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Civil Revision No. 32 of 1949; decided on 18th December 1950.

(a) Sind Rent Restriction Act, (X of 1947), S. 20 (1) (2) Provincial Government delegating flowers of revision against Controller's order to Chief Judge, 'Court of Small Causes Karachi‑Chief Judge, held, not a Court‑Revision to High Court against order of Chief Judge not competent‑Civil Procedure Code (V of 1908), S, 115‑Karachi Small Causes Court Act (IV of 1929), S. 32.

The Sind Rent Restriction Act enacts that the Provincial Government should exercise the powers of revision under section 20 and has authorised the Provincial Government to delegate its powers to any person not below the rank of a judge of the Small Causes Court. There is therefore no provision in the Sind Rent Restriction Act that a judge, a subordinate of this Court, and such a judge only should exercise the powers of revision.

The Rent Controller constituted by the Act is an Administra tive Officer. It should be axiomatic that the Provincial Government cannot be regarded as a Court. It is clear from the wording of section 20 that the Provincial Government is empowered to delegate its power of revision not merely to a Judicial Officer, but to any Executive Officer of the required rank. Therefore the Chief Judge of the Small Causes Court when nominated by the Provincial Government to exercise its powers under section 20 , is not a Court, but an Administrative Tribunal.

The High Court's power of revision extends not to every Court, but only to those Courts whose subordination is established by appeal, reference, or revision. A person exercising the delegated authority of the Provincial Government under section 20 is not a Court at all.

The High Court has no power under section 32, Karachi Small Causes Court Act or under section 115 Civil Procedure Code to revise the proceedings of the, Chief Judge of the Small Causes ‑Court acting under section 20 of the. Sind Rent Restriction Act.

A. I. .R. 1943 Sind 233, I. L. R. Kar. (P. C.) 119, P. L. D. 1949 Lah. 30, P. L. D. 1949 Lah. 301, 55 Mad. 883, 55 Mad. L. J. 798, A. 1. R. P. C. 129, 27 Born. 424, 59 Cal. 55 (P.. C.) and 1931 A. C. 275 ref. To.

(b) Surd Rent Restriction Act (X of 1947), S. 1 (5) Exetnsion of life of Act by Administrator, Karachi‑Held, not H ultra vires‑Federal Capital Order 9948.

It is not ultra vires of the Administrator of Karachi to exercise the power conferred by section 1 (5) on the Provincial Government of extending the life of the Act. A reference to the establishment of the Federal Capital Order, 1948 shows that the Governor‑General either directly or through the Administrator is empowered to exercise executive authority in respect of all Provincial matters relating to Karachi. The extension of the life of this enactment is intra vires of the Administrator as the agent of the Governor‑General.

.‑This is an application filed under section 32 Karachi Small Causes Court Act against the order of the Chief Judge of the Karachi Small Causes Court passed under section 20 of the Sind Rent Restriction Act, 1947.

Section 20 of the Sind Rent Restriction Act as amended' reads :‑---

"(1) The Provincial Government may on an application to be made within seven days of any order made by the Controller under this Act call for the relevant record for the purpose of satisfying itself as to the legality or propriety of the order and as to the regularity of the proceedings, if .any, in which the order was made and may pass such order thereon as it deems fit and may stay the order of eviction under section 15 of the Act pending the haring and disposal of the matter.

(2) The Provincial Government may by general or special order direct that the powers conferred on it by subsection (1) shall subject to such conditions as may be specified in the order, be exercisable by a person not below the rank of a judge. Small Causes Court".

Section 22 of the Sind Rent Restriction Act reads :‑---

"An order made by the Provincial Government under section 20 and, subject to the provisions of that section, an order of the Controller shall be final and shall not be called in question in any Court".

The Provincial Government had by notification ordered that its revisional powers under section 20 should be exercisable by the Chief Judge of the Karachi Small Cause Court, nominating him by his personal name.

Several similar applications have been filed. In Revision Application No. 26 of 1949, we had referred to a Full Bench the; question, whether the revisional jurisdiction of this Court can be exercised to revise an order passed by a tribunal purporting to exercise: powers conferred by subsection (2) of section 20 of the Sind Rent Restriction Act, in order to reconsider the case of Pir Bakhsh Khan v. Darya Khan, A. I. R. 1943 Sind 233. Arguments before the Full Bench proceeded for some time, but were cut short by a compromise between the parties.

The case above mentioned related 'to section 19 of the Bombay Local Boards Act, which provides that an application maybe made to the District judge by a duly qualified person to contest the validity of the election of a member of the Local Board. Subsection (2) provides as follows :‑---

"An enquiry shall thereupon be held by a Judge, not below the grade of an Assistant judge, appointed by the Government either specially for the case or for such cases generally, and such judge may, after such enquiry as he deems necessary, pass an order confirming or amending the declared result of the election or the order of the Collector under section 18, or setting the election aside. For the purposes of the said judge may exercise any of the powers of a Civil Court, and his decision shall be conclusive. If he sets aside an election, a date shall forthwith be fixed and the necessary steps taken, for holding a fresh one".

Davis C. J. sitting with' Weston J. stated that if a judge gave a decision within his jurisdiction then the decision would be conclusive, but if be acted outside his jurisdiction then he ceased to act as a pcrsona designala, and became a Court subordinate to the High Court under section 115. It was thought that otherwise he might pass a sentence of decapitation or imprisonment or fine without possibility of redress.

In Ryots of Garabandho v. Zamindar of Parlakimadi I. L. R. Kar. (P. C.) 119, Viscount Simon pointed out that, unless taken away by special enactment, there is a pirima facie right in any person aggrieved by an order made in excess of jurisdiction to challenge it by a suit in the ordinary Civil Court, but if this right has been taken away by the Legislature in any case in which the Board of Revenue or any other body exercises judicial functions it may well be that the only method of challenging a judicial determination on the ground of jurisdiction is by appeal to His Majesty in Council. This was the answer of the Privy Council to the suggestion that the High Court must necessarily have a right of control over individuals or official bodies exercising judicial function in the Mufussil by way of certiorari.

It is a doctrine well established that a person or body exercising judicial functions under a jurisdiction limited by enactment is not the final arbiter of such jurisdiction, but the ordinary Courts have power to enquire in a suit whether such a person or body has acted within the limits of such jurisdic tion.

While there is thus reason to doubt the reasoning in the decision of Davis C. J. and Weston J., we are however of opinion that it is not necessary to refer this matter to a Full Bench in order to arrive at a determination in the present case, for their decision may be distinguished on the ground that in that case the Legislature itself had enacted that a judge should exercise the powers of enquiry under section 19, whereas in the present case the Sind Rent Restriction Act has enacted that the Provincial Government should exercise the powers of revision under section 20 and has authorised the Provincial Government to delegate its powers to any person not below the rank of a judge of the Small Causes Court. There is therefore no provision in the Sind Rent Restriction Act that a Judge, a subordinate of this Court, and such a judge only should exercise the powers of revision.

The opinion has been held by certain Judges that any person or body determining the rights of citizens by judicial process is a Civil Court and that every such Court is subordinate to a High Court within the meaning of section 115 Civil Procedure Code. This was the ground of the decision in Kishen Chand v. Nur Muhammad P. L. D. 1949 Lah. 30. But in Mian Sultan Ali Nanghiana v. Mian Nur Hussain P. L. D. 1949 Lah. 301, a Full Bench of the same Court overruled the former case. We adopt with respect these observations in the judgment of Munir. A. C. J. He stated :---

"Unless expressly provided by statute, and such cases though rare in England are abundant in our Legislation, that a special tribunal will be judge of its own jurisdiction Civil Courts are competent and it is for them alone to determine the question whether a special tribunal has acted within jurisdiction or exceeded its limits, but that does not mean or necessarily imply that the tribunal is subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure. Though that section contemplates some of the well recognized cases where a prerogative writ would issue in England, and the jurisdiction of the High Court of England and that of the High Courts in Pakistan to interfere in revision are analogous, it is a mistake to suppose that these two jurisdictions are identical and do not differ in their scope and character and that the High Courts in Pakistan will interfere in revision where a writ would go in England".

In the Privy Council case above stated, it was said "At one time it had been held that the Board of Revenue exercised its func tion under Chapter II, Madras Estates Land Act, as a Civil Court and was subject as such to the revisional jurisdiction entrusted to the High Court by section 107 Government of India Act, and section 115 of the Code. This opinion however was overruled by a Full Bench in Raja of Mandasa v. Jagannayakulu, 55 Mad 883. Their Lordships have no doubt that the decision of the Full Bench was on this point correct". In Raja of Mandasa v. Jagannayakulu 55 Mad. 883, the decision was merely that a Division Bench should not refer to a Full Bench a question already decided by a Full Bench. The decision of the Full Bench thus indirectly approved is in the case of Ippili Raghunandha Patro v. Govinda Patro, 55 Mad. Law Journal 798, where the majority of the Full Bench decided that the High Court either under section 115 of the Civil Procedure Code or under section 107 of the Government of India Act had no powers to revise orders of the Board of Revenue under Chapter XI of the Madras Estates Land Act. They rejected the doctrine that every Court as such is subordinate to the High Court. Sub ordination must be established by means of some connecting thread of appeal, reference, or revision.

We have thus ample authority that the High Court's power of revision extends not to every Court; but only to those Courts whose subordination is established by appeal, reference, or revision.

Further more it appears that a person exercising the delegated authority of the Provincial Government under section 20 is not a Court at all. One of the Chief functions of the Rent Controller is, as in this case, to allot premises. As was said in the Labour relations Board of Sasket chew, an v. John East Iron Works, A. I. R. P. C. 129.

"There are many positive features which are essential to the existence of Judicial power, yet which by themselves are not conclusive of it, and any combination of such features will fail to establish a judicial power if, as is a common characteristic of so called administrative tribunals, the ultimate decision may be determined not merely by the application of legal principle to ascertain facts, but by consideration of policy also."

It appears to us that these words are applicable to the functions of the Rent Controller in deciding between various claims to premises which fall vacant. A reference may also be made, to .the judgment of Sir Lawrence Jenkins in Hari v. Secretary of State, 27 Bom. 424 where that eminent judge came to the conclusion that the tribunal of appeal constituted by the Bombay Improvement Act was not a Court of Justice. This decision was referred to in Secretary of State for India v. Hindustan Cooperative Insurance, 59 Cal. 55 (P. C.) in the following words‑:‑

"Sir Lawrence Jenkins held for what seem to their Lordship to be very cogent reasons, that the Bombay Tribunal was not a Court, but a body free from the control and superintendence of the High Court. It is however unnecessary for their Lordships to come to any decision of this aspect of the case".

In Shell Company of Australia v. Federal Commissioner of Taxations, 1931, A. C. 275, Lord Senkey delivering a judgment of the Board, stated at page 279 :‑

"It may be useful to enumerate some negative propositions on this subject, 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision, 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body".

In our view there can be no doubt that the Rent Controller constituted by the Act is an Administrative Officer. We think it axiomatic that the Provincial Government cannot ‑be regarded as a Court. It is clear from the wording of section 20 that the Provincial Government is empowered to delegate its power of revision not merely to a Judicial Officer, but to any Executive Officer of the required rank. We, therefore, hold that the Chief Judge of the Small Causes Court when nominated by the Provincial Government to exercise its power under section 20 is not a Court, but an Administrative Tribunal.

It was contended by the applicant that it was ultra vires of the Administrator of Karachi to exercise the power conferred by section 1 (5) on the Provincial Government of extending the life of the Act. A reference however to the establishment of the Federal Capital Order, 1948 shows that the Governor‑General cither directly or through the Administrator is empowered to exercise executive authority in respect, of all Provincial matters relating to Karachi. We, therefore, consider that the extension of the life of this enactment was intra vires of the Administrator as the agent of the Governor‑General.

The result is that this Court has no power under section 32, Karachi Small Causes Court Act or under section 115 Civil Procedure Code to revise the proceedings of the Chief Judge of the Small Causes Court acting under section 20 of the Sind Rent Restriction Act.

This application, which has been summarily 'heard without notice to the opponents, will thus be dismissed.

K. M. A.JA. H Petition dismissed.

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