an appellate or revisional power which has not been conferred upon it by the statute.”
4. In Commissioner of Police, Bombay v. Gordhandas Bbanji 1952 S.C.R 135. the Supreme Court has held that if a statute requires that a discretion has to be exercised by an officer that discretion must be exercised by that officer alone. It is not open to a superior authority to exercise that discretion or the subordinate officer to act at the command of the superior officer. It was, however, observed at page 141 of the Report as follows:—
“We do not mean to suggest that it would have been improper for him to take into consideration the views and wishes of Government provided he did not surrender his own judgment and provided he made the order, but we hold on the material before us that the order of cancellation came from Government and that the Commissioner acted only as a transmitting agent.”
5. The question has to be determined on the facts of each case whether having regard to the circumstances of the case it can be said that the discretion has not been exercised by the Rent Control and Eviction Officer or he has not applied his mind to the facts of the case and has only transmitted the order passed by the superior officer. From a perusal of the report of the Rent Control and Eviction Officer it will appear that he was inclined to the view that the allotment order in favour of Suraj Narain was obtained by misrepresentation. Certain essential facts, which were necessary before an allotment could be made in favour of Suraj Narain, were not brought to his notice but he was doubtful whether he had power to cancel the allotment order in favour of Suraj Narain and in order to resolve that doubt he placed the matter before the District Magistrate. The District Magistrate only pointed out to him that he could pass an order directing Suraj Narain to deliver possession to Ram Pratap Sharma and to cancel the allotment in favour of Suraj Narain. The District Magistrate said that Ram Pratap Sharma should be put in possession and the allotment order in favour of Suraj Narain should be set aside but nonetheless it was the Rent Control and Eviction Officer who passed an order cancelling the allotment in favour of Suraj Narain. He did apply his mind to that question and passed an order cancelling his previous order. It cannot therefore, be said that the order of the Rent Control and Eviction Officer was without jurisdiction. It was then contended that Suraj Narain, having entered into possession, the allotment order in his favour could not be cancelled. In the case relied upon by the petitioner it was decided by this court, that in cases there an allot tee has entered into possession, the allotment order can be cancelled, provided it had been obtained by misrepresentation. The question whether it had been obtained by misrepresentation or not is a question of fact and this Court cannot go into this question in a writ petition. Apart from this, the shop having been allotted to the opposite party no. 6, the relief for cancellation of the order of the District Magistrate dated 1st April, 1954 has now become infructuous and the main question to be considered will be whether the fresh allotment order dated 8th January, 1955 passed in favour of the opposite party no. 6 can be quashed on any ground. In the petition filed for impleading opposite party no. 6 to the petition, no fresh facts have been given. The only prayer is that the relief be amended. The question, therefore will be whether on the facts set out in the affidavit filed originally in support of the petition any case for quashing the order of allotment in favour of the opposite party no. 6 has been made out or not. On the date when the allotment in favour of the opposite party no. 6 was made, admittedly Ram Pratap Sharma had entered into possession and he was going to vacate it. Suraj Narain was out of possession. It cannot, therefore, be argued that the premises were not vacant on the 8th January, 1955 and that the Rent Control and Eviction Officer had no jurisdiction under Sec. 7 to make the allotment. The only argument, which has been advanced in support of the contention that the allotment order of the 8th January, 1955 is invalid is that all this happened during the pendency of the writ petition. The fact that a third party's interest came into existence during the penency of the writ petition, will not render the order of allotment in favour of the third party invalid. In cases where the first allottee enters into possession and there is no question of misrepresentation or fraud so as to make the order of allotment in his favour invalid, any subsequent allotment made in favour of a third party may be set aside on the ground that the premises were not vacant on the date when the subsequent allotment was made. In the present case admittedly the premises were vacant on the 8th January, 1955 when the allotment order was made in favour of the opposite party no. 6. It was then argued by the counsel for the petitioner that the allotment in favour of the opposite party no. 6 should be quashed as it may have been obtained on misrepresentation. No facts are set out in the affidavit to show that the order was obtained by misrepresentation.
6. There is no force in this petition and it is rejected with costs., to opposite party no. 6. I assess the costs at Rs. 200/-.
7. Petition rejected.
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