P L D 1959 (W (PLP)

5. I have heard the learned counsel on either side at length, and I have reached the conclusion that the appellants were not given by the Rent Controller proper opportunity of presenting their case and rebutting the material adverse to them.

6. The admitted position is that no evidence was taken by the Rent Controller nor did he hear any arguments of the learned counsel for the parties. The whole order is based on the impres sions gathered by him after inspecting the premises in question, and several other buildings, and on the certificates of two Advocates living to those buildings. It is almost a settled law that result of local inspection is not a substitute of evidence. The purpose oflf the inspection is to aid the tribunal in arriving at a correct decision Amratlal and others v. Land Acquisition Officer, Ahmedabad (A I R 1945 Bom. 302 (305)) ; Syed Ahmed Saheb Shatari v. The Magnasite Syndicate (A I R 1931 Mad. 531 (532)) ; Municipal Council v. Velayudha Menon (I L R 39 Mad. 501) ; Harnama v. Ghania Lal (A I R 1930 Lah. 152) and Ahmad v. Chief Judge, Karachi Small Causes Court (P L D 1958 Kar. 42 (48)). These authorities have laid down that the purpose of inspection is to aid the Tribunal to examine and assess the evidence laid before it. As said above, no evidence was taken either before the inspec tion or after it. The inspection itself was done in the absence of the counsel for the appellants, who, as it appears from his affidavit which is not controverted, went to the house of the Rent Controller, presumably to accompany him to the site. Thinking that no inspection had taken place, the counsel later wrote to the Rent Controller that another date be fixed for the same. The Rent Controller, however, did not intimate to him that he was under a wrong impression and that the inspection had in fact taken place. A reply of the kind would have at once alerted the counsel, who would have, in that case taken steps to know what bad happened at the site, and after obtaining a copy of the notes of inspection, would have asked for a date for placing his case before him, controverting and explaining the impressions gathered by the Rent Controller as the result of the inspection. It is true that the Rent Controller was not bound to re‑inspect the premises. But, it is also true that his order is based not only on the result of the inspection of the building in question, but also on the impression gathered by him after inspecting other buildings, and on the certificates obtained by him from two Advocates at the site.

7. It is a grievance of the appellants that although 29th April was fixed for inspecting the building in question, the Rent Controller inspected some other buildings for which inspection they were given no notice. They contend, and to me there is substance in their contention, that they would have pointed out several features in those very buildings to show that there could be no comparison between their building and those which the Rent Controller had inspected. Besides, they would have shown him other buildings similar to theirs in the same locality, fetching the rent which they had been receiving from the respondents. This ex‑pane inspection of the adjoining buildings was obviously without notice and, therefore, in violation of the principles of natural justice.

8. As if this was not sufficient, the Rent Controller pro ceeded to obtain certificates from two Advocates on the site, in the absence of the appellants. The impression conveyed to him by those certificates, has obviously influenced the Rent Controller in arriving at the decision which is adverse to the appellants.

9. Even if it be conceded that ex parte inspection of the building in question was justified, the appellants having remained absent in spite of the notice, there could be no justification for the ex‑parte inspection of other buildings and for obtaining certificates, and thus collecting evidence in favour of one party to the prejudice of the other, in the latter's absence, and using the same in passing an order adverse to them, without previously apprising them of his intention to use the evidence thus collected, for the purpose of adjudication.

10. If the Rent Controller was not inclined to inform the appellants in reply to their counsel's letter that he having inspected the building in question once was not prepared to re‑inspect it, he should, in fairness to them, have informed them of his other acti vities at the site, of which activities the appellants could not possibly have any notice. Had he done so, the appellants, as Mr. Kotwal, who appears for them, contended at the Bar, would have asked him to see other buildings of the same type, in the same locality, with similar accommodation fetching same rent, and they would have also asked for an opportunity to comment on the certificates of the Advocates, and lead evidence to controvert the same. 11. 1t is contended on behalf of the respondents that the Rent Controller was not bound to take evidence or hear arguments and that he could base his order solely on the result of the inspec tion. The learned counsel for the respondents, in support of his contention, relied upon the provisions of section 4 of the Act, which, according to him, empowers the Rent Controller to base his order solely on the result of inspection. Section 4 reads as under :‑ " The Controller‑ (a) shall in the case of premises in respect of which an application is‑made by the landlord or the tenant, on such appli cation, and (b) may in the case of any other premises, of his own motion, determine, after making such enquiry as he deems fit, the fair rent in accordance with the provisions of this Act. The section nowhere says that the Rent Controller is empowered to base his order solely on the result of the inspection. The section requires the Rent Controller to determine fair rent after making such inquiry as he deems fit. The question is, has the inquiry been made Inspection by no means is a substitute of an enquiry. It is merely a step taken by the Tribunal in the course of the inquiry, in order to examine the evidence and other material brought on record, and assess the same in the light of the impressions gathered after the inspection.

12. Section 23 of the Act which enumerates the ways in which the inquiry is to be held, reads as under :‑ "For the purpose of an enquiry under this Act the Controller may‑ (a) require the landlord to produce any book of account, document or other information relating to the premises ; (b) enter and inspect the premises ; (c) authorise any officer subordinate to him to enter and inspect the premises ; or (d) summon and enforce the attendance of witnesses and compel the production of documents by the same means and so far as may be, in the same manner as is provided in the case of a Court by the Code of Civil Procedure, 1908". The section opens with the words "For the purpose of an enquiry under this Act, the Controller may :‑ (b) enter and inspect the premises." Thus the inspection is done for the purpose of an inquiry and not as a substitute of an inquiry, as is contended by the learned counsel for the respondents. In fact, clause (c) of this section should set at rest the controversy on this point, for that clause contemplates the inspection even by a subordinate to the Rent Controller. Could it, in that case, be justifiably contended that the Rent Controller is empowered to base his order on the impressions gathered not by him but by an officer subordinate to him. The learned counsel has also cited certain rulings in support of the proposition that the Rent Controller was empowered to base his order solely on the result of the inspection. The provisions of the Local Government Board Act and Housing, Town Planning Act referred to in the decision reported in 1915 A C 120, are not before me, and hence it is not possible to say that they are analo gous to those of Karachi, Rent Restriction Act. In the cited case, it appears that the impugned order was based on the result of a departmental enquiry. The party affected by that decision, insisted that the procedure to be followed should be the one followed in Law Courts. Their Lordships repelled this contention on the ground that, the Act itself provided that the Board was not bound to follow a procedure analogous to the one followed in Law Courts. But at the same time it was observed that the procedure adopted by the Board should not be in defiance of elementary standard say, by hearing one side and refusing to hear the other. It is important to note that there is no particular procedure prescribed in the Rent Restriction Act. And the principle is that in the absence of a provision to the contrary, the procedure of Law' Courts has to be followed. In the case in Board of Educa tion v. Rice (1911 A C 179) it was laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith and to listen fairly to both .sides, inasmuch as that was a duty which lay on every one who decided anything. It was further held that although the Board could obtain information in any way it thought best, it was obli gatory on it to give fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their case.

12. The other case relied upon by the learned counsel for the respondents is (1950) 2 K B

410. The facts of that case are quite different from those in the present case. Besides, in that case, the landlords did produce evidence and the tribunal gave their decision after they had heard all the evidence which was put before them.

13. In P L D 1957 S C (tad.) 227, the decision was given after the parties were actually given opportunity to be heard.

14. The learned counsel for the respondents concedes that the Rent Controller heard no evidence either before the inspection or after it. He also concedes that the Rent Controller did not call upon the parties to argue their case before him. It is also admitted that the Rent Controller did not place on record the notes of inspection. It is not denied that when the date for inspecting ,the site was given, the parties were not informed by the Rent Controller that besides the building in dispute, he would inspect other buildings. It is also not denied that the Rent Controller obtained certificates of the two Advocates at the site, in the absence of the appellants. It is, therefore, clear that the Rent Controller has made no enquiry much less proper enquiry.

15. I, therefore, hold that the appellants were not given by the Rent Controller proper opportunity of prosecuting their case and rebutting the material adverse to them.

16. I allow the appeal and set aside the judgment of the trial Court and further declare that the order of the Rent Controller dated 9th July 1949, is not binding on the parties. It will be open to the respondents to apply afresh for the fixation of the fair rent. The appellants are granted costs throughout. A. H. Appeal allowed,