Directive of the European Parliament and of the Council on recognition of professional Qualifications

DIRECTIVE 2005/36/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 7 September 2005

on the recognition of professional qualifications

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 40, Article 47(1), the first and third sentences of Article 47(2), and Article 55 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1)

Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member States, of obstacles to the free movement of persons and services is one of the objectives of the Community. For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications. In addition, Article 47(1) of the Treaty lays down that directives shall be issued for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.

(2)

Following the European Council of Lisbon on 23 and 24 March 2000, the Commission adopted a Communication on ‘An Internal Market Strategy for Services’, aimed in particular at making the free provision of services within the Community as simple as within an individual Member State. Further to the Communication from the Commission entitled ‘New European Labour Markets, Open to All, with Access to All’, the European Council of Stockholm on 23 and 24 March 2001 entrusted the Commission with presenting for the 2002 Spring European Council specific proposals for a more uniform, transparent and flexible regime of recognition of qualifications.

(3)

The guarantee conferred by this Directive on persons having acquired their professional qualifications in a Member State to have access to the same profession and pursue it in another Member State with the same rights as nationals is without prejudice to compliance by the migrant professional with any non-discriminatory conditions of pursuit which might be laid down by the latter Member State, provided that these are objectively justified and proportionate.

(4)

In order to facilitate the free provision of services, there should be specific rules aimed at extending the possibility of pursuing professional activities under the original professional title. In the case of information society services provided at a distance, the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (4), should also apply.

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Jurisdiction Means

The expression “jurisdiction” in this section has not been used in the limited sense of the term, as connoting the “Power” to do or order to do the particular act complained of, but is used in a wide sense as meaning “generally the authority of the Judicial Officer to act in the matters”. Therefore, if the judicial officer had the general authority to enter upon the enquiry into the cause, action, petition or other proceeding in the course of which the impugned act was done or ordered by him in his judicial capacity, the act, even if erroneous, will still be within his ‘jurisdiction’, and the mere fact that it was erroneous will not put it beyond his “jurisdiction”.

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Section 14 of The Limitation Act 1963

Section 14 of The Limitation Act

Computation Of Period Of Limitation

14. Exclusion of time of proceeding bona fide in Court without jurisdiction

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.

Explanation. For the purposes of this section,
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.


 

Jurisdiction: The meaning of

This question is answered by Mukherjee, Acting C. J. speaking for the Full Bench of the Calcutta High Court in Hirday Nath Roy v. Ramachandra Barna Sarma, (1) L.L. R.68 Cal. 138 of the report the learned judge explained what exactly is meant by jurisdiction. We can do no better than to quote his words :

“In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand, I.L.R.[1905] 33 Cal. 68. it was stated that jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it : in other words, by jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. An examination of the cases in the books discloses numerous attempts to define the term ‘jurisdiction’, which has been stated to be ‘the power to hear and determine issues of law and fact’, ‘the authority by which the judicial officer take cognizance of and decide causes’; ‘the authority to hear and decide a legal controversy’, ‘the power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;’ ‘the power to hear, determine and pronounce judgment on the issues before the Court’; ‘the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect’; ‘the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution’.

16. Proceeding further the learned judge observed :

“This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction: for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the decisions reviewed in the order of reference in Sukhlal v. Tara Chand and Khosh Mahomed v. Nazir Mahomed, I.L.R.(1905) 33 Cal. 352 see also the observation of Lord Parkar in Raghunath v. Sundar Das, ILR [1914]42Cal.72. …. We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing , as well as a determination. A judgment pronounced by a court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it : Rashmoni v. Ganada,[1914] 20 C.L.J. 213.”

17. Finally the learned judge quoted with approval the decision of Srinivas Aiyangar, J. in Tuljaram v. Gopala, (1916) 32 M.L.J434 wherein Aiyangar, J. laid down that “if a Court has jurisdiction to try a suit and has authority to pass orders of a particular kind, the fact that it has passed an order which it should not have made in the circumstances of the litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity”.


Ref: OFFICIAL TRUSTEE, WEST BENGAL AND OTHERS Vs. SACHINDRA NATH CHATTERJEE AND ANOTHER -13/12/1968

Jurisdiction in Respect of Inquiry by Lokpal

The Lokpal and Lokayuktas Act, 2013

Jurisdiction in Respect of Inquiry

14. Jurisdiction of Lokpal to include Prime Minister, Ministers, members of Parliament, Groups A, B, C and D officers and officials of Central Government. – (1) Subject to the other provisions of this Act, the Lokpal shall inquire or cause an inquiry to be conducted into any matter involved in, or arising from, or connected with, any allegation of corruption made in a complaint in respect of the following, namely :-
(a) any person who is or has been a Prime Minister :

Provided that the Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any such allegation of corruption against the Prime Minister, –

(i) in so far as it relates to international relations, external and internal security, public order, atomic energy and space;

(ii) unless a full bench of the Lokpal consisting of its Chairperson and all Members considers the initiation of inquiry and at least two-thirds of its Members approves of such inquiry:

Provided further that any such inquiry shall be held in camera and if the Lokpal comes to the conclusion that the complaint deserves to be dismissed, the records of the inquiry shall not be published or made available to anyone;

(b) any person who is or has been a Minister of the Union;

(c) any person who is or has been a member of either House of Parliament;

(d) any Group ‘A’ or Group ‘B’ officer or equivalent or above, from amongst the public servants defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 (49 of 1988) when serving or who has served, in connection with the affairs of the Union;

(e) any Group ‘C’ or Group ‘D’ official or equivalent, from amongst the public servants defined in sub-clauses (i) and (ii) of clause (c) of section 2 of the Prevention of Corruption Act, 1988 (49 of 1988) when serving or who has served in connection with the affairs of the Union subject to the provision of sub-section (1) of section 20;

(f) any person who is or has been a chairperson or member or officer or employee in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of Parliament or wholly or partly financed by the Central Government or controlled by it :

Provided that in respect of such officers referred to in clause (d) who have served in connection with the affairs of the Union or in any body or Board or corporation or authority or company or society or trust or autonomous body referred to in clause (e) but are working in connection with the affairs of the State or in any body or Board or corporation or authority or company or society or trust or autonomous body (by whatever name called) established by an Act of the State Legislature or wholly or partly financed by the State Government or controlled by it, the Lokpal and the officers of its Inquiry Wing or Prosecution Wing shall have jurisdiction under this Act in respect of such officers only after obtaining the consent of the concerned State Government;

(g) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not), by whatever name called, wholly or partly financed by the Government and the annual income of which exceeds such amount as the Central Government may, by notification, specify;

(h) any person who is or has been a director, manager, secretary or other officer of every other society or association of persons or trust (whether registered under any law for the time being in force or not) in receipt of any donation from any foreign source under the Foreign Contribution (Regulation) Act, 2010 (42 of 2010) in excess of ten lakh rupees in a year or such higher amount as the Central Government may, by notification, specify.

Explanation. – For the purpose of clauses (f) and (g), it is hereby clarified that any entity or institution, by whatever name called, corporate, society, trust, association of persons, partnership, sole proprietorship, limited liability partnership (whether registered under any law for the time being in force or not), shall be the entities covered in those clauses :
Provided that any person referred to in this clause shall be deemed to be a public servant under clause (c) of section 2 of the Prevention of Corruption Act, 1988 (49 of 1988) and the provisions of that Act shall apply accordingly.

(2) Notwithstanding anything contained in sub-section (1), the Lokpal shall not inquire into any matter involved in, or arising from, or connected with, any such allegation of corruption against any member of either House of Parliament in respect of anything said or a vote given by him in Parliament or any committee thereof covered under the provisions contained in clause (2) of article 105 of the Constitution.

(3) The Lokpal may inquire into any act or conduct of any person other than those referred to in sub-section (1), if such person is involved in the act of abetting, bribe giving or bribe taking or conspiracy relating to any allegation of corruption under the Prevention of Corruption Act, 1988 (49 of 1988) against a person referred to in sub-section (1) :

Provided that no action under this section shall be taken in case of a person serving in connection with the affairs of a State, without the consent of the State Government.
(4) No matter in respect of which a complaint has been made to the Lokpal under this Act, shall be referred for inquiry under the Commissions of Inquiry Act, 1952 (60 of 1952).

Explanation. – For the removal of doubts, it is hereby declared that a complaint under this Act shall only relate to a period during which the public servant was holding or serving in that capacity.

15. Matters pending before any court or committee or authority for inquiry not. – In case any matter or proceeding related to allegation of corruption under the Prevention of Corruption Act, 1988 (49 of 1988) has been pending before any court or committee of either House of Parliament or before any other authority prior to commencement of this Act or prior to commencement of any inquiry after the commencement of this Act, such matter or proceeding shall be continued before such court, committee or authority.

16. Constitution of benches of Lokpal. – (1) Subject to the provisions of this Act, –
(a) the jurisdiction of the Lokpal may be exercised by benches thereof;

(b) a bench may be constituted by the Chairperson with two or more Members as the Chairperson may deem fit;

(c) every bench shall ordinarily consist of at least one Judicial Member;

(d) where a bench consists of the Chairperson, such bench shall be presided over by the Chairperson;

(e) where a bench consists of a Judicial Member, and a non-Judicial Member, not being the Chairperson, such bench shall be presided over by the Judicial Member;

(f) the benches of the Lokpal shall ordinarily sit at New Delhi and at such other places as the Lokpal may, by regulations, specify.

(2) The Lokpal shall notify the areas in relation to which each bench of the Lokpal may exercise jurisdiction.

(3) Notwithstanding anything contained in sub-section (2), the Chairperson shall have the power to constitute or reconstitute benches from time to time.

(4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such nature that it ought to be heard by a bench consisting of three or more Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such bench as the Chairperson may deem fit.

17. Distribution of business amongst benches. – Where benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Lokpal amongst the benches and also provide for the matters which may be dealt with by each bench.

18. Power of Chairperson to transfer cases. – On an application for transfer made by the complainant or the public servant, the Chairperson, after giving an opportunity of being heard to the complainant or the public servant, as the case may be, may transfer any case pending before one bench for disposal to any other bench.

19. Decision to be by majority. – If the Members of a bench consisting of an even number of Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Lokpal and such point or points shall be decided according to the opinion of the majority of the Members of the Lokpal who have heard the case, including those who first heard it.

Sunita Kumari Kashyap Vs. State Of Bihar And Another

SUPREME COURT OF INDIA JUDGMENTS

If anything happened as a consequence of offence, same may be inquired into or tried by Court within whose local jurisdiction such thing has been done or such consequence has ensued 

SUPREME COURT OF INDIA

DIVISION BENCH

( Before : P. Sathasivam, J; B. S. Chauhan, J )

SUNITA KUMARI KASHYAP — Appellant

Vs.

STATE OF BIHAR AND ANOTHER — Respondent

Criminal Appeal No. 917 of 2011 (Arising out of S.L.P. (Criminal) No. 8078 of 2010) and Criminal Appeal No. 918 of 2011 (Arising out of S.L.P. (Criminal) No. 8079 of 2010)

Decided on : 11-04-2011

Criminal Procedure Code, 1973 (CrPC) – Section 177, Section 178, Section 179
Dowry Prohibition Act, 1961 – Section 3, Section 4
Penal Code, 1860 (IPC) – Section 34, Section 406, Section 498A
Penal Code, 1860 (IPC) – Sections 498A and 406

Cases Referred

Bhura Ram and Others Vs. State of Rajasthan and Another, AIR 2008 SC 2666 : (2008) CLT 934 : (2008) CriLJ 3494 : (2008) 4 JT 611 : (2008) 150 PLR 531 : (2008) 4 SCALE 666 : (2008) 11 SCC 103 : (2008) AIRSCW 4449
Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, AIR 2004 SC 4286 : (2004) CriLJ 4180 : (2004) 2 DMC 371 : (2004) 6 JT 497 : (2004) 7 SCALE 374 : (2004) 7 SCALE 26 : (2004) 8 SCC 100 : (2004) 3 SCR 604 Supp : (2004) 2 UJ 1435 : (2004) AIRSCW 4788 : (2004) 6 Supreme 207
Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, AIR 1997 SC 2465 : (1997) CriLJ 2985 : (1997) 5 JT 478 : (1997) 4 SCALE 112 : (1997) 5 SCC 30 : (1997) 3 SCR 1127 : (1997) AIRSCW 2401 : (1997) 4 Supreme 448
State of M.P. Vs. Suresh Kaushal and Another, (2001) 2 DMC 102 : (2001) 4 SCALE 233 : (2003) 11 SCC 126

Counsel for Appearing Parties

Vivek Singh, Udita Singh, Chandra Prakash and Lakshmi Raman Singh, for the Appellant; S.B. Sanyal Subhro Sanyal, Gopal Singh and Ramita Guha, for the Respondent

JUDGMENT

P. Sathasivam, J.—Leave granted.

2. The only issue for consideration in both the appeals is whether criminal proceedings initiated by the Appellant herein at Gaya against her husband and his relatives are maintainable or not for lack of jurisdiction?

3. Brief facts:

(a) The Appellant herein got married to Sanjay Kumar Saini – Respondent No. 2 herein, on 16.04.2000 as per the Hindu rites and ceremonies at Gaya. According to the Appellant, at the time of marriage, her father gifted all the household utensils, Almirah, Double Bed, Dining Table, Fridge, Television and an amount of Rs. 2,50,000/- in cash. In addition to the same, her father spent so much money to solemnize the marriage and for gifts to other family members of her husband. In spite of the same, immediately after the marriage, she was blamed for bringing less dowry by her in-laws and they started harassing and torturing her. Her husband also used to support his family members to torture her. It is her further grievance that her husband demanded an additional amount of Rs. 4 lakhs from her parents for renovation of their house at Ranchi. When she was pregnant, she was forcibly taken out of her matrimonial home at Ranchi and brought to her parental home at Gaya. After giving birth to a girl child the circumstances became even worse and everyone started blaming her that she had brought an additional burden on them. After some time, her husband came out with a new demand that unless her father gives his house at Gaya to him she will not be taken back to her matrimonial home at Ranchi. Having continuous torture and unbearable nature of treatment by her husband and in-laws for years and years, having no other option, the Appellant lodged a First Information Report (in short “FIR”) being No. 66 of 2007 under Sections 498A and 406 read with Section 34 of Indian Penal Code (in short “IPC) and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (in short “D.P. Act”) at Magadh Medical College Police Station, Gaya.

b) The Chief Judicial Magistrate, after perusal of the charge sheet, found a prima facie case against the accused persons, accordingly, took cognizance of offences punishable under Sections 498A and 406 read with Section 34 IPC and Sections 3 and 4 of the D.P. Act against all of them and transferred the case to the Court of sub-Divisional Judicial Magistrate, Gaya for trial. Though an objection was raised stating that the Court at Gaya has no jurisdiction, the learned Magistrate, after considering all the relevant materials including the allegations in the complaint, rejected the said objection.

c) Aggrieved by the said order, the accused persons preferred Criminal Miscellaneous No. 42478 of 2009 before the High Court of Judicature at Patna. By order dated 19.03.2010, the High Court found that the proceedings at Gaya are not maintainable for lack of jurisdiction and quashed the entire proceedings in Magadh Medical College Police Station Case No. 66 of 2007 with liberty to the Appellant herein to file the same in appropriate Court. Following the said order, the High Court on 29.04.2010 allowed Criminal Miscellaneous No. 45153 of 2009 filed by Sanjay Kumar Saini – the husband (Respondent No. 2 herein) and quashed the criminal proceedings lodged against him.

d) Aggrieved by the impugned orders passed by the High Court on 19.03.2010 in Criminal Misc. Case No. 42478 of 2009 and 29.04.2010 in Criminal Misc. Case No. 45153 of 2009, the Appellant-wife has filed the above appeals before this Court by way of special leave petitions.

4. Heard Mr. Vivek Singh, learned Counsel for the Appellant and Mr. S.B. Sanyal, learned senior counsel for Respondent No. 2 and Mr. Gopal Singh, learned Counsel for Respondent No. 1 – State.

5. Inasmuch as the issue is confined to territorial jurisdiction about the criminal proceedings initiated by the Appellant-wife, there is no need to go into other factual aspects. Since the SDJM has found that the Court at Gaya has jurisdiction to try the accused persons for offences punishable under Sections 498A and 406 read with Section 34 IPC and Sections 3 & 4 of the D.P. Act and the High Court reversed the said decision and found that the proceedings at Gaya are not maintainable for lack of jurisdiction, it is desirable to refer the relevant provisions and the contents of FIR.

6. Chapter XIII of the Code of Criminal Procedure, 1973 (in short “Code”) deals with jurisdiction of the criminal courts in inquiries and trials. Sections 177-179 are relevant which are as follows:

177. Ordinary place of inquiry and trial -. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178. Place of inquiry or trial. (a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas,

it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

179. Offence triable where act is done or consequence ensues. When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

From the above provisions, it is clear that the normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. However, when it is uncertain in which of several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local area and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence. Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

7. Keeping the above provisions in mind, let us consider the allegations made in the complaint. On 17.10.2007, Sunita Kumari Kashyap – the Appellant herein made a complaint to the Inspector In-charge, Magadh Medical College Police Station, Gaya. In the complaint, the Appellant, after narrating her marriage with Sanjay Kumar Saini, Respondent No. 2 herein on 16.04.2000 stated that what had happened immediately after marriage at the instance of her husband and his family members’ ill-treatment, torture and finally complained that she was taken out of the matrimonial home at Ranchi and sent to her parental Home at Gaya with the threat that unless she gets her father’s house in the name of her husband, she has to stay at her parental house forever. In the said complaint, she also asserted that her husband pressurized her to get her father’s house in his name and when she denied she was beaten by her husband. It was also asserted that after keeping her entire jewellery and articles, on 24.12.2006, her husband brought her at Gaya and left her there warning that till his demands are met, she has to stay at Gaya and if she tries to come back without meeting those demands she will be killed. It was also stated that from that date till the date of complaint, her in-laws never enquired about her. Even then she called them but they never talked to her. Perusal of the entire complaint, which was registered as an FIR, clearly shows that there was ill-treatment and cruelty at the hands of her husband and his family members at the matrimonial home at Ranchi and because of their actions and threat she was forcibly taken to her parental home at Gaya where she initiated the criminal proceedings against them for offences punishable under Sections 498A and 406/34 IPC and Sections 3 and 4 of the D.P. Act. Among the offences, offence u/s 498A IPC is the main offence relating to cruelty by husband and his relatives. It is useful to extract the same which is as under:

498A. Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purpose of this section, “cruelty” means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

8. Similar allegations as found in the complaint in the case on hand with reference to the offences punishable under Sections 498A, 406/34 IPC were considered by this Court in the following decisions:

i) In Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, similar issue was considered by this Court and found that Clause (c) of Section 178 of the Code is attracted and the Magistrate at wife’s parents’ place has also jurisdiction to entertain the complaint. In the said decision, wife was the Appellant before this Court and the Respondents were the husband, parents-in-law and two sisters-in-law of the Appellant Sujata Mukherjee. The gist of the allegation of the Appellant, Sujata Mukherjee was that on account of dowry demands, she had been maltreated and humiliated not only in the house of her in-laws at Raigarh but as a consequence of such events, the husband of the Appellant had also come to the house of her parents at Raipur and assaulted her. On behalf of the Respondents therein, it was contended before the learned Chief Judicial Magistrate, Raipur that the criminal case was not maintainable before the said learned Chief Judicial Magistrate because the cause of action took place only at Raigarh which was outside the territorial jurisdiction of the learned Magistrate at Raipur. A prayer was also made to quash the summons issued by the learned Chief Judicial Magistrate by entertaining the said complaint of Smt Mukherjee. As the Chief Judicial Magistrate was not inclined either to quash the summons or to transfer the criminal case to the competent court at Raigarh, the criminal revision petitions were filed before the High Court, one by all the five Respondents and another by four of the Respondents excluding the husband presumably because there was specific allegation against the husband that the husband had also gone to Raipur and had assaulted the Appellant and as such the husband could not plead want of territorial jurisdiction. Both the said criminal revision cases were disposed of by a common order dated 31.08.1989 by the High Court holding that the case against the husband of the Appellant alone is maintainable and in respect of other Respondents related to the incidents taking place at Raigarh, hence, the criminal case on the basis of complaint made by the Appellant is not maintainable at Raipur. The said order of the High Court was challenged by the Appellant-Sujata Mukherjee in this Court. It was submitted that it will be evident from the complaint that the Appellant has alleged that she had been subjected to cruel treatment persistently at Raigarh and also at Raipur and incident taking place at Raipur is not an isolated event, but consequential to the series of incidents taking place at Raigarh. Therefore, it was contended that the High Court was wrong in appreciating the scope of the complaint and proceeding on the footing that several isolated events had taken place at Raigarh and one isolated incident had taken place at Raipur. This Court basing reliance on Section 178 of the Code, in particular Clauses (b) and (c), found that in view of allegations in the complaint that the offence was a continuing one having been committed in more local areas and one of the local areas being Raipur, the learned Magistrate at Raipur had jurisdiction to proceed with the criminal case instituted in such court. Ultimately, accepting the stand of the Appellant, this Court held as under:

We have taken into consideration the complaint filed by the Appellant and it appears to us that the complaint reveals a continuing offence of maltreatment and humiliation meted out to the Appellant in the hands of all the accused Respondents and in such continuing offence, on some occasions all the Respondents had taken part and on other occasion, one of the Respondents had taken part. Therefore, Clause (c) of Section 178 of the Code of Criminal Procedure is clearly attracted.

ii) In State of M.P. Vs. Suresh Kaushal and Another, again in a similar circumstance, considering the provisions of Section 179 with reference to the complaint relating to the offences u/s 498A read with Section 34 IPC, this Court held as under:

6. The above Section contemplates two courts having jurisdiction and the trial is permitted to take place in any one of those two courts. One is the court within whose local jurisdiction the act has been done and the other is the court within whose local jurisdiction the consequence has ensued. When the allegation is that the miscarriage took place at Jabalpur it cannot be contended that the court at Jabalpur could not have acquired jurisdiction as the acts alleged against the accused took place at Indore.

9. Mr. S.B. Sanyal, learned senior counsel appearing for the Respondents fairly stated that there is no dispute about the jurisdiction of the Court at Gaya insofar as against the husband, however, in respect of other relatives of the husband in the absence of any act at Gaya, the said Court has no jurisdiction and if at all, the wife has to pursue her remedy only at Ranchi. In support of his contention, he relied on a decision of this Court in Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, in particular, paragraph 12 of the said decision which reads as under:

12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section 177 of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings against the accused.

It is true that Section 177 of the Code refers to the local jurisdiction where the offence is committed. Though the expression “cause of action” is not a stranger to criminal cases, in view of Sections 178 and 179 of the Code and in the light of the specific averment in the complaint of the Appellant herein, we are of the view that the said decision is not applicable to the case on hand.

10. Mr. Sanyal also relied on a decision of this Court in Bhura Ram and Others Vs. State of Rajasthan and Another, wherein following the decision in Y. Abraham Ajith and Ors. (supra), this Court held that “cause of action” having arisen within the jurisdiction of the court where the offence was committed, could not be tried by the court where no part of offence was committed. For the same reasons, as mentioned in the earlier paragraph, while there is no dispute as to the proposition in view of the fact that in the case on hand, the offence was a continuing one and the episode at Gaya was only a consequence at the continuing offence of harassment and ill-treatment meted out to the complainant, Clause (c) of Section 178 is attracted. In view of the above reason, both the decisions are not applicable to the facts of this case and we are unable to accept the stand taken by Mr. Sanyal.

11. We have already adverted to the details made by the Appellant in the complaint. In view of the specific assertion by the Appellant-wife about the ill-treatment and cruelty at the hands of the husband and his relatives at Ranchi and of the fact that because of their action, she was taken to her parental home at Gaya by her husband with a threat of dire consequences for not fulfilling their demand of dowry, we hold that in view of Sections 178 and 179 of the Code, the offence in this case was a continuing one having been committed in more local areas and one of the local areas being Gaya, the learned Magistrate at Gaya has jurisdiction to proceed with the criminal case instituted therein. In other words, the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill-treatment meted out to the complainant, Clause (c) of Section 178 is attracted. Further, from the allegations in the complaint, it appears to us that it is a continuing offence of ill-treatment and humiliation meted out to the Appellant in the hands of all the accused persons and in such continuing offence, on some occasion all had taken part and on other occasion one of the accused, namely, husband had taken part, therefore, undoubtedly Clause (c) of Section 178 of the Code is clearly attracted.

12. In view of the above discussion and conclusion, the impugned order of the High Court holding that the proceedings at Gaya are not maintainable due to lack of jurisdiction cannot be sustained. The impugned order of the High Court dated 19.03.2010 in Criminal Misc. No. 42478 of 2009 and another order dated 29.04.2010 in Criminal Misc. Case No. 45153 of 2009 are set aside. In view of the same, the SDJM, Gaya is permitted to proceed with the criminal proceedings in trial Nos. 1551 of 2008 and 1224 of 2009 and decide the same in accordance with law. It is made clear that we have not expressed anything on the merits and claims of both parties and our above conclusion is confined to the territorial jurisdiction of the Court at Gaya.

Both the criminal appeals are allowed.


(2011) 74 ACC 980 : (2011) 106 AIC 155 : (2011) 2 AICLR 498 : (2011) AIR(SCW) 2481 : (2011) 2 AIRJharR 778 : (2011) 2 AirKarR 854 : (2011) AIR(SC) 1674 : (2011) AIR(SC)Cri 1066 : (2011) 2 AllCrlRulings 1611 : (2011) ALLMR(Cri) 1648 : (2011) 59 BLJR 1194 : (2011) 2 CalCriLR 701 : (2011) 2 CriCC 588 : (2011) CriLJ 2667 : (2011) 2 Crimes 181 : (2011) Sup CutLT(Criminal) 1608 : (2011) 2 ECrC 217 : (2011) 3 JCC 1932 : (2011) 2 JLJR 218 : (2011) 4 JT 236 : (2011) SN3 KCCR 264 : (2011) 3 MLJ(Criminal) 779 : (2011) 2 NCC 127 : (2011) 2 PLJR 191 : (2011) 3 RCR(Criminal) 512 : (2011) 3 RCR(Criminal) 26 : (2011) 3 RecentApexJudgments(RAJ) 250 : (2011) 3 RLW 2185 : (2011) 4 SCALE 572 : (2011) 11 SCC 301 : (2011) 3 SCC(Cri) 173 : (2011) 6 SCR 83 : (2011) 3 Supreme 261 : (2011) 1 UD 412 : (2011) 2 UJ(SC) 1465 : (2011) 2 WLC 187

Jurisdiction of criminal court in inquiry and trials

Chapter-XIII of 1973 deals with the jurisdiction of criminal court in inquiry and trials. Sections 177, 178 and 179 of the Code of Criminal Procedure are relevant which are as follows:–

177. Ordinary place of inquiry and trial.–Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

178. Place of inquiry or trial.–(a) When it is uncertain in which of several local areas an offence was committed, or

(b) where an offence is committed partly in one local area and partly in another, or

(c) where an offence is a continuing one, and continues to be committed in more local areas than one, or

(d) where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local areas.

179. Offence triable where act is done or consequence ensues.–When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

From the above provisions, it is clear that normal rule is that the offence has ordinarily to be inquired into and tried by a Court within whose local jurisdiction it was committed. However, if it is uncertain in which of several local areas or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more local areas than one or where it consists of several acts done in different local areas, as per Section 178 Cr.P.C., the court having jurisdiction over any of such local areas is competent to inquire into or try the offence.

Section 179 Cr.P.C. makes it clear that if an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

In Sunita Kumari Kashyap Vs. State of Bihar and Another [AIR 2011 SC 1674], the Apex Court considered a similar case where complaint was filed by the victim wife at Gaya, alleging ill-treatment and cruelty at the hands of her husband and his relatives had matrimonial home in Ranchi and that she was forcibly taken to her parental home at Gaya by her husband with a threat of dire consequences in case their dowry demand was not fulfilled.

The C.J.M., Gaya took cognizance of the offence punishable inter alia under Sections 498A IPC and 3 & 4 of the Dowry Prohibition Act. The order was challenged before Patna High  Court. A Bench of  Patna High Court found that the proceedings at Gaya were not maintainable for lack of jurisdiction and, thus, quashed the entire proceedings of that case. The complainant being aggrieved by the order passed by this Court filed an appeal before the Supreme Court. The Apex Court held that the offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment and ill-treatment meted out to the complainant and, thus, Clause (c) of Section 178 was attracted and the order of this Court holding that the proceedings at Gaya was not maintainable due to lack of jurisdiction was set aside and the concerned Court at Gaya was permitted to proceed with the criminal proceeding in trial and decide the same in accordance with law.

JURISDICTION OF THE BENCH:

41. The court is ‘not to yield to spasmodic sentiments to vague and unregulated benevolence’. The court ‘is to exercise discretion informed by tradition, methodized by analogy, disciplined by system’. This Court in State of Rajasthan v. Prakash Chand and Ors., AIR 1998 SC 1344 observed as under:

Judicial authoritarianism is what the proceedings in the instant case smack of. It cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions”It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we ‘suffer from self-inflicted mortal wounds’. We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable.

42. This Court in State of U.P. and Ors. v. Neeraj Chaubey and Ors., (2010) 10 SCC 320, had taken note of various judgments of this Court including State of Maharashtra v. Narayan Shamrao Puranik, AIR 1982 SC 1198; Inder Mani v. Matheshwari Prasad, (1996) 6 SCC 587; Prakash Chand (Supra); R. Rathinam v. State (2002) 2 SCC 391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, and came to the conclusion that the Chief Justice is the master of roster. The Chief Justice has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in Sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in the very nature of things. The Chief Justice enjoys a special status and he alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or Full Bench. He has jurisdiction to decide which case will be heard by which Bench. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a case pending in the High Court only if the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from this procedure is permissible.

In Prakash Chand (Supra), this Court dealt with a case wherein the Chief Justice of Rajasthan High Court had withdrawn a part-heard matter from one Bench and directed it to be listed before another Bench. However, the earlier Bench still made certain observations. While dealing with the issue, this Court held that it was the exclusive prerogative of the Chief Justice to withdraw even a partheard matter from one Bench and to assign it to any other Bench. Therefore, the observations made by the Bench subsequent to withdrawal of the case from that Bench and disposal of the same by another Bench were not only unjustified and unwarranted but also without jurisdiction and made the Judge coram non-judice.

It is a settled legal proposition that no Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice.

It has rightly been pointed out by the Full Bench of Allahabad High Court in Sanjay Kumar Srivastava v. Acting Chief Justice 1996 AWC 644, that if the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they would like to hear and decide, the machinery of the court could have collapsed and judicial functioning of the court could have ceased by generation of internal strife on account of hankering for a particular jurisdiction or a particular case.

43. In view of the above, the legal regime, in this respect emerges to the effect that the Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non-judice.


SOURCE: State of Punjab Versus Davinder Pal Singh Bhullar and Others

The jurisdiction of the criminal courts in inquiries and trials in India

Section 177 of Cr.P.C postulates that ordinarily offence shall be inquired into and tried by a court within whose local jurisdiction it was committed. Section 178, inter alia, deals with situations when it is uncertain in which of several local areas, an offence is committed or partly committed in one area and partly in another. The section provides that the offence can be inquired into or tried by a court having jurisdiction over any of the local areas mentioned therein.

Under Section 179, offence is triable where act is done or consequences thereof ensued. Section 180 deals with the place of trial where act is an offence by reason of its relation to other offence. It provides that the first mentioned offence may be inquired into or tried by a court within whose local jurisdiction either act was done. In all these sections, for jurisdiction the emphasis is on the place where the offence has been committed. There is, however, a departure under Section 181(1) where additionally place of trial can also be the place where the accused is found, besides the court within whose jurisdiction the offence was committed. But the said section deals with offences committed by those who are likely to be on move which is evident from nature of offences mentioned in the section. Section 181(1) is in respect of the offences where the offenders are not normally located at a fixed place and that explains the departure.

Section 183 deals with offences committed during journey or voyage. Section 186 deals with situation where two or more courts take cognizance of the same offence and in case of doubt as to which one of the courts has jurisdiction to proceed further, the High Court decides the matter. Section 187 deals with a situation where a person within local jurisdiction of a Magistrate has committed an offence outside such jurisdiction. The Magistrate can compel such a person to appear before him and then send him to the Magistrate which has jurisdiction to inquire into or try such offence.Continue Reading

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

Keywords: Rent Control-Jurisdiction

Capture

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.