Supreme Court of India
BEOPAR SAHAYAK (P) LTD. & ORS.versusVISHWA NATH & ORS.
- Citation
- 1987 INSC 168
- Decided
- 15 July 1987
- Disposal
- Dismissed
- Bench
- A P SEN
Holding
The magistrate’s experience as an Executive Magistrate satisfied the qualification under Section 3(e) of the Act, rendering the release order valid and immune from collateral attack under the de‑facto doctrine.
Summary
The appellant, Beopar Sahayak Ltd., sought possession of leased premises, but the respondents obtained a release order under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, issued by a Prescribed Authority who was an Executive Magistrate. The appellant challenged the order on the ground that the Prescribed Authority lacked the statutory qualification of three years' experience as a First Class Magistrate and therefore acted without jurisdiction. The Supreme Court examined the effect of the 1968 Government Notification conferring First Class Magistrate powers on all Tehsildars, the requirement of Section 39(2) of the Criminal Procedure Code, 1898, and the de‑facto doctrine. It held that the magistrate’s experience as an Executive Magistrate satisfied the qualification under Section 3(e) of the Act and that the order was not a nullity. Even assuming a technical defect, the order could not be set aside because the magistrate acted under colour of lawful authority and the de‑facto doctrine barred collateral attack. Consequently, the appeal was dismissed.
Issues considered
- The Prescribed Authority under the U.P. Urban Buildings Act must have at least three years' experience as a First Class Magistrate; did the magistrate satisfy this requirement?
- Whether the 1968 Government Notification conferring First Class Magistrate powers on Tehsildars complied with Section 39(2) of the Criminal Procedure Code, 1898.
- Can an order passed by a Prescribed Authority lacking jurisdiction be declared a nullity, and does the doctrine of merger apply?
- Does the de‑facto doctrine prevent a private litigant from challenging the validity of the order or the appointment in a collateral proceeding?
Legislation cited
- Code of Criminal Procedure, 1898s. 12, s. 39(1), s. 39(2)
- Code of Criminal Procedure, 1973
- U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972s. 21, s. 3(e)
Subjects
Prescribed Authorityjurisdictionde‑facto doctrinemerger of orderslease disputeU.P. Urban Buildings ActCriminal Procedure Codecollateral attackspecial leave petition
Judgment
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) ~
Act, 1972: s. 3(e)-Prescribed Authority-Jurisdiction of to pass
release order-Executive Magistrate of First Class with three years' _,!
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
orders passed by person holding office under colour of lawful autho-
D
rity-Appointment of Authority-Whether could be challenged in a col- ""'
lateral proceeding.
Clause (e) of s. 3 of the U.P. Urban Buildings (Regulation of
Letting, Rent & Eviction) Act, 1972 defined 'Prescribed Authority' to '4
mean a Magistrate of the First Class having experience as such of not
less than three years, authorised by the District Magistrate to exercise
E the powers of such authority. When the Code of Criminal Procedure,
1973 came into effect in 1974 this defmition was amended to mean an
officer having not less than three years experience as Munsif or as
_.J,..-
Magistrate of the First Class or as Executive Magistrate authorised by
the State GoverDIDent to exercise the power of the Prescribed
Authority.
F ),.-
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- ,
G residential purposes respectively. The Prescribed Authority passed an
order of release holding that the requirement of the leased portions by
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.
H
496
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 lawfully empowered to act as Prescribed Authority G
must have had not less than three years experience in the trial of cases
as a First Class Magistrate.
Dismissing the appeal,
HELD: I. The Prescribed Authority's experience as an Execu· H
------------- ___ _,,......
498 SUPREME COURT REPORTS [19871 3.S.C.R.
A tive Magistrate in the instant case satisfied the requirementsofs. 3(e) of
the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act,
!972. He was not, therefore, incompetent to act as such and pass the
impugned order of release. [S07]
2. The General Notification dated February 6, 1968, conferring
B the powers of a First Class Magistrate on all Tehsildars and the powers
of a Second Class Magistrate on all Naib Tehsildars, which was
published in the Official Gazette on February 17, 1968, had been com-
municated to all the Tehsildars of the District by the District Magis-
trate. It must, therefore, be taken that the Goverument Notification
should have been fully acted upon and all Tehsildars, including the
C official whose order is impugned, must have been conferred powers of a
First Class Magistrate in the year 1968 when he was serving as
-
Tehsildar. The requirement of s. 39(2) of the Code of Criminal Proce-
dure, 1898 had thus been complied with. [S04B·D,G; SOSA]
3. There is nothing in the Government Notification dated
D February 6, 1968 or in I.he Gazette publication dated February 17, 1968
to indicate that the powers of a First Class Magistrate and a Second
Class Magistrate conferred on Tehsildars and Naib Tehsildars respec·
tively was only for the limited purpose of ensuring the maintenance of
law and order and not for exercise of those powers in the trial of crimi·
nal cases. The note of the Deputy Secretary appears to be only an
E administrative instruction and not an order passed by the Government
itself in exercise of its powers under ss. 12 and 39 of the Criminal
Procedure Code, 1898. The administrative instruction cannot whitle
down the Government Notification conferring higher magisterial pow-
ers on Tehsildars and Naib Tehsildars. [S04E-F]
F 4. All that s. 3(e) of the Act says is that for being conferred the
powers of a Prescribed Authority an Executive Magistrate should have
had experience as such· magistrate for a period of not less than three
years. Having regard to the terms of the stipulation, it would suffice if
he had acquired experience in the trial of criminal cases, albeit cases
triable by a Second Class Magistrate, for more than three years, while
G at the same time having the right to exercise the powers of a First Class ~. ~
Magistrate. This is because of the fact that as per Schedule III of the
Code of Criminal Procedure, 1898 a Magistrate of the First Class is also
entitled to exercise all the powers of a Magistrate of the Second Class. A
First Class Magistrate, therefore, can also gain experience by the trial of
cases triable by a Second Class Magistrate. What is of relevance is the
H gaining of experience in trial of criminal cases for a period of three
--- - -- --- ~·..,.-----<::--·:!'.'. - - ,,,,..,.
BEOPAR SAHAYAK v. VISHWA NATH 499
_..
years and more and at the same time.having the powers of a First Class A
Magistrate and not necessarily the experience of trying cases triable by
a First Class Magistrate alone. It cannot, therefore, be said that the
Prescribed Authority did not have requisite qualification in the instant
case to be so appointed under cl. (e) of s. 3 of the Act and hence the
release order passed by him was a nnlllty. [SOSC·Fl
B
.... S. The appointment of Prescribed Authority in the instant case
- was not made as persona designata. He exercised the powers of a Pre-
scribed Authority by reason of his posting as Additional City Magis-
trate 11, Kanpur, by virtue ofan earlier Notification of the Government
- dated September 9, 1974 constituting the Additional City Magistrate II,
Kanpur, as the Prescribed Authority, for certain specific areas in the
city. The said Notification of the Government was a General Notifica·
c
,1 tion and therefore whoever came to be posted as Additional City Magis·
trate II, automatically became a Prescribed Authority for the areas
indicated in the Government Notification. Therefore, as long as the
Government Notification dated September 9, 1974 was not challenged,
the exercise of powers by him as a Prescribed Authority could not D
Ir' also be challenged. The appellant was also not entitled to question the
validity of the appointment of Prescribed Authority in a collateral
proceedings. [SOSG·SO(iA; 507G]
... 6. Even if the person appointed as Prescribed Authority was not
fully qualified to act as such and pass the order of release, the validity
and legality of the order of release passed by him cannot be impugned
because of the de-facto doctrine in as much as he did not hold the omce
as an usurper but only under colour of lawful authority. [507E·F]
E
~ G. Rangarajan v. Andhra Pradesh, [1981] 3 SCR, 474, referred
to. F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 265
of 1978.
From the Judgment and Order dated 12.9.1977 of the Allahabad
._~High Court in C.M.W. No. 1441of1976. G
S.N. Kacker and B.R. Agarwala for the Appellants.
U.R. Lalit, R.B. Mehrotra and D.N. Misra for the Respondents.
Mr. Prithvi Raj and Mrs. Shobha Dikshit for the Respondents. H·
500 SUPREME COURT REPORTS [1987] 3.S.C.R.
The Judgment of the Court was delivered by
A
NATARAJAN, J. The only question for consideration in this
appeal by special leave is whether the order of release passed by the
Prescribed Authority under the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (for short the Act hereinafter) is a
B null and void order because the Prescribed Authority had no jurisdic- ~
lion to pass the order as he did not possess the requisite qualification
for being appointed as such Authority.
Premises No. 58/3 Birhana Road, Kanpur is a three-storeyed
c
building and in addition it has a mezzanine floor as well. As early as in
1947, when the respondents who ate brothers were minors, a portion
of the ground floor and the entire first floor was leased out to the
-
predecessor concern of the appellant by the father of the respondents.
While the first floor was leased out for residential purposes, a portion
of the ground floor was leased out for non-residential purposes. The
respondents sought recovery of possession from the appellant of the
D leased portions for their residential needs and business purposes. It
may be mentioned here that the respondents were already having their --f
residence in the second floor and their business establishments in
another portion of the ground floor. As the appellant refused to com-
ply, the respondents preferred an application under Section 21 of the
Act for an order of release in their favour to recover possession of the
E leased portions. Various defences were raised by the appellant to
oppose the application but all the objections were found untenable by _........
the Prescribed Authority and he, therefore, passed an order of release ~
on 19.8.1975 holding that the requirement of the leased portions by the
respondents for their residential and non-residential purposes was a ~
bona fide one and furthermore the comparative hardship factor was
F more in their favour than in favour of the appellant. The findings of
the Prescribed Authority were confirmed by the Appellate Authority
(Additional District Judge, Kanpur) and thereafter the appellant filed
a petition under Article 226 of the Constitution before the High Court.
For the first time the appellant raised a contention, by means of an
amendment petition, that the order of the Prescribed Authority had
G been passed without jurisdiction and was therefore a nullity and in...j' ,
such circumstances its affirmation by the Appellate Authority could ·
not also validate it. The High Court, though it allowed the amendment
petition and permitted the additional question to be raised, did not see
any merit in it on account of two factors. The first was that even if the
order of the Prescribed Authority was a defective one, it had become
H merged with the order of the Appellate Authority when it was con-
_,.,
BEOPAR SAHAYAK v. VISHWA NATH [NATARAJAN, J.] 501
J., firmed and as such there was no room for the appellant to assail the A
order on the question of jurisdictional incompetence of the Prescribed
Authority. Besides, the High Court was of opinion that the question of
jurisdictional competence of the Prescribed Authority to pass the
order of release involved adjudication upon disputed questions of fact
and such an exercise was beyond the scope of proceedings under Arti-
cle 226 of the Constitution. The High Court thereafter went into the B
+- correctness of the findings concurrently rendered by the Prescribed
_..
- Authority and the Appellate Authority and found the findings to be
fully in accordance with law and facts. The High Court, therefore,
dismissed the writ petition filed by the appellant and hence the present
appeal by special leave.
For a proper comprehension of the attack made on the compe-
c
>- tence of the Prescribed Authority to pass the impugned order of re-
lease, it is necessary to set out the terms of Clause (e) of Section 3
which defines the 'P.rescribed Authority' under the Act as it stood
before and after the amendment in 1974, and also the qualifications of
Shri Senger who was the Prescribed Authority who had passed the D
;.- order of release in this case.
Clause (e) of Section 3 of the Act was originally in the following
terms:
"Prescribed Authority" means a Magistrate of the First E
Class having experience as such of not less than three years,
authorised by the District Magistrate to exercise, perform
and discharge all or any of the powers, functions and duties
of the prescribed authority under this Act, and different
Magistrates may be so authorised in respect of different
areas or cases or classes of cases, and the District Magis- F
trate may recall any case from any such Magistrate and may
either dispose of it himself or transfer it for disposal to any
other such Magistrate."
The definition of a Prescribed Authority had, however, to be
• ~changed with the coming into effect of the Code of Criminal Procedure G
1973 with effect from 1.4.1974 because the Executive Magistrates
ceased to be Magistrates of the First Class under the Code. Hence by
means of an Amendment Act viz. U.P. Act No. 19 of 1974, Section
3(e) came to be amended as under:-
"(e) 'Prescribed Authority' means an officer having not less H
502 SUPREME COURT REPORTS [1987] 3.S.C.R.
than 3 years experience as Munsif or as Magistrate of the ~
A
First Class or as Executive Magistrate authorised by gen-
era! or special order of the State Govternment to exercise, per-
form and discharge all or any of the powers, functions and duties
of the Prescribed Authority under this Act, and different
officers may be so au'horised in respect of different areas
B or cases, or classes of cases." _..
Thus by reason of the amendment the State Government hecame the
authority to authorise a person to act as a Prescribed Authority and
three classes of officers viz. Munsifs, Magistrates of the First Class and -·
c
Executive Magistrates, each having not less than three years experi-
ence as such were designated the officers on whom the powers of a
Prescribed Authority under the Act could be conferred.
-
~
Coming now to the qualifications of Shri Senger, the Prescribed
Authority, he had served as Tehsildar_from 29.9.)962 to 6.11.1964 and
again from November 1965 to 15.2.1974 and he was promoted as
D Deputy Collector with effect from 16.2.1974 and posted as Additional
City Magistrate II, Kanpur. He worked as Additional City Magistrate
II, Kanpur from 16.2.1974 to 14.8.1974 and again from May 1975 to
'+
26.8.1975. It was during this period i.e. on 19.8.1975 he had ;iassed the
impugned order of release. While Shri Senger was serving as a
Tehsildar the Government in exercise of its powers under Sections 12
E and 39( 1) of the Code of Criminal Procedure 1898, issued a general
Notification dated 6.2.1968 conferring on all Tehsildars the powers of
a First Class Magistrate and on all Naib Tehsildars the powers of a
Second Class Magistrate. The Notification of the Government was
.-
duly published in the Gazette on 17.2.1968. By means of a Notification ,._
dated 9.9.1974 the Government had designated the Additional City
F Magistrate II, Kanpur, to be the Prescribed Authority under the Act
for certain areas including the limits of Collector Ganj Police Station
where the leased property is situate. By reason of this notification
when Shri Senger succeeded one Shri Jagdish Sharma as the Addi-
tional City Magistrate II, Kanpur, on May 19, 1975, he became the
Prescribed Authority for those areas including the Collector Ganj
G area. It was in such circumstances Shri Senger dealt with the applica- 1~
tion filed under Section 21 of the Act by the respondents before his
predecessor and passed the order of release on 19.8.1975.
Having set out these factual matters we will now refer to the
grounds on which the competence of Shri Senger to have passed the
H order of release are questioned. They are as follows:-
BEOPAR SAHAYAK v. V!SHWA NATH (NATARAJAN, J.) 503
1. There is no proof that the General Notification of the A
Government dated 6.2.68 was given effect to in the case of Shri
Senger, and in the absence of such proof he cannot be deemed io
· have been conferred the powers of a First Class Magistrate be'
cause Clause (2) of Section 39 of the Criminal Procedure Code
1898 lays down that any-conferment of magisterial powers on an
·officer under Section 39(1) "shall take effect from the date on B
which it is communicated to the person so empowered."
2. Even if there had been a communication to Shri Senger as
envisaged· under Section 39(2) of the Code, the conferment of
powers was only for ensuring the maintenance of law and order
·and not for the trial of cases. This position has been set out by
the Deputy Secretary, Government of U.P. in his note while
c
forwarding a copy of the General Notification of the Govern·
ment to all District Magistrates (vide page 260 of the Printed
Paper Book). Therefore, Shri Senger -cannot. be: treated as a
Tehsildar on whom the· powers ofa First Gass Magistrate'had
been conferred upon for trial of_ cases. · · : · . :· : • D
3. For an Executive"Magistrate to be lawfully empowered to act
as a'Prescribed Authority under Section 3(e), he must have had
not less than three years experience in the trial of cases as a First
Class Magistrate. The terms of Section 3(e) are clear on this
aspect and they have been reiterated by the Government through E
· . a communication sent by the Commissioner and Secretary,
Government of Uttar ·Pradesh to all District Magistrates on
9.9.1974 (vide page 228 of Printed Paper Book). It has been
stated therein that "in the case of Executive Magistrates, it shall·
be deemed sufficient if they have gained three years' experience
of working as Magistrates of First Class before the 1st April, F
1974".
·""', These grounds were controverted by Mr; Lalit appearing for the
respondents and he contended that Shri Senger had been conferred the
powers of a First Class Magistrate in terms of the Government Notifi·
.Ji! ·cation and the Gazette publication is proof thereof. that this position G ·
has been confirmed by the District Magistrate in his reply to the Sixth
Additional Judge, Kanpur (vide pages 224/225 of the Printed Paper
Book), that Shri Senger was empowered to exercise all the powers of a
First Cla.s Magistrate and that the note issued by the Deputy Secret·
ary that the conferment of powers was confined to the maintenance of
law and order and would not extend to the trial of 'cases is an H
504 SUPREME COURT REPORTS [1987] 3.S.C.R.
administrative note which cannot override the Gazette Notification ,L
A
and it must therefore be held that Shri Senger had been an Executive
Magistrate exercising the powers of a First Class Magistrate from
February 1968 itself and as such he fully satisfied the terms of Section
3( e) for being conferred the powers of a Prescribed Authority under
the Act. We will now examine.the contentions of the counsel in greater
B detail.
It is not in dispute that the Government issued a General Notifi-
cat10n on 6.2. 1968 co'!ferring the powers of a First Class Magistrate on _,.!
all Tehsildars and the powers of a Second Class Magistrate on all Naib
Tehsildars and this Notification was duly published in the Official
C Gazette on 17 .2.68. The argument of Mr. Kacker that in spite of the
Government Notification there is no proof that Shri Senger had been
individually communicated an order conferring upon him the powers .,4.
of a First Class Magistrate cannot be accepted because the Additional
District Magistrate has categorically stated in his reply to the letter of
the Sixth Additional Judge dated 3.5.76 that by virtue of the General
D Notification of the Government and the Gazette Notification, "all the
Tehsildars had been appointed Magistrates, First Class" and by way of ...,
enclosure he had sent the relevant Gazette Notification as well. In the
face of such materials, it must be taken that the Government Notifica-
tion should have been fully acted upon and all Tehsildars including
Shri Senger must have been conferred the powers of a First Class
· E Magistrate in the year 1968 itself. In so far as the second criticism is
concerned, there is nothing in the Government Notification dated
6.2.68 or in the Gazette publication dated 17.2.68 to indicate that the
•
powers of a First Class Magistrate and a Second Class Magistrate
conferred on Tehsildars and Naib Tehsildars respectively was only for
the limited purpose of ensuring the maintenance of law and order and
F not for exercise of those powers in the trial of criminal cases. The note
of the Deputy Secretary (page 260 of the Printed Paper Book) relied on
by Mr. Kacker appears to be only an administrative instruction and not
an order passed by the Government itself in exercise of its powers
under Sections 12 and 39 of the Criminal Procedure Code 1898. In
such circumstances, the instruction cannot whitle down the Govern-
G ment Notification conferring higher magisterial powers on Tehsildar~~ ~
and Naib Tehsildars. Incidentally, we may point out that the copy of
the Government Notification dated 6.2.68 together with the adminis-
trative instruction of the Deputy Secretary had been communicated to
all the Tehsildars of the District by the District Magistrate. The
endorsement made by the Collector will, therefore, disprove the con-
H tention of Mr. Kacker that there had been no individual communica-
i
'1
BEOPAR SAHAYAK v. VISHWA NATH [NATARAJAN, J.I 505
tion of the Government's Order to all the Tehsildars and hence the A
requirement of Section 39(2) of the Criminal Procedure Code 1898 had
not been complied with.
EYen assuming for argument's sake that the conferment of the
powers.of a First Class Magistrate on all Tehsildars was for the limited
purpose of enforcement of law and order and not for the trial of cases, B
the question will be whether the experience gained by Shri Senger as a
Second Class Magistrate while concurrently having the powers of a
First Class Magistrate would not satisfy the requirementsof Section .
3( e) of the Act. All that the Section says is that for being conferred the
powers of a Prescribed Authority. an Executive Magistrate should have
had experience as such Magistrate for a period of not less ·than three c
years. Having regard to the terms of the stipulation, it would suffice if
Shri Senger had acquired experience in the trial of criminal cases,
albeit cases triable by a Secqnd Class Magistrate, for more than three
years, while at the same time having the right to exercise the powers of
a First Class Magistrate: This is because of the fact that as per
Schedule III of the Code of Criminal Procedure 1898 a Magistrate of D
the First Class is also entitled to exercise all the powers of a Magistrate
of the Second Class. It would, therefore follow that a First Class
Magistrate can also gain experience by the trial of cases triable by a
Second Class Magistrate. What is of relevance is the gaining of experi-
ence in trial of criminal cases for a period of three years and more and
afthe same time having the powers of a First Class Magistrate and not E
necessarily the experience of trying cases triable by a First Class
Magistrate alone.
In the light of the aforesaid reasons we do not see any merit in
the contention of the appellant that Shri Senger did not have the
requisite qualification to be appointed a Prescribed Authority under F
Clause (e) of Section 3 of the Act and hence the release order passed
by him is a nullity. '
There is also another angle from which the matter needs to be
considered. Shri Senger was not appointed a Prescribed Authority as
persona designata. On the other hand he exercised· the powers of a G
Prescribed Authority by reason of his posting as Additional City
Magistrate II, Kanpur, in the place of one Shri S.D. Sharma and by
virtue of an earlier Notification of the Government dated 9. 9.1974
constituting the Additiollal City Magistrate II, Kanpur, as the Pres-
cribed Authority for certain areas in Kanpur city including the area
falling within the limits of li1e Collector Ganj Police Station. The H
506 SUPREME COURT REPORTS [1987] 3.S.C.R.
A abovesaid Notification of the Government was a General Notification )...
and, therefore, whoever came to be posted as Additional City Magis-
trate II, Kanpur, automatically became a Prescribed Authority for the
areas indicated in the Government Notification. Such being the case,
as long as the Government Notification dated 9.9.1974 is not chal-
lenged, the exercise of powers by Shri Senger as a Prescribed Autho-
B rity cannot also be challenged. This position would then call for the~
application of the 'de-facto doctrine' to the facts of the case. The
principle of the 'de-facto doctrine' has been considered in several
cases. This Court had occasion in G. Rangarajan v Andhra Pradesh, -r
-
[ 1981] 3 S.C.R.474, to which one of us (Sen, J.) was a party, to refer to
those decisions and enunciate the law relating to the 'de-facto doc-
c trine'. In that case a criminal appeal filed by one Gokaraju Rangaraju
under Section 6( c) of the Essential Commodities Act was dismissed by
Shri G. Anjappa, Additional Sessions Judge and a revision was prefer- -4.
red to the High Court. One Shri Raman Raj Saxena, another Addi-
tional Sessions Judge, had tried a Sessions case and awarded convic-
tion to two of the accused persons and they had filed appeals to the
D High Court against their conviction and sentence. By the time the
Criminal Revision and the Criminal Appeal filed by the accused came ~
to be heard by the High Court, this Court had quashed the appoint-
ments of the abovesaid two Additional Sessions Judges and two others
as District Judges Grade II on the ground that their appointment was
in violation of Article 233 of the Constitution. Therefore, the accused
E who had preferred the Criminal Revision and the Criminal Appeals
respectively raised a contention before the High Court that the judg- .,. • .__
ments rendered against them by the concerned Additional Sessions
Judges were void and should therefore, be set aside. The High Court
rejected the contention on the ground that the Additional Sessions ~
Judges had held their offices under lawful authority and not as
F usurpers and therefore, the judgments rendered by them were valid
and could not be questioned in collateral proceedings. Against the
judgments of the High Court the acc\)sed preferred appeals by special
Leave to this Court and those appeals were dismissed by this Court on
the ground the 'de-facto doctrine' was clearly attracted. After refer-
ring to several decisions rendered by the Courts in India and England,
G Chinnappa Reddy, J. speaking for the Bench enunciated the law rela~ ~
ing to tlie 'de-facto doctrine' as under:
"A judge, de facto, therefore, is one who is not a mere
intruder or usurper but one who holds office under colour
of lawful authority, though his appointment is defective
H and may later be found to be defective. Whatever be the
BEOPAR SAHAYAK v. VISHWA NATH [NATARAJAN. J.} 507
defect of his title to the office, judgments pronounced by A
him and acts done by him when he was clothed with the
powers and functions of the office, albeit unlawfully, have
the same efficacy as judgments pronounced and acts done
by a Judge de jure. Such is the de facto doctrine, born of
necessity and public policy to prevent needless confusion
and endless mischief. There is yet another rule also based B
on public policy. The defective appointment of a de facto
judge may be questioned directly in a proceeding to which
he be a party but it cannot be permitted to be questioned in
a litigation between two private litigants, a litigation which
is of no concern or consequence to the judge except as a
-- judge. Two litigants litigating their private titles cannot be
permitted to bring in issue and litigate upon the title of a
C
judge to his office. Otherwise as soon as a judge pronounces a
judgment a litigation may be commenced for a declaration
that the judgment is void because the judge is no judge. A
judge's title to his office cannot be brought into jeopardy in
that fashion. Hence the rule against collateral attack on D
validity of judicial appointments. To question a judge's ap-
pointment in an appeal against the judgment is, of course,
such a collateral attack."
The ensuing position therefore is that even if we are to countenance
the argument of the appellant's counsel that Shri Senger had not E
gained experience as an Executive Magistrate exercising First Class
powers for a period of not less than three years and could not therefore
be appointed as a Prescribed Authority under the Act, the validity and
legality of the order of release passed by him cannot be impugned
because Shri Senger had not held the office as an usurper but only
under colour of lawful authority. There is, therefore, no escape for the F
appellant from being governed by the 'de-facto doctrine' and thereby
being disentitled to impugn the validity of the release order on the
ground of want of jurisdictional competence for Shri Senger to pass
the order. Furthermore, the appellant is also not entitled to question
the validity of the appointment of Shri Senger as a Prescribed Autho-
~ )-- rity in a collateral proceeding. These additional factors also militate G
against the contentions of the appellant.
In view of our conclusion that Shri Senger's experience as an
Executive Magistrate satisfied the requirements of Section 3(e) of the
Act and as such he was not incompetent to act as a Prescribed Autho-
rity and pass the impugned order of release, that secondly even if he H
. ,,,
508 SUPREME COURT REPORTS [1987] 3.S.C.R.
A was not fully qualified to act as a Prescribed Authority and pass the Jo,.
order of release the validity of the order cannot be impugned because
of the 'de-facto doctrine' and thirdly, the appellant is not entitled to
question the competence of Shri Senger to act as a Prescribed Autho-
rity in a collateral proceeding, it is really not necessary for us to
examine the correctness of the view taken by the High Court that by
B reason of the merger of the order of Shri Senger with the order of the .~
Appellate Authority, there is no room for the appellant to contend
that the release order is a nullity because Shri Senger did not have
jurisdiction to pass the order. Even so we may make a brief reference -
to the arguments of the counsel on that aspect of the matter and the
case law cited by them to be fair to the counsel and to their arduous
C preparation of the case. Mr. Kacker's argument was that the High
Court was not right in its view because the rule of merger would not be
attracted where there is a total lack of jurisdiction in the Tribunal or
Court of first instance to pass an order. Mr. Kacker submitted that
there is a clear distincti9n between the manner of exercise of jurisdic-
tion and the existence of jurisdiction and whenever an order was pas-
D sed without jurisdiction by a Tribunal or Court, the rule of merger will
have no application. In support of his contention the learned counsel "f
referred us to the following decisions. Hriday Nath Roy v. Ram
Chandra Barna Sarma, (ILR 48 Calcutta 138); Collector of Customs v.
A.H.A. Rahima, AIR 1957 MadIBs 496; The State of Uttar Pradesh v.
Mohammad Noon, [1958] SCR 595; Kumaran v. Kothandaraman, AIR
E 1963 Gujarat Page 6; Toronto Railway v. Toronto Corporation, [1904]
Appeal Cases 809 and Barnard v. National Dock Labour Board,
[ 1953] 1 All. E.R. 1113. Refuting the contentions of Mr. Kacker, Mr.
Lalit argued that in several later judgments the view taken in Moham-
mad Noon's case (supra) has been explained as being confined to the
peculiar facts of that case and that the rule of merger has not under-
F gone any change and the consistent view that has been taken is that
even an order passed by a Tribunal or Court without jurisdiction can
be challenged before the Appellate Authority or Court, that in such
an appeal the question of the initial Court's jurisdiction can also be
gone into and that once the Appellate Authority or Court found juris-
dictional competence in the Tribunal or Court of first instance and
G confirmed the order in appeal, then the rule of merger of the order of ~ ~
the original authority with the order of the Appellate Authority would
be clearly attracted and thenceforth the order of the original authority
cannot be assailed on the ground of jurisdictional error or incompe-
tence. The learned counsel further submitted that besides the rulo of
merger the rule of finality of judgments would also be attracted and on
H that score too the order of the original authority will attain immunity
BEOPAR SAHAYAK v. VISHWA NATH (NATARAJAN, J,] 509
J. from attack. Mr. Lalit cited several decisions in support of his argu- A
.. ments but we need refer only to the decisions of this Court. The deci-
sions cited are:-
U.J.S. Chopra v. State of Bombay, [1955] 2 SCR 94; Madan Gopal
Rungtav. Secretary to the Govt. of Orissa, (1962] Suppl. 3 SCR 906
and Collector of Customs, Calcutta v. East India Commercial Co. Ltd., B
;.. [1963] 2 SCR 563.
·- As we haye already indicated we do not find any necessity to go
into the merits of the contentions of the counsel regarding the applica-
- bility of the rule of merger and the rule of finality for rendering our
decision in this appeal. We, therefore, leave the rival contentions to
rest there. c
,l We have only to consider the grievance of the appellant that the
respondents had committed a breach of their undertaking to the court
and illegally dispossessed them from the leased portions in their occu-
pation and, therefore, the respondents should be directed to restore D
possession to them in the interests of justice. It appears to us that the
¥ recovery of possession of the leased portions had taken place due to a
misunderstanding about the period of force of the undertaking given
by the respondents. From the records we see that the High Court
preferred to act on the undertaking given by the respondents counsel
not to disturb the {'OSSession of the appellant rather than pass an order
E
of stay of the release order as the High Court was of the view that the
-4.. appeal itself can be heard and disposed of expeditiously on merits.
However, for one reason or other, the appeal could not be heard
expeditiously. In the meanwhile since the undertaking had been given
~ only for a limited period i.e. 25. 10.76, the respondents seem to have
been under the impression that the undertaking had come to an end F
and hence they were entitled to recover possession. It is of relevance
to note that the respondents had not taken possession immediately
after 25. 10.76 but only on 23.12.76, i.e. nearly two months later. In
such circumstances it is difficult to sustain the charge levelled by the
appellant that the respondents had committed a breach of their under-
taking to the Court and had recovered possession illegally and should
~~ therefore be ca!Ied upon to restore possession.
G
In the light of our conclusion the appeal fails and will accordingly
stand dismissed. We, however, direct the parties to bear their respec-
tive costs.
P.S.S. Appeal dismissed . H
. -....-
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