P (PLP)

KAYANI, J.‑On the 11th August 1947, Sheikh Zafar Ali defendant brought an application under section 13 of the Punjab Urban Rent Restriction Act (VI of 1947) for the ejectment of Ghulam Muhammad plaintiff and a Muhammad Din with whom we are not now concerned, from a certain house in Montgomery. The ground on which the applicant in that cause relied was default in the payment of rent. It was explained that the house in question belonged to a person of the name of Muhammad Khalil belonging to the United Provinces, who had resided therein but who having returned to his native place had left Sheikh Zafar Ali in charge of it with power to manage. Ghulam Muhammad replied in his written statement that he was in adverse possession of the house for more than twelve years , but in his statement before the issues were framed, be changed his position by stating that he had obtained the key of the house from the owner Muhammad Khalil to whom alone he was responsible. The Controller, however, found against him and passed an order of ejectment, from which he appealed to the District Judge. The appeal having been dismissed, he brought a suit for a declaration that he was not a tenant under Sheikh Zafar Ali and that consequently he was not liable to ejectment by order of the Rent Controller. This was dismissed on a preliminary issue, namely that the Civil Court was not competent to go behind the decision of the Rent Controller. From this order the plaintiff' Ghulam Muhammad has brought an appeal to this Court. The Punjab Urban Rent Restriction Act of 1947 is a Governor's Act promulgated under section 93 of the Government of India Act and was intended "to restrict the increase of rent of certain premises situate within the limits of urban areas, and the eviction of tenants thereform". In the definition clause the terms "landlord" and "tenant" have been given specialised meanings, and "Rent Controller "has been defined as a person appointed by Government Es such,' section 4 provides for the determination of "fair rent" on application either by the landlord or by the tenant, and the succeeding sections up to section 12 contain incidental provisions. Section 13 provides for the eviction of tenants and contains grounds on which they can be evicted. Section 15 provides for appeal from an order passed by the Controller and as it gives finality to that order subject to the result of appeal, if any, it is worth while reproducing it at length.-- "15 (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 Con troller 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 inquiry 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 proceeding by way of appeal or revision". Section 16 gives power to the Controller to summon and enforce the attendance of witnesses and compel the production of evidence in the manner provided by the Code of Civil Procedure. By Section 17 the order of the Controller or the appellate authority, as the case maybe; shall be executed by the Civil Court having jurisdiction in the area as if it were a decree of that Court. There are then four other sections with which we are not concerned here. By notifications of the Government under section 2 and section 15 (1) (a), all subordinate judges of the first class in the Province were appointed Rent Controllers, and all District judges were appointed Appellate Authorities within their respec tive districts. Under section 9 of the Code of Civil Procedure the Civil Court has jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. If the Punjab Urban Rent Restriction Act bad expressly provided that the question whether a person is a landlord or tenant shall be determined by the Rent Controller and that his decision on the point shall not be questioned in a Court of law, there can be no doubt that such provision would have amounted to an express exclusion. of the jurisdiction of the Civil Courts. There is also no doubt that, since the Controller's field is limited to the eviction of tenants and the fixation of fair rent or its increase, adjudication on any other point would be foreign to his jurisdiction. At the same time it is clear that he cannot proceed with his work unless he can also decide whether the parties to the dispute are landlords or tenants within the definitions given in the Act itself, and it is nowhere stated that where a question arises whether a person is a tenant or not, the parties should be referred to a Civil Court. The position, therefore, is that for the purpose of determining whether or not he possesses jurisdiction, the Controller has jurisdiction to go into the question whether a person is a landlord or tenant. If, however, he erroneously decides that a person is a landlord or tenant within the meaning of the Act, he by that decision confers upon himself a jurisdiction which is not vested in him by the law‑for he cannot adjudicate between persons who do not fall within the definitions of those terms and there is ample authority for the view that thereafter it is for the Civil Court to determine whether the Tribunal of limited power has decided the question of jurisdiction correctly. So far there can be no difference of opinion but it is here that the argument needs delicate handling, for most of these special Acts are fenced with a sort of barbed wire by which they exclude the Civil Courts, either in express terms or impliedly, and section 9 of the Code empowers them to do so. And where the Legislating Body has acted within its powers, it is not open to the Municipal Courts to question the legality or propriety of the provisions of the enactment. In the present, case, subsection (4) of section 15 of the Act provides that the order of the Controller, subject to appeal, "shall not be liable to be called in question in any Court of law". It is of course assumed that the order should be made in exercise of powers given by the Act, not in contravention or excess of them. If in the exercise of those powers he acts erroneously, he may be corrected by the Appellate Authority but not by the Civil Court. Now as I look at the case, when the Controller decides that the parties are landlord and tenant, he acts in exercise of powers conferred upon him by the Act, not in excess of them. As pointed out earlier, he cannot discharge his peculiar functions relating to the eviction of tenants or the increase of rent without going into the question of the status of the parties. And if that be so, since the order evicting the tenant is based upon the finding that he is a tenant within the meaning of the Act, the latter finding should also not be liable to impeachment in a‑ Civil Court. The Controller has power to decide whether the plaintiff' in this case was a tenant of the defendant and if by that decision he erroneously conferred upon himself a jurisdiction which is not vested in him, subsection (3) provides for a corrective by way of appeal, and subsection (4) implies that the ordinary Civil Court should not be jealous of that finding. It is often unnecessary to say whether the Legislating Authority had acted wisely in excluding the Civil Courts, but we can point out that the same authority, namely, the Governor, while exercising his administrative rower under sections 2 and 15 of the Act, had entrusted this work to trained judicial officers so that the Rent Controller and the Appellate Authority were in effect Civil Courts, and this indicates the intention to exclude the Civil Courts proper, largely with a view to obtaining a speedy remedy. It will be noticed that the definition of landlord as a person "for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf of or for the benefit of any other person" etc., does not necessarily involve a question of title and there was consequently no risk that the Rent Controller would be called upon to determine a question which should normally fall for decision by a Civil Court. I must admit that the view that has been taken in this Province of the power of tribunals of limited jurisdiction is not altogether in favour of regarding the legislature as having intended to circumscribe the powers of the Civil Court. For this view the plaintiff relied on two Full Bench cases Lachhman Singh v. Natha Singh (A. I. R. 1940 Lah. 401) and K. L. Gauba v. Punjab Cotton Press Co. Ltd. (A. I. R. 1941 Lah. 234), as also on an Allahabad case Brij Behari Lal v. Emteror (A. I. R. 1943 All. 123, F. B.) and a Calcutta case Chairman of Giridih Municipality v. Srish Chandra Mommdar (I. L. R. 35 Cal. 859). The Allahabad case is not relevant. The facts of that case were that under the U. P. Municipalities Act‑ the Executive Officer had served a notice upon a certain person directing him to demolish certain constructions which were contrary to the sanctioned plan, on pain of prosecution under section 307 of the Act. An appeal from this notice to the Municipal Board and a further appeal to the District Magistrate were both dismissed. Subsequently, the person in question was prosecuted under section 307 in a Criminal Court for non compliance with the notice, and the question was whether the Criminal Court could go into the legality of the notice and it was open to the accused to plead that he was not in a position to comply with the notice. It was held by the Full Bench, answering affirmatively, that the legislature did not confer upon the board a right to issue a notice or direction under section 186 where the requirements of that section were not satisfied. In the Calcutta case also, the facts are clearly different. A rate‑payer who occupied a holding within the municipal limits, was assessed to an annual tax with reference to the salary earned by him within the municipality. He took exception to the assessment under section 113 of the Bengal Municipal Act but his application was rejected. He declined to pay the sum assessed, whereupon the municipality brought a suit against him for recovery of arrears of tax. ' An objection to the jurisdiction of the Civil Court was repelled by Mookerjee J. in these words :

"The effect of the provisions of section 116 was considered by this Court in the cases of Navadib Chandra Pal v. Purnananda Saha (1898) 3 C. W. N. 73), and Kameshwar Pcrshad v. The Chairman of the Bhabua Municipality (1900) I. L. R. 27 Cal. 849). In these case, it was pointed out that section 116 does not take away the jurisdiction of the Civil Courts in a case in which it is alleged and established that the assessment, the propriety of which is in controversy, is open to objection on the ground that it is ultra vires ; in other words, it is only when the action of the municipality has been exercised in conformity with the‑powers conferred upon it by the Act, that the Civil Court has no authority to interfere". In another place in the judgment it was observed :‑

"The true test is, whether there has been a substantial disregard of the provisions of the law which creates the authority of the Municipality and regulates its powers and duties". Again, "the Civil Court is not called upon to try the merits of the question, but to see whether the authorities possessed of limited jurisdiction have exceeded their bounds". These are valuable but general observations which can be used on either side of the case. The two Full Bench cases of this province relate to the Punjab Relief of Indebtedness Act (No. VII of 1934). In the first of these an application was made by a person purporting to be a "debtor" within the meaning of the Act to the Debt Conciliation Board to effect a settlement of the debts with the creditors, one of whom was a mortgagee with possession. The Board served notice on the mortgagee to appear on the date fixed and as he did not produce the original mortgage deed, thus failing to comply with the provisions of subsection (1) of section 13, the Board passed an order under subsection (2) that the mortgage "shall be deemed for all purposes and all occasions to have been fully discharged". In a suit brought by the mortgage against this order the questions which ultimately engaged the attention of the Full Bench were‑-- (i) whether a possessory mortgage was a "debt", and (2) whether the Civil Court could question the finding of the Board that it was a "debt". The term "debt" has been defined in subsection (1) of section 7 of the Act and the term "debtor" in subsection (2) as a person who owes a debt and earns his livelihood mainly by agriculture and is either a land owner or tenant of agricultural land" etc., and there was a provision in the same subsection (2) that "if any question arises in proceedings under this part of the Act, whether a person is a debtor or not, the decision of the Debt Conciliation Board shall be final". In section 21 there was a provision, among others, that no Civil Court shall entertain any suit to recover any debt which has been deemed to have been duly discharged under section

13. The Full Bench held (1) that a possessory mortgage was not a "debt"; and (2) that "these Boards have been established for the purpose of bringing about amicable settlement between a `debtor' and his creditors in respect of his `debts' as defined in the Act ; and their jurisdiction is limited to dealing with such `debts' only. They have no authority to deal with transactions of any other kind with which the debtor might be concerned. If, therefore, a Board purports to pass an order, or make a declaration in respect of a transaction which is not a 'debt' as defined in .the Act, il clearly does so in excess of its jurisdiction . In answer to the contention that, according to section 7 (2), the question whether a person is a debtor or not is for the Debt Conciliation Board to decide, the judgment observes :‑‑ "This sentence appears after the definition of `debtor' given in the earlier part of the subsection, which defines a `debtor' as meaning a person who owes a ‑debt and who possesses certain qualifications, namely, that he earns his livelihood mainly by agriculture and is either a landowner, tenant, etc. It is clear that this paragraph makes the Board the final judge as to whether a particular debtor possesses the qualifications required under the section. It does not refer to an adjudication as to the nature of the transactions entered into by him, i.e. whether or not they are debts as defined in the Act. In other words, all that this section provides is that if the Board had decided that the person concerned earns his livelihood in one of the manners mentioned in the subsection or that .he has, or has not, lost his status for any of the reasons given in the `explanation', its decision cannot be questioned in a Civil Court". Whether or not it was legitimate to confine the word "debtor" to the second part of the definition as given in section 7 (2) and to ignore the first part, namely., that a "debtor" means a person who owes a debt, and thus take the term out of the finality of the decision attaching to the term "debtor", is a matter upon which it is unnecessary to express an opinion. There can be no doubt, however, that it was recognised in the judgment ‑of the Full Bench that if there had been any provision in the Act making the decision of the Board final, even on the question whether a certain liability was or was not a "debt", its decision could not have been questioned in a Civil Court. How far the intentions of the legislature were correctly interpreted by that Bench is a question which was answered by an amendment: of the Act within a year of this judgment, providing in section 20‑A that "if any question arises in any proceedings under this part of the Act whether a loan or liability is a "debt" or not or whether a person is a debtor or not, the decision of the Debt Conciliation Board shall be final and shall not be called into question in any Court". In the second Full Bench case K. L. Gauba v. Punjab Cotton Press Co. Ltd. (A. I. R. 1941 Lab‑234). the question was whether a Civil Court should stay its proceedings under section 25 of the Act on receiving intimation from the Board that an application had been made before it under section

9. It was alleged that the Court had no jurisdiction in the case because the debts covered by the application did not exceed Rs. 10,000 as required by section

9. It was held that the Civil Court could examine the debts for the purpose of ascertaining whether the Board had exceeded its pecuniary jurisdiction and if it was found that such jurisdiction had been exceeded, the notice under section 25 could be ignored. It will be noticed that the amendment of the Act which has now provided for the finality of the decision of the Board even on the question whether a loan or liability is a "debt" has rendered this judgment also infructuous on fact, for it proceeds on the argument that "it is nowhere laid down in the Act that the Board alone shall decide what is the amount of the debts", and since the Board is now the sole judge of what is and what is not a "debt", the total amount of the debts is rendered a question of simple arithmetic. It is evident that in both these Full Bench cases the principle enunciated in section 9 of the Code of Civil Procedure has been recognised though no express reference has been made thereto. That principle, as already stated, is that if a competent Legislature excludes the jurisdiction of the Civil Court, expressly or impliedly, the special Tribunal should be allowed to administer the Act within its powers and the Civil Court should not act in relation thereto as a Court of appeal or revision. In two of the above cases, namely, the Calcutta case and the first Lahore case, certain remarks were cited from a judgment of Sir James Colvile .n a Privy Council case entitled The Colonial Bank of Australasia v. Robert Willan (L. R. 5 P. C. 417), and, in order to show that those observations support the view that I have taken in the present case, I propose to deal with them in greater detail. That was a case from the Colony of Victoria where, by the Mining Statute of 1865, certain Courts called "Courts of Mines" were created and, by another Act, jurisdiction was given to these Courts to wind up registered companies. The decision of a judge of the Court of Mines was made subject to an appeal to the Chief judge who was to be one of the judges of the Supreme Court. There was a provision that "no proceedings under that Act should be removed or removable into the Supreme Court". The Colonial Bank of Australasia was one of the creditors of the Golden Gate Gold Mining Company which had been registered under the Act. The bank first served on the company a demand in writing requiring the company to pay the amount of its debt and subsequently a notice requiring the company to appear at the Court House to answer a petition and to show cause why a winding‑up order should not be' made by the Judge of the Court of Mines. The company did not make any appearance in answer to this notice and the judge, upon taking the necessary evidence, as required by law, ordered that the company should, be wound up forthwith. Subsequently, the company made an application to the Court to set aside the 'order, but that application was dismissed. The company then moved the Supreme Court which issued a writ of certiorari directing the Court of Mines to send the record of the case, which was done accordingly. It was contended by the company before the Supreme Court that there was no jurisdiction to make the order of winding‑up, as at the time of service of the notice of demand and of making the said order, the company in question was not indebted to the bank in any sum. For the Bank, however, it was contend‑ed that the Supreme Court had no right to interfere by way of certiorari. The Mining Statute gives an appeal from the Courts of Mines to the Chief judge, and the respondents ought to have appealed if they were dissatisfied. The appellate jurisdiction of the Supreme Court in mining cases was transferred to the Chief Judge. The Supreme Court had a general power to issue a writ of certiorari to bring up the proceedings of any inferior Court in the colony ; but not those of the Courts of Mines. The Courts of Mines were not inferior Courts, and, independently of this, the power to issue a certiorari to them had been taken away by statute. The Supreme Court, however, set aside the order of winding‑up and made the following observations so far as they are relevant to our purpose:

'The facts which the judge has found must be taken as true, but to maintain that it is not competent for a person to impugn the order by showing that the Judge had no jurisdiction is a proposition that cannot be sus tained. This Court has held directly the contrary, and its decision has not been questioned. We have held that it is competent to go behind a conviction ,or order, or adjudication, or whatever it may be, and to show by affidavit that the proceedings are irregular, and that the judge has no jurisdic tion". On appeal being taken to the Privy Council it was held that although the Supreme Court has a general power to issue a writ of certiorari to any inferior Court in the colony to bring up the proceedings of such Court, "co‑extensive with the like power of the Court of Queen's Bench in this country" and although the Court of Mines was an inferior Court, the power to issue a writ of certiorari to that Court in respect of any proceedings under the Mining Statute had been, taken away by statute. This did not, however, mean that the Supreme Court had been absolutely deprived of its power to issue the writ but it only meant that its action on such writ had become controlled and limited. "There are numerous cases in the books which established that, notwith standing the privative clause in a statute, the Court of Queen's Bench will grant a certiorari; but some .of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the Tribunal that made it, or of manifest fraud in the party procuring it". Explaining the phrase "want of jurisdiction", their Lordships observed:‑ "There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions maybe founded either on the character and constitution of the tribunal, or upon the nature of the subject‑matter of the inquiry, or upon certain proceedings which have been made essential prelimi naries to .the inquiry, or upon facts or a fact to be adjudi cated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incom petency of the judge, or on the nature of the subject‑matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try; assumes that, having general jurisdiction over the subject‑matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication, upon such an objection without assuming the functions of a Court of appeal, and the power to re‑try a question which the judge was competent to decide. Their Lordships then proceeded to examine the contention that the Court of Mines had no jurisdiction to make the order, as at the time of serving the notice of demand, the company was not indebted to the Bank in any sum, and observed that it was an order made by a competent judge ; showing, on the face of it, that every requirement of the statute under which it was made had been complied with ; ordering that which the judge, on proper grounds, had power to order ; and containing an express adjudication upon a fact which, though essential to the order, the judge ' was both competent and bound to decide, viz., that the sum claimed to be due to the petitioning creditors was then due to them from the mining company. " This being so, it seems to follow that the Supreme Court could only arrive at the opposite conclusion upon a retrial of the question of the petitioning creditors' debt, and that upon evidence which was not before the inferior Court. To do this, and to quash the order upon a conclusion thus drawn, is clearly contrary to the principles established by Reg. v. Bolton (1 Q. B. 66) and that class of cases ". The order of the Supreme Court was, therefore, set aside. In Reg v. Bolton to which their Lordships had referred, an order of the justices of the peace for delivering up a house to parish officers under the Poor Relief Act of 1819 having been found to be correct in form and made on a proper informa tion, summons, arid hearing, the Court of Queen's Bench (on certiorari) refused to inquire' into the reasonableness of their judgment even though the Act gave no appeal against such order. In the judgment of the Queen's Bench, the following passage occurs :‑ " In the case of conviction under the Bum‑boat Act, it was asked, shall the Magistrate, by calling a seventy‑four- gun ship a boat, give himself jurisdiction and preclude inquiry ? The learned judge gave the answer : " Whether the vessel were a boat or no, was a fact on which the Magistrate was to decide ; and the fallacy lies in assuming, that the fact, which the Magistrate has to decide, is that which constitutes his juris diction. I am respectfully of the opinion that the present case falls in the fourth class of cases described by their Lordships of the Privy Council as cases in which jurisdiction depends "upon facts or a fact to be adjudicated upon in the course of the inquiry ", as here the decision of the question of jurisdiction is intrinsic to the adjudication itself. Further, it is generally overlooked in the application of the Principles of English Law to our enactments that the Civil Court itself is neither a Court of record nor a superior Court in relation to a Court of special jurisdiction. The observation of their Lordships, therefore, that even where the power to issue a writ of certiorari has been taken away by statute, the Supreme Court may interfere to a limited extent, should have only restricted appli cation to a system of law which is regulated by section 9 of the Code of Civil Procedure. I, therefore, hold that the Civil Court has no jurisdiction) in this matter and that the appeal should be dismissed with costs. S.A. RAHMAN ‑I agree A.H. Appeal dismissed.