Mahipal Verma vs Rent Control and Eviction Officer/City Magistrate and Others

Sudhir Agarwal, J.—Heard Sri S.K. Pandey, learned Counsel for the petitioner and perused the record. It is not in dispute that petitioner''s application for allotment of shops No. 13/807/9 and 13/366/4 (New Number 13/500) situated in Mohalla Sheikh Farookh, Saharanpur, has been rejected by Rent Control and Eviction Officer/City Magistrate, Saharanpur (hereinafter referred to as "RCEO") by impugned order dated 6.3.2010 on the ground that these shops are new constructions and by virtue of second proviso to section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972")/construction having been raised in 1991, are not within the ambit of Act, 1972 therefore, application for allotment before RCEO itself is not maintainable and shops cannot be allotted by applying power under Act, 1972 on account of the fact that shops are outside the purview of the said Act.

On the merits of the question that shops are not new and within the ambit of Act, 1972, no argument could be advanced by learned Counsel for the petitioner and he could not show that the findings recorded by RCEO are perverse or incorrect. He, however, said that there is a settlement made by landlord in another matter relating to some other shops, which came to this Court in Writ Petition No. 27260 of 2008 stating that tenants may seek allotment of shops in disputed in the present case. It is also true that Writ Petition No. 27260 of 2008 has been dismissed by this Court but it is said that landlord has already made statement therein that shop in question is liable to be allotted to the petitioner under Act, 1972.

The submission is thoroughly misconceived. Once a statute itself is not applicable upon a subject-matter, even by consent of the parties, jurisdiction cannot be conferred.

As early as in 1951 the Apex Court in The United Commercial Bank Ltd. Vs. Their Workmen, , held:

No acquiescence or consent can give a jurisdiction to a Court of limited jurisdiction which it does not possess.

In Kiran Singh and Others Vs. Chaman Paswan and Others, , the Court said:

A defect of jurisdiction... strikes at the very authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties.

In BENARSI SILK PALACE Vs. COMMISSIONER OF Income Tax, U.P., , this Court held:

Jurisdiction could be conferred only by statute and not by consent and acquiescence. Since jurisdiction is conferred upon Income Tax Officer to proceed u/s 34(1) only if he issues a notice an assessee cannot confer jurisdiction upon him by waiving the requirement of a notice because jurisdiction cannot be conferred by consent or acquiescence.

In Kali Das Wadhwani and another v. Jagjiwan Das and another 1986 (12) ALR 73, this Court observed as under:

It is well settled that a jurisdiction cannot be conferred on a Court by consent, acquiescence or waiver where there is none, nor can it be ousted where it is. Acquiescence, waiver or consent of the parties may be relevant in objections relating to pecuniary or territorial jurisdiction of the Court, but these factors have no relevance where the Court lacks inherent jurisdiction which strikes at the very root or authority of the Court to pass any decree and renders the decree, if passed a nullity.

In Sardar Hasan Siddiqui and Others Vs. State Transport Appellate Tribunal, U.P., Lucknow and Others, , the Division Bench of this Court observed:

A Tribunal of limited jurisdiction cannot derive jurisdiction apart from the statute. No approval or consent can confer jurisdiction upon such a Tribunal. No amount of acquiescence waiver or the like can confer jurisdiction of a Tribunal is lacking, the doctrine of nullity will come into operation and any decision taken or given by such a Tribunal will be a nullity.

In Karnal Improvement Trust, Karnal Vs. Parkash Wanti (Smt) (Dead) and Another, , the Hon''ble Supreme Court observed that acquiescence does not confer jurisdiction and an erroneous interpretation equally should not be perpetuated and perpetrated defeating of legislative animation. A similar view has been taken in U.P. Rajkiya Nirman Nigam Ltd. Vs. Indure Pvt. Ltd. and others, .

In S. Sethuraman Vs. R. Venkataraman and Others, , the Apex Court observed that if jurisdiction cannot be conferred by consent, it cannot clothe the authority to exercise the same in an illegal manner. The above authority has been referred to and relied on by Apex Court recently in Collector, Distt. Gwalior and Another Vs. Cine Exhibitors P. Ltd. and Another, .

Looking into this very question and considering the authorities, discussed above, this Court also in Ramesh Chandra Yadav v. IInd Additional District Judge, Jalaun and others 2012 (94) ALR 13, where a similar question was involved, in para 7, held:

He, however, could not dispute that the building in question having been constructed and completed in 1977, in 1983, ten years having not passed, Act No. 13 of 1972 was not applicable by virtue of section 2(2) of Act, 1972. That being so the Prescribed Authority u/s 21 of Act, 1972 lacked patent jurisdiction. A jurisdiction cannot be conferred even by consent of parties. It is an elementary principle. Where a Court has no jurisdiction over the subject-matter of the action in which an order is made, such order is wholly void, for jurisdiction cannot be conferred by consent of parties. No waiver or acquiescence on their part can make up the patent lack or defect of jurisdiction. If the decision/order of Court/authority is void for want of jurisdiction over the subject-matter, it cannot operate as res-judicata; so as to make that judgment conclusive between the parties, since the essential pre-requisite is that it should be the judgment of a Court of competent jurisdiction within the meaning of section 11 of the Civil Procedure Code. Something which is wholly without jurisdiction, that is nullity in the eyes of law, no principle of law would come to confer any kind of effectiveness to such proceedings so as to have any legal consequences.

In view of the aforesaid discussion as also exposition of law, I do not find any reason to interfere. Dismissed.