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1971 Supreme(All) 107

Allahbad High Court
W.BROOME,R.S.PATHAK,H.N.SETH
Baleshwar Dayal - Appellant
Versus
State of U.P. - Respondent
Decided On : 04/01/1971

Advocates:
V.B.L. Srivastava, Ambika Pd., M.P. Srivastava, Jagdish Pd. and G.C. Dwivedi, for Appellant; A.D. Prabhakar, for Respondents.

Headnote:

U.P. TEMPORARY CONTROL OF RENT AND EVICTION ACT, 1947 - SECTION 7-F - STAY ORDER - POWER OF STATE GOVERNMENT - SCOPE AND EFFECT - INTERIM ORDERS - NATURE AND EFFECT.

Fact of the Case:

The State Government passed a stay order under Section 7-F of the U.P. Temporary Control of Rent and Eviction Act, 1947, staying the operation of permission granted to the landlords to file a suit for ejectment of the tenant. The landlords filed a suit for ejectment before the stay order was served upon them. The tenant challenged the validity of the stay order and the suit for ejectment.

Finding of the Court:

The Court held that the State Government has the power to pass interim orders, including stay orders, under Section 7-F of the Act. Such interim orders can be directed only to such persons or authorities which are amenable to the jurisdiction of the State Government in proceedings under the Act. An interim order staying the operation of permission granted by the District Magistrate under Section 3 of the Act is in substance an order restraining the landlord from instituting a suit and it becomes effective only from the time it is communicated to the party concerned.

Issues: 1. Whether the State Government has the power to pass a stay order under Section 7-F of the Act? 2. Whether the stay order operates from the moment of its birth or from the moment of its communication to the landlord?

Ratio Decidendi: 1. The power given to the State Government under Section 7-F of the Act is in very wide and general terms. It includes the power to make interim orders which may appear to the State Government to be necessary in the ends of justice. 2. An interim order staying the operation of permission granted by the District Magistrate under Section 3 of the Act is in substance an order restraining the landlord from instituting a suit and it becomes effective only from the time it is communicated to the party concerned.

Final Decision: The Court answered the two questions referred to it as follows: (1) While exercising the powers Under Section 7-F of the U.P. Act III of 1947, the State Government has the jurisdiction to pass interim orders, including stay orders, which it may consider necessary in the interest of justice. Making of such interim orders which enable the State Government to make an effective final order under Section 7-F would be within its jurisdiction. Such interim orders can be directed only to such persons or authorities which are amenable to the jurisdiction of the State Government in proceedings under the Act, and (2) An interim order staying the operation of permission granted by the District Magistrate under Section 3 of the Act is in substance an order restraining the landlord from instituting a suit and it becomes effective only from the time it is communicated to the party concerned.

Judgement

H. N. SETH, J. :- A Division Bench of this Court has referred two questions of law for consideration by a Full Bench. Facts leading to the reference are that on 29-1-1965, Ram Kishan and Babu Ram, the two landlords, obtained permission under Section 3 of the U.P. Temporary Control of Rent and Eviction Act (U.P. Act III of 1947), hereinafter referred to as the Act, from the Rent Control and Eviction Officer, Meerut, for filing a suit for ejectment against their tenant Baleshwar Dayal. The tenant went up in revision before the Commissioner, Meerut Division, who by his order dated July 22, 1965 dismissed the revision application and upheld the order of the Rent Control and Eviction Officer. On 3rd August 1965, the tenant filed an application in revision under Section 7-F of the Act, before the State Government. The State Government, by its order dated 6th August, 1965 directed that the operation of the permission granted, under Section 3 of the Act, by the Additional Commissioner, Meerut Division, to Sarvasri Ram Kishan and Babu Ram to file a suit for Baleshwar Dayal's ejectment from the shop in question, be stayed pending consideration of the case by the State Government. Before the order dated 6th August 1965 could be served upon the two landlords, they filed a suit for the ejectment of the tenant on 16th August, 1965. Subsequently, on 17th of May, 1966 the State Government dismissed the revision application filed by the tenant on the ground that it was not open to it to interfere with the permission granted under Section 3 of the Act after a suit for ejectment had been filed. The tenant then filed a writ petition against the order of the State Government, dated 17th of May, 1966, dismissing his revision application. The writ petition was dismissed by a learned single Judge of this Court. Baleshwar Dayal questioned the correctness of the order made by the learned single Judge by filing a special appeal. During the hearing of the special appeal, reliance was placed on a Division Bench decision of this Court in the case of Smt. Bhagwati Devi v. Baij Nath, (1966 All WR (HC) 631), in which it had been held that powers of the State Government under Section 7-F of the Act, are wide enough to enable it to pass stay orders during the pendency of the revision before it, and that the stay order passed by it would operate from the date it is made. Learned Judge hearing the Special Appeal, felt that the decision in Smt. Bhagwati Devi's case, 1966 All WR (HC) 631 required reconsideration and accordingly they referred the following two questions for being considered by a Full Bench.

(1) Whether the State Government has get power to pass a stay order? and

(2) Whether the stay order operates from the moment of its birth or from the moment of its communication to the landlord to whom permission has been granted.

2. Section 7-F of the Act reads as follows:

"The State Government may call for the record of any case granting or refusing to grant permission for the filing of a suit for a eviction referred to in Section 3 or requiring any accommodation to be let or not be let to any person under Section 7 or directing a person to vacate any accommodation under Section 7-A and may make such order as appeared to it necessary for the ends of justice."

3. The power given to the State Government under this section is in very wide and general terms. After the State Government calls for the record under this section, it gets the jurisdiction to make such orders as may appear to it necessary in the ends of justice. This power in our opinion includes the power to make interim orders which may appear to the State Government to be necessary in the ends of justice. There does not seem to be any reason to confine the jurisdiction of the State Government to the making of final orders alone. It is a well recognised principle of interpretation of statutes that where a statute confers a power on an authority, such ancillary or incidental powers must be implied as







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