CIVIL, Rent Control

Rai Brij Raj Krishna and Another Versus Messrs. S. K. Shaw and Brothers [SC 1951 FEB]

Keywords: Rent Control-Jurisdiction

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The Act has entrusted the Controller with a ‘jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller, may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil Ct.

Rai Brij Raj Krishna and Another Versus Messrs. S. K. Shaw and Brothers

(Before : Saiyid Fazl Ali, Mehr Chand Mahajan, B. K. Mukherjea And N. Chandrasekhara Aiyar, JJ.)

ALTERNATIVE CITATION : AIR 1951 SC 115 : (1951) SCR 145

Civil Appeal No. 88 of 1950, Decided on : 02-02-1951.

Civil Procedure Code, 1908—Section 9—Rent control Legislation—Effect of—Order of eviction passed by the Rent Controller on account of non-payment of rent—The Rent Controller vested with jurisdiction to decide the question of non payment under the Act—Error in deciding the question cannot confer jurisdiction on the civil Court—The decision of Rent Controller cannot be questioned in civil Court.

  • When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned, it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.


(SUPREME COURT OF INDIA)

JUDGMENT

Fazl Ali, J—This is an appeal from a judgment and decree of the H. C. of Judicature at Patna reversing the appellate decree of a Subordinate Judge in suit instituted by the resps. The facts of the case are briefly these. The resps. have been in occupation as a monthly tenant of several blocks of premises belonging to the applts. at a monthly rental of ` 112. The rent for the months of March, April and May, 1947 having fallen into arrears, they remitted it along with the rent for June, on 28-6-1947, by means of two cheques. As the applts did not accept the cheques, on 4-8-1947, the resps. remitted the amount subsequently by postal money order. On 12-8-1947, the applts. maintaining that there was non-payment of rent and hence the resps. were liable to be evicted, under S. 11 (1) (a), Bihar Building (Lease, Rent and Eviction) Control Act, 1947 (III [3] of 1947), applied to the House Controller for the eviction of the resps. from the premises. Section 11 (1) (a) of the Act runs as follows:

“Notwithstanding anything contained in any agreement or law to the contrary and Subject to the provisions of S. 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except-

(a) in the case of a month to month tenant, for non-payment of rent or breach of the conditions of the tenancy, or for subletting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment;”

2. On 30-8-1947, the resps. whose money order had in the meantime been returned by the applts. deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit, the House Controller passed an order on 10th November, directing the eviction of the resps. by 10-5-1948, and holding that they had trade themselves liable to eviction by reason of non-payment of rent. The order of the House Controller was upheld by the Comr. on appeal on 27-4-1948, and there upon the resps. filed the present suit in the Patna Munsif’s Ct. for a declaration that the order of the Controller dated 10-11-1947 was illegal, ultra vires and without jurisdiction. The suit was dismissed by the Munsif and his decree was upheld on appeal, but the H. C. decreed the suit holding that the order of the Rent Controller was without jurisdiction. The applts. were thereafter granted leave to appeal by the H. C. and they have accordingly preferred this appeal.

3. The H. O. has delivered a somewhat elaborate judgment in the case, but it seems to us that the point arising in this appeal is a simple one. The main ground on which the resps. have attacked the order of eviction passed by the House Controller is that in fact there was no non-payment of rent, and since no eviction can be ordered under the Bihar Act unless non-payment is established, the House Controller had no jurisdiction to order eviction. On the other hand, one of the contentions put forward on behalf of the applts is that there was non-payment of rent within the meaning of that expression as used in the Act, since the rent was not paid as and when it fell due. It was pointed out that the rent for the month of March became due in April and the rent for April became due in May, but no step was taken by the resps. to pay the arrears until 28-6-1947. It appears that at the inception of the tenancy, the resps. had paid one month’s rent in advance, and it had been agreed between them and the applts that the advance rent would be adjusted whenever there was default in payment of rent for full one month. It was however pointed out that the advance payment could be adjusted only for one month’s rent, but, in the present case, the rent for three months had become due, and since in a monthly tenancy the rent is payable from month to month, the rent for each month becoming due in the subsequent month, non-payment of that rent at the proper time was sufficient to attract the provisions of S. 11 (1) (a) of the Act. The applts. also raised a second contention, namely, that having regard to the scheme of the Act, the House Controller was fully competent to decide whether the condition precedent to eviction had been satisfied, and once that decision had been arrived at, it could not be questioned in a civil Court. This contention was accepted by the first two Ct, and the first appellate Ct. dealing with it observed as follows:

“But the Buildings Control Act has authorised the Controller to decide whether or not there is non-payment of rent and it is only when he is satisfied that there has been non- payment of rent then he assumes jurisdiction. If the question of jurisdiction depends upon the decision of some fact or point of law and if the Ct. is called upon to decide such question then such decision cannot be collaterally impeached (vide Girwar Narayan v. Kamla Prasad, 12 Pat. 117. In my opinion when the Controller assumed the jurisdiction on being satisfied that there was non-payment of rent and proceeded to pass an order of eviction I think the civil Ct, can have no jurisdiction to challenge the validity of such order.”

4. The H. C. did not accept this view, and after referring to S. 111, T. P. Act, proceeded to propound its own view in these words:

“Regard being had to the circumstances in which the Act under consideration was enacted and its object, as stated in the preamble as being “to prevent unreasonable eviction of tenants” from buildings, it would seem that the expression “non-payment of rent” in S. 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of a tenancy enjoyed by a tenant under the ordinary law. The Legislature, therefore, by enacting that a tenant shall not be liable to be evicted “except for non payment of rent’’ should be held to have intended to protect a tenant from being evicted from and building in his possession for being a defaulter in payment of rent, if he brings into Ct. all the rent due from him before the order of his eviction comes to be passed.

* * * * *

If, as contended for on behalf of the resps S. 11 of the Act were to be construed as entitling a landlord to apply for eviction of a tenant on the ground of irregular payment of rent amounting to “non-payment of rent’’ and as empowering the Controller to determine as to whether irregular payment of rent amounts to non-payment of rent within the meaning of sub.-s- (1) of S. 11, and sub.s. (3) of S. 18 were to be construed as making the decision of the Controller on this question of law a final one, it will appear that not only this Act will have conferred a right upon the landlord very much in excess of the right that he enjoys under the ordinary law in the matter of determination of tenancies, but that it will have conferred very much larger power on the Controller than that possessed by the Civil Cts. under the ordinary law in the matter of passing decrees for eviction of tenants. The principle of law and equity on which relief against forfeiture for “non payment of rent” is based, will have been completely abrogated, and the protection of a tenant in possession of a building instead of being enlarged will have been very much curtailed. A construction of these provisions, which is calculated to bring about these consequences, cannot and is not in accordance with the circumstances to which this Act was intended to apply and indeed cannot be accepted. The contention of Mr. Lalnarain Sinha on behalf of the resp. that the circumstances disclosed in the petn. raised the question for determination by the Controller whether a case of non-payment of rent in law was established, and his decision of that question, even if wrong in law, is not liable to be questioned in the Civil Ct. must be overruled.”

5. It seems to its that the view taken by the High Court is not correct. Section 11 begins with the words “Notwithstanding anything contained in any agreement or law to the contrary,” and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent. sub-section (3) (b) of S. 11 provides that the

“Controller shall, if he is satisfied that the claim of the landlord is bona-fide, make an order directing the tenant to put the landlord in possession of the building”

And if he is not so satisfied he shall make an order rejecting the appln. Section 16 empowers the Controller to make enquiries and inspections and to summon and enforce the attendance of witnesses and compel the production of documents, in the same manner as is provided in C. P. C. Section 18 provides that any person aggrieved by an order passed by the Controller may within 15 days of the receipt of such order by him, prefer an appeal to the Comr. of the Division, and it also prescribes the procedure for the hearing of the appeal. Sub-s- (3) of this section states that

“the decision of the Comr. and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Ct. of law whether in a suit or other proceeding by way of appeal or revision. “

The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject only to the decision of the Comr. The Act empowers the Controller alone to decide whether or not there is nonpayment of rent, and his decision on that question is essential before an order can be passed by him under S. 11. Such being the provisions of the Act, we have to see as to whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher, M. R. in The Queen v. Commissioner for Special Purposes of the Income-tax, (1888) 21 Q. B, D. 313, (57 L. J. Q. B. 513), in these words ;

“When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exist and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”

6. On the same line are the following observations of Sir James Colville in Colonial Bank of Australasia v. Willan, (1874) L. R. 5 P. C. 417, (43 L. J. P. C. 39), Which is a case dealing with the principles on which a writ of certiorari may be issued:

“Accordingly, the authorities.. .. . established that an adjudication by a Judge having jurisdiction over the subject-matter is, if no defects appears on the fact of it, to be taken as conclusive of the facts stated therein; and that the Court of Queen’s Bench will not on certiorari quash such an adjudication of the ground that any such fact, however, essential, has been erroneously found.”

7. There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a ‘jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not, as well as the jurisdiction, on finding that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller, may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a civil Ct. It Seems to us that on this short ground this appeal must succeed, and we accordingly allow the appeal, set aside the judgment and decree of the High Court and restore the decree of the Cls. below. The applts. will be entitled to costs throughout.


Counsel for the Parties:

Shri Baldev Sahay. Senior Advocate (Shri T.K.Prasad, Advocate, with him) instructed by Shri R.C. Prasad, Agent-for Applts.

Shri N. C. Chatterjee, Senior Advocate (Shri H. J. Umrigar, Advocate, with him) instructed by Shri S. P. Verma, Agent -for Respts.