judgement:
ivil Appeal No. 1743 of 1975.
(Appeal by special leave from the judgment and order dated 5.9.1975 of the Rajasthan High Court in S.B. Civil 2nd Appeal 302 of 1974) M. Jain,., for the appellant.
S.C. Agarwala and V.J. Francis, for Respondents 1 & 2.
The Judgment of Y.V. Chandrachud and P.K. Goswami, JJ. was delivered by Goswami, J.S. Murtaza Fazal Ali, J. gave a separate Opinion.
GOSWAMI, J.
The facts of the case relating to this appeal by special leave have been fully described in the judgment of our learned brother, Fazal Ali, J.
We agree with the conclusion reached by him that this appeal should be dismissed.
We also agree with our learned brother that the appeal should be dismissed on the merits.
However, so far as the question of law that arises in this appeal, we would like to confine our decision to the reasons given hereinafter.
The question of law ,that arises in this appeal is as to whether an application for special leave or an appeal by special leave to thin, Court is an "appeal" within the meaning of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, as amended by the Rajasthans Ordinance No. 26 of 1975 (briefly the Act).
We should, therefore, read section 13A: "13A. Special provisions relating to pend ing and other matters: Notwithstanding anything to the contrary in this Act as it existed before the commencement of the Ordinance or in any other law, (a) no court shall, in any proceeding pending on the date of commencement of the amending Ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent, the tenant applies under clause (b) and pays to 327 the landlord,.
or deposits in court, within such time such aggregate of the amount of rent in arrears, interest thereon and full costs of the suit as may be directed by the court under and in accordance with that clause; (b) in every such proceeding, the court shall, on the application of the tenant made within thirty days from the date of commence ment of the amending Ordinance, notwithstand ing any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the court, and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if the tenant had not committed any default; (c) the provisions of clause (a) and (b) shall mutatis mutandis apply to all appeals, or applications for revision, preferred or made after the commencement of the amending Ordinance, against decree$ for eviction passed before such commencement with the variation that in clause (b), for the expression "from the date of commencement of the amending Ordinance" the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substi tuted; (d) no court shall in any proceeding pending on the date of commencement of the amending Ordinance, pass any decree in favour of a landlord for eviction solely on the ground that due to the death of the tenant as defined in clause (vii) of section 3 as it stood before the commencement of the amending Ordi nance, his surviving spouse, son, daughter and other heir as are referred to in sub clause (b) 04 clause (vii) of section 3 were not entitled to the protection against eviction under this Act as it stood before the com mencement of the amending Ordinance; (e) no decree for eviction passed by any court before the commencement of the amending Ordinance shall, unless the same already stands executed before such commencement, be executed against the surviving spouse, son, daughter and other heir as are referred to in sub clause (b) of the clause (vii) of section 3 if such decree was passed solely on the ground as is referred to in clause (d) and such decree shall be deemed to be a nullity as against them; and 5 1546SCI/77 328 (f) the provisions of clause (d) shall mutatis mutandis apply to all appeals, or appli cations for revision preferred or made, after the commencement of the amending Ordinance,and Explanation: For the purposes of this section : (a) amending Ordinance means the Rajas than Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975; and (b) 'proceeding ' means suit, appeal or application revision.
" Even in the original Act passed in 1950 section 13(1)(a) was there with two provisos and there was restriction against eviction.
Under section 13(4) of the original Act a right was conferred upon the tenant in a suit founded on the ground of non payment of rent to pay the arrears with inter est and costs as determined by the court on the first day of hearing within the outside limit Of fifteen days from the date of the order.
If ,the tenant complied with the order, the suit for eviction stood dismissed, By the Amending Rajasthan Act 12 of 1965 section 13A was introduced.
Sub section (4) of section.13 of the original Act was substituted by still preserving the tenant 's right to pay the arrears with interest and costs within the out side limit of two months and on payment of the same no decree for eviction on the ground of nonpayment of rent shall be passed.
The Rajasthan Ordinance No. 26 of 1975 inter alia has amended the opening non obstante clause of section 13A and except for substituting the word 'Act ' by 'Ordinance ' in clauses (a), (b) and (c) nothing else has been altered.
Section 13A is selective enough.
Only one type of eviction decree which is solely based on the ground of non payment of rent is taken care of extending still further the period for payment ,of arrears with interest and costs.
Under section 13A, as amended, the benefit is available in pending suits of that category, appeals therefrom and appli cations for revision pending on the date of commencement of the Ordinance, that is, on 29th September, 1975.
The decree of eviction with which we are concerned in this appeal is founded on the ground of non payment of rent as specified in section 13(1) (a).
There is a two fold submission bY the learned Counsel for the appellant.
First, in view of the fact that the appellant lodged on 23rd September, 1975, an application under Article 136 of the Constitution praying for special leave to appeal against the judgment of the High Court and the Ordinance was passed on 29th September, 1975, after that application, his case is governed by section 13A(a) and (b) of the Act.
In the alternative, the appellant submits that at any rate after the special leave had been granted by this Court there was an appeal reading against the judgment of the High Court 329 and since he submitted an application within 30 days from the grant of Special leave his case is covered by section 13A(c) of the ACt.
" With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law.
It is an extraordinary right conferred under the Constitution, within the discretion of ,this Court, and such an application for Special leave does not come within the contemplation of appeal pending before the court under Section 13A(a).
It is true that the word "proceeding" winch appears in section 13A(a) and (b) means suit, appeal or application for revision according to the Explanation appended to section 13A.
Therefore, in order to attract section 13A(a), a suit, appeal or application for revision ,must be pending on the date of commencement of the Ordinance No. 26 of 1975.
In view of the connotation of the wordl "proceeding" as given under the Explanation to section 13A it is impermissi ble to extend the meaning of the word "proceeding" to in clude an application for Special leave under Article 136 of the Constitution.
The collocation of the Words, "suit, appeal or application for revision" in the Explanation to denote "proceeding" would go to show that suits, regular appeals therefrom, as provided under the ordinary law and applications for revision alone are intended.
It is incon ceivable that if the legislature had intended to include within the ambit of "proceeding" an application for special leave under Article 136 of the Constitution it would have omitted to mention it in express terms.
We will now deal with the second submission of the appellant.
which is the alternative argument.
It is submitted by the appellant that even if an appli cation for special leave is not an appeal for the purpose of section 13A(a) in view of the fact that leave of this Court had been obtained and an appeal had been pending in pursu ance of the grant of special leave he iS entitled to invoke the protection under section 13A(c).
It is on that basis that the appellant submitted a second application relying on section 13A(c).
Under Order XVI, rule 11 of the Supreme Court Rules, on the grant of special leave the petition for special leave shall, subject to the payment of additional court fee, if any, be treated as the petition of.
appeal and it shall be registered and numbered as such.
Under section 13A(c) read with section 13A(b), in a pending appeal, the tenant has to make an application within 30 days from the date of the presentation of the memorandum of appeal".
There is no provision in an appeal by special leave for presentation of a memorandum of appeal, but, as stated earlier, under rule 11 on the grant of special leave the petition for special leave is treated as the petition of appeal and registered and numbered as such.
We may in this connection contrast the provisions of the Civil Procedure Code where the proce dure is laid down for appeals.
Order 41, Civil Procedure 330 Code, deals with appeals from original decrees.
Under sub rule (1) of rule 1 of Order 41, every appeal shah be pre ferred in the form of a memorandum signed by the appellant or his pleader and presented to the court or to such officer as it appoints in this behalf.
Under Order 42, the rules of Order 41 shah apply, so far as may be, to appeals from appellate decrees.
Similarly the same procedure, as under Order 41, is provided for under Order 43, rule 2, with regard to appeals from orders.
It is, therefore, clear that under the Civil Procedure Code an appeal has to be preferred in the form of a memorandum and presented to the court or to such officer appointed by the court in that behalf.
The question of limitation provided under section 13A(b) and (c) is important and the terminus a quo for the purpose of section 13A (c) is from the date of presentation of the memorandum of appeal.
Since no petition of appeal has to be presented in this court after special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c).
On the other hand the expression "the presentation of the memorandum of appeal" in section 13A(c) chimes with the construction that the legislature clearly intended to in clude only the hierarchy of appeals under the Civil Proce dure Code wherein presentation of the memorandum of appeal is an obvious requisite.
We may next deal with the question whether section 22 of the Act is of assistance in deciding this controversy since our learned brother 's conclusion has received sustenance also from the said section.
We do not think so.
Before we proceed further we may turn to some of the material provisions in the Act.
Section 6 provides for fixation of standard rent and under sub section (1 ) thereof the landlord or the tenant may institute a suit in the lowest court of competent jurisdiction for fixation of standard rent for any premises.
Sub section (1) of section 7 provides for fixation of provisional rent by the same court upon the institution of a suit under section 6.
Under sub section (4) of section 7 any failure to pay the provisional rent for any month by the fifteenth day of the next following month shah render the tenant liable to eviction under clause (a) of sub section (1) of section 13, and all sums due from the tenant as such rent shall be recoverable from him as if the order under sub,section (1) were a decree of the court in a suit for periodical payments.
Section 11 provides for procedure for increasing rent and the landlord may bring a suit under subsection (3) of section 11 for increasing rent or standard rent in the lowest court of competent jurisdiction.
Under sub section 11(4) the court shall, after such summary en quiry, as it may think necessary, make orders according to law, and a decree shall follow.
Section 19A provides for payment, remittance and deposit of rent by tenants and the court for the purpose of that section as well as for sec tions 19B and 19C with respect to any local area means any civil court which may be specially authorised by the State Govern 331 ment by notification in this behalf, or where no civil court is so authorised; the court of the Munsif, and the court of the Civil Judge, where there is no court of Munsif having jurisdiction over the area.
Section 12 provides for dealing with disallowance of amenities by the landlord by the Magistrate.
The Magistrate means the sub Divisional Magistrate having jurisdiction.
over the place where the premises in question are situated and includes such other Executive Magistrate having juris diction over and sitting at that place, as the State Govern ment may empower in this behalf section 3(i)].
Under sub section (6) of section 12 the order of the Magistrate under subsection (3) shall be executed by the Munsif having juris diction, or where there is no Munsif, by the Civil Judge having jurisdiction over the area in which the premises are situated as if it were a decree passed by such Munsif or Civil.
Judge, as the case may be.
Next,section 17 describes the powers of a Magistrate to require premises to be let and certain orders can be passed under that section by the Magistrate.
Similarly section 19 enables the Magistrate to pass certain orders with regard to the vacant building sites.
From a conspectus of the above provisions it will be seen that there are two types of forums for instituting action under the Act.
One category of actions is taken to the lowest court of competent jurisdiction which is a civil court and the other category is lodged before the Magistrate on the executive side.
The word court, however, is not defined in the Act but for purposes of sections 19A, 19B and 19C.
While the forums are specified for certain types of actions enumerated in the Act no court as such is specified in the Act for entertaining suits of eviction by landlord against a tenant.
It is, therefore, manifest that such suits will lie in the ordinary civil court of competent jurisdiction.
That court will, however, have to take into account the relevant provisions of the Act, for the purposes of determination of controver sies raised before it.
The benefits conferred by the Act upon the tenants will have to be given by the civil court in trying eviction suits.
Where there is a bar of eviction under the Act the court will have to give effect to it.
As is clear from the above narration that there is a dichotomy of forums under the Act, some matters are lodged before the lowest court of competent jurisdiction and some others before the Magistrate.
There is a tertium quid, namely, the usual court which is available to the landlord for instituting suits for eviction against tenants.
The landlord, however, will have to take note of the provisions under the Act and comply with those provisions in such a litigation.
The tenant also, in such suits, will be able to claim all the benefits conferred upon him under the Act which the courts will, in appropriate cases, grant.
In the above background of the provisions in the Act section 22 which provides for appeals and revisions may be read: 332 "22(1) From every decree or order paSsed by a. court under this Act, an appeal shall lie to the court tO which appeals ordinarily lie from original decrees and orders passed by such former court.
(2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; (3) Any person aggrieved by an order of the.
Magistrate may, within fifteen days from the date of such order, appeal therefrom to the District Magistrate or such.
authority.
as the State Government may from time to time appoint in that month.
" It is very significant that while SectiOn 22( 1 ) quali ties the decree or order aS being "under this Act", Section 13A, on the contrary, does not describe "proceeding" to be under the Act.
Section 22(1) refers to every decree or order passed by a court under this Act.
The decree or order passed.
under this Act must,therefore, have reference to those passed under Sections 6, 7, 11, 19A and 19C. Sub section (2) pro vides that no second appeal shall lie from any such decree or order.
Such decrees or orders are, therefore, again referable to those passed under the above mentioned sections under the Act, While a second appeal is barred in case of those decrees and orders under the Act the High Court 's power of revision is not barred.
Sub section (3), of section 12 provides for appeals from an order of a Magistrate to the District Magistrate or such authority as may be appointed by the Government.
As noticed earlier Certain orders are passed by.the Magistrate under section 1,(3), Section.
17 and section 19 Section ,22(3) makes provision of appeal against such orders passed under section 12(3), section 17 and section 19.
It is, therefore, clear that the Act provides for the. institution of actions in two different forums and also makes provision for appeals and revisions against orders and decrees passed under the Act.
There is no provision in the Act for institution of suits for eviction which will, there fore, lie in the ordinary =courts of competent jurisdiction.
Appeals, also revisions, where competent, will lie against 'decrees in eviction suits in the usual hierarchy of Courts.
It is manifest from a perusal of the scheme of the Act that appeals or applications for revision under section 13A(c) relate only to decrees in :suits for eviction based on the ground.
of nonpayment of rent.
Such appeals or appli cations for revision under section 13A(c) are not contem plated under section 22 of the Act.
As shown above, decrees or orders passed by the court under the Act against which appeals and revisions are provided in Section 22 do not take in decrees or orders passed in a Suit for eviction.
Usual rights of appeal and revision will be available in the latter class of 333 suits.
To hold otherwise will be to deny a right of second appeal to a litigation, be he a landlord or tenant, against a decree in an eviction suit which is clearly not the inten tion of the legislature.
Second appeal is only barred in ease of decrees or orders passed under the Act to which a copious reference has been made hereinabove with reference to the various provisions of the Act.
With regard to execution proceedings, it. would appear that these are outside the scheme of clauses (a) to (c) of section 13A but it is unnecessary to express any firm opinion on that point since it does not arise in this ap peal.
We are of opinion that the appellant cannot take advan tage of section 13A in this appeal by special leave.
His applications under section 13A stand dismissed.
The appeal is, therefore, dismissed, but there will be no order as to costs.
FAZAL ALl, J.
This appeal by special leave involves a question of law regarding the ambit and.scope of section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 as amended by Ordinance No. 26 of 1975 dated September 29, 1975 which was later replaced by an Act.
The appeal arises in the following circumstances.
The defendant/appellant along with his two brothers Padam Chand and Tara Chand had taken on lease a shop at a monthly rent of Rs.60/ from the plaintiffs/respondents as far back as September 1, 1961.
The shop was situated in Tripolia Bazar, Jaipur City (Rajasthan).
The plaintiffs served a notice of eviction under section 106 of the Transfer.
of Property Act on the appellant and his two brothers terminating.
the tenancy and directing.
them to vacate the premlses.
As the tenants did not Vacate the premises, the plaintiffS instituted the present suit. in the Court of the Munsiff East, Jaipur City,_ claiming eviction of the appel lant and his two brothers on me ground that they had not paid or tendered rent for a period of, six months from Magh shukla 1, smvt.
In the plaint the plaintiffs also averted that the.
shop was required by them for their own use and occupation and that the tenants had sublet the shop to Rajasthan Bartan Bhandar.
without the consent of the plaintiffs.
We might mention here that these two grounds.
taken by the plaintiffs have been held by all the Courts to be completely disproved, and.the suit was decreed by the District Judge and the High Court mainly, on.
the ground that thetenants had defaulted in payment of rent for a PeriOd of six months and were, therefore, liable to be ejected under the provisions.
0f the Rajasthan premises (Control. of Rent and Eviction) Act, 1950 hereinafter referred to as 'the Act '.
It appears that after summonses were served on all the three defendants including the appellant, two of the brothers of the appellant, Viz., Padam Chand and Tara Chand put in their appearance, but the appel lant despite the service did not put in his appearance.
In fact the counsel who was appearing for the other two defend ants had been instructed to appear for the appellant also, but the Vakalatnama was not signed by the appellant.
The appellant appears to have taken advantage of 334 this lacuna in contending that he had not participated in the proceedings of the Trial Court.
On February 14.
1966 the defendant Tara Chand moved an application under section 13 of the Act praying to the Court that the rent due may be determined and the defendants may be directed to deposit the rent.
The Court accordingly determined the rent on March 1, 1966 and directed the defendants to deposit a sum of Rs.398 75 Paise on or before April 19, 1966.
As the rent was not deposited, the plaintiffs moved an application for striking out the defence of the defendants against eviction for their failure to comply with the provisions of section 13(4) of the Act.
The Court accordingly by its order dated December 14, 1966 struck out the defence of the defendants.
It may be pertinent to note that although the appellant had not put in his formal appearance he under stood the order of the Trial Court dated December 14, 1966 striking out the defence and treated the same as having been passed not only against his brothers Padam Chand and Tara Chand, the two defendants, but also against himself and accordingly he along with his brothers preferred an appeal against that order to the Senior Civil Judge, Jaipur City on October 30, 1967.
This appeal was ultimately dismissed and then the three defendants flied an application for revision before the High Court which was also dismissed by the High Court by its order dated September 19, 1968.
Thus it is manifest that the appellant was fully aware of the proceedings that had taken place as also of the order that had been passed against the defendants striking out their defence.
When the record was received back by the THai Court, Shri Tara Chand Jain Advocate of the defendants informed the Court on November 26, 1968 that he was holding brief only on behalf of the two defendants Padam Chand and Tara Chand and not on behalf of the appellant Gyan Chand.
The Court accordingly passed an order that the suit was to proceed ex parte against the appellant.
On November 30, 1968 the appellant flied an application for setting aside the ex parte order passed against him and this application found favour with the Trial Court and was accordingly allowed.
The appellant was allowed to file his written statement which he filed on January 27, 1969.
Thereafter the appellant applied to the Court for determining the rent due to the plaintiffs but that application was rejected on the ground that no amount of rent was payable as the entire rent due had already been paid by the other two defendants.
Thereafter the plaintiffs flied an application before the Trial Court for striking out the defence against Gyan Chand as he had not complied with the order under section 13(4) of the Act passed by the Court previously.
The Trail Court, however, did not pass any orders on that application and ultimately dismissed the suit holding that there was no default.
It may be.
stated at the outset that when the appellant applied for setting aside the ex parte order he gave no explanation whatsoever for his non appearance in the suit, after the summonses were served on him but merely tried to explain his absence on November 26, 1968.
We have already pointed out that the appellant knew very well that the defence had been struck ,out by an order of the Court and had actually joined in the appeal and the revision flied by the other two defendants.
In spite of that for two years he kept quiet and gave no explanation whatsoever for not appearing before the 335 Court and participating in the proceedings until November 30, 1968.
This delay of two years which has been seriously commented upon by the High Court has not been explained satisfactorily by the appellant.
After the suit was dismissed by the Trial Court, the plaintiffs filed an appeal before the Additional District Judge who allowed the appeal holding that the defendants were defaulters and accordingly decreed the suit.
The grounds of subletting and personal requirement as alleged by the plaintiffs were, however, held not proved.
Thereaf ter there was second appeal to the High Court which affirmed the judgment of the District Judge and maintained the decree passed by the District Judge.
The High Court has rightly pointed out that the conduct of the appellant in not giving any explanation for not participating in the proceed ings despite service of the summonses speaks volumes against him.
The argument of the appellant that the entire proceedings should be cancelled as they had taken place in his absence was rightly rejected by the High Court.
In view of the concurrent findings of fact recorded on this point by the District Judge and the High Court, we are not at all inclined to interfere, in this appeal by special leave, with the merits of the case decided by the Courts below we are satisfied that the appellant was not diligent at all and has to thank his stars if the decision of the Courts below went against him In these circumstances, we do not propose to enter into merits of the appeal.
Mr. Jain, however, raised a pure question of law flowing from the amendment by which section 13A was introduced in the Act by virtue of Ordinance No. 26 of 1975.
Mr. Jain submitted that the statutory benefit conferred by section 13A would have to be extended to the appellant before this Court also and since the rent due had already been paid and the appellant was prepared to pay the costs and interest, the suit should be dismissed.
In order to appreciate this point, it may be necessary to state the sequence of facts.
The High Court dismissed the second appeal of the appellant on September 5, 1975.
Against this judgment, the appellant filed an applica tion for special leave in this Court on September 23, 1975.
Six days later i.e. on September 29, 1975 Ordinance No. 26 of 1975 dated September 29.
1975 introduced section 13A by amend ing the Act.
On October 28, 1975 the appellant filed a Civil Miscellaneous Petition in this Court praying that the Court may issue directions under the newly amended section 13A (c) of the Act.
On November 14, 1975 this Court granted special leave.
On December 11, 1975 another Civil Miscella neous Petition was filed by the appellant renewing his prayer for directions to be given by this Court under section 13A of the Amending Act.
The significance of these Civil Mis cellaneous Petitions appears to have been that if the spe cial leave petition was not treated as an appeal, then the moment the special leave was granted by this Court the appeal stood admitted by this Court and, therefore, the second application was filed for directions under section 13A of the Act as amended.
Mr. Agarwala counsel for the respondents has vehemently contended that section 13A of the Act would have absolutely no application to appeal by special leave filed in this Court.
In order to appreciate 336 this point it may be necessary to examine the language and the circumstances under which section 13A was introduced.
It would appear that before the introduction of section 13A by virtue of the.
Ordinance there was no provision in the Act which prohibited the Court from passing any decree if at any stage the tenant was prepared to deposit the, entire rent, costs and interest as directed by the Court.
The Legisla ture in pursuance of its socialistic policies attempted to liberalise the conditions of tenancies so as to give the tenants special protection against frivolous evictions.
With this object in view, the Ordinance appears to have been passed which was later on replaced by an Act.
In the state ment of objects and reasons accompanying.the amending Act it is mentioned that the Legislature decided to provide relief to tenants occupying premises in urban areas and in clause (6) 0f the said statement, the following observations are made: "In relation to pending suits and pro ceedings for ejectment on ground of defaults, an opportunity had been given to tenants to deposit the arrears of rent within thirty days and upon such deposit no decree for ejectment will be passed on such ground against them." Thus a perusal of clause (6) of the statement of Objects and reasons would clearly show that the intention of ,the Legislature was to confer certain benefits on the tenants to pending suits and proceedings for ejectment only on ground of defaults by giving them an opportunity to deposit the arrears within a specified time.
It is nowhere mentioned in clause (6) that this benefit was to be extended beyond the frontiers of the State in appeals which Were not ordinary remedies but which were special remedies provided for under the Constitution.
Thus the scope of the amendment was to confine the protection given to the tenants within the limits of the hierarchy of courts mentioned by the Act, and to the.
Courts in the State of Rajasthan.
It may be noticed that the statement of,objects and reasons does not even give a hint that the benefit conferred by section 13A 'would ' be available even in the execu tion proeedings after the decree had` been passed.
We shall now analyse section 13A of the Act, against the background of the main objective of the Legislature.
Section 13A of the ACt as introduced by Ordinance No. 26 of 1975 and later re placed by the Act runs thus: "13A. Special provisions relating to pending and other matters Notwithstanding anything to the contrary, in 'this Act as it ' existed before the commencement of the ordinance or in: any other law: (a) no court shall, in any proceeding.
pending on the date of commencement of the amending ordinance pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent, if the tenant applies under clause (b) and pays to the landlord; or deposits in court, Within such time.
such aggregate of the amount of rent in arrears, interest 337 thereon and full costs of the suit as may be directed by the court under and in accordance with that clause;.
(b) in every such proceeding, the court shall on the application of the tenant made within thirty days from the date of commence ment of the amending ordinance, notwithstand ing any order to the contrary, determine the amount of rent in arrears upto the date of the order as also the amount of interest thereon at six per cent per annum and costs of the suit allowable to the landlord; and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the ,court, and on such payment being made within the time fixed as afore said, the_proceeding shall be disposed of as if the tenant had not committed any default; (c) the provisions of clauses (a) and (b) mutatis mutandis apply to all appeals, or application for revisions, preferred or made after the commencement of the amending ordi nance, against decrees for eviction passed before such commencement with the variation that in clause (b), for the expression "from the date of commencement of the amending ordinance" the expression "from the date of the presentation of the memorandum of appeal or application for revision" shall be substi tuted; X X X Explanation: For the purpose of this section .
(a) "amending ordinance" means the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance, 1975; and (b) "Proceeding" means suit, appeal or application for revision.
" Section 13A contemplates only three kinds of proceedings, namely, suits, appeals and applications for revisions and these proceedings must be under the Act ,itself.
Clause.
(a) of section 13A of the Act provides that no court after the commencement of the mending ordinance shall pass any decree on the ground of non payment of rent if the tenant applies and a s to the landlord the entire rent in arrears interest and full costs of the suit.
Clause (b) requires that such an application is to be made within thirty days of the com mencement of the amending ordinance on,Which the Court would determine the rent in arrears and direct, interest to be paid at the rate of six per cent per annum.
Clauses (a) and (b) obviously do not apply to the present case, because the proceedings were not pending in any court when the ordinance or the Act came into force.
Reliance was, however, placed on the word "proceeding" as appearing in clauses (a) and (b) in 338 order to plead an argument that the word "proceeding" was wide enough to include not.
only Suits, but appeals at all stages.
This argument in our opinion is based on a serious misconception of the interpretation of the word "proceeding".
The Legislature has not left the connotation of the word "proceeding" in doubt because clause (b) of the Explanation clearly indicates what "proceedings" contemplat ed by section 13A in clauses (a), (b) and (c) are.
The Expla nations clearly shows that "proceeding" means suit, appeal or application for revision.
A logical interpretation of clause (b) of the Explanation would clearly reveal that the Act itself has limited the scope of the proceeding to suits, appeals or applications for revision under the hierarchy of the statute.
In other words, the Explanation refers only to Such proceedings as may be pending in any suit, appeal or application for revision under the Act.
Section 22 of the Act runs thus: "22.
Appeals and Revisions : (1) From every decree or order passed by a Court under this Act, an appeal shall lie to the Court to which appeals ordinarily lie from original decrees and orders passed by such former court.
(2) No second appeal shall lie from any such decree or order; Provided that nothing herein contained shall affect the powers of the High Court for Rajasthan in revision; X X X X " Section 22 provides for an appeal to the Court where an appeal ordinarily ties, i.e. the Court of the District Judge in the instant case and thereafter an application in revi sion to the High Court.
The use of the words "such proceed ing" in clause (b) of section 13A fortifies our conclusion that the proceedings contemplated by section 13A are really the pro ceedings referred to in Explanation which means proceedings in the nature of suits, appeals or applications for revision as referred to in section 22 of the Act.
In these circumstances we are unable to agree with the learned counsel for the appellant that proceedings in this Court would fall within the ambit of clauses (a) and (b) of section 13A of the Act.
It was then submitted that at any rate clause (c).
of section 13A would apply to the facts of the present case and the appellant should be given the benefit of that provision.
It is true that clause (e) applied the provisions of clauses (a) and (b) mutatis mutandis to appeals and applications for revision.
It may be noticed, however, mat this benefit is not conferred even in the execution proceedings arising out of decrees passed in suits or appeals and upheld in revi sions.
The true interpretation of clause (c) of section 13A would, therefore, be that this clause also contemplated the same proceedings as contemplated by clauses (a) and (b), namely the proceedings indicated in the Explanation.
Thus the benefit conferred by clause (c) would apply only to appeals or applications for revisions filed under the 339 Act as provided by section 22 of the Act.
The Legislature never intended to confer this benefit beyond the frontiers of the State.
It was however, submitted that the word "appeal" is wide enough to include an appeal by special leave filed in this Court.
It is, however, not possible to accept this conten tion.
The amendment was passed some time in the year 1975 i.e. about 25 years after the Constitution had come into force.
An appeal by special leave was a special remedy provided for by article 136 of the Constitution and the State Legislature of Rajasthan must be presumed to be aware of this special remedy as also the nomenclature of this remedy.
If the intention was to extend the benefit to appeals for special leave it should have been so clearly stated in clause (c).
Furthermore, the Rules flamed by the Supreme Court, the knowledge of which also must be ascribed to the State Legislature, make a clear cut distinc tion between an application filed in the Court for grant of special leave and a petition of appeal after the leave is granted.
It was suggested that the application for special leave to appeal may be treated as the memorandum of appeal as referred to in clause (c) of section 13A.
It is, however, not possible to accept this ,contention, because the constitu ents and ingredients of an application for special leave to appeal are quite different from those of a memorandum of appeal preferred to an appellate Court under O. XLI r. 1(2) of the Code of Civil Procedure.
Under O. XVI r. 4 of the Supreme Court Rules, 1966 the petition for special leave is to contain only the necessary facts and not the grounds.
It is true, r. 11 of O. XVI of the Supreme Court Rules provides that the petition for special leave would be treated as a petition of appeal after the special leave is granted, but that also cannot be equated with a memorandum of appeal as contemplated by clause (c) of section 13A of the Act.
In contra distinction to the provisions of the Supreme Court Rules it would appear that O. XLI r. 1 (2) of the Code of Civil Procedure runs thus: "The memorandum shall set forth, con cisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
" It would thus appear that the provisions of r. 1 (2) of O. XLI Code of Civil Procedure require that the memorandum of appeal has to set forth under the distinct heads the grounds of objections to the decree appealed from.
No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be field if certifi cate by High Court is granted.
The Legislature must be presumed to be aware of the difference between an applica tion for special leave to appeal and a memorandum of appeal.
If the intention was to extend the benefit of section 13A even to appeals before the Supreme Court, then apart from the word memorandum of appeal, the words "application for special leave to Supreme Court" should have been mentioned.
The fact that clause (c) of section 13A merely mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicate that 340 the remedies contemplated by the Act are the remedies of appeal and revision as provided for by section 22 of the Act.
In fact, as already pointed out, the benefit conferred by section 13A of the Act does not extend even to the.
execution pro ceedings and in these circumstances it cannot be assumed that it would have applied to a Court which is beyond the frontiers of the State and to a remedy which has been pro vided not by the State Legislature but by the Constitution itself.
For these reasons, therefore, we reject the argument of the appellant that clause (c) of section 13A of the Act would apply to the present appeal and that the appellant is, therefore,entitled to the benefit of this provision on the basis of the Civil MisCellaneous Petition filed by him.
We are clearly of the opinion, on an interpretation of the various clauses of section 13A of the Act and the Explanation thereto that.
the benefit under section 13A has been intended by the Legislature to be conferred only on the appellate and revisional courts and even execution proceedings have been excluded from the ambit Of the protection granted.
For these reasons I agree with the judgment proposed by my brother Goswami, J., and dismiss the appeal but in the peculiar circumstances of the case without any order as to costs.
P.B.R. Appeal dismissed.

summary:
Section 13A was introduced in Rajasthan Premises (Con trol of Rent and Eviction) Act, 1950 by an Ordinance on September 29, 1975, The Ordinance was later replaced by an Act.
Clause (a)of the section provides that no Court shall, in any proceeding pending on the date of the commencement of the Amending Ordinance, pass any decree in favour of a landlord for eviction of a tenant on the ground of non payment of rent under certain circumstances.
Clause (b) provides that in every such proceeding the Court shall, on the application of the tenant, made within 30 days from the date of the presentation of the memorandum of appeal or application for revision, determine the amount of rent in arrears.
Clause (c) provides that the provisions of els.
(a) & (b) shall, mutatis mutandis, apply to all appeals, or applications for revision, preferred or made after the commencement of the Amending Ordinance.
Explanation (b) to the section defines a proceeding to mean a suit, appeal or application for revision.
Section 22(1) provides that from every decree or order passed by the Court under the Act, an appeal shall lie to the Court to which appeals ordinarily lie :from original decrees and orders passed by such former Court.
On the ground of non payment of rent, a decree of evic tion was passed against the appellant, who was the respond ent 's tenant.
The High Court having affirmed the decree on appeal, the appellant filed an application for special leave to this Court on September 23, 1975.
The Ordinance intro ducing section 19A was passed on September 29, 1975.
This Court granted special leave on November.
In appeal to this Court it was contended by the appel lant (1) that since the application for special leave was pending before this Court on the date of the commencement of the Ordinance, the case was governed by section 13A (a) and (b) of the Act; (2) in the alternative since, as a result of the grant of special leave, an appeal had been pending before this Court, the appellant was entitled to the protection of section 13A(c) of the Act.
Dismissing the appeal, HELD: (Per Chandrachud and Goswami, JJ) (1)(a) In order to attract section 13A(a) a suit, appeal or application for revision must be pending on the date of the commencement of the Ordinance.
An application for special leave under article 136 of the Constitution cannot be equated with the ordinary remedy of appeal as of right under any provision of law.
It is an extraordinary right conferred under the Constitution, within the discretion of the Supreme Court and an application for special leave does not come within the contemplation of appeal pending before the Court under section 13A(a).
The collocation of the words "suit, a. appeal or application for revision" used in the explanation to denote "proceeding", shows that the suits and regular appeals therefrom as provided under the ordinary law and applications for revision alone are intended.
[329C & B] 325 (b) The expression "presentation of memorandum of appeal" under section 13A (c) chimes with the construction that the legislature clearly intended to include only the hierarchy of appeals under the Code of Civil Procedure.
[330D] (c) Under section 13A(c) read with section 13A(b) in a pending appeal, the tenant has to make an application within 30 days "from the date of presentation of the memorandum of appeal".
There is no provision in an appeal by special leave for presentation of memorandum of appeal, under r. 11 of O.XVI.
of the Supreme Court Rules, on the grant of special leave, the petition for special leave is treated as the petition of appeal.
In contrast under O.41 r. 1(1) of the Code of Civil Procedure, every appeal shall be preferred in the form of a memorandum signed by the appellant and pre sented to the Court.
[329H] (d) The terminus a quo for the purpose of section 13A(c) is from the date of presentation of the memorandum of appeal.
Since no petition of appeal has to be presented in the Supreme Court after the special leave is granted, such a contingency of appeal to this Court by way of special leave is not intended to be covered by section 13A(c).
[330C] (2) Section 22 cannot assist the appellant in this case.
While section 22(1 ) qualifies the decree or order as being "under this Act" section 13A does not describe "proceeding" to be under the Act.
[330E; 332C] The Act provides for the institution of serious in two different forums namely, the lowest Court of competent jurisdiction, which is the Civil Court, and the other before a Magistrate on the executive side.
[332F] Appeals or applications for revision under section 13A(c) relate only to decrees in suits for eviction based on the ground of non payment of rent.
Such appeals or applications for revision under section 13A(c) are not contemplated under section 22.
Decrees or orders passed by the Court under the Act, against which appeals and revisions are provided in section 22, do not take in decrees and orders passed in a suit for eviction.
Usual rights of appeal and revision will be available in the latter class of suits.
To hold otherwise will be to deny a right of second appeal to a litigant, whether it is landlord or tenant, against a decree in an eviction suit which is clearly not the intention of the legislature.
Second appeal is only barred in case of de crees or orders passed under the Act.
[332H] (Per section Murtaza Fazal Ali, J.) Proceedings in this Court would not fall within the ambit of cls.
(a) and (b) of section 13A. [338F] (a) The Explanation to the section clearly shows that the word "proceeding" refers only to such proceedings as may be pending in any suit, appeal or application for revision under the Act.
The use of the words "such proceedings" in section 13A(b) shows that the proceedings contemplated by section 13A are really proceedings referred to in the explanation, which means proceedings in the nature of suits, appeals or appli cations for revision as referred to in section 22.
[338E F] (b) Section 13A(c) would not apply to the present case.
The benefit conferred by el.
(c) would apply only to appeals and applications for revision filed under the Act as provid ed by section 22.
The true interpretation of cl.
(c) would be that this clause contemplated the same proceedings as con templated by els.
(a) and (b), namely, proceedings indicated in the explanation.
[338G H] (c) An appeal by special leave is a special remedy provided by article 136 of the Constitution and the legislature must be presumed to be aware of this special remedy.
If the intention was to extend the benefit to appeals for special leave, it should have been clearly stated in el.
[339B] (d) The Supreme Court Rules make a clear cut distinction between an application filed for the grant of special leave and a petition of appeal, if the leave is granted.
The constituents and ingredients of an application for special leave to appeal are quite different from those of a memoran dum of appeal under O.X.LI r. 1(2) of the Code of Civil Procedure.
[339D] 326 (e) The provisions of O.XLI, r. 1(2) C.P.C. require that the memorandum of appeal has to set forth under distinct heads, the grounds of objections to the decree appealed from.
No such requirement is to be found in the Supreme Court Rules either for an application for special leave to appeal or in the petition of appeal which is required to be filed if certificate by the High Court is granted.
The legislature must be.
presumed to be aware of the difference between an application for special leave to appeal and a memorandum of appeal.
Though r. 11 of O.XVI of the Supreme Court Rules provides that the petition for special leave would be treat ed as a petition of appeal after the special leave is grant ed,it cannot be equated with a memorandum of appeal contem plated by section 13A(c) of the Act.
[339G H] (f) The fact that section 13A(c) mentions the words "from the date of the presentation of the memorandum of appeal or application for revision" clearly indicates that the reme dies contemplated by the Act are remedies of appeal and revision as provided for by section 22 of the Act.
[339H]


judgement:
Appeal No. 1164 of 1970.
(Appeal by Special Leave from the Order dated the 5th Sep tember 1969 of the Punjab & Haryana High Court in S.C.A. No. 197 of 1968) Naunit Lal, Girish Chandra and R.N. Sachthey, for the appel lant.
S.B. Wad, for respondent No. 1.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The 1st respondent is a co operative transport society carrying on transport business at Kaithal, District Karnal, State of Haryana.
The Society terminated the services of respondents 3 and 4 who were working with it as conductor and driver, respectively.
The State of Punjab, on June 22, 1964 referred the dispute arising out of the dismissal of respondents 3 and 4, under section 10 of the Indus trial Disputes Act (14 of 1947) for the adjudication of the Labour Court, Rohtak.
That Court was then presided over by Shri Jawala Dass.
On Shri Dass 's retirement, Shri Hans Raj Gupta was appointed on June 4, 1965, as the presiding Officer of the Court.
The reference was thereafter heard by him and on April 16, 1966 he gave an award directing the reinstatement of respondents 3 and 4 with 50% backwages from the date of their dismissal until the date of reinstatement.
The Presiding Officer of the Labour Court is the 2nd re spondent to this appeal.
Being aggrieved by the award, the 1 st respondent filed Writ Petition No. 1575 of 1966 in the High Court of Punjab and Haryana under articles 226 and 227 of the Constitution, praying that the award given by the 2nd respondent be set aside on the ground, inter alia, that he was not qualified to hold the post of a Judge of the Labour Court, and, therefore, the award was without jurisdiction.
The Writ petition having been allowed by a Division Bench by its judgment dated March 26, 1968 the State of Haryana has filed this appeal by special leave.
The Presiding Officer of the Labour Court was impleaded to the Writ Petition as the 2nd respondent.
308 The only question for decision in this appeal is whether Shri Hans Raj Gupta who gave his award as the presiding Officer of the Labour Court was qualified for being appoint ed as a Judge of the Labour Court.
Section 7(1) of the provides that the appropriate Gov ernment may constitute one or more Labour Courts for the adjudication of Industrial disputes relating to any matter specified in the Second Schedule to the Act.
A Labour Court, under s.7(2), shall consist of one person only to be appointed by the Government.
Sub section (3) of section 7 reads thus: "(3 ) A person shall not be qualified for appointment as the presiding officer of a Labour Court, unless (a) he is, or has been, a Judge of a High Court; or (b) he has, for a period of not less than three years, been a District Judge or an Additional District Judge; or (c) he has held the office of the chairman or any other member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (48 of 1950), or of any Tribunal, for a period of not less than two years; or (d) he has held any judicial officer in India for not less than seven years; or (e) he has been the presiding officer of a Labour Court constituted under any Provincial Act or State Act for not less than five years".
It was common ground in the High Court that Shri Gupta did not satisfy the qualifications laid down in any of the clauses (a), (b), (c) and (e) of section 7(3).
It was, however, urged in the High Court, in the first instance, that Shri Gupta had held a judicial offical in India for not less than seven years and was, therefore, qualified for being appointed as a Judge of the Labour Court under clause (d) of s.7 (3 ).
This argument was made before the learned Chief Justice of the High Court who, while hearing the Writ Peti tion singly, felt that the question raised was of public importance.
He, therefore, referred the matter to a Divi sion Bench.
The contention that Shri Gupta was qualified to hold the office of a Judge of the Labour Court under clause (d) of s.7(3) was, however, given up by the State before the Division Bench.
Before us, the learned counsel for the appellant, the State of Haryana, rightly did not pursue the unstatable contention.
Shri Hans Raj Gupta was initially working as an Upper Division Clerk cure Head Clerk.
Thereafter, he worked from January 14, 1947 to October 19, 1954 as the Registrar to the Pensions Appeals Tribunal, Jullundur Cantonment.
After relinquishing that post, he was reverted as an Upper Divi sion Clerk cum Head Clerk, which office he held till Febru ary 17, 1957.
Subsequentiy, he was appointed as an Assistant Settlement officer in which post he worked fill September 1962.
It is obvious, and requires no clever argument to show, that Shri Gupta was holding clerical posts which, with some courtesy may 309 be described as posts calling for and furnishing administra tive experience.
As an Upper Division Clerk, even if the duties of that post were combined with those of the Head Clerk, Shri Gupta was nowhere in the shadow of a judicial office.
As a Registrar of the Pensions Appeals Tribunal, Jullundur Cantonment, he was admittedly discharging adminis trative functions.
A circumstance which seems to have blurred the perception of the State Government perhaps was that the Pensions Appeals Tribunal was a judicial or quasi judicial body and since Shri Gupta was closely associated with it, does not matter in what capacity, he could be said to hold a judicial office.
Administrative proximity with judicial work was regarded as an excuse good enough to elevate the administrator into a holder of judicial office.
This was a wholly misconceived approach to a matter of some moment for, were it so, many a judicial clerk would be qualified to be appointed to a judicial office.
Having never held any judicial office, Shri Gupta totally lacked judicial experience and was incompetent to discharge the functions of a Judge of the Labour Court.
His appointment was therefore illegal and his award without jurisdiction.
We are happy to note that the State Government did not take the time of the DiVision Bench of he High Court and of this Court in arguing an impossible proposition.
Nevertheless, the award given by Shri Gupta as the Presiding Officer of the Labour Court is defended by the State Government on the Plea that Shri Gupta 's appointment cannot be challenged in a collateral proceeding filed in the High Court for challenging the award.
Reliance is placed in support of this submission on the following passage in Cooley 's "A Treatise on the Constitutional Limitations" (8th edn; vol. 2; pages 1255 1358); "An officer de jure is one who, possessing the legal qualifications, has been lawfully chosen to the office in question, and has fulfilled any conditions precedent to the performance of its duties.
By being thus chosen and.
observing the precedent conditions, such a person becomes of right entitled to the pos session and enjoyment of the office, and the public, in whose interest the office is creat ed, is entitled of right to have him perform its duties.
If he is excluded from it, the exclusion is both a public offense and a private injury.
An officer de lure may be excluded from his office by either an officer de facto or an intruder.
An officer de facto is one who by some color of right is in possession of an office and for the time being performs its duties with public acquiescence though having no right in fact.
His color of right may come.
from an election or appointment made by some officer or body having colourable but no actual right to make it; or made in such disregard of legal requirements as to be ineffectual in law; or made to fill the place of an officer illegally removed; or made in favor of a party not having 310 the legal qualifications; or it may come from public acquiescence in the officer holding without performing the precedent conditions, or holding over under claim of right after his legal right has been terminated; or possibly from public acquiescence alone when accompa nied by such circumstances of official reputa tion as are calculated to induce people, without inquiry, to submit to or invoke offi cial action on the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without au thority of law, and without the support of public acquiescence.
No one is under obligation to recognise or respect the acts of an intruder, and for all legal purposes they are absolutely void.
But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State of by some one claiming the office de lure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be.
In all other cases the acta of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties.
This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally.
" Equally strong reliance was placed by the State Govern ment on a decision of the Ontario Supreme Court in Rs Toronto N. Co. City of Tornoto (1) in which, after an exami nation of several American and other decisions, Meredith, C.J.O., observed: "That it is not open to attack, in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information." (PP.
551 552) Learned counsel for the State, Shri Naunit Lal, further drew our attention to a decision of the High Court of Tra vancore Cochin in Bhaskera Pillai and Ant.
State(2) which, relying upon the passage in Cooley 's Constitutional Limitations and the Canadian case, held that the appoint ment of the Chief Justice of that Court could not be ques tioned collaterally in a proceeding for leave.
to appeal to the Supreme Court against the decisions rendered by him.
Some sustenance was also sought to the same argument from a decision of a Full Bench of (1) 46 Dominion Law Report 547.
(2) (1950) 5, D.L.R. Travancore Cochin 382.
311 the Allahabad High Court in Queen Empress vs Garsa Sam(1) in which it was held that where a person had in fact been exercising all the functions of a Judge of the High Court, the appointment even if apparently ultra vires must never theless be presumed, in the absence of fuller information, to have been legally made in the exercise of some power, unknown to the Court, vested in the Secretary of State for India.
Broadly, the starting point and the primary basis of these decisions is the passage from Cooley 's Constitutional Limitations, which we have extracted above.
That passage says and means that the acts of officers de facto cannot be suffered to be questioned for want of legal authority except by some direct proceeding.
This important principle, according to Cooley, finds concise expression in the legal maxim that the acts of officers de facto cannot be allowed to be questioned collaterally.
Considering the nature and course of proceedings in the instant case, it seems to us impossible to hold that the challenge to Shri Gupta 's appointment was made in a collat eral proceeding.
That Shri Gupta 's appointment was not challenged in the very proceeding before him does not meet the point and in any case, if the proper mode to challenge the validity of an appointment to a public office is by a petition for the writ of quo warranto, the Labour Court over which Shri Gupta presided was hardly an appropriate forum for challenging the appoinment of its Presiding Officer.
The 1st respondent, the Haryana Co operative Transport Ltd., against whom Shri Gupta gave the award, filed a writ peti tion in the High Court of Punjab and Haryana to challenge the award on the ground that Shri Gupta was not qualified to hold the office of a Judge of the Labour Court and, there fore, the award given by him was without jurisdiction.
The challenge to Shri Gupta 's appointment having been made by a writ petition under articles 226 and 227 of the Constitution, to which Shri Gupta was impleaded as a partyrespondent, the challenge was made directly in a substantive proceeding and not collaterally.
The writ petition was filed mainly with a view to challenge Shri Gupta 's appointment on the ground that he was not qualified to fill the post to which he was appointed.
Having been impleaded to the writ peti tion he had a clear and rightful opportunity to defend his appointment.
The proceedings by way of a writ petition were taken not collaterally for attacking an appointment to a judicial office in a proceeding primarily intended for challenging a so called judicial decision, but the proceed ing was taken principally and predominantly for challenging the appointment itself.
None of the decisions, nor indeed the passage in Cooley 's Treatise, is therefore, any answer to the prayer that the award be declared to be ultra vires on the ground that the officer who gave it was not qualified to hold that post in the exercise of whose functions the award was given.
The mere circumstance that the 1st respondent did not in so many words ask for the writ of quo warranto cannot justi fy the argument that the appointment was being challenged collaterally in a proceeding takes to challenge the award.
Considering the averments in the writ petition, it seems to us clear that the main and real attack on the award (3) I.L.R. 16.
4 1546 SCI/76 312 was the ineligibility of Shri Gupta to occupy the post of a Judge of the Labour Court, in the discharge of whose func tions the award was rendered by him.
The relief of certio rari asked for by writ petition was certainly inappropriate but by clause (c) of paragraph 16, the High Court was invited to issue such other suitable writ, order or direc tion as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging Shri Gupta 's appointment are stated clearly in the writ petition and the challenge to his appointment is expressly made on the ground_ that he was not qualified to hold the post of a Judge of the Labour Court.
It must be mentioned that in the Canadian case of re Toronto vs City of Toronto (supra) the contention was that the Ontario Railway and Municipal Board was a "Superior Court" within the meaning of section 96 of the British North America Act and its members, not having been appointed by the Governor General, had no jurisdiction to exercise the powers conferred upon the Board by the Act by which it was created.
This argument was repelled firstly on the ground that the Board was not a Court but an administrative body and secondly on the ground that there was nothing to show that the members of the Board were not appointed by the Governor General.
In the Travancore Cochin case the Chief JustiCe whose appointment was challenged was qualified to hold that post since he had held the office of a Judge of the Madras High Court though he had retired from that office on attaining the age of 60.
The question really turned on the construc tion of article 376 (2) of the Constitution which confers power on the President is determine the period for which a Judge of a High Court in any Indian State corresponding to any State specified in part B of the First Schedule holding office immediately before the commencement of the Constitu tion may continue to hold that office.
Besides, the Chief Justice 's appointment was challenged collaterally in appli cations for leave to appeal to the Supreme Court against the judgments pronounced by him.
The Full Bench judgment of the Allahabad High) rested on the presumption, in the absence of fuller information, that the appointment must be deemed to have been made in the exercise of some power vested in the Secretary of State for India even if such power was unknown to the Court.
Deliver ing the judgment of the Court, Edge, C.J. observed at page 157: "Being in ignorance as to whether or not any power existed under which Mr, Justice Burkitt may have been lawfully appointed to act as a Judge of this court, we hold that the presumption that he was duly appointed, which arises from the fact of his having acted as a Judge of the Court since November 1892, has not been re butted.
This may seem to be a lame and impotent conclusion for a Court of Justice to arrive at concerning the validity of the appoint ment of one of its acting Judges, but our lack of necessary information,ion as to the appointment, coupled with the circumstances of the case, permits of our arriving at no other.
" Learned counsel for the State of Haryana contends that there is one more impediment in the Court holding that Shri Gupta was not 313 qualified under section 7(3) of the Act to be appointed as a Judge of the Labour Court.
Reliance is placed in support of this argument on section 9(I) of the Act which reads thus: "9.
Finality of orders constituting Boards, etc. (1) No order of the appropriate Government or of the Central Government appointing any person as the chairman or any other member of a Board or Court or as the presiding officer of a Labour Court, Tribunal or National Tribunal shall be called in ques tion in any manner; and no act or proceeding before any Board or Court shall be called in question in any manner on the ground merely of the existence of any vacancy in, or defect in the constitution of, such Board or Court.
" It is true that s.9(1) is worded so widely and generally that it could cover any and every challenge to the appoint ment to the particular posts therein mentioned.
But it is impossible to construe the provision as in derogation of the remedies provided by articles 226 and 227 of the Consti tution.
The rights conferred by those articles cannot be permitted to be taken away by a broad and general provision in the nature of s.9(1) of the Act.
The words "in any manner" which occur in s.9(1) must, therefore, be given a limited meaning so as to.
bar the jurisdiction of civil courts, in the ordinary exercise of their powers, to enter tain a challenge to appointments mentioned in the sub sec tion.
The High Court of Assam(1), Bombay(2) and Rajasthan(3) have taken, like the High Court of Punjab and Haryana in the instant case, a correct view of the scope and meaning of s.9(1) of the Act by limiting its operation to ordinary powers of the civil Courts.
The rights conferred by articles 226 and 227 can be abridged or taken away only by an appro priate amendment of the Constitution and their operation cannot be whittled down by a provision like the one con tained in s.9( 1 ) of the Act.
Accordingly, it is open to the High Courts in the exercise of their writ jurisdiction to consider the validity of appointment of any person as a chairman or a member of a Board or Court or as a presiding officer of a Labour Court, Tribunal, or National Tribunal.
If the High Court finds that a person appointed to any of these offices is not eligible or qualified to hold that post, the appointment has to be declared invalid by issuing a writ of quo warranto or any other appropriate writ or direction.
To strike down usurpation of office is the function and duty of High Courts is the exercise of their constitutional powers under articles 226 and 227.
In the result we affirm the judgment of the High Court and dismiss this appeal.
We are thankful,.
to Shri Wad for assisting the Court as amicus.
S.R. Appeal dismissed.
(1) Bozbarua (G.C.) vs Sate of Assam 1954 Assam 161.
(2) lagannath Vinayak Kale vs Ahmedi (1958) II L.L.J. 50 (Bom.) (3) Mewer Textile Mills Ltd. vs Industrial.

dataset_name: IN-Abs

summary:
The first respondent, a Co operative Transport Society terminated the services of respondent 3 and 4.
The State of Punjab referred the dispute arising out of the dismissal of respondents 3 to 4 under section 10 of the to the Labour Court that was presided over by Mr. Das.
On Mr. Das 's retirement Shri Hans Raj Gupta was ap pointed as the Presiding Officer of the Court.
Mr. Gupta gave an award directing the reinstatement of respondents 3 and 4 with 50 per cent back wages from the date of their dismissal until the date of reinstatement.
The first respondent being aggrieved by the award filed a writ petition in the High Court under Articles 226 and 227 of the Constitution praying that the award given by second respondent be set aside on the ground, inter alia, that he was not qualified to become the Presiding Officer under section 7(3) of the Act since he did not hold any judicial office in India for not less than 7 years.
The contention of respondent No. 2 was that he held such a judicial office because he worked as Upper Division Clerk cum Head Clerk, Assistant Settlemeat Officer and Registrar of the Pensions Appeals Tribunals.
The contention that he held judicial office was not pressed before the High Court and in this Court by the State.
The State Government, however. supported the award on the plea that Mr. Gupta 's appointment cannot be challenged in collateral proceedings filed in the High Court for challenging the award.
Re Toronto & Co. vs City of Toronto 46 Dominion Law Reports 547; Bhaskara Pillai and Anr.
vs State [1950] 5DLR Travailcore Cochin 382 and Queen Empress vs Ganga Ram ILR 16 All.
136 distinguished.
Dismissing the appeal, HELD: 1.
Considering the nature and course of proceedings in the instant it is impossible to hold that the challenge to Mr. Gupta 's appointment was made in a collateral proceeding.
The appointment of Mr. Gupta could not have been challenged before him.
The challenge to his appointment having been made by writ petition under Articles 226 and 227 of the Constitution to which Mr. Gupta was impleaded as a party respondent, the challenge was made directly in a substantive proceeding and not in a collateral proceeding.
Since he was impleaded in the writ petition he had a clear and right ful opportunity to defend kid appointment.
[311 C E] 2.
The mere circumstance that the first respondent did not in so many words ask for a writ of quo warranto cannot justify the argument that the appointment was being chal lenged collaterally in a proceeding taken to challenge the award.
On the averments in the writ petition it is clear that the main and real attack on the award was the ineligi bility of Shri Gupta to occupy the post of a Judge of a Labour Court in the discharge of whose functions the award was rendered by him.
[311 G H, 312A] 307 3.
The relief of certiorari asked for by the writ peti tion was certainly inappropriate but the High Court was also invited to issue such other suitable writ, order or direction as it deemed fit and proper in the circumstances of the case.
There is no magic in the use of a formula.
The facts necessary for challenging the appointment are stated clearly in the writ petition and the challenge to the ap pointment is expressly made on the ground that the officer was not qualified to hold the post.
[312A B] 4.
The finality of the orders of the Labour Court con templated by section 9(1) although widely worded must be given a limited meaning so as to bar the jurisdiction of civil courts in the ordinary exercise of their powers.
It is impossible to construe the provisions in derogation of the remedies provided by Article 226 and 227 of the Constitu tion.
[313D E] Bezparua (G.C.) vs State of Assam A.J.R. 1954 Assam 161, Jagannath Vinayak Kale vs Ahmadi [1958] II L.L.J. 50 (Bom.) and Mewar Textile Mills Ltd. vs Industrial Tribunal A.I.R. , approved.