LexBEOPAR SAHAYAK (P) LTD. & ORS. versus VISHWA NATH & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
BEOPAR SAHAYAK (P) LTD. & ORS.
v.
VISHWA NATH & ORS.
JULY 15, 1987
B
[A.P. SEN AND S. NATARAJAN, JJ.]
U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
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Act, 1972: s. 3(e)-Prescribed Authority-Jurisdiction of to pass
release order-Executive Magistrate of First Class with three years'
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experience in criminal trial-Whether competent.
c
Administrative Law-Subordinate legislation-Government noti-
fication published in official gazette-Whether could be superseded by
administrative instruction-De facto doctrine-Applicability of to
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orders passed by person holding office under colour of lawful autho-
rity-Appointment of Authority-Whether could be challenged in a col-
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lateral proceeding.
Clause (e) of s. 3 of the U.P. Urban Buildings (Regulation of
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Letting, Rent & Eviction) Act, 1972 defined 'Prescribed Authority' to
mean a Magistrate of the First Class having experience as such of not
less than three years, authorised by the District Magistrate to exercise
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the powers of such authority. When the Code of Criminal Procedure,
1973 came into effect in 197 4 this defmition was amended to mean an
officer having not less than three years experience as Munsif or as
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Magistrate of the First Class or as Executive Magistrate authorised by
the State GoverDIDent to exercise the power of the Prescribed
Authority.
F
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The respondents having their residence in the second Door of the
premises and their business establishments in a portion of the ground
floor, sought recovery of possession under s. 21 of the Act of the first
floor and another portion of the ground floor leased out by their father
to the predecessor concern of the appellant for residential and non-
,
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residential purposes respectively. The Prescribed Authority passed an
order of release holding that the requirement of the leased portions by
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the respondents for their residential and non-residential purposes was a
bona fide one and that the comparative hardship factor was more in
their favour than in favour of the appellant. These findings were con-
frrmed by the Appellate Authority.
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496
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BEOPAR SAHAYAK v. VISHWA NATH
497
In the writ petition filed before the High Court it was contended A
for the first time that the order of the Prescribed Authority had been
passed without jurisdiction and was, therefore, a nullity and its aflir·
mation by the Appellate Authority could not validate it. That conten·
lion was repelled by the High Court holding that even if the order of the
Prescribed Authority was a defective one, it bad got merged with the
order of the Appellate Authority when it was confirmed and that the B
question of jurisdictional competence of the Prescribed Authority to
pass the order of release involved adjudication upon disputed questions
of fact and such an enquiry was beyond the scope of proceedings under
Article 226 of the Constitution.
The· Government had in exercise of its powers under ss.12 and C
39(1), Cr. P.C., 1898 by a general notification dated 6.2.1968 conferred
· on all Tebsildars the powers of a First. Class Magistrate, and on all Naib
Tehsildars the powers of a Second Class Magistrate. The Deputy Sec-
retary, Government of U .P. had, however, in his note forwarding the
General Notification to all the District Magistrates stated that the con·
ferment of powers was confined to the maintenance of law and order. D
By means of a notification dated 9.9.1974 the Government had desig-
nated the Additional City Magistrate II, Kanpur to be the Prescribed
Authority under the Act for certain areas.
The Prescribed Authority, whose order is impugned had served as
Tebsildar from 29.9.1962 to 6.ll.1964 and again from November, 1965 · E
to 15.2.1974, when he was promoted to Deputy Collector and posted as
Additional City Magistrate, Kanpur, which post be held when he dealt
with the application in the instant case.
,In the special leave petition it was contended that the powers of a
First Class Magistrate under s. 39(1) Cr. P.C. 1898 cannot be deemed F
to have been conferred on the incumbent in the instant case in the
absence of requisite proof under s. 39(2) of the Code, that even if the
general notification dated 6.2.1968 empowered him to act as such, the
conferment of power was only for ensuring the maintenance of law and
order and not for trial of cases, and thats. 3(e) requires that an Execu-
tive Magistrate to be lawfullyExcerpt shown. Read the full judgment & AI analysis in Lexace.