Rai Brij Raj Krishna & ANR Vs.
S.K. Shaw and Brothers [1951] INSC 6 (2 February 1951)
ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA,
B.K.
AIYAR, N. CHANDRASEKHARA
CITATION: 1951 AIR 115 1951 SCR 145
CITATOR INFO :
F 1957 SC 521 (10) R 1959 SC 492 (20) RF 1962
SC1621 (87) D 1963 SC 120 (12) R 1965 SC 111 (13) D 1970 SC1193 (8) D 1974 SC
818 (15,17) D 1979 SC1745 (10,11,15,16) R 1989 SC1110 (15)
ACT:
Bihar Buildings (Lease, Rent and Eviction)
Control Act (III of 1947), s.11--Order of Controller for eviction on the ground
of non-payment of rent--Suit to set aside order--Jurisdiction of civil
court--Question whether there was non-payment--Finality of Controller's
decision.
HEADNOTE:
Section 11 of the Bihar Buildings (Lease,
Rent and Eviction) Control Act, 1947, 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 nonpayment of rent, to order eviction of a tenant. Therefore, even if a
Controller has wrongly decided the question whether there has been non-payment
of rent, his order for eviction on the ground that there has been non-payment
of rent cannot be questioned in a civil court.
Queen v. Commissioners for Special Purposes
of Income Tax (21 O.B.D. 313) and Colonial Bank of Australasia v. Willan (L.R. P.C.
417) relied on.
CIVIL APPELLATE JURISDICTION: Appeal from a
judgment and decree of the Patna High Court dated 25th March, 1949, in A.S.
2280 of 1948 reversing an appellate _decree of the Subordinate Judge in Suit
No. 62 of 1948.
Baldev Sahay (T. K. Prasad, with him) for the
appellant.
N.C. Chatterjee (H.J. Umrigar, withhim) for
the respondent.
1951. February 2. The judgment of the Court
was delivered by FAZL ALL J.--This is an appeal from a judgment and decree of
the High Court of Judicature at Patna reversing the appellate decree of a
Subordinate Judge in a suit instituted by the respondents. The facts of the
case are briefly these. The respondents have been in occupation as a monthly
tenant of several blocks of premises belonging to the appellants at a monthly
rental of Rs. 112. The rent for the months of March, April and May, 1942,
having fallen into arrears, they remitted it along with the rent for June, on
28th June, 1947, by means of two cheques. As the appellants did not accept the
cheques, on 4th August, 1947, the respondents remitted the amount subsequently
by postal money order. On 12th August, 1947, the appellants, maintaining that
there was non-payment of rent -and hence the respondents were liable to be
evicted, under section 1-1 (1) (a) of the Bihar Buildings (Lease, Rent and
Eviction) Control Act, 1947 (Bihar Act III of 1947), applied to the House
Controller for the eviction of the respondents 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 section 12, where a tenant is in
possession of any building, he shall not be liable to be evicted there from,
whether in execution of a decree or otherwise, except-147 (a) in the case of a
month to month tenant, for nonpayment 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 ;" On
30th August, 1947, the respondents, whose money order had in the meantime been
returned by the appellants, 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 the both November, directing the eviction of the
respondents by 10th May, 1948, and holding that they had made themselves liable
to eviction by reason' of non-payment of rent. The order of the House
Controller was upheld by the Commissioner on appeal on the 27th April, 1948,
and thereupon the respondents filed the present suit in the Patna Munsif's
Court for a declaration that the order of the Controller dated the 10th
November, 1947, was illegal, ultra vires and without jurisdiction. The suit was
dismissed by the Munsif and his decree was upheld on appeal, but the 'High
Court decreed the suit holding that the order of the Rent Controller was
without jurisdiction.
The appellants were thereafter granted leave
to appeal by the High Court, and they have accordingly preferred this appeal.
The High Court 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 respondents 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 appellants 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 148 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 respondents to pay the arrears until the 28th
June, 1947. It appears that at the inception of the tenancy, the respondents
had paid one month's rent in advance, and it had been agreed between them and
the appellants 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 for 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 section 11(1) (a) of the Act.
The appellants 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, anal once that
decision had been arrived at, it could not be questioned in a civil court. This
contention was accepted by the first two courts, and the first appellate court
dealing with it observed as follows :-"But the Buildings Control Act has
authorised the Controller to decide whether or not there is nonpayment of rent
and it is only when he is satisfied that there has been nonpayment of rent that
he assumes jurisdiction. If the question of jurisdiction depends upon the
decision of some fact or point of law, and if the court is called upon to
decide such question, then such decision cannot be collaterally impeached (vide
12 Patna 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 Court can have no jurisdiction to
challenge the validity of such order." The High Court did not however
accept this view, and after referring to section 111 of the Transfer of149 Property
Act, proceeded to propound its own view in thesewords:-"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 section 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 nonpayment of rent' should be held to have intended to
protect a tenant from being evicted from a building in his possession for being
a defaulter in payment of rent, if he brings into Court all the rent due from
him before the order of his eviction comes to be passed ......
If, as contended for on behalf of the
respondents, section 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-section (1)of section 11, and subsection (3) of
section 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 Courts 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 150 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 respondent that the circumstances
disclosed in the petition 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 Court must be over-ruled." It seems to us 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 (8) (b) of section 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 application. 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 the
Code of Civil Procedure. 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 Commissioner of the Division, and it also
prescribes the procedure for the hearing of the appeal. Sub-section (3) 151 of
this section states that "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." 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 Commissioner. The Act
empowers the Controller alone to decide whether or not there is non-payment of
rent, and his decision on that question is essential before an order can be
passed by him under section 11. Such being the provisions of the Act we have to
see 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. Commissioners
for Special Purposes of the Income Tax(1), 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 exists, 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 (1) 21 Q.B.D. 313, at .319.
20 152 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." On the same lines are
the following observations of Sir James Colville in The Colonial Bank of
Australasia v. Willan(1), which is a case dealing with the principles on which
a writ of certiorari may be issued :-"Accordingly, the
authorities...establish that an adjudication by a Judge having jurisdiction
over the subject matter is, if no defect appears on the face 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 on the ground that any such
fact, however essential, has been erroneously found." 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 nonpayment
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 court. It seems
to us that on this short ground this appeal must succeed, and we (1) 5 P. C.
417, at p. 443.
153 accordingly allow the appeal, set aside
the judgment and decree of the High Court and restore the decree of the courts
below. The appellants will be entitled to costs throughout.
Appeal allowed.
Agent for the appellant: R.C. Prasad, Agent
for the respondent: S.P. Varma.
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