Patna High Court
Ramnarain Lal And Ors. vs Dr. Radharaman Das And Ors. on 18 August, 1953
Equivalent citations: AIR1954PAT393, 1954(2)BLJR201, AIR 1954 PATNA 393
JUDGMENT Misra, J.
1. The plaintiffs, Ramnarain Lal and others, instituted a suit giving rise to the present appeal for a declaration that the order of the House Controller, Patna, dated 20th June 1949 and that of the Additional Commissioner, Patna Division, passed on appeal, dated 30th March 1950, by which the plaintiffs were directed to vacate the house in mohalla Sabzibagh in Patna town bearing holding No. 58, circle No. 16, municipal survey plot No. 48 are illegal and without jurisdiction.
2. The case made out by the plaintiffs was that they were the tenants of the defendants-respondents in respect of the land where the house in question was situate, but" they had built the house and they were not inducted as tenants into the house in question, and in that view, the Eihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) did not apply to the present case, and, therefore, the order passed by the House Controller under this Act was not binding on them. There were other points of law raised by the plaintiffs for the purpose of showing that the order of the House Controller was otherwise illegal and beyond jurisdiction inasmuch as the order passed by the House Controller was not the order which was sought to be executed but the order which was passed on appeal by the Additional Commissioner which was void.
3. The defence case, however, was that the plaintiffs were inducted into the house duly as tenants, and their plea that they came to occupy the vacant site as tenants and they built the house for themselves was false and fraudulent. Further, that the order passed by the House Controller and affirmed on appeal was final and the Civil Court had no jurisdiction to go behind the order of the House Controller.
4. The suit was decreed by the learned Munsif, First Court, Patna, but on appeal the judgment of the learned Munsif was reversed, and it was held that the case of the plaintiffs that they came into possession of the land as tenants and built the house at their own cost was untrue. It was also held that the order passed by the House Controller was valid & with jurisdiction and that likewise the Additional Commissioner's order confirming on appeal the order of the House Controller, Patna, was also good and binding upon the parties and could not be re-opened in the Civil Court.
5. Mr. T. K. Prasad appearing on behalf of the appellants has urged a number of points, one of which is that the original proceeding was started against one Mewalal, father of the plaintiffs. Mewaial, however, died during the pendency of the proceeding in the Court of the House Controller and thereafter the appellants were brought on record as the sons of Mewalal in the Court of the House Controller. It is contended that the House Controller had no jurisdiction to resort to a substitution proceeding, as Order 22, Civil P. C. which provides for substitution does not apply to a House Control proceeding. Reference has been made in this connection to the case of -- Devi-chand Mool Chand v. Dhanraj Kantilar, AIR 1949 Mad 53 (A), which followed the decision in trie case of -- 'Abdul Khadir v. A. K. Murthy', AIR 1948 Mad 235 (B), where their Lordships took the view that Code of Civil Procedure was not made applicable to the Madras Act, and, therefore, the House Controller had no jurisdiction to order substitution.
In substance, however, they upheld the order oa the ground that although there was lack of jurisdiction with regard to the substitution matter the order was still justified because the application for substitution was filed on an affidavit and all the particulars required under the Act were before the Court, so that the subsequent proceeding might be treated as a fresh proceeding after the heirs were brought on record on the death of the party concerned, and as such there was no lack of jurisdiction in the order actually passed by the House Controller.
Mr. T. K. Prasad, however, argues that in the present case neither there is any affidavit nor are the particulars there required by the Act. Mr. J. C. Sitiha, however, has urged that we do not know in what terms the Madras Act relating to House Control actually stands, because Mr. T. K. Prasad has not drawn our attention to the terms of the Madras Act. The. Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947) dees not require either any affidavit nor does it make any provision with regard to the particulars to be supplied in the application. All that is required is that in terms of Section 11 of the Act a person applying must indicate the grounds on which he wants eviction of the tenant, which alone- is adequate to give jurisdiction to the Court.
I think there is substance in this contention raised on behalf of the respondents, and it must be held that even in the view expressed by the Madras High Court the order of the House Controller must be upheld treating the proceeding after substitution as a fresh proceeding, as the Bihar Act provides no bar to a new proceeding- being treated as a fresh proceeding. It may well be that the House Controller's Court being a Court may be taken as having inherent jurisdiction to do consequential acts such as substitution. That, however, is a point which I need not decide at present, in view of the pronouncement of their Lordships of the Madras High Court, as the order can be upheld in another view of the matter.
6. It is next urged that the Additional Commissioner, who passed the order on appeal against the order of the House Controller, was not competent to pass the order as he cannot be regarded as a Court duly constituted. It is urged that Act 3 of 1947 in Section 18(1) speaks of Commissioner of the Division being_the appellate authority against the order of the House Controller and does not refer to the Additional Commissioner having1 that power. The Additional Commissioner was vested with power to hear appeals under the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) in terms of an. Ordinance promulgated on 14th January 1949, which Ordinance provided for the appointment of Additional Commissioners. It is urged that in terms thereof certain persons were appointed to the office and their appointment was published in the Gazette Notification No. 523-A dated 24th January, 1949, which was published, however, in Gazette Extraordinary dated 28th January 1949.
There was another Notification No. 4068 published in the Bihar Gazette Extraordinary dated 29th January 1949 by which the power to hear appeals conferred upon the Commissioners under Section 18(1), Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) was also vested in the Additional Commissioners. Ordinance No. 1 of 1949, however, to which I have made a reference above (Ordinance dated 14th January 1949), gave place to Act 3 of 1949 which received the assent of the Governor on 5th March 1949 and was published in the Gazette on 12th March 1949 incorporating the provisions of that Ordinance relating to the appointment of Additional commissioners.
On the facts stated above, Mr. T. K. Prasad has endeavoured to build two arguments. One is that the Additional Commissioners appointed under the Ordinance were not competent to hear appeals against the orders of the House Controllers, because the persons appointed as Additional Commissioners by Notification dated 24th January 1949 could not be said to be validly appointed as according to Section 5 of Act 3 of 1949 the appointment of Additional Commissioners from 26th January, 1949 alone was validated; whereas the office of the Additional Commissioner, Patna Division, including the gentleman appointed to the office was made from 24th January 1949 as the Notification would indicate, and as such the appointment was invalid as having oeen made two days prior to the date from which onwards appointment of Additional Commissioners was validated by Act 3 of 1949.
It is, however, clear that although the notification relating to the appointment of Additional Commissioners bears date 24th January 1949 it was actually published in the Bihar Gazette on the 26th, so that according to the Bihar General Clauses Act (Clause 36) it is clear that the appointment must be deemed to be valid only from the date of its publication in the gazette. Since, therefore, the appointment of the Additional Commissioner hearing the present appeal is valid from the 26th of January, there is no defect on the ground of a prior date as sought to be made out on behalf of the appellants, I think this contention on behalf of the respondents as urged by Mr. J. C. Sinha is correct.
The date mentioned in the notification is the date when it actually was drafted and is valid, however, from the 26th and as such the date of drafting is immaterial. The appointment, therefore, is governed in terms of Section 5 of Act 3 of 1949 and it cannot be in any way held to be invalid. But it may also be stated here that the point of defect, if any, in the appointment of Additional Commissioner on the score of notification as is sought to be made out in this second appeal, in this Court, was not taken up in the Courts below and even on that ground the contention could be fit to be rejected. Since, however, the learned Counsel on either side took up the question on merits, it is clear that this argument of the learned counsel of the appellants must fall to the ground.
7. It is next urged that Ordinance No. 1 of 1949 providing for the appointment of Additional Commissioners and Act 3 of 1949 incorporating the provisions thereof must both be held to be 'ultra vires' as they are repugnant to Act 3 of 1947 which received the assent of the Governor General. Act 3 of 1949 did not receive such an assent and, therefore, to the extent to which Act 3 of 1949 is repugnant to Act 3 of 1947 must be held as null & void. The argument is that in terms of Section 18 (1), Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947), the Commissioners alone were vested with the power to hear appeals against the order of the House Controller, whereas under Act 3 of 1949 there is a list of Additional Commissioners who also have been given the same power which takes away a valuable right of the appellants as the appeal has got to be decided by an authority different from that provided for in Act 3 of 1947. It is urged that Act 3 of 1949 was purely an Act of the Bihar Legislature and cannot override Act 3 of 1947 which received assent of the Governor General.
8. Mr. J. C. Sinha, however, on behalf of the respondents has contended that there is no denying the proposition that if there be real repugnancy, Act 3 of 1949 which has not received the assent of the Governor General must yield to Act 3 of 1947, but it must be established as a preli minary condition that there is such a repugnancy, His contention is that the mere fact that Additional Commissioners have been given power to. hear appeals against the orders of House Controllers in addition to the Commissioner does not necessarily import any repugnancy between the two provisions of the respective Acts. He has drawn my attention to the case of -- 'Mangtulal v. Radlia Shyam', AIR 1953 Pat 14 (FB) (C), where their Lordships considered the meaning of repugnancy with reference to the previous decisions and enunciated in clear terms in what circumstances repugnancy can be held to arise.
The principle being, however, well settled that repugnancy would always mean inconsistency so that the two provisions cannot co-exist, it is the only test to apply to find out whether there is repugnancy in a particular enactment in another enactment on the provision appearing on the same question will not be synonymous with repugnancy. It may be that there is a mere variation or departure which is not the same thing as that they are inconsistent with each other. The case referred to above has gone into great details with regard to the enunciation of this consideration, and I am satisfied that in the present case the doctrine of repugnancy cannot be invoked, because if Additional Commissioners have been given power to hear appeals apart from the power of the Commissioner, the scope of the authority does not in any way encroach upon the right of a litigant to file an appeal from the order of the Controller to the proper appellate authority. The particular forum to hear an appeal, even if it is slightly different from the forum provided before, will not therefore mean that they cannot exist together.
But it is not necessary for me to elaborate this point further in view of many judicial pronouncements on this point. It is clear, however, that in this context repugnancy cannot be said to arise in any manner whatsoever. From the facts set forth above, it is also clear that even if the appointment of the Additional Commissioners would have been held to be invalid and 'ultra vires' either because of repugnancy or because of any technical oversight with regard to the date of appointment, the result of the order passed by the House Controller could not have been affected in the slightest degree, because the learned counsel for the appellants has not urged apart from what 1 have said above in the matter of substitution that there is any other defect in that order. That being so, even if the order passed on appeal by the Additional Commissioner were to be held as non-existent on account of the office of the Additional Commissioner itself being not duly constituted, at any rate, the order of the House Controller would be well operative and good.
9. The Civil Court has to pronounce upon the validity of the order passed by the limited Court of jurisdiction which is the Controller's Court, and it must be held to be final unless the Civil Court can declare that it is without jurisdiction. Mr. T. K. Prasad, however, has urged that it is not so because what the Controller has done is subject to correction or modification or even cancellation on appeal by the appellate authority and, therefore, what the Civil Court is required to pronounce upon if they feel it at all necessary, is the validity of the order of the appellate Court, and not that of the House Controller. He has drawn my attention to Section 18 (3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) which is in these terms :
"The decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision."
It is urged that it is the decision of the Commissioner which shall be final, and not the order of the House Controller. I am afraid, a plain reading of Sub-section (3) of Section 18, however, would make it clear that finality has been attached to the order of the Controller subject to any variation made therein by the Commissioner on appeal before him. Mr. J. C. Sinha has in this connection drawn my attention to the case of -- 'Brij Raj Krishna v. S. K. Shaw & Brothers', AIR 1951 SC 115 (D), wherein their Lordships of the Supreme Court stated in clear terms that finality is attached to the order of the House Controller. It is, therefore, urged that both in terms of the section and in terms of this pronouncement of their Lordships of the Supreme Court, finality attaches to the decision of the Controller subject to any decision on appeal. I think this argument must be accepted because there is no escape from that conclusion in view of the phraseology of this section itself.
Apart, however, from this matter, even if the authority of the Additional Commissioner to hear appeal against an order of the House Controller were found to be 'ultra vires', there is no question that the order of the House Controller will be still valid, and the Civil Court could not go be-yond that order to make a pronouncement that the authority of the Appellate Tribunal was beyond jurisdiction and, therefore, the order passed by the House Controller must be held to be incompetent. Such a view is wholly unwarranted. If the person aggrieved by the appellate order thought that the Appellate Tribunal had no jurisdiction he might seek his remedy in the way he is advised, because the Civil Court must be bound by the terms of this Act, viz., Act 3 of 1947, Sub-section (3) of Section 18 of which is relevant to determine this question.
10. Mr. T. K. Prasad has drawn my attention to a case of the Madras High Court as to whether an appeal is a continuation of the suit and whether it is the appellate judgment and decree which really matter even if the appellate judgment confirms the judgment and decree of the trial Court. That may be so, but so far as the Buildings (Lease, Rent and Eviction) Control Act is concerned, it is the House Controller who is a court of limited jurisdiction to whose order finality has been attached limiting the scope of the Civil Court to the narrow compass of deciding only its 'ultra vires' character and it cannot travel beyond the terms of the statute. If, therefore, there is any order passed by the Court of limited jurisdiction, which is beyond challenge in terms of the provisions of that enactment, the Civil Court is bound to respect it and it is no part of its jurisdiction to go further into that question. This matter was set at rest beyond any doubt by the same decision to which I have made reference, viz., the case of -- 'AIR 1951 SC 115 (D)'.
11. The next point which Mr. T. K. Prasad sought to make out of all this was with regard to Mr. Omar's appointment, that is, the person who was actually appointed as Additional Commissioner. In view of what I have said above, I do not think it is necessary for me to go into any detail with regard to it, because Mr. Omar was appointed by notification dated 13-11-49 and Mr. T. K. Prasad's argument is that Mr. Omar was not vested with the power under Act 3 of 1947 as was done in the case of his predecessor-in-office as Additional Commissioner, Patna Division, when such power was conferred by Gazette Notification dated 29th January 1949. This point was never raised in the court below and it is very difficult at this stage to say whether such power was conferred or not. Apart, however, from this, since I have taken the view that finality is attached to the House Controller's order, this argument must also be rejected.
12. For the reasons given above, the appeal must be dismissed with costs.