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Civil Revision Nos. 26, 28, 29 and 33 of 1948, decided on 18th August 1498 by the above Division Bench upon a reference to it by single judge, who finally disposed of the revision on 11th October 1948.
S. 15 (4), ultra vires of Governor‑--Government of India Act (1935), S. 93 (1) Proviso‑High Court's powers not affected.
It is open to the Legislature to direct that in a particular case no appeal would be allowed or the right of revision was taken away, but, by virtue of the check contained in the proviso to section 93 (1) Govern ment of India Act (1935), the Governor has no right or authority to interfere with the existing powers of the High Court.
S. (2) (b) -- "Controller" appointed by Provincial Government a Civil Court subject to revisional jurisdiction of High Court‑--Civil Procedure Code S. 9-‑Dispute of a civil nature‑Civil Procedure Code, S. 110.
The duties that have been assigned to the "Controller" under the Act concerned the determination of disputes between one citizen and another as to the conditions upon which the property of one could be held by the other or the amount which one should pay to the other for its use or occupation. These disputes are undoubtedly of a civil nature involving as they do "the right to property" within the meaning of the explanation to section 9, Civil Procedure Code, and are not of a political or executive description.
The "Controller" under the Act, therefore, exercises all the powers of a Civil Court and must be regarded as such. As a Civil Court the "Controller" is subordinate to the High Court and subject to its revisional jurisdiction under section 115, Civil Procedure Code or section 44, Punjab Courts Act. I L R (1947) Lah. 1, I L R (1939) All. 345 rel. on.
Fazal‑ul‑Rahman for Petitioner.
Muhammad Latif for Respondent.
This order shall dispose of Civil Revision Nos. 26, 28, 29 and 33 of 1948. In all these revisions the petitioners, who are the tenants, were ordered to be evicted by the Controller in accordance with the powers given to him under the Punjab Urban Rent Restriction Act, 1947, and their appeals against the same were also dismissed. They came up in revision to this Court. These were heard in the first instance by a learned single judge, before whom a preliminary objection was taken that no revision was competent and it was expressly barred by the Act itself. The learned Judge was of the opinion that no revision lay but in view of the importance and com plexity of the question involved, he considered it desirable that the matter be decided by a larger Bench. It has now been heard by a Division Bench. The sole question that falls for determination is
"Whether the High Court has power to revise the order made under Act) "
The first Legislation to restrict the increase of rents of certain premises was enacted in 1941 Punjab Act X of 1941. It was first published in the Gazette on 3rd May 1941 and was to come into force in such urban areas and on such dates as the Provincial Government might by notification in the Official Gazette appoint in this behalf and was to remain in force in each such area for five years from the date of its enforcement in that area unless such period was extended by a resolu tion of the Punjab Legislative Assembly. On the expiry of five years, it was extended and by the time it was to lapse finally, the Province was without a Ministry and the Governor had assumed to himself the administration of the Province by proclamation under section 93, Government of India Act. It was during this 93 rule that the Punjab Rent Restriction Act, 1947 (Punjab Act VI of 1947) was passed.
The earlier Act of 1941 simply forbade the landlords from claiming rent above the "standard rent" or ejecting tenants so long as they were willing and ready to pay the rent permitted under the Act. The decision of all the questions arising under the Act was left to the ordinary Civil Courts and no special direction was given as to the course of appeal or revision.
The new Act of 1947 was recast. It applies to all urban areas in the Punjab and sets up a new machinery for determining rent and performing the functions under the Act. The Provincial Government appoints a person known as "Controller." On the application of the tenant or the landlord the "Controller" is to hold an enquiry and determine the "fair rent" in accordance with the principles detailed in section 4. Sections 5 to 8 prohibit increase in "fair rent" directly or indirectly and provision is made for adjustment in case where more than the "fair rent" had been charged. Sections 9 to 12 deal with the allied matters. Section 13 is the principal part of the Act. It elaborately deals with the conditions upon which a tenant might be evicted or the landlord might be put into possession. Section 13 empowers the "Controller" not to entertain applications on matters already decided by him. Section 15 allows appeal but bars revision and I shall revert to it presently. Section 16 gives the "Controller" or the Appellate Authority" the same powers of compelling the attendance of witnesses or the production of evidence as are vested in a Court under the Civil Procedure Code of 1908. Section 17 provides for the execution of the orders made under the Act in the same manner as decrees of a Civil Court in order to work the Act properly, a duty is cast upon the tenant and the landlord to furnish the requisite particulars and its contravention is made punishable under section 19 upon complaint filed with the sanction of the "Controller" in writing. Section 20 authorises the Provincial Government to make rules and section 21 repeals the old Act of 1941. This is the entire Act.
Section 15 prescribes the manner in which the order of the "Controller" might be contested. It is as follows:-
"(1) (a) The Provincial Government may, by a general or special order by notification confer on such officers and authorities as they think fit, the powers of appellate authorities for the purposes of this Act, in such area or in such classes of cases as may be specified in the order.
(b) Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order or such longer period as the appellate authority may allow for reasons to be recorded in writing, prefer an appeal in writing to the appellate authority having jurisdiction.
(2) On such appeal being preferred the appellate authority may order stay of further proceedings in the matter pending decision on the appeal.
(3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further enquiry as it thinks fit either personally or through the Controller.
(4) The decision of the appellate authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of Law whether in a suit or other proceedings by way of appeal or revision."
By Notification No. 1562‑Crl, 47/9224, dated 14th April 1947, all Subordinate Judges, First Class, were appointed "Controllers" and by Notification No. 1562‑Crl.‑47/9228, dated 14th April 1947, all District judges were designated as "Appellate Authority."
The intention of the Act is unambiguously clear from subsection (4) of section 15 above. It declares the appellate order or in its absence the Controller's order as final and "not liable to be called‑in‑question in any Court of Law" in any form. But it was strenuously contended by the learned counsel for the petitioners that both the "Controller" and the "Appellate Authority" are "Civil Court" and the Governor acted in excess of his powers in depriving the High Court of its inherent jurisdic tion of revision and control.
The term "Court" is not defined in the Civil Procedure Code. It is explained in the Law Lexicon of British India by P. Ramanatha Iyre at p. 254 (1940 Edn.). A Court is defined in Coke on Littleton as a place wherein justice‑is judicially administered.
"In every Court, there must be at least three constituent parts the actor, reus and judex the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done to ascertain, and by its officers to apply, the remedy.
Court is a body in the Government to which the public administration of justice is delegated; an organized body with defined powers, meeting at certain times and places, for the bearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers viz., attorneys and counsel to present and manage the business clerks to record and attest its acts and decisions, and ministerial officers execute its commands and secure order in its proceedings.
Court is:
a tribunal empowered to hear and determine issues between parties upon pleadings either oral or written, and upon evidence to be adduced under well‑‑defined and established rules, according to settled principles of law."
In the laws of England by Halsbury (1909 Edn.) at p. 8 the term "Court" has inter alia the original meaning of the King's Palaces, and has acquired the meaning of the place where justice is administered and thence again the meaning of the persons who exercise judicial function under authority derived either immediately or mediately from the King. All tribunals, however, are not Courts, in the sense in which the term is here employed, namely, to denote such tribunals as exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction. As a general principle, all Courts must be open to the public though the judge may for good and sufficient reason order that the public, or a certain section of the public, shall be temporarily excluded.
A suit of a civil nature may be defined as a suit, the object of which is the enforcement of a civil right or civil obligation. The word "civil" simply means "of or becoming a citizen." So a suit brought for the enforcement of the rights or obligation of a person as a citizen of the State is a suit of a civil nature. The right or obligation may relate to another citizen or to the State itself. Hence a suit by or against the Government or a local authority like a municipality can be one of a civil nature. But the rights and obligations must relate to the private lives of citizens. Political questions cannot be held to be covered by the expression "civil rights", vide Chitaley's Code of Civil Procedure (4th Edn) page 100.
In Municipal Board, Benaras v. Jokhun A I R (26) 1939 All. 394 at page 397: (I L R (1939) All. 345), dealing with the definition of civil suits within the meaning of section 9, Civil Procedure Code, it was observed:
"In our view it is not the status of the parties to the suit but the subject‑matter of the suit which determines whether or not the suit is one of a civil nature."
The word "property" refers to all objects which can be owned by a person. The object owned may be a tangible one, whether movable or immovable or may be an intangible one, as for instance, patents, copyrights, trade marks or rights of franchise, rights of fishery, rights of ferry, hats and the like. Suits relating to such property are suits of a civil nature. (The Code of Civil Procedure by Chitaley at pp. 100‑01).
The duties that have been assigned to the "Controller" under the Act concern the determination of disputes between one citizen and another as to the conditions upon which the property of one could be held by the other or the amount which one should pay to the other for its use or occupation. These disputes are undoubtedly of a civil nature involving as they do "the right to property" within the meaning of the explanation in section 9, Civil Procedure Code, and are not of a political or executive description. It is also significant that experienced judicial officers were selected to act as "Controllers" or "Appellate Authority" presumably for their knowledge of civil law and procedure and their training in sifting facts and appreciating evidence. It is true that there was nothing to force the Provincial Government to restrict its field of choice to the judicial cadre; but the fact that it was indicated the anxiety of the Government that the members of the public, though hampered to certain extent in the interest of public good in the freedom of their contracts, should find no legitimate cause for complaint that their valuable rights were to be determined by inexperienced or incompetent officers. The "Controller" under the Act exercises all the powers of a Civil Court and must be regarded as such.
A very valuable guidance is contained in the Full Bench judgment, Works Manager, Carriage and Wagon Shops, Moghalpura v. Hashmat, reported as I L R 1947 Lah. 1: (A I R (33) 1946 Lah. 316). The case arose under the Payment of Wages Act (IV of 1936) and section 15 empowered, the Provincial Government to appoint any "Authority" to hear and decide all claims arising out of deductions from the wages of persons employed in a certain area. By section 17; the direction of the Authority was final, The Full Bench was called upon to decide whether the "Authority" was a Civil Court and whether the said Authority was subject to the revisional jurisdiction of the High Court At p. 13 it was observed
"One of the fundamental tests whether a certain Tribunal is a Court or is not so is whether it exercises jurisdiction by reason of the sanction of the law or whether jurisdiction is given to it by the voluntary submission of the parties to a dispute. It is clear that in the present case the "Authority" is brought into existence by the Provincial Government in pursuance of an Act passed by the Central Legislature. This Tribunal is, therefore, created by the sovereign power and performs the delegated functions of the sovereign power. If a dispute arises between the employer and the employee it is the function of the sovereign power to adjudi cate upon this dispute. In most cases this power has been delegated by the sovereign power to Civil Courts. It is however, open to the sovereign power to delegate its authority to a special tribunal . . . . Another important test whether a certain tribunal is or is not a Court is whether it can take cognisance of a lis and whether in exercising its functions it proceeds in a judicial manner . . . . If a Tribunal exercises the judicial powers of the State it does not make the least difference whether it is designated as an Authority' or a 'Commissioner' or a 'Tribunal'."
On the analogy of the Commissioner under the Workmen's Compensa tion Act, the Authority" was also held to be a Civil Court subject to the appellate jurisdiction of the High Court and a Court subordinate to the High Court within the meaning of section 115, Civil Procedure Code.
It would be obvious from the above that the "Controller" under the Act is a Civil Court engaged in the determination of a dispute of a civil nature. A "Civil Court" as such is subordinate to the High Court and subject to its revisional jurisdiction under section 115 or section 44, Punjab Courts Act. It might be added that the Act does not itself create rights, for the determination of which a special tribunal was constituted to follow a special procedure. The right is already there. Its determination has been made speedy and some restraint has been placed upon the powers of the landlords to evict tenants without reference to the "Controller" under the Act.
The finding that the "Controller" under the Act is a "Civil Court" does not dispose of the case. There is yet another hurdle that has to be crossed. It was open to the Legislature to direct that in a particular case no appeal would be allowed or the right of revision was taken away. It has been shown above that under subsection (4) of section 15 "revision" was disallowed but the contention for the petitioner is, that the Governor could not by virtue of his authority under section 93 Government of India Act, 1935, do anything which would impair the jurisdiction of the High Court given to it under the Constitution Act or some other existing law. Section 93 may now be quoted.
"93. (1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation‑
(a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discre tion
(b) assume to himself all or any of the powers vested in or exercis able by any Provincial body or authority; and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority;
Provided that nothing in this subsection shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a---
(3) A Proclamation under this section‑
(a) shall be communicated forthwith to the Secretary of State and shall be laid him before each House of Parliament;
(b) unless it is a Proclamation revoking a provisions Proclamation, shall cease to operate at the expiration of six months;
Provided that, if and so often as a resolution approving the con tinuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of twelve months from the date on which under this subsection it would otherwise have ceased to operate but no such Proclamation shall in any case remain in force for more than three years.
(4) If the Governor, by a Proclamation under this section, assumes to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect antil two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re‑enacted by Act of the appropriate Legislature, and any reference in this Act to Provincial Acts, Provincial law, or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law.
(5) The functions of the Governor under this section shall be exercised by him in his discretion and no Proclamation shall be made by a Governor under this section without the concurrence of the Governor‑General in his discretion.
The proviso to subsection (1) above is very important. An emergency may arise and the Governor may be left alone without any Minister to advise him. The entire burden of the Administration may fall on him and section 93, Government of India Act, empowers him to "assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority." He shall have thus power to legislate in the same manner as the Provincial Legislature but subject to one check contained in this proviso; that the Governor shall have no right or authority to interfere with the existing powers of the High Court. While the Legislature representing the popular will might limit or reduce the powers of the High Court by appropriate legislation, the Governor acting under section 93, could not. The reason for this difference is founded on wisdom and foresight. Under the Constitution Act, the people's Government in the Province is the rule and the Governor's rule in the Province an exception. The Governor has been given only those powers which the exigencies of the situation demanded and tampering with the High Court‑the only bulwark against executive excesses‑would encourage the belief that Democracy was at an end. The same provision exists in section 45 restraining the Governor -General from taking away the powers of the Federal Court.
The learned counsel for the respondents emphasised that subsection (4), which placed the Governor's act on the same footing as that of the Legislature, made no reference to the limitation mentioned above. This was not necessary. Subsection (4) explained the constitutional position of the Governor's act and subsection (1) defined the limits of the Governor's act. Reliance was placed on Manohar v. Mangal Das, A I R (12) 1925 All. 800: (87 I C 351) and Mohideen v. Bukshi Ram A I R (13) 1926 Rang. 33; (3 Rang. 410 (F B). These do not touch the matter in issue. These judgments refer to cases excluded by the Legislature from the cognizance of Civil Courts and afford no guidance as to the powers of the Governor to legislate under section 93.
I hold, therefore, that the Governor by enacting subsection (4) of section 15, Punjab Urban Rent Restriction Act, 1947, and depriving the High Court of its statutory powers of revision over a subordinate Court, had acted ultra vices, and the High Court still retains its jurisdiction under section 115, Civil Procedure Code.
The cases shall now go back to the Single Bench for decision on merits. As the point involved was of considerable difficulty, the parties are left to bear their own costs before this Bench.
--I have had the advantage of reading the judgment prepared by my learned brother Muhammad Sharif J. and I am in complete agreement with his conclusion upon the point which was referred by me to this Bench. That conclusion, however, is contrary to the view which I was inclined to take concerning certain questions which arose upon the point, when they were argued before me sitting in Single Bench, and it is, therefore, necessary that I should set out the reasons which have induced me to after my opinion. It is proper that I should at the very outset pay a tribute to the cogency of the argument presented before us by Mr Fazlur Rahman on behalf of the petitioners in Civil Revision No. 26 of 1948, as that has been principally responsible for enabling me to correct my views on certain of the very important questions which arise in these cases.
As I mentioned in my order of reference, the point under reference has arisen in relation to four different cases, in each of which a tenant of premises in Lahore town has been ordered by the Controller appointed under the Punjab Urban Rent Restriction Act, 1947, in exercise of powers conferred by section 13 of that Act, to be evicted from the rented premises, and in each case the tenant took an appeal before the District Judge who has been appointed to be an Appellate Authority in respect of orders of the Controller, under section 15 of the said Act. In each case, the appeal failed and the tenant thereupon petitioned this Court on the revision side. The question was raised by the respondents in each case that such a revision was not competent under section 115, Civil Procedure Code, by reason of the fact that by subsection (4) of section 15, Rent Restriction Act, 1947, a revision from an order of the Controller or an Appellate Authority is expressly barred. In order to meet this objection, it has been necessary for learned counsel on behalf of the petitioners to present an elaborate argument of which the main stages may be stated somewhat as follows i.e., that having regard to the functions of the Controller under the Rent Restriction Act, 1947, which involve almost exclusively the determination by judicial process of justiciable issues of a purely civil nature, and to the fact that the Controllers exercises jurisdiction under a statute and not by voluntary submission, he must be regarded as a Court, secondly, he must be regarded as a Court subordinate to the High Court since the functions conferred upon him under the Rent Restriction Act, 1947, are mere extensions of his ordinary functions as a Subordinate judge which he continues to pttform under the superintendence and control of the High Court, and thirdly, that the express exclusion of revision by the High Court, effected by subsection (4) of section 15 Rent Restriction Act 1947 is void and of no effect, being ultra vires of the Governor in view of the proviso to subsection (1) of section 93, Government of India Act, 1935 (hereinafter referred to as the "Constitution Act"). I propose to examine these arguments in the order in which they have been stated above.
It is clear from a perusal of the provisions of the Rent Restriction Act, 1947, that its principal purposes are to provide for a graduated increase of rents of the specified premises, situated in urban areas, while at the same time protecting tenants from demands for premiums or excessive rents by landlords, and further to provide for protection of sitting tenants by the creation of what may be compendiously described the furnishing of proof regarding certain specified acts of commission or omission by the tenants which will justify forfeiture of the statutory tenancy, or of certain specified needs of the landlord, which if establish ed, will justify restoration of the premises to him. In essential respects the new Act follows closely the provisions of an English Act entitled the "Increase of Rent and Mortgage Interest (Restrictions) Act, 1920" which appears to be the prototype of all such legislation. It incorporates also a number of the provisions contained in the earlier Punjab Urban Rent Restriction Act 1941. In considering the provisions of the new Act, it will be useful and instructive, to compare them at the same time with each corresponding provision in the English Act and the earlier Punjab Act. Section 4, new Rent Restriction Act, provides for the determina tion of the "fair rent" of a building by the Controller. In order to do so, the Controller shall first fin the "basic rent" which essentially would appear to be that prevailing during the year 1938, for the same or similar accommodation, although the Controller is required also to take into consideration the rental value of the building as entered for the purposes of property tax recoverable by any local body. To such "basic rent", in order to provide for the change of conditions in the intervening eight years, the Controller is empowered to make additions for which maxima are fixed varying with the different classes of buildings specified in this section. Essentially, the function of section 4 is to provide an increased scale of "standard rent" beyond that provided by the Rent Restriction Act of 1941, which laid down, that the standard rent" in relation to which the Act applies should be the rent at which they were let on 1st January 1939 or the nearest date to that date, either before or after, when they were actually let, or in other cases, such rent as the Court might fix. "The Court for the purposes of the Rent Restriction Act, 1941, was the Court having cognizance of the suit or proceeding;" if any, in relation to which any question arose for decision or any order fell to be made under the Act, in other words, jurisdiction in respect of all matters arising under the Rent Restriction Act, 1941, was vested in the civil Courts. Under the English Act "standard rent" was fixed, in the same way as under the Rent Restriction Act, 1941, in relation to a certain date, viz., 3rd August 1914. That Act as well as the Rent Restriction Act, 1941, provided for permitted increases of rent, by reason of any improvements or alterations made by the landlord and any increase of rates or taxes. In this connection, reference may be made to section 2, English Act, and sections 6 and 8 Rent Restriction Act, 1941: similar provisions are contained in sections 5 and 9, Rent Restriction Act 1947. Sections 6 and 7, Rent Restriction Act, 1947, impose restraint upon a landlord in regard to claiming or receiving any sums in excess of the "fair rent" by way of fine or premium or otherwise, and nullify any agreement made by the tenant for payment of any such sum. The restriction is extended to cover cases of renewal of tenancies. Similar provisions are found in sections 5 and 9, Rent Restriction Act, 1941, and in sections 1 and 8, English Act. By section 8, Rent Restriction Act, 1947, any sums paid by a tenant in excess of the maxim a fixed by the Act are made recoverable at law. A similar provision will be found in section 14, Rent Restriction Act, 1941, and in sections 1, 8 and 14 of the English Act, section 10, Rent Restric tion Act, 1947, deals with quite enjoyment by the tenant, free of interference, vexatious and otherwise, by the landlord, it incorporates the principle laid dowel in clause (c) of section 108, T. P. Act, with increased particularity in certain respects. Although this section has not been applied to this Province, its principles would be applied by the Courts, in cases not governed by any other statute. It also confers powers upon the Controller, if moved by the tenant, and if satisfied the landlord to restore any amenities of which he has deprived the tenant. Section 11, Rent Restriction Act, 1947, is wholly new; it confers powers upon the Controller to regulate the use by a landlord of his own property, inasmuch as within the urban areas, the landlord may not convert a residential building into a non‑residential building, i.e., as defined in clause (d) of section 2, a building used solely for the purpose of business or trade. The power thus conferred would appear to be purely executive, although subject to appeal as provided by section 15. No such provision is to be found in the Rent Restriction Act, 1941, or in the English Act. By section 12, Rent Restriction Act, 1947, the Controller is empowered on application by a tenant, and after making such enquiry as he thinks necessary to permit the tenant to carry out necessary repairs which the landlord has failed to effect and to deduct the cost from the rent. A similar provision is contained in clause (f) of section 108, T. P. Act, where however the tenant is directly empowered to act without interference by any authority; the ultimate decision as to the propriety of any action taken under this clause by a tenant would of course rest with the ordinary Civil Courts. Section 13, Rent Restriction Act, 1947, deals with the eviction of tenants, and the first subsection lays down that evictions shall be effected by order of the Controller, and in no other ways. Subsection (2) specifies the acts of omissions of a tenant which entail forfeiture of the tenancy, whether it be contractual or statutory at the time when the question arises. The grounds of forfeiture may be considered seriatim. Firstly, there is non -payment of rent by specified dates, comparison may here be made with clause (1) of section 108, T. P. Act. Secondly, where the tenant transfers his interest or sublets any part of the rented premises, without the written consent of the landlord, this varies the legal position some what from that laid down in clause (j) of section 108, T. P. Act, under which such transfers were authorised subject to the terms of the contract or any local usage. Thirdly, where the tenant uses the premises for a purpose other than that for which they were leased in such manner as to injure them, these are matters for which provision is made in clause (o) of section 108, T. P, Act. Fourthly, where the tenant is guilty of conduct, rendering him a nuisance to his neighbours, there is no such provision in the Transfer of Property Act but a similar provision is contained in the proviso to subsection (2) of section 10, Rent Restriction Act, 1941, and in section 5 (1) (b) of the English Act, Lastly, where in respect of certain buildings the premises are left unoccupied for a continuous period of four months without reasonable cause ; this provision is wholly new, nothing similar being found in the Transfer of Property Act, or in the Rent Restriction Act, 1941, or in the English Act. It should be noted that forfeiture by reason of some thing done or omitted to be done by the tenant may be ordered by a Controller upon application by the landlord, after giving a reasonable opportunity to the tenant to show cause against the application, and if the Controller is satisfied that the a‑ct or omission alleged is proved. The various needs of a landlord which will justify a claim to be restored to possession of the rented premises when the tenancy has become statutory', are specified in subsection (3) of section 13; briefly, it is necessary for the landlord to show that he requires the premises for his own use, and that he is not in possession of any other premises of, the same kind in the same urban area, and further that he has not created the need in himself by vacating any similar premises within the same urban area since the Act came into force. Provisions of the same kind, though not quite so elaborate are contained in the proviso to subsection (2) of section 10, Rent Restriction Act, 1941, as well as in section 5 (1) (d) of the English Act. It is made a condition of an order by the Controller upon application by a landlord under the subsection, that the Controller should be "satisfied that the claim of the landlord is bona fide," but there is no express mention of any enquiry by the Controller. I am unable, however., to regard these omissions as having the effect of enabling the Controller to act to the prejudice of a tenant, whose possession is protected by subsection (1) of section 13, without notice to the tenant, and it seems to me that the requirement of such a notice and of enquiry are implied in the use of the expression "is satisfied that the claim of the landlord is bona fide." Section 13 further empowers the Controller upon application by a tenant who has been evicted in order to restore possession to the landlord, to restore the tenant to possession if the landlord does not himself occupy the premises within a specified time; a similar provision will be found in section 11, Rent Restriction Act, 1941 and in section 5 (6), of the English Act. By subsection (5) of section 13, the Controller is empowered to impose a penalty upon a landlord who makes a frivolous or vexatious application for eviction of the tenant; the imposition of the fine is made dependent upon the Controller being satisfied that the application was frivolous or vexatious, and the condition obviously imports the necessity of enquiry in relation to a claim by the tenant which the landlord will be at liberty to resists. No such provision is to be found in any of the other statutes with which comparison is being made. Section 14, Rent Restriction Act, 1947, empowers the Controller to reject summarily any application by a landlord for the eviction of a tenant, "which raises substantially the same issues as have been finally decided in a former proceeding under this Act." This imports the principle of res judicata, and imposes a duty upon the Controller to satisfy himself that the issues involved in the two applications are substantially the same; ordinarily, such a question involved contest between the parties, namely, the landlord contending in favour of the competency of the new application, and the other party, namely, the tenant, contending that the new application is barred by law. As the power under section 14 is one of summary rejection, it is possible to conceive of its being exercised without notice to the tenant, but notwithstanding this, the power given by section 14, is essentially of judicial nature. So far as I can see, no similar power is provided by the other statutes with which the terms of the new Act are being compared, although since all proceedings under the other Acts would lie in a civil Court, it would be open to the party affected to invoke the principle of res judicata.
Taking these provisions in the new Act, as a whole, there are only two which appear to me to be essentially of an executive nature, viz., that in section 4, which empowers the Controller to fix the "fair rent" and that in section 11, which gives the Controller power to permit of refuse the conversion of a residential building into a non‑residential building. Under the Rent Restriction Act, 1941, and the English Act, the fixation of rent was a matter for settlement between the parties in accordance with the principles laid down by those Acts, and the Court would only intervene to ascertain whether the principles had been correctly applied; under the new Punjab Act, the Controller himself fixes the rent. This essentially on executive act, inasmuch as the discretion given to him to make additions above the "basic rent" up to specified maxima is not rendered expressly subject to any principles laid down in the statute or otherwise. The executive nature of the function under section 10 of the new Act is quite clear. However, the fact that the statute confers certain executive powers upon an authority created thereunder does not and cannot affect the argument that in respect of the matters relevant to the cases before us the functions of the Controller are essentially judicial. These four cases arise out of applications under section 13 of the new Act, and, has been seen, that Section provides for an application by the landlord, an enquiry by the controller after notice to the tenant 'and the Controller's satisfaction that certain facts justifying forfeiture of the tenancy has been proved. Such a proceeding is undoubtedly in essence a judicial proceeding. The question raised between the parties, is a justifiable issue of a civil nature for there can be no doubt that determination of rights between a landlord and his tenant, whether such rights be determined on the basis of the contract or of statute is a question of civil rights This principle is fully recognised in the Rent Restriction Act, 1941. where such questions were left to be determined by the ordinary civil Courts, by section 108. T. P. Act, under which all questions which arise fall to be determined by the Civil Procedure Code and also by section 17 of the English Statute which confers jurisdiction in relation to all claim and proceedings arising out of that Act upon the County Courts, with the proviso that if any proceedings which could have been taken in the County Court, are brought in the High Court, the person commencing the proceedings will not be entitled to recover any costs this last mentioned condition clearly connotes that jurisdiction to deal with proceedings under the Act was not taken away from the High Court where it would otherwise ordinarily have lain.
I conclude from the foregoing examination of the relevant provi sions of the new Act in comparison with other similar statutes that, so far as respects the cases before us, the questions which came up for decision before the Controller were questions of an ordinary civil nature, and the procedure which he was required to follow in dealing with these questions was essentially a judicial procedure. These conclusions are relevant to the determination of the question whether the Controller in the relevant respects, was a Court. It has been contended on behalf of the respondents in each of the cases before us that the Controller should be regarded as a persona designata and not a Court, but that argument does not constitute a sufficient answer in the circumstances. As was remarked in a Full Bench decision of the Patna High Court published as Mst. Dirji v. Sm‑Goalan I L R (1941) 20 Pat. 373: (A I R (28) 1941 Pat. 65 there is not, of necessity antithesis between the expressions "persona designata" and "Court." Reference may also be made to a Division Bench decision of the Madras High Court published as Mahaboleshwarappa v. Gopala‑swami A I R (22) 1935 Mad. 673: (96 Cr. L J. 893) where the question arose whether an Election Commis sioner appointed under the Madras Local Boards Act was a Court, competent to make a complaint under section 476, Criminal Procedure Code. By the rules relating to the appointment of Election Commissioner it had been provided that
"An Election Commissioner' exercising jurisdiction under these rules shall be deemed to exercise such jurisdiction as a persona designata and not in his capacity as a judge or other officer of Government as the case may be"
This rule had been especially promulgated in order to exclude revisional jurisdiction of the High Court under section 115, Civil Pro cedure Code, such jurisdiction having been assumed by the High Court in the reported case, Parthasarathy Naidu v. Koteswara Rao, A I R (11) 1924 Mad. 561; (47 Mad 369 F B); by the rules it was provided that a Subordinate judge should be the Election Commissioner and if there were no Subordinate Judge, the District judge should perform that function. It being contended before the Full Bench of the Madras High Court that the Subordinate judge, in such a case acted as persona designata, their Lordships repelled the contention, relying upon an observation of Lord Parker, in Nationals Telephone Co Ltd. v. Post Master‑General (No. 2) 1913 A C 546; (82 L J K B 1197) to the follow ing effect:‑
"Where by statute matters are referred in the determination of a Court of record with no further provision, the necessary implication is, I think, that the Court will determine the matters as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same."
The Full Bench held that in the circumstances of that case and, in particular, on account of certain references to "Court" in the rules under the Act governing the matter, the Subordinate Judge acted as a Court, and the revisional jurisdiction of the High Court under section 115, Civil Procedure Code, was consequently attracted to his proceedings. The Division Bench were faced with the position that by statute the revisional jurisdiction under section 115, Civil Procedure Code, had been avoided but they came to the conclusion that this did not necessarily divest the Election Commissioner of his standing as a "Court". In reaching this conclusion, the Division were required to determine the question whether, in respect of the subject‑matter of an enquiry before him and of his general behaviour in relation to it, an Election Commissioner is distinguishable from a Court. After examining the definitions of "Court" in the Evidence Act, 1872, and of "Court of Justice" in the Penal Code, they found that an Election Commissioner satisfied the conditions of both these definitions, viz., that of being legally authorised to take evidence and that of being empowered by law to give, in any legal proceeding of a civil or criminal nature, a definitive judgment. They took note of the fact that were it not for a statutory rule, the decision of the question whether the election in question bad been properly held would have been within the jurisdiction of the ordinary Civil Courts, and concluded that the mere transfer of such a cause to a special tribunal did not alter its character. Next, they relied on the fact that the procedure in an election petition was required by statutory rules to be "as nearly as may be, in accordance with the procedure applicable under the Civil Procedure Code of 1908 to the trial of suits." After examining a number of authorities, the Division Bench remarked that the question what is a Court should be answered "not by reference to any formal definitions or hard and fast system of classification but the analysing of the functions and procedure of the tribunal under scrutiny." They found that an additional condition of a tribunal being a Court is that stated in Halsbury's Laws of England, viz., that it should "exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction." Finally, the Division Bench set out their conclusion as follows:
" . . We have to look, not to the sources of a Tribunal's authority, or to any peculiarity in the method adopted of creating it, (though it is undoubtedly a consideration that it derives its powers mediately or immediately from the Crown) but to the general character of its powers and activities. If it has power to regulate legal rights by the delivery of definite judgments and to enforce its orders by legal sanctions, and if its procedure is judicial in character, in such matters as the taking of evidence and the administration of the oath then it is a "Court."
For the purposes of section 476, Criminal Procedure Code, it was necessary also to decide whether the Election Commissioner was a Civil Court. The Division Bench held that as the settlement of disputes of civil nature was entrusted to the Election Commissioner it must be a Civil Court. I am in respectful agreement with the conclusion reached by the Division Bench of the Madras High Court in the case which is also authority for the proposition that by merely declaring or charac terising a certain functionary as persona designata, the effect cannot be produced of rendering such functionary not a Court, if his functions involve the determination, by reason of the sanction of the law, and not merely by reason of voluntary submission to such jurisdiction, of justi ciable issues relating to civil rights arising between persons subject to the jurisdiction, and if the manner in which he is required or expected to resolve such issues is essentially the manner adopted by a Court, i.e., by proceeding upon the claim of one party and reply thereto by second party, to define the matters in issue between them and deciding those matters on the basis of evidence duly received, and finally that his decisions should be of a definitive nature enforceable at law. It has been seen above that a Controller acting in the relevant respects under the Rent Restriction Act. 1947, deals with justiciable issues of a civil nature which arise out of a statute in pari materia with the Rent Restriction Act, 1941, whereunder similar issues fell to be determined by Civil Courts, and also bear a close resemblance to similar issues arising under the English Act of 1920 which also were expressly triable by the ordinary Courts of Common Law. It is clear that the Controller exercises his jurisdiction by force of the statute under which he is appointed and not by the voluntary submission of the parties. It has also been pointed out that the Controller is required, in cases of relevant kind, to act upon application by the landlord after notice to the tenant and upon being satisfied of the existence or otherwise of certain facts and it is obvious from section 16 of the new Act that the intention is that the Controller shall act upon evidence, for that section provides:
"For the purposes of this Act, an Appellate Authority or a Controller appointed under the Act shall have the same powers of summoning and enforcing the attendance of witnesses and compelling the production of evidence as are vested in a Court under the Code of Civil Procedure, 1948."
Finally, it is clear from section 17 of the new Act that finality attaches to the orders of a Controller, which are duly enforceable at law, for this section provides:
"Every order made under . . . . . . section 13 . . . . . . shall be executed by a Civil Court having jurisdiction in the area as if it were a decree of that Court."
It is immaterial that the Controller is not himself empowered to execute his own orders; what is important is that his decision on a matter arising before him under section 13 is, in the words of section 19, Penal Code, a definitive judgment or a judgment which, if not appealed against would be definitive. I am, therefore, clearly of the opinion that the Controller appointed under the new Act is a Court.
The next question for decision is whether as a Court the Controller is subordinate to the High Court in the necessity for the application of section 115, Civil Procedure Code, which runs as follows:‑
"The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears:‑
(a) to have executed a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit".
(I am ignoring for the present the question whether the powers of the High Court under this section have been successfully avoided or other wise by section 15 (4), Rent Restriction Act, 1947). In this connection, the argument for the respondents has been that this question must be answered irrespective of any other function discharged by any Controller appointed under the Act. It should be mentioned that by clause (b) of section 2, Rent Restriction Act, 1947, the expression 'Controller' is defined as "any person who is appointed by the Provincial Government to perform the functions of a Controller under this Act." It is interesting, however, to note that the new Act was published in the Provincial Gazette on 14th April 1947 and on the same date in an Extraordinary issue of the Provincial Gazette two further notifications appeared. The first No. 1562 (Cr.) 47/9224, appointed all first class Subordinate Judges in the‑Punjab to perform the functions of Controller: under the Rent Restriction Act 1947, in the urban area within the limits of their existing jurisdictions. The second notification was No. 1562 (Cr.) 47/9228, whereby the Provincial Government conferred the powers of Appellate Authorities under the Rent Restriction Act, 1947, upon District and Sessions Judges in the Punjab in respect of the urban areas in their respective existing jurisdictions, with regard to orders made by Rent Controllers under sections 4, 1J, 12 and 13 of the said Act. The particular choice exercised by the Provincial Government in appointing Controllers and Appellate Authorities serves strongly to confirm the view expressed above that Controllers and consequently the authorities empowered to hear appeals from Controllers were essentially judicial authorities. The choice of first class Subordinate. Judges, exercising unlimited jurisdiction in respect of civil suits and equipped with consider able judicial experience gained in the course of their advanced from Subordinate Judges of the fourth class, through the two intervening stages of third and second class powers. to that of first class Subordinate judges, clearly indicates that a prime requirement present to the mind of the appointing authority was the possession of qualifications requisite for the purpose of the highest judicial functions in the original civil jurisdiction. It seems to me that to examine the question of the subordination of Controllers and Appellate Authorities under the new Act to the High Court irrespective of the kind of officials who have actually been appointed to be Controllers and Appellate Authorities can serve no useful purpose. That is not to say that a strong argument cannot be put forward in support of the view that, even if persons had been appointed as Controllers and Appellate Authorities who were, in the exercise of their normal functions, not subject to the superintendence and control of this Court, the "Courts" to constitute would have been subordinate to this Court sufficiently for the purposes of section 115, Civil Procedure Code. The essential elements of such subordination have nowhere been defined in the Civil Procedure Code. By section 3 of that Code it is provided:
"For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court".
It is, however, well settled that the enumeration of Courts subordi nate to the High Court contained in this section is not exhaustive. In Purshottam Janardan v. Mnhalu Pandu 37 Bom. 114; 17 T C 676 a Division Bench of the Bombay High Court held clearly to that effect and laid down that a Collector acting under Mamlatdar s Court Act, 1906 when exercising judicial functions, is a Court subordinate to the High Court. This authority was cited with approval by no less eminent a Judge than Rankin, J in Allen Bos. cd Co. v. Bando & Co. 49 Cal. 931 ; A 1 R (10) 1823 Cal. 169, where the question before the Court was whether a Controller appointed under the Calcutta Rent Act of 1920 was subject to the revisional jurisdiction of the High Court, and the question of subordination fell to be decided when it had been deter mined that the Rent Controller was in fact a Court. It was found that appeals from the Controller's orders' lay to the President of the Tribunal appointed under the Calcutta Improvement Act, and that the High Court had express powers of appeal from the decisions of the President under the latter Act. It was further found that the Controller's jurisdiction could be extended under the Calcutta Rent Act in such a way as to render his decision subject to appeal to certain Civil Courts outside the Calcutta Municipal area and it was held that such an extension of the Controller's jurisdiction would place the High Court, which clearly had power of superintendence over the last mentioned Courts, in a position of superintendence also over the Controller. Such a position was derivable in relation to the Controller's proceedings in the Calcutta municipal area by reason of the High Court's position vis‑a‑vis the President of the Tribunal under the Calcutta Improvement Act, the principle being laid down that "a right of appeal, however limited, will let in the full general power of superintendence." Although the decision is not applicable on all fours to the present cases, the principle that the power of superintendence over all the activities of a particular judicial officer may be inferred where there is a right of appeal to the High Court in relation to some part of that judicial officer's functions is directly applicable to the circumstances of the present cases, and operates to exclude the argument that the District and Sessions Judges and the Subordinate judges who discharge functions under the Rent Restriction Act, 1947, are, in relation to the exercise of those functions, outside the superintendence of the High Court. From the practical point of view also, such a contention could not be maintained for a moment. The High Court exercises full power of superintendence over the subordinate Civil Courts including the Courts of District Judges and Subordinate judges, and such judges cannot apply their time or the time of their staff to any official duties otherwise than under the full control and superintendence of this Court. It seems to me that the conclusion that even in respect of the new jurisdiction conferred by the Rent Restriction Act, 1947, these Judges are subordinate to the High Court cannot be doubted at all. That jurisdiction, as has already been seen, is for the most part not a new jurisdiction, but a mere continuation with slight modifications of a previous jurisdiction enjoyed by them to deal with cases governed by the principles of the Transfer of Property Act and under the Rent Restriction Act, 1941. Consequently, the relevant functions of these judicial officers, who must be held to be acting as Courts, under the Rent Restriction Act, 1947, are to be deemed more properly to all within their ordinary jurisdiction, and consequently all the incidents attaching to proceedings lying in such Courts in their ordinary jurisdiction, including that of revision by the High Court under section 115, Civil Procedure Code, must be deemed to attach to such functions as well. Nur Muhammad v. S. M. Soliman, 49 C W N 10.
The resolution of the question of subordination thus appears to be greatly simplified by the fact that the officers selected by the Pro vincial Government to exercise the relevant functions are such as are already remarked, the position would not be materially different if officers not amenable to this Court's control and superintendence in the discharge of their ordinary functions had been selected by the Provincial Government to act Controllers and Appellate Authorities under the Act. For, in the relevant regard, these functionaries have been seen to be Courts charged with judicial functions involving the resolution of dispute of a civil nature. By the terms of the statute, even supposing that such functionaries were charged with special jurisdiction, that jurisdiction was of a strictly limited kind, and since it lies within sphere of the civil‑ jurisdiction and the statute makes no provision for such functionaries to be the final Judges of the limits of their own jurisdiction, the function of deciding whether in a particular case they have exceeded their jurisdiction section 115, clause (a), (Civil Procedure Code), must necessarily fall to be performed by the High Court. As was remarked by Meredith, J. in Abdul Razzaq v, Kuldip Narain 214 I C 59; A I R (31) 1944 Pat 147:
"Subjection to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction. The existence of the limit pre‑supposes a higher authority to determine and enforce it. An inferior tribunal cannot be permitted to determine the limit of its own jurisdiction or to trespass beyond those limits without some power of check. That would be intolerable".
In this country in the absence of anything to the contrary, it is the High Court to which such a tribunal will be subordinate. It is instructive to recall that under the English Law, encroachments of jurisdiction fall to be dealt with under two prerogative writs, viz., the writ of prohibition and the writ of certiorari. Such writs were issued from the Court of King's Bench, and writs of prohibition were not confined in their operation to Courts exercising jurisdiction which the Court of King's Bench itself could exercise. Thus, reference to Blackstone will show that a writ of prohibition could issue to the ecclesiastical Courts or the Court of Admirality, each of which administered a system of law "foreign to and having no privity with the King's common law‑a system of law of which the King's Bench Judges would have no knowledge". On this ground, it has recently been held by the Court of Appeal in England in the case Rex v. Chancellor of St. Edumndsbury and Ipswich Diocese (1948),1 K B 195 that the ecclesiastical Courts were inferior in status to the Court of King's Bench. In that case, Evershed L. J, observed as follows:‑
"It is conceded that writs of prohibition would always have issued against the ecclesiastical Courts, no less than against the other Courts which I have named, to curb excess of jurisdiction; and, in my judgment, that fact imparts a sufficient 'inferiority' by status to have warranted other things being equal‑the issue of the other prerogative writs including the writ of certiorari".
It is true that in that case, the Court of Appeal eventually held that certiorari could not issue to an ecclesiastical Court, but that was on the ground that the Court of King's bench was incompetent to deal with that case after removal thereof from the ecclesiastical Courts. No such difficulty arises in the present case however, for as shown above, the relevant matters lying before the Controller and the Appellate Authority under the Rent Restriction Act, 1947, fall within the ordinarily civil jurisdiction. Consideration directly relevant to the writs of prohibition and certiorari are obviously not of paramount importance in dealing with a case falling under section 115, Civil Procedure Code, although it is arguable that clause (a) of that section empowers the High Court to check encroachments of jurisdiction by any tribunals which may fall within the meaning of the expression "Court subordinate to such High Court", and also under that clause and the other two clauses as well as under section 24, Civil Procedure Code, to exercise powers in many respects similar to those of the writ of certiorari. I have mentioned the matter in order to emphasize that the power of controlling encroachments of jurisdiction, as appearing from the passage in the judgment of Meredith, J. in the Patna case cited above, is by itself sufficient to render the Court of limited jurisdictions in that sense subordinate to the High Court. I am accordingly satisfied that for the purposes of the present cases, Controllers and Appellate Authorities under the Rent Restriction Act, 1947, are Courts of a civil nature subordinate to the High Court within the meaning and mischief of section 115, Civil Procedure Code.
On this finding, if there was no statutory bar, the High Court would clearly have jurisdiction to deal with the petitions before us. The provisions of subsection (4) of section 15, Rent Restriction Act, 1947, are pleaded in bar of such jurisdiction. That subsection reads as follows:‑
"The decision of the Appellate Authority and subject only to such decision, an order of the Controller shall be final and shall not be liable to be called in question in any Court of law whether in a suit or other proceeding by way of appeal or revision".
It is clear that by express words, the statute purports to exclude cases falling under the Rent Restriction Act from the reversionary jurisdiction of this Court. It is contended however, on behalf of the petitioners that such exclusion, by an Act passed by the Governor, in virtue of a Pro clamation under section 93, Constitution Act, is void and of no effect on the ground that the proviso to subsection (1) of section 93 of the afore said Act expressly withholds power from the Governor to enact any such law.
Before examining the provisions of section 93, Constitution Act, it will be useful to consider the provisions of the Constitution Act relating to the legislative powers over the subject‑matter of the present suits otherwise than under Chap. VI of Part 3. A careful examination of the provisions of the Rent Restriction Act, 1947, in relation to the items enumerated in the three legislative lists shows that no item in the first list is touched by anything in the Act, in the Provincial Legislative List two items are touched namely, item 21 of which the relevant part reads as follows: "Land, that is to say, rights in or over land including the relation of landlord and tenant, and the collection of rents" and item 2 relating to jurisdiction and powers of Courts with respect to the relevant matters in item 21 : in List 3, item 15 similarly relating to jurisdiction and powers of Courts is attracted, as well as item 4 relating to Civil Procedure, item 8 relating to transfer of property other than agricultural land, and item 10 relating to contracts. Under ordinary circumstances, i.e., where the provisions of section 93, Constitution Act, have not been applied, the Provincial Legislature by virtue of the sections (2) and (3) of section 100, Constitution Act, has power to legislate in respect of all matters included in Lists 2 and 3. The Provincial Legislation would have precedence over any "existing Indian law" (i.e., in this case the Transfer of Property Act) by virtue of sub section (2) of section 107, Constitution Act, since it appears that the Rent Restriction Act 1947, was reserved for the consideration of the Governor‑General and received his assent on 9th April 1947. But as section 108, Transfer of Property ‑Act, was never extended to the Province no question of repugnancy arises in relation to any matter contained in that section. So far as concerns possible repugnancies with the existing provisions of the Civil Procedure Code and the Contract Act, 1872, as in force in the Punjab, the grant of assent by the Governor General renders the repugnancy of no effect in the Province of the Punjab. It may be mentioned that the position is not altered in this respect by the fact of the partition of the Punjab which took place in 1947, as by virtue of subsection (3) of section 18, Independence Act, 1947, all the law existing prior to the date of partition in "British India" and "of the several parts thereof" is to continue as the law of each of the two new Dominions of India and Pakistan, and of the "several parts thereof" e.g the West Punjab. It being clear that the jurisdiction and powers of Courts are wholly within the competence of the Provincial Legislature in relation to the subject‑matter of the Rent Restriction Act, 1947, there can be no doubt that if an Act passed by the Provincial Legislature had provided that disputes arising under that Act should not be dealt with by the ordinary Courts but should go before newly created tribunals, when, notwithstanding that such tribunals were, in all essential respects Civil Courts, on the basis of the reasoning contained in the foregoing portions to this judgment, if the Provincial Legislature had expressly taken away from the High Court, the power of revision as provided by section 115. Civil Procedure Code, its action would have been perfectly valid. The argument for the petitioners is that although the Governor might, under a Proclamation issued under section 93, Constitution Act, assume to himself all the powers of the Provincial Legislature, nevertheless he could not legislate so as to deprive the High Court of its reversionary jurisdiction as indicated above, as such an Act would be in contravention of the proviso to subsection (1) of section 93, Constitution Act.
It will be convenient at this stage to set out the provisions of sub section (1) of section 93, Constitution Act. It reads as follows:‑
"If at any time the Governor of a Province is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of Act, he may by Proclamation:
(a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion;
(b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority; and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority:
Provided that nothing in this subsection shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provision of this Act relating to High Courts".
In the exercise of powers given by this subsection, the Governor of the Punjab on 5th March 1947 made a Proclamation, in which he dec lared that all his functions under the Act would be exercised by him in his discretion and by which he assumed to himself all powers vested by or under the Act in the Provincial Legislature and all powers vested in the Provincial Legislative Assembly by the same Proclamation, the operation of a number of the sections of the Constitution Act was suspended, but none of these sections affects in any way the powers and the functions of the High Court. It is in the exercise of the "powers vested by or under the Act in the Provincial Legislature" that the Governor purported to enact the Punjab Urban Rent Restriction Act, 1947. The argument for the petitioner is that in expressly excluding the jurisdiction of the High Court under section 115, Civil Procedure Code, in respect of the matters indicated above, the Governor has in effect assumed to himself the powers of the High Court, and that in doing so, he has exceeded the limits imposed upon his legislative powers by the proviso to sub section (1) of section 93, Constitution Act.
Taking the latter contention first, the argument, if set out in full runs somewhat like this. The words of the proviso are extremely wide, and operate in respect of everything which the Governor is empowered to do by the substantive portion of the subsection in such a way as to make it impossible for the Governor, whether acting directly in exercise of powers conferred by the main portion of the subsection, to do any thing which subtracts from the powers of the High Court. In this connection, it was stressed that the mere similarity of the language used in the proviso to specify the acts which the Governor may not perform in relation to a High Court, to the language employed in the substantive portion of this subsection, which empowers the Governor to perform these very acts in relation to all other Provincial bodies, should not be construed as imposing a limitation upon the manner in which in the one case the powers may be assumed and the operation of the Constitution Act suspended, and in the other case, these very acts may not be done. In other words, while it is true that the Governor may assume to himself all powers of any Provincial body other than the High Court by means of a proclamation and may by the same method suspend the operation of the Constitution Act in specified respects, in relation to such bodies, it is wrong to suppose that mainly because the same language is employed to prohibit such acts in relation to the High Court, the prohibition extends only to assumption or suspension by proclamation and does not debar, assumption or suspension brought about by any other means.
On a careful consideration of this argument, I am satisfied that it is substantially correct. When I first heard arguments in these cases I must confess that I was over‑impressed by the similarity of the language employed, firstly, to empower the Governor in respect of Provincial bodies other than the High Court, and immediately after to deprive the Governor of the like powers in respect of the High Court, and in the referring order I have used words which express my belief that the use of similar words to prohibit by the proviso what was authorised to be done by Proclamation in the substantive portion of the subsection, indicated that the restrain on the Governor's powers was confined to the doing of certain acts in respect of the High Court in a particular manner. As my learned brother has pointed out, he prohibition is one which derives from a fundamental necessity in a democratic constitution, namely, the extreme importance of retaining unimpaired all the powers of a High Court during any period in which, through the existence of extraordinary circumstances the administration of the province is entrusted to the necessarily autocratic rule of a single person namely, the Governor. If it were possible for the Governor by the method of legisla tion to withdraw from the High Court powers which have been entrusted to it for the preservation and enforcement of the rights of the subject as against other subjects and even as against the state, then the door might to be opened to the gravest abuses, leading perhaps to the complete negation of the rights of the subject in important respects, during a period of autocratic rule such as is envisaged by section 93, Constitution Act. On the other hand, as pointed out by my learned brother, the position is materially different when the constitution is working in full force, so that a popular Government holds the reigns of office and the Legislature also functions regularly so as to express by the mode of legislation, the sovereign will of the people; if in such circumstances, the Legislature is mended to withdraw a particular jurisdiction from the High Court, and does so by proper enactment, duly passed within the limits of its powers, there can be no objection on grounds of ordinary reason to such a diminution of juris diction. It is hardly necessary to emphasize that if, in effect, the limit placed upon the Governor's powers by the proviso to subsection (1) of section 93, Constitution Act, has been exceeded, then to the extent of such excess the law made by the Governor is void and it is immaterial in what manner such excess of jurisdiction has been achieved. It is well‑settled that where the law prohibits the doing of a thing, it will not tolerate the doing of a thing, that thing by any shift or device or evasion; a result which is expressly prohibited by statute may not be achieved in a round about way. Thus, the Rent Restriction Act 1947, is seen to contain a number of provisions giving rise to disputes between the parties, which, prior to the making of the law, were justiciable in the ordinary Courts, and consequently subject to the reversionary jurisdiction of the High Court, under section 115, Civil Procedure Code. If the Governor had confined his legislation in relation, to the High Court's jurisdiction, to saying simply that in respect of the matters in question, the High Court's jurisdiction under section 115, Civil Procedure Code, would no longer be available, then, on the argument presented by the counsel for the petitioners, there would be a direct contravention of the proviso to subsection (1) of section 93, Consti tution Act. The position, according to learned counsel, is not different if the result is achieved firstly, by setting up fresh tribunals to deal with those matters as tribunals of first instance and of appeal, under new names, secondly, empowering the Provincial Government to appoint persons to function as such tribunals: and thirdly, appointing to these officers subordinate Judges and District Judges, who would, at least as to a great proportion of the cases arising, have dealt with these cases as ordinary Civil Courts had the new law not been passed. The removal by the new Act of these tribunals from the reversionary jurisdic tion of the High Court is nevertheless ultra vires, although the circuitous method of removal has been adopted instead of the direct method. The argument appears to me to be unexceptionable, and I have no hesitation in accepting it, and in holding that, provided assumption of the High Court's powers by the Governor, can be deduced from the enactment of subsection (4) of section 15, Rent Restriction Act, 1947, there has been contravention by the Governor of the proviso to subsection (1) of section 93, Constitution Act, in relation to those matters falling within the jurisdiction of Controllers, and consequently within the appellate jurisdiction of Appellate Authorities appointed under the Act, which are intrinsically judicial functions and not executive functions.
The question as to whether there has been assumption of the High Court's powers by the Governor presents in itself no difficulty. As was remarked by my Lord the Chief Justice in his judgment in the ca se, Works Manager, Carriage and Wagon Shops, Moghalpura v. Hashmat I L R (1947) 4 Lah. 1: A I R (33) 1946 Lah. 316 (F B), which I have already cited, a Civil Court is a creation of the sovereign power, and performs the delegated judicial functions of the sovereign power. This is in the case of the High Courts, established by Letters Patent of His Majesty, clear beyond all possible doubt. The High Court, besides exercising all the powers conferred upon it by the Letters Patent, is also empowered in various ways by the different laws in force. Those laws, by whichever Legislature they may have been passed, represent acts of the sovereign power functioning in relation to defined fields. By section 115, Civil Procedure Code, a duly empowered Legislature, namely, the Central Legislature to British India, in 1908 conferred certain powers upon the Court, and it cannot be doubted that these powers were judicial powers of the State delegated to the High Court. If the same or a different Legislature had subsequently withdrawn those powers, the act would, in effect, be an assumption to itself by the State of the judicial powers it had previously delegated. A Governor, acting under section 93, Constitution Act, for the time being embodies the State in all its aspects, and where, by legislative act, the Governor, in such circumstances, withdraws from the High Court a power which it previously possessed, being a judicial power delegated to such High Court by the State, it cannot be doubted that in effect the Governor has assumed to himself these powers.
For these reasons, I am clearly, of the opinion that the provisions of subsection (4) of section 1.5, Punjab Urban Rent Restriction Act, 1947, in so far as they exclude the reversionary jurisdiction of the Court in respect of acts of Controllers and Appellate Authorities, appointed under that Act, which are essentially judicial acts, are to that extent ultra vires. I am satisfied also that the order of the Appellate Authority in each of the cases before us is a judicial act performed in the exercise of powers conferred by the Rent Restriction Act, 1947, and as such, the proceeding in each such order was made, is subject to revision by this Court under section 115, Civil Procedure Code.
Per Curiam :‑We hold that this Court has jurisdiction under section 115, Civil Procedure Code to deal with each of the four cases placed before us, and direct that those cases should now go back to the Single Bench for decision on merits. Under section 205, Government of India Act, 1935, we certify that these cases involve a substantial question of law as to the interpretation of section 93 of that Act.
A. H. Orders accordingly.
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