P L D 1965 Supreme Court 459 (PLP)

FAZLE‑AKBAR, J.‑The sole question for determination in this appeal by special leave is: Whether an Additional District Judge had requisite power and authority to hear an appeal from an order of a Rent Controller passed under West Pakistan Urban Rent Restriction Ordinance, VI of 1959. This question has arisen under the following circumstances The Deputy Settlement Commissioner, Lyallpur issued Provisional Transfer Order in the joint names of the appellants in respect of Bungalow No. 145‑B, Railway Road, Lyallpur which was then in possession of respondent No. 1, Choudhry Rahmat Ali Nagra. As the said respondent failed to pay rent notwith standing repeated demands, the appellants filed an application under section 13 of the Urban Rent Restriction Ordinance, VI of 1959 (hereinafter referred to as 'the Ordinance') for his ejectment. On his failure to deposit rent in accordance with the order of the Rent Controller his defence was struck off and eventually an ejectment order was made against him. He then filed an appeal against the said order under section 15 of the Ordinance before the District Judge, Lyallpur and the said appeal was assigned by the District Judge to the Additional District Judge, Lyallpur for disposal. During pendency of the appeal the parties as well as Mst. Aziz Begum, respondent No. 2, who was also in possession of a part of the said premises, entered into a compromise and the Additional District Judge disposed of the appeal in terms of the said compromise which provided that the respondents would give vacant possession of the premises in question to the appellants within 6 months. A few days before the expiry of the stipulated period each of the respondents filed separate writ petitions before the High Court of West Pakistan challenging the jurisdiction of the Additional District Judge to hear the appeal which had been assigned to him by the District Judge. As the question involved was not free from difficulty, a Division Bench of the High Court referred the matter to the Chief Justice for constituting a larger Bench to hear the writ petitions. By a majority judgment the Full Bench consisting of three learned Judges held that a District Judge was not competent to delegate his power of hearing appeals against the order of a Rent Controller to the Additional District Judge. They therefore, accepted the writ petition and after setting aside the order of the Additional District Judge sent back the case to the District Judge to decide the appeal in accordance with law. In the judgment of the High Court the question as to the competency of the Additional District Judge to hear the appeal is discussed at great length and numerous authorities are also collected. From the authorities cited therein it appears that there is wide divergence of judicial opinion on this question. Rulings were also cited before us from the Indian jurisdiction which also take different views. /To some extent this is due to the fact that similar Acts in various States or Provinces are differently worded. We, therefore, do not intend to refer to them because it would not be right to examine the language of the Acts that are not directly before us. We think the best course in order to determine the question involved in this appeal would be to examine the entire provisions of the West Pakistan Urban Rent Restrictions Ordinance, VI of 1959 and then to consider whether under this Ordinance the District Judge hears an appeal from an order of a Rent Controller as a persona designata or as a Court. Before examining the provisions however, we must make it clear that our decision on this point will be confined to this Ordinance only. From the Preamble it appears that the object of passing this Ordinance was `to restrict the increase of rent of certain premises within the limits of Urban Areas and the eviction of tenants therefrom in the Province of West Pakistan'. Thus this Ordinance aims at imposing certain controls and protections. The officer who is to function under the Ordinance is called `Controller'. The word `Controller' is defined in section 2 (b) as meaning "a judicial officer who is appointed by the Provincial Government to perform the functions of a Controller under this Ordinance". Section 4 gives him power to determine fair rent after holding such enquiry as he thinks fit. This section also details various points which have to be taken into consideration before determining the fair rent. Section 5 deals with cases in which further increase in fair rent is admissible. Sections 6 and 7 debar the landlord from claiming or receiving any fine, premium or any other like sum in excess of fair rent. Section 8 lays down procedure for recovery of excess rent. Section 9 gives right to the landlord to increase rent in certain eventualities. Section 10 gives a remedy to the tenant if the landlord without just or sufficient cause, cuts off or withholds any of the amenities enjoyed by the tenant. Section 11 forbids conversion of a residential building into a non‑residential building without the per mission of the Controller. Section 12 provides that in case of failure of the landlord to make necessary repairs the Controller may direct after such enquiry as he thinks necessary `that such repairs may be made by the tenant, and that the cost thereof, may be deducted from the rent which is payable by him.' Section 12‑A makes provisions for re‑imbursement of expenses incurred on repairs under the orders of a local authority. Section 13 deals with conditions upon which a tenant might be evicted or the landlord might be put into possession of the rented building. Section 14 gives power to the Controller of summary rejection of an application which raises substantially the same issues as have been finally decided in a former proceeding under this Ordinance. Section 15 relates to the appointment and powers of appellate authority. Under section 16 the Controller and the appellate authority have 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, 1908." Section 17 provides for execution of the orders made under the Ordinance in the same manner as decrees of the civil Courts. Under section 18 a duty is cast on the tenant and the landlord to furnish requisite particulars and its contravention is punishable under section 19 of the Ordinance. Section 20 gives power to the Provincial Government to make rules for the purpose of carrying out the provisions of this Ordinance. Section 21 repeals certain Acts and Regulations. First we must consider the precise character of the office of the Controller, namely, whether he is acting as a Court in respect of matters that he is required to perform under this Ordinance. From the provisions of the Ordinance it appears that though under section 16 the `Controller' has been given powers "of summoning and enforcing the attendance of witnesses and compelling the production of evidence" he is not bound in every case to follow the procedure as laid down in the Code of Civil Procedure. He has been given powers under sections 4, 10 (3) and 12 to make orders after holding such enquiry as he thinks fit. In such cases the question of nature of enquiry is left to him. That means that in such enquiries the parties have no right to insist on production of such evidence which they desire to adduce in support of their case. Therefore, no machinery is prescribed for summoning witnesses or compelling production of documents in such enquiries. In short these enquiries may be such as are conducted by an Executive Officer. Furthermore, the Controller has been given power to regulate the use by a landlord of his own property, inasmuch as within the Urban Area the landlord may not convert a residential building into a non residential building. The power thus conferred‑ on the Controller would appear to be a purely executive. Then subsection (3) of section 13 says that before putting the landlord in possession of the tenanted premises 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. If the word `satisfied' imports the necessity of an enquiry, even then it cannot be said that in holding such enquiry he will be bound by any particular procedure. We, therefore, conclude from the foregoing examination of the relevant provisions of the Ordinance that though some of the functions of the Controller are judicial in character, but yet he is not required to act judicially in discharging many of his functions. In these circumstances it will be difficult to hold that the Controller while performing his functions under this Ordinance acts as a Court. At the most it may be said that he acts in a quasi judicial capacity. The next question is : Whether the District Judge hears the appeal against the Controller's order as a Court. In order to ascertain this we have to look into the source of the power of the appellate authority, the general character of its powers and activities and if its procedure is judicial in character. Section 15 prescribes the manner in which the order of the `Controller' might be challenged. It is as follows "15.‑(1) (a) Government may by a general or special order, by notification, confer on such District Judges as it thinks fit, the powers of appellate authorities for the purposes of this Ordinance, in such area, or in such classes of cases, as may be specified in the order. (b) Any party aggrieved by an order passed by Controller may within thirty days from the date of such order 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 of the appeal. (3) The appellate authority shall decide the appeal after sending for the record 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) Any party aggrieved by an order passed on appeal by the appellate authority appointed by the Government under clause (a) of subsection (1), and if an appellate authority has not been appointed in respect of any area or class or cases, any party aggrieved by an order of the Controller may, within 30 days from the date of the order of the appellate authority or, as the case may be of the Controller, prefer an appeal in writing to the High Court and the decision thereof shall be final. Explanation.‑An appeal under this subsection shall be heard and determined as an appeal from an original decree under section 96 of the Code of Civil Procedure, 1908, if it is from an order of the Controller and as an appeal from the appellate order under section 100 of the said Code if it is from an order of the appellate authority and the provisions of Part VI and of the First Schedule to the said Code relating to appeals shall, with such modification as the context may require, apply to such proceedings. (5) No order passed by the Controller, the appellate authority or the High Court under the provisions of this Ordinance shall be called in question in any Court of law by suit or otherwise, except as provided under this Ordinance." Subsection (1) gives power to the Provincial Government "to appoint such District Judges as it think fit" as appellate authority. Now the question is : Is the District Judge as contemplated in this section the District Judge in his judicial capacity as the Presiding Officer of the principal Court in the District or a persona designata ? If the Legislature really wanted that the District Judges should hear the appeal as the Presiding Officer of the principal Court in the District, it could have easily said so. The fact that the Provincial Government is given power to select for this purpose "such District Judges as it thinks fit" indicates that the intention was not to confer appellate power on him as the Presiding Officer of the principal Court in a District. This is also clear from the provisions of subsections (3) and (5) of section

15. Subsection (3) empowers the appellate authority to decide the appeal 'if necessary, after making such further enquiry as it thinks fit either personally or through the Controller'. No procedure being prescribed the authority is governed only by the rules of natural justice, and thus the enquiry would be, at best, quasi judicial. Subsection (5) excludes the jurisdiction of any Court of law to question the order of the Controller, the Appellate Authority and the High Court under the provisions of this Ordinance. Now the only way in which subsection (1) which empowers selected District Judges to hear appeal from the Con troller can be reconciled with subsection (5) which excludes jurisdiction of the Court of law is that the District Judge is named in subsection (1) as a persona designata and not as a Presiding Officer of the principal Court in the District. In cannot be interpreted to mean that the section while excluding jurisdiction of the Court of law saves the jurisdiction of the Cot of a District Judge. Such an interpretation will practically nullify the provisions of subsection (5). As a result of the examination of the provisions of section 15 we are unable to hold that the District Judge's jurisdiction has been extended so as to empower him to hear appeal from the `Controller'. There is no indication in the Ordinance itself that the District Judge is to exercise his authority as the Presiding Officer of the principal Court in the Districts. On the other hand from the nature of his appointment; the character of his power an procedure; and the total ouster of jurisdiction of Court of law to question his order save as provided in the Ordinance it is clear that he while acting as appellate authority is not acting in hi ordinary judicial capacity as the Presiding Officer of his Court that such was not the intention of the Legislature is also clear from the amendment of 1962 by which the words `and Additional District Judge' were inserted in section 15 by Ordinance XXXII of 1962. An argument was raised that under the Punjab Courts Act, 1918 an Additional District Judge was of co‑ordinate authority with the District Judge. In view of our findings that the `Controller' and the Appellate Authority are not civil Courts it is not necessary to discuss this question at great length. It will suffice to say that section 18 of the said Act has no application here. As a result of our examination of the provisions of the Ordinance we have come to the conclusion that Special Tribunals out of the ordinary course have been appointed by this Ordinance to determine questions as to rights which are also the creation of the Ordinance and that the Tribunals' jurisdiction to determine those questions is also exclusive. We therefore, fully agree with the majority decision of the Full Bench that in the instant case the Additional District Judge was not competent to hear the appeal from the order of the "Controller". We accordingly dismiss the appeal but without any order as to costs. S. A. H./A. H. Appeal dismissed.