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TMI Blog1987 (7) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 leased portions for their residential needs and business purposes. It may be mentioned here that the respondents were already having their residence in the second floor and their business establishments in another portion of the ground floor. As the appellant refused to comply, the respondents preferred an application under Section 21 of the Act for an order of release in their favour to recover possession of the 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 more in their favour than in favour of the appellant. The findings of the Prescribed Authority wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Magistrates may be so authorised in respect of different areas or cases or classes of cases, and the District Magistrate 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 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 than 3 years experience as Munsif or as Magistrate of the First Class or as Executive Magistrate authorised by general or special order of the State Government to exercise, perform and discharge all or any of the powers. functions and duties of the Prescribed Authority under this Act, and different officers may be so authorised in respect of different areas or cases, or classes of cases. Thus by reason of the amendment the State Government became the authority to authorise a person to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Code 1898 lays down that any conferment of magisterial powers on an officer under Section 39(1) shall take effect from the date on 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 forwarding a copy of the General Notification of the Government 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 of a First Class Magistrate had been conferred upon for trial of cases. 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 a communication sent by the Commissioner and Secretary, Government of Uttar Pradesh to all Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon and all Tehsildars including Shri Senger must have been conferred the powers of a First Class 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 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 Government Notification conferring higher magisterial powers on Tehsildars and Naib Tehsildars. Incidentally, we may point out that the copy of the Government Notification dated 6.2.68 together with the administrative instruction of the Deputy Secretary had been communicated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised the powers of a 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 Additional City Magistrate II, Kanpur, as the Prescribed Authority for certain areas in Kanpur city including the area falling within the limits of the Collector Ganj Police Station. The abovesaid Notification of the Government was a General Notification and, therefore, whoever came to be posted as Additional City Magistrate 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 challenged, the exercise of powers by Shri Senger as a Prescribed Authority 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, [1981] 3 S.C.R.474, to which one of us (Sen, J.) was a party to refer to thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndless mischief. There is yet another rule also based 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 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 validity of judicial appointments. To question a judge's appointment 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 gained experience as an Executive Magistrate exercising First Class powers for a period of not less than three years and could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his contention the learned counsel 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 Madras 496; The State of Uttar Pradesh v. Mohammad Noon, [1958] SCR 595; Kumaran v. Kothandaraman, AIR 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 Mohammad 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 undergone 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 jurisdictional competence in the Tribunal or Court of first instance and confirmed the order in appeal, then the rule of merger of the order of the original ..... X X X X Extracts X X X X X X X X Extracts X X X X
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