1. Heard Sri Rajesh Ji Verma, Senior Advocate, assisted by Sri S.P. Lal for petitioner and Sri D.P. Singh, Senior Advocate, assisted by Sri S. Niranjan, Advocate, for respondents.
2. Petitioner has come to this Court by referring to Article 226 of Constitution though in effect, it is under Article 227 since he is aggrieved by an order dated 19.9.1988 passed by Addl. District Judge dismissing Revision No. 16 of 1988 and upholding the Judge, Small Cause Court's order dated 19.9.1988 in SCC Suit No. 13 of 1984. The Courts below have decreed the suit of respondent no. 3 and has directed the petitioner to hand over vacant possession of premises in question to plaintiff-respondent no. 3 besides, pendente lite rent and damages.
3. The only question argued before this Court is that landlord earlier filed an application under Section 21 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") before Prescribed Authority i.e. P.A. Case No. 2 of 1983 seeking release of premises in question on the ground of personal need. The application was partly allowed vide order dated 13.12.1983 by Prescribed Authority directing eviction of defendants no. 1 and 2, namely, Prabhu Dayal and Ram Naresh and directing them to hand over possession of vacant premises to plaintiff no. 1, i.e. respondent no. 3 in the present writ petition, but it was dismissed against present petitioner and one Fakire Yadav.
4. Vide plaint dated 24.4.1984, respondent no. 3, however, filed another suit no. 13 of 1984 in the Court of Judge, Small Cause Court, Konch seeking eviction of petitioner and stated therein that the construction of premises in question since was completed in 1977 therefore Act No. 13 of 1972 (referred to as "Act, 1972" hereinabove) was not applicable to premises in question. Hence he filed the aforesaid suit of 1984. Petitioner raised an objection that once a suit under section 21 of Act, 1972 was filed presuming that Act No. 13 of 1972 was applicable and that was decided, no suit was maintainable on the ground that Act No 13 of 1972 was not maintainable. The findings given by Prescribed Authority would operate as res judicate and therefore the subsequent suit was wholly illegal and not maintainable.
5. Both the Courts below have framed issue, "whether Act No. 13 of 1972 was applicable to the premises in question"; and have recorded a finding that building in dispute admittedly having been completed in 1977, Act No. 13 of 1972 would not be applicable to the premises in question. This finding could not be shown perverse or otherwise bad.
6. Sri Verma, however, contended that once a person has taken legal steps under a particular statute and has failed, thereafter he cannot retract by taking another step on the ground that earlier step was illegal or not maintainable and therefore the Courts below have erred by rejecting his submission in this respect.
7. 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 under Section 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.
8. As early as in 1951 the Apex Court in United Commercial Bank Limited versus Their Workmen AIR 1951 SC 230 held:
"No acquiescence or consent can give a jurisdiction to a court of limited jurisdiction which it does not possess."
9. In Kiran Singh versus Chaman Paswan AIR 1954 SC 340, 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."
10. In Benarsi Silk Palace Vs. Commr. of Income Tax [1964] 52 ITR 220 (All), 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 under Section 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."
11. In Kali Das Wadhwani & Anr. Vs. Jagjiwan Das and another 1985 (2) ARC 533, 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."
12. In Sardar Hasan Siddique Vs. State Transport Appellate Tribunal, AIR 1986 All. 132, 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."
13. In Karnal Improvement Trust Vs. Prakashwanti, (1995) 5 SCC 159, 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., AIR 1996 SC 1373.
14. In S. Sethuraman Vs. R. Venkataraman and Ors. AIR 2007 SC 2499, 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 AIR 2012 SC 1239 Collector, Distt. Gwalior and another Vs. Cine Exhibitors P. Ltd. and another.
15. Sri Verma could not place anything before this Court to contradict the aforesaid exposition of law. In this view of the matter, I do not find any substance in the above submission.
16. No other argument has been advanced. Accordingly, I find no merit in the writ petition. The orders impugned in this writ petition warrants no interference since no error apparent on face of record, legal or otherwise, could be pointed out therein.
17. In the result, writ petition, being devoid of merit, is dismissed.
Dt. 9.7.2012 PS