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PETITIONER: RAI BRIJ RAJ KRISHNA AND ANOTHER

       Vs.

RESPONDENT: S.K. SHAW AND BROTHERS.

DATE OF JUDGMENT: 02/02/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL 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  non- payment of rent, to order eviction of a tenant.   Therefore, even if a Controller has wrongly decided the question wheth- er  there has been non-payment of rent, his order for  evic- tion  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. 146

JUDGMENT:     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

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Subordinate Judge in Suit No. 62 of 1948.     Baldev  Sahay  (T. K. Prasad, with him) for  the  appel- lant.     N.C. Chatterjee (H.J. Umrigar, withhim) for the respond- ent.     1951.  February 2. The judgment of the Court was  deliv- ered 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 insti- tuted 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  re- spondents  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  respond- ents 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  Control- ler  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 therefrom, whether in  execution of a decree or otherwise, except-- 147      (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  with- out 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   judg- ment in the case, but it seems to us that the point ’  aris- ing  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

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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  subse- quent 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  Con- troller 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 collater- ally  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  jurisdic- tion 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 of- 149 Property  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  expres- sion ’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 determi- nation  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

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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  forfei- ture  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  conse- quences,  cannot and is not in accordance with  the  circum- stances  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 "Notwithstand- ing  anything contained in any agreement or law to the  con- trary,"  and  hence  any attempt to  import  the  provisions relating  to the law of transfer of property for the  inter- pretation  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 condi- tions  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  pro- vides  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  Divi- sion,  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 Commission- er  and subject only to such decision, an order of the  Con- troller shall be final, and shall not be liable to be  ques- tioned  in any Court of law whether in a suit or other  pro- ceeding 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  Commis- sioner.  The  Act empowers the Controller  alone  to  decide

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whether  or not there is non-payment of rent, and his  deci- sion  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  estab- lished 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  conclu- sively 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  legis- lature  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.  Wil- lan(1), which is a case dealing with the principles on which a writ of certiorari may be issued :--     "Accordingly, the authorities...establish that an  adju- dication  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  evic- tion  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

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(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.