In Smt. Ddhanwanti Versus D.D. Gupta (1986 3 S.C.C 1 it was held that obtaining permission for letting out the premises to the same tenant for limited periods more than once after expiry of each such period would not by itself be sufficient to prove that the premises were available for being let out for the indefinite period without actually showing the absence of the landlords’ intention to occupy the premises. It was held that such successive grants of permission were not vitiated.
In Pankaj Bhargava and another versus Mohinder Nath and another (1991 1 S.C.C. 556 Bench of Three Judges considered the matter at some length. After referring to Dhanwanti’s case (supra) the bench observed that in one sense successive grants of permission would share the characteristic of post facto grant. The bench referred to the ruling in J.R. Vohra (supra) and quoted extensively therefrom. It will be advantageous to extract the following passage from the judgment of the Bench:
“…In Vohra case this Court laid down that a tenant who assails the permission under section 21[of the Delhi Rent Control Act, 1958] on the ground that it was procured by fraud – a ground not dissimilar to the one urged in the present case – must approach the Rent control during the currency of the limited tenancy and for an adjudication of his pleas as soon as he discovers facts and circumstances which, according to him, vitiate the permission. it was held that whether it was a ‘mindless’ order or one procured by fraud practised by the landlord or was the result of a collusion between landlord and tenant there was no justification for the tenant to wait till the landlord made his application for recovery of possession but there was every reason why the tenant should have made an immediate approach to the Rent Controller to have his pleas adjudicated as soon as facts and circumstances giving rise to such pleas comes to his knowledge.
The reason why this requirement was built in working the rights and obligations under Section 21 was the need to reconcile and harmonise certain competing claims that arise in administering the scheme of Section
21. This Court, referring to those competing claims observed: “What then is the remedy available to the tenant in a case where there was in fact a mere ritualistic observance to the procedure while granting permission for the creation of the limited tenancy or where such permission was procured by fraud practised by the collusion between the strong and the weak?. Must the tenant in such cases by unceremoniously evicted without his plea being enquired into? The answer is obviously in the negative. At the same time must he be permitted to protract the delivery of possession of the leased premises to the landlord on a false plea of fraud or collusion or that there was a mechanical grant of permission and thus defeat the very object of the special procedure provided for the benefit of the landlord in Section 21?. The answer must again be in the negative…”
The manner in which the court harmonised and reconciled these competing and conflicting claims and interests was by insisting upon the tenant to approach the Rent controller for adjudication of his pleas as soon as he discovered that the initial grant of permission stood vitiated. This was evolved as part of policy of law for the reconciliation of divergent and competing claims. It was held: “…In our view these two competing claims must be harmonised by insisting upon his approaching the Rent Controller during the currency of the limited tenancy for adjudication of his pleas no sooner he discovers facts and circumstances that tend to vitiate abinito the initial grant of permission. Either it is a mechanical grant of permission or it is procured by fraud practised by the landlord or it is the result of collusion between two unequals but in each case there is no reason for the tenant to wait till the landlord makes his application for recovery of possession after the expiry of fixed period under Section 21 but there is every reason why the tenant should make an immediate approach to the Rent Controller to have his pleas adjudicated by him as soon as facts and circumstances giving rise to such pleas come to his knowledge or are discovered by him with due diligence…”
The court proceeded to point out that any appeal to the remedy based on concept of nullity and collateral attack is inappropriate and that in a collateral challenge the exercise was not the invalidation of a decision, but only to ascertain whether the decision existed in law at all and rely upon incidents and effect of its non-existence. It was held that the permission granted under Section 21 must be presumed to be valid till set aside and the doctrine of collateral challenge will not apply to a decision which is valid ex hypothesi and which has some presumptive existence, validity and effect in law. The bench pointed out the distinction between nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead on the one hand and on the other a dispute as to existence or non-existence of facts which require investigation into and adjudication upon their existence or-existence on the basis of evidence. The Court said:
“…If the parties before the Rent Controller admitted that the fact or the event which gives the Controller jurisdiction is in existence and there was no reason for the Controller to doubt the bona fides of that admission as to a fact of event, the Controller is under no obligation to make further enquiries on his own as to that factual state. The test of jurisdiction over the subject- matter is whether the Court or Tribunal can decide the case at all and not whether the Court has authority to issue a particular kind of order in the course of deciding the case”. [ Supreme Court of India Mohan Singh vs Late Amer Singh Thr. The Lrs decided on 1 September, 1998]