P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--On the 19th of October 1951, Mian Feroz Shah of Nowshera Kalan, made an application under section 3 of the North‑West Frontier Province House Rent Control (Act XV of 1946) (hereinafter called the "Act"), for the ejectment of Sultan Muhammad Khan, an Advocate of Peshawar, from a bungalow situated outside Ramdass Gate, Peshawar City. This application was heard and eventually dismissed by Abdullah Jan Mirza, Sub‑Judge, First Class, Peshawar, who had also been appointed in addition to his own duties a Controller under section 2, subsection (a) of the Act. An appeal against that order was preferred to the Senior Sub‑Judge, Peshawar, in his capacity as an Appellate Authority under section 7 of the Act. He accepted the appeal, and setting aside the order of the Controller, directed Sultan Muhammad Khan to vacate the house on or before the 17th of July 1956. Mian Feroz Shah was ordered to carry out the necessary repairs and construction of the upper storey of the bungalow within one year of its vacation, and if after the completion of the repairs and construction, it was not occupied by him, to offer it in the first instance to Sultan Muhammad Khan on such rent that might be fixed by the Controller. In view of, as he put it the peculiar circumstances of the case, he ordered the parties to bear their own costs throughout. Mr. Sultan Muhammad Khan has come up on revision to this Court against the above order. An important question of jurisdiction is raised in limine that this Court, as a successor Court of the Court of the Judicial Commissioner of the defunct Province of North‑West Frontier, has no jurisdiction under section 34 of the North West Frontier Province Courts Regulation I of 1931, or under any other law for the time being in force, to call for the record of any case of the Senior Sub‑Judge, decided by him as an Appellate Authority under the Act, because that authority exercised jurisdiction in such cases not as a Court, but as a persona designata. In my view, this preliminary objection must succeed and the petition dismissed. It is in the circumstances of the case, therefore, not necessary to go into the merits of the case. Before 1946, all disputes between landlords and tenants in the six districts which formed the since abolished North West Frontier Province, were heard and decided by the ordinary Courts following the normal law and the procedure laid down in the Civil P. C. A landlord had an unfettered right to turn out any tenant‑at‑will by giving him a notice to vacate a certain building within a specified time. The landlords taking undue advantage of the shortness of the accommoda tion in the Province, misused these powers and went on increasing the rents and evicting the tenants who did not agree to pay such enhanced rents. The position bad become pretty precarious and it was to place some limitations and restrictions on the powers of the landlords to arbitrarily enhance the rents or evict the tenants and to put a legal check on their resolute greed that the Act was passed, creating special Tribunals. The Act was essentially an executive measure and the Tribunals the executive authorities to carry out effectively the purposes for which the Act was passed. Here it will not be out of place to have a hurried resume of the provisions of the Act. Under section 3 of the Act, a tenant in possession of any house on a tenancy from month to month could not be ejected except for non‑payment of rent or breach of the conditions of tenancy or becoming guilty of conduct which was a nuisance or annoyance to any building or a neighbouring occupier. If the landlord reasonably and in good faith required a certain house for his own occupation or for the occupation of any person for whose benefit the house was held by him, he could have it vacated by applying to the Controller appointed under the Act. The Controller, if satisfied that the house was required by the landlord for the purposes mentioned above, could direct the tenant to vacate the house on or before such date as might be specified in the order not being less than three months after the date of the order. Under section 4, the Controller was given a jurisdic tion on an application made to that effect by a landlord or a tenant, to fix the fair rent of a house. This he could do by "Making such inquiry as he thought fit". The Controller, under section 5 of the Act, could require the landlord to produce any Book or Account or other documents; enter and inspect the house, or authorise any officer subordinate to him to enter and inspect such house. The procedure which the Controller had to follow, while exercising powers under the Act, was not to be the one which ordinary Courts pursued,. but was to be regulated by the Rules which the Provincial Government framed under section 6 of the Act. This provision gave an absolutely different status to the Controller than the one occupied by an ordinary Court. Any person aggrieved by an order of the Controller, could file an appeal within a specified time, to the Senior Sub‑Judge, under section 7 of the Act. This Authority then while hearing the appeal was not to be governed by the procedure laid down by the Civil P. C., but after sending for the records of the case from the Controller, he had to decide the appeal after "Pursuing such further inquiry as he thought fit". The decision of the Senior Sub‑Judge, and subject to such decision, the order. of the Controller, was to be final. An Act very much similar to the Act, although much more exhaustive than it, and different in certain respects, known as Punjab Urban Rent Restriction Act VI of 1947, was passed in the former Punjab as well. In that Act also, the Controller was to be appointed by the Provincial Government who, was to be approached for the eviction of a certain tenant from certain premises or for the fixation of fair rent of certain immovable property situated in urban areas. A Full Bench of the Lahore High Court in 1952, had an occasion to consider this Act and decide whether a High Court, acting under section 115 of the Civil P. C., had the jurisdiction to revise an order passed by a Controller or by an Appellate Authority appointed under the said Act. In that case, a certain property situated in Lahore and belonging to one Mst. Fahmida, had been rented out to the Chief Officer of the Corporation of the City of Lahore. Mst. Fahmida Begum made an application for the ejectment of Chief Officer, which was dismissed by the Controller, but on appeal, the Appellate Authority which was the Additional District Judge, Lahore, reversed the decision and directed the Chief Officer to put Mst. Fahmida in possession of the premises in question within three months of the date to the order. This order was challenged by a‑ revision petition in the High Court, Lahore on behalf of the Corporation of the City of Lahore, through its Chief Executive Officer. The leading judgment in the case was delivered by S. A. Rahman, J. His Lordship in a very learned, exhaustive and lucid judgment, after discussing, distinguishing, criticising and reviewing several authorities, came to the conclusion that the Controller appointed under the Act was not a Court, but a persona designata and so was the Appellate Authority. Both of them, according to His Lordship, were not "Courts" and were, therefore, not subordinate to the High Court, and the latter, therefore, could not in exercise of the jurisdiction conferred ,upon it by section 115 of the Civil P. C., call for the records of such authorities and revise the same, even if it appeared to it that such Authorities had exercised jurisdiction not vested in them by law or had failed to exercise the jurisdiction so vested or acted in the exercise of their jurisdiction illegally or with material irregularity. His Lordship observed in the course of the judgment that no such exhaustive definition of a "Court" was available in any of the Statutes. A "Tribunal" is not necessarily a "Court" in this strict sense, because it gives a final decision or it hears witnesses on oath, or two or more contending parties appear before it between whom it has to decide, or it gives a decision which affects the rights of subjects, or there is an appeal to a "Court", or it is a body to which a matter is referred by another body. The definition of the "Court" given in the Evidence Act was not considered exhaustive. His Lordship held that the Controller under the Punjab Act had certain specific powers of a Civil Court, but not all powers appertaining to such Courts. For instance, a Controller had no power to issue an injunction or appoint a receiver. His Lordship was influenced by the fact that a Controller had been vested with a limited jurisdiction under the Act and he could not try all kinds of suits as a Court does. His Lordship took notice of the fact that the Controller exercised jurisdiction by reason of the sanction of the law and not by the voluntary submission of the parties to a dispute, and that the Controller was concerned with the determination of what might be termed as justiciable issues and the disputes coming up before him were of a' Civil nature. His Lordship, with whom the other two Judges concurred, arrived at the conclusion that these factors did not conclusively establish the Tribunal to be a "Court", though their absence would clearly negative such a proposition. The Controller appointed under the Act in the previous North‑West Frontier Province did not enjoy any better position than the Controller appointed under the Punjab Act. On the contrary, while the Controller and the Appellate Authority under section 16 of the Punjab Act had 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, and their order could be executed by a Civil Court having jurisdiction in the area as if it were a decree of a Civil Court, the Controller in the N. W. F. Province had no such powers given by the statute and his orders were not to be treated or executed as the decrees of a Civil Court. In this respect, therefore, they stood in a worst position than their counterparts in Punjab. I am informed that under the Rules framed under the Act, the Controller has been armed with an authority to summon witnesses in the manner laic, down in the Civil P. C. but that would not, in any way. improve his status and make him a "Court" in the sense in which the word is ordinarily used as subject to the superintendence of the High Court. Following, therefore, with all respect the authority of the Full Bench of Lahore The Corporation of the City of Lahore v. Mst. Fahmida Begum (P L D 1952 Lah. 258), and for some of the reasons given therein, I hold that the Controller appointed under the Act is not a "Court", but a persona designata. It is then argued by the learned counsel appearing for the petitioner that the Senior Sub‑Judge, when he entertains appeals against the orders of the Controller, does so as a "Court", and therefore, his orders are revisable by this Court in the exercise of the powers vested in it under section 34 of the North‑West Frontier Province Courts Regulation I of 1931, as amended up to July 1942, subsection (3) of section 34 of the Regulation, excludes the application of section 115 of the Civil P. C., to the six Districts which heretofore formed the North‑West Frontier Province. It is pointed out that while under section 15 (1) of the Punjab Urban Rent Restric tion Act VI of 1947 it was the Provincial Government who by a general or special order by Notification conferred on such officers and authorities as "they thought fit" the powers of Appellate Authorities for the purpose of that Act, in the North‑West Frontier Province, the powers to hear the appeals were vested in the Senior Sub‑Judge by the statute itself and it was not left to the Provincial Government to appoint any body as the Appellate Authority. In my view, the difference between the two Acts as regards the Appellate Authority is only superficial and not real. The Senior Sub‑Judge, in spite of the fact that he has been appointed to entertain appeals from the orders of the Controller, would still be a persona designata, and not "Court". My reasons for coming to this conclusion are the following:‑‑ (i) The Controller, being a persona designata, any authority, whether it is appointed by the statute, or by the Provincial Government, which hears an appeal against the order of such a persona designata, would itself be only a persona designata and not a "Court". It would, if I may be permitted to say so, look absurd that an appeal against the order of a persona designata could be heard by a "Court of Law" which is expected to follow the set principles of justice laid down in different enactments. (ii) All that the Senior Sub‑Judge under section 7 of the Act, has to do when an appeal is presented to him in writing from the order of a Controller, is to send for the record of the case from the Controller, and after pursuing "Such further inquiry as he thinks fit", to decide the appeal. If the Senior Sub‑Judge while hearing the appeal were a "Court", then this provision was absolutely unnecessary and he had to decide the appeal following the procedure laid down in Order XLI, rule 4 of the Civil P. C. (iii) By empowering the Controller to pursue "any further inquiry as he thought fit" something has been introduced which makes such Authority an Executive Authority. This provision is completely foreign to justice as administered by and is inconsistent with the accepted principles which govern the Judicial Courts, and (iv) No connection between the Senior Sub‑Judge acting as an Appellate Authority under the Act and the High Courts is established. I, consequently, hold that the Senior Sub‑Judge, when he enter taius and decides an appeal under the Act, is also a am persona designata, and is not 'a "Court" so as to entitle this Court to act in the matter under section 34 of the North West Frontier Province Courts Regulation I of 1931. In this view of the case, I am fortified by two authorities of the Calcutta High Court, Tohur Sheik v. Manoranjun (A I R 194 Cal. 266) and Saifuro Bibi v. Isob Bepori (A I R 1947 Cal. 403). Both these cases were decided, the former by a Single Judge, and the latter by a Division Bench under the Bengal Alienation of Agricultural Land (Temporary Provisions) Act V of 1944. It will be noticed that under that Act, the District Judge, had been appointed the Appellate Authority by the Statute itself and still their Lordships of the Calcutta High Court held that the District Judge was a persona designata and the High Court had no jurisdiction to revise the decision given by the District Judge in an appeal against the order of the Collector. Lastly, it is contended by the learned counsel for the petitioner that unlike the Punjab Act, the jurisdiction of this Court is not specifically barred to entertain "Revisions" under section 34 of the North‑West Frontier Province Courts Regulation I of 1931. It is pointed out that under sub -clause (4) of section 15 of the Punjab Act, it was specifically mentioned that the orders of the Controller or those of the Appellate Authority were not liable to be called in question in any Court of law, whether in a suit or other proceeding by way of appeal or revision, while in the Act of North‑West Frontier Province all that is stated is that the decision of the Senior Sub‑Judge, and subject only to such decision, an order of the Controller, shall be final, Here the revisions are not specifically barred. I am prepared to concede that the words `shall be final' mean no more than this that the orders of such Authorities would not be appealable. In spite of the absence in the North‑West Frontier Province Act that the orders of the Controller and the Senior Sub‑Judge would not be revis able by the High Court, the petitioner has still to show that they are "Courts", because under section 34 of the North West Frontier Province Courts Regulation I of 1931 this Court can only call for the record of any case in which no appeal lies to it if this "Court" by which the case was decided appears to have exercised a jurisdiction not vested or to have acted in the exercise of its jurisdiction with material irregula rity. This Court has no jurisdiction, whatsoever, to call for the records of any authority other than "Court" and revise the same under, the given conditions. I have already held that neither the Controller, nor the Senior Sub‑Judge acting as an Appellate Authority under the Act, is a "Court", and, con sequently, I have no jurisdiction, whatsoever, to call for the records of those authorities and exercise my revisional powers. The result is, that the preliminary objection must prevail and the revision petition dismissed, but as intricate question of law is involved in the case, I leave the parties to bear their own costs throughout. A. H. Petition dismissed.