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Suit No. 867 of 1952, decided on 23rd July, 1956.

, S. 20 (1) (2) (5) Review by Chief Judge, Small Causes Court, of order under S, 20 (1)‑Ultra vires.

Held, that subsection (5) of section 20, Sind Rent Res triction Act (X of 1947) allows delegation of powers exercis able by the Central Government under subsection (:) of section 20 only and not of those under subsection (2) of section 20 (Review).

Powers of Review, therefore, exercised by the Chief Judge, Small Causes Court, seemingly under subsection (2) of section 20 were ultra vires even if such powers were said to have been delegated by the Central Government to the Chief judge.

S. A. Nusart, for Plaintiff.

Ali Raz, for Defendant.

‑It appears that Sheikh Abdul Hamid applied to the Rent Controller for a certificate under section 9 of the Sind Rent Restriction Act X of 1947 to enable him to eject the defendant who is his tenant from the premises in question. The certificate prayed for was granted on 8th November 1.950 by the Additional Rent Controller. The defendant thereupon filed an application for revision under section 20 of the Sind Rent Restriction Act X of 1947. The Chief Judge, Small Causes Court rejected the revision on 8th October 1951. The defendant subsequently applied for a review of the order under section 20 (2) of the same Act. This review was allowed by the Chief Judge, Small Causes Court by his order dated 26th June 1952. The plaintiff thereupon filed the suit for a declaration that the order passed by the Chief Judge, Small Causes Court on 26th June 1952 was without jurisdiction and as such null and void.

The relevant facts were admitted in the written statement but it was denied that the order challenged was null and void.

The following issues were framed

(1) Whether the defendant is not a tenant of the plaintiff.

(2) Whether the order of the Chief Judge Small Causes Court is illegal, ultra vices and without jurisdiction.

(3) Whether the plaintiff is barred under section 22 of the Rent Act to challenge the order of the Chief Judge, Small Causes Court.

(4) To what relief, if any, is the plaintiff entitled."

The only point that has been argued at the bit is that the order of the Chief Judge, Small Causes Court was without jurisdiction inasmuch as the power of review conferred on the Provincial Government under section 20 (2) of the Sind Rent Restriction Act was not delegated to the Chief judge nor it could be delegated. Section 20 of the Sind Rent Restriction Act as it stood on the relevant date was in the following words

20. (1) The Provincial Government may, on an applica tion to be made within seven days of any order made by the Controller under this Act, call 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 hearing and disposal of the matter.

(2) The Provincial Government may, upon application made to it in this behalf, review any order made by it under the preceding subsection and the provisions of Order XLVII in the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to such review.

(5) The Provincial Government may, by general or special order, direct that the powers conferred on it by sub section (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."

It will appear from the above section that power of revision is conferred on the Provincial Government by virtue of subsection 1 of section 20. The power of reviewing an order passed under section 20 (1) has also been conferred on the Pro vincial Government by subsection (2) of the same section. Subsection 5 however provides that the Provincial Government could delegate powers conferred on it by subsection 1 and does not provide for delegation of powers conferred on the Pro vincial Government by subsection 2. The result is that the power of reviewing an order passed under section 20 (1) vests in the Provincial Government.

It has been argued by the learned counsel for the defen dant that subsection (2) of section 20 provides that provisions of O. XLVII Civil P.C. shall, so far as may be, apply to such review. The provision of O. XLVII laid down that apart from certain excepted cases review application can only be made to the Court which passed the decree or made the order sought to be reviewed and consequently by implication the powers of review also vested in the authority to whom the powers under section 20 sub clause I have been delegated. The learned counsel however omits to emphasis the words so far as may be" in section 20 sub clause 2. The result is that the provisions of O. XLVII have to be applied in so far as they are not inconsistent with the provisions of section 20 of the Sind Rent Restriction Act. Subsection 5 of section 20 is very clear. It says that the Provincial Government may delegate powers conferred on it by subsection 1. It was very easy for the Legislature to say that the powers conferred on the Provincial Government under section 20 subsections (1) and (2) could be delegated to any authority. It may be, rather in fact there is an omission on the part of the Legislature. The language of the section however is clear and there is no scope for interpretation. According to the clear provisions of the section the Provincial Government could delegate only its powers under section 200). Power of review is not implicit in a power to decide. Where there is no provision for review it can legitimately be argued that the order has become final and the learned counsel himself conceded that if provisions of section 20 (2) did not exist the Chief judge would not be competent to entertain an application for review. Power of review being an additional power given to the deciding authority the Chief judge could not exercise it unless the Provincial Government lawfully delegated its powers of review. I understand that the Provincial Government has sub sequently delegated its powers under section 20 (2). But B subsection 5 does not provide for such delegation and if the Provincial Government is not inclined to exercise its powers under subsection (2) it must see that the Act is amended so as to enable it to delegate the authority to the judge of Small Causes Court.

It was argued by the learned counsel for the defendant that several writs involved on similar points have been ad mitted and the decision in this case should be stayed till the decision in those cases. I do not think it is necessary to do so. The learned counsel may go in appeal if he feels that the Bench is likely to come to a contrary conclusion.

The Chief Judge, Small Causes Court should ordinarily have returned the review application with the observation that it should be presented to the Provincial Government. but he proceeded to decide the review application on merits. This order of review cannot be sustained in law.

It was mentioned at the Bar in another case that Pro vincial Government had refused to entertain an application for review on the ground that they had delegated their powers to the Chief Judge, Small Causes Court. The Provincial Government seems to be under misapprehension and if the Chief judge had directed the defendant to present his petition to the Provincial Government it is likely that the Provincial Government would not have entertained the application.

In view of the above I must hold that the order is illegal and without jurisdiction. But I should direct the Chief Judge Small Causes Court to return the petition for review for pre sentation to the Provincial Government unless in the mean time necessary powers are conferred on him. I do so that the plea of bar of limitation may not be raised by the other side. The suit is accordingly decreed. The order of Chief judge dated 26th June 1952 is set aside and the learned Chief Judge is directed to forward the petition to the Provincial Government for disposal on merits. In the circumstances of the case the parties shall bear their own costs.

A. H. Suit decreed.

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