Francis Paul vs Fakir Ummerkutty and Another

Subramania Iyer, J.—The Petitioner is the tenant of the non-residential building No. C 57 in Ward VII of the Kottayam Municipality. He asks the Court: "(a) to issue a writ of certiorari quashing the order for eviction passed by the District Collector, dated 27-11-1950 in R. C. A. 22/50 and (b) to give such further and other directions as the circumstances of the case require." There are only, two Respondents to this petition of whom the first is the landlord and the second the District Collector, Kottayam.

The Petitioner took the building on lease for a period, of six months ending 24-8-1124 on a rent of Rs. 30/- per month. Having agreed to enhance the rent to Rs. 125/- per month he held over and oil 10-10-1124 executed a rent deed for a period of 12 months from the date of expiry of the previous lease till 24-8-1125. The rent of the last month ending 21-8-25 was then paid in advance on a receipt passed by the landlord and it, was stipulated that the rent for each of the remaining 11 months would be paid on the 24th of every month commencing from that month. Payments for the first three months were regular. On 10-4-1125 the Petitioner applied before the Rent Controller for fixing fair rent under the provisions of the Travancore Building Rent Control Order, 1122 and requested that the excess rent collected from him may be directed to be refunded by the landlord or that he may be permitted to adjust it towards the rent clue from 24-3-1125. On 25-6-1125 the landlord in his turn applied for eviction on the ground that the tenant had defaulted payment of rent. He mentioned in his application the fact that Rs. 250/- had been paid by the tenant towards arrears of rent in Vrischigom 1125 and that even if the advance payment made on the date of the rent deed be adjusted, the tenant would be in arrears from 24-3-1125 with the result that on 10-4-1125 when the tenant applied for fixing the fair rent, he would have been a defaulter as regards the rent payable on 24-3-1125 which would have remained unpaid for more than 15 days after the due date.

On 7-8-1950 the Rent Controller passed orders on both the petitions. He allowed the petition of the tenant and fixed Rs. 24-12-0 as the fair rent. He also allowed the petition of the landlord for eviction on the ground that the tenant was a defaulter. The prohibition against eviction during the contractual period of tenancy contained in the Travancore-Cochin Buildings Lease and Rent Control Order, 1950 which carne into force on 17-8-1950 did not exist in the Travancore Building Rent Control Order, 1122 under which the applications were made and orders passed. Both the parties felt aggrieved by these orders and they filed appeals before the District Collector, Kottayam who, on. 27-11-1950. dismissed both the appeals. The Petitioner applied to the Government of Travancore-Cochin for revising the order of the Collector confirming that of the Rent Controller allowing the landlord''s prayer for eviction. The Government by order dated 31-3-1951 confirmed the order sought to be revised. On presentation of this petition in this Court, the Petitioner obtained an order of interim stay on 23-4-51.

The Government who passed the last and final order for eviction are not on record here nor is their order sought to be quashed by this Court.

The only point raised by learned Counsel for the Petitioner is that the Rent Controller as also the Collector omitted to advert to the fact that the Petitioner had exercised his option regarding the adjustment of the excess rent collected by the landlord in having prayed for permission for its being set off against the future rent payable from 24-3-1125, that is to say, had omitted to advert to and apply the provisions of Section 5(c) of the Rent Control Order.

A copy of the order of the Government dated 31-3-1951 was produced by the Petitioner in this Court along with his petition. All the records of the proceedings sought to be quashed have been brought up. The Government did not find their way to interfering with the concurrent finding of fact recorded by the Rent Controller and the Collector to the effect that the Petitioner was in default which entailed eviction. In that view the question of adjustment of the excess rent collected did not fall to be decided by them.

Neither the Rent Controller nor the Collector adverted to the prayer of the Petitioner for adjustment of the excess rent collected by the landlord against future rent. Both of them alike found that the Petitioner did not pay or tender the rent as he was bound to do and that the landlord became entitled to an order for eviction. The details of facts on which the said finding was based are however not mentioned in the orders. It would have been satisfactory had they referred to the prayer for adjustment and stated the facts in full. The omission however does not lead to any material result as the facts appear on the face of the records which have been brought up at the request of the Petitioner. Those records reveal that it was by taking into account the amount of Rs. 125/- paid by the tenant on the date of the rent deed that he thought he had made good the rent clue till 24-3-1125. The circumstance that the said amount had been earmarked as the rent of a specific month ending 24-8-1125 was not either remembered or regarded as disentitling the tenant from claiming its adjustment towards the rent of an earlier month. If the amount that was appropriated and paid as for a specific month and accepted as for that month by the landlord would not admit of a unilateral adjustment for an earlier month at the instance of the tenant, as I think it would not, then the Petitioner is not right in saying that the rent due on 24-3-1125 had been paid. This leads to the further consequence that the petition for fixing the fair rent, mention wherein as to the adjustment of the excess amount collected by the landlord towards future rent from 24-3-1125 is relied upon as the exercise of his choice and as tending not to make him a defaulter thereafter, would not avail him because no adjustment is even proposed as regards the rent that was due to be paid on 24-3-1125. The proposal being confined to the period subsequent thereto and operating on the rent payable only on 24-4-1125 and thereafter. A scrutiny of the papers brought up having led to this disclosure, learned Counsel for the Petitioner was forced to contend that it is beyond the competence of this Court to find a fact not found by the Controller or the Collector.

The records of the proceedings were brought up for examination at the instance of the Petitioner himself with a view to have the proceedings quashed. If on examination the records reveal facts which are beyond controversy, though they have not been specifically dealt with by the authorities concerned, it is well within the competence of this Court to have regard to those facts and their hearing on the sustainability of the orders sought to be quashed. The Petitioner having invited the Court''s attention to certain papers in the hope that they would support his cause cannot, when they are seen to be against him, object to the Court''s use thereof according to their real tenor. The result is that the Petitioner was and continues to be a defaulter in respect of the rent due to be paid on 24-3-1125. This circumstance carries with it the inevitable consequence of his liability, to be evicted, from the premises. The order for eviction passed by the Controller and the Collector is thus unassailable.

The point that was stressed by learned Counsel for the Petitioner was that the Rent Controller having passed his orders on the application of the tenant for fixing fair rent as also of the landlord for eviction on the same day, the order for eviction whose only basis was the default of the tenant in payment of rent cannot be supported as there was ample fund with the landlord by way of the excess collected by him in view of the fixation of fair rent at a very much lower rate than that collected, available for adjustment which, if done, there will be no default in payment of rent. Though the orders are passed on the same day and may be taken to have been pronounced at, about, or even at the same time, there is no simultaneity in their operation. Default in payment or tender of rent which is the cause of action for ordering eviction arose as on the date or dates when the payment or tender should have been made which preceded the application of the landlord. The order for eviction merely declares that that cause of action arose on the particular date or dates and enables the landlord to have the benefit thereof. No substantive right accrues to the landlord on the date or on account of the order for eviction which only operates to enforce an already existing right. On the other hand, in the case of the excess amount on the right to the adjustment of which the tenant depends it arises on account of and after the order fixing the fair rent. Section 5 reads as follows:

When the Controller has determined the fair rent of a building-

(a) The landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, amount not exceeding one month''s rent,

(b) Any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent except in cases falling under Clause (4) or Sub-clause (a) of this clause shall be null and void in respect of such addition or excess and shall be construed as if it were an agreement for payment of the fair rent

(c) Any sum paid in excess of the fair rent, whether before or after commencement of this order, in respect of the use of the, building after the commencement of this order, shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted.

The first word "when" indicates that the right to refund or adjustment arises on and on account of the order of the Controller determining the fair rent. The excess to whose refund or adjustment the tenant becomes thus entitled can therefore be utilised only in respect of rent, if any, that may become payable subsequent to the date of the order. Until the date when fair rent is fixed at lower than the contractual rate, the tenant has to continue to pay or tender the rent even during the pendency of the proceedings for fixing the fair rent in order that he may not become a defaulter and incur liability for eviction as such. The matter appears to be clear upon the language of the Section. Reference may however be made to the following cases which have taken this view. (1) In Re: Navaneethammal, Rama Subbiah v. C.J. Cole 1951 2 MLJ 663 (3) Krishnaswami Mudaliar v. Rahman Baig 1952-1 Mad LJ 61 (4) Nune Panduranga Rao, minor by next friend Nune Sivaiah Vs. Divvala Gopala Rao and Another, Dharendra Krishna v. Banwarilal 83 CLJ 229 (6) Baijnath Sao Vs. Ram Prasad, Augustine v. Uthuppu 1951 6 DLR (TC) 76.

Indeed learned Counsel for the Petitioner has not been able to refer to any decision which has taken a contrary view.

Learned Counsel for the Respondents contended that the Rent Control Order creates a self-sufficient and complete machinery for the decision and disposal of matters specified therein and if the authorities functioning thereunder decide matters within their jurisdiction, it is beyond the competence of this Court to interfere with such exercise even though their decision may appear to be erroneous. Their Lordships of the Supreme Court of India dealt with the question of the scope of interference of the Court in an application for a writ of certiorari in-'' Province of Bombay Vs. Kusaldas S. Advani and Others, Kania C.J. stated at page 227:

It is clear that such writ can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi-judicial, and, secondly, the challenge must be in respect of the excess or want of jurisdiction of the deciding authority. Unless both those conditions are fulfilled, no application for a writ of certiorari can succeed.

Fazl Ali J. said:

It is well settled that a writ of certiorari can be issued only against inferior Courts or persons or authorities who are required by law to act judicially or quasi-judicially, in those cases where they act in excess of their legal authority. (Pages 227 and 228).

He stated further at p. 231:

As I have already stated, a petition for a writ of certiorari can succeed only if two conditions are fulfilled: firstly, the order to be quashed is passed by an inferior Court or a person or authority exercising a judicial or quasi-judicial function, and secondly, such court or quasi-judicial body has acted in excess, of its legal authority.

Mahajan J. stated thus:

It is well settled that a writ of certiorari lies if the order complained of is either a judicial or a quasi-judicial order but it is not competent if the order is an administrative or an executive order. The circumstances under which a writ of certiorari can be issued are succinctly stated by Atkin L.J. in - ''Rex v. Electricity Commissioners'' (1924) 1 KB 171 at p. 205 : 93 L J K B 390 in these terms:

Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs.

It is said in-''Rex v. London County Council'' (1931) 2 K B 215 at p. 243 : 100 L J K B 760 that four conditions have to be fulfilled before a writ of certiorari can issue. (1) there must be a body of persons, (2) it must have legal authority to determine questions affecting the rights of subjects, (3) it has the duty laid upon it to act judicially, and (4) it acts in excess of its legal authority.'' (p. 231).

Mukherjea J. stated as follows:

In the words of Bankes L.J. the course of development of Jaw on the subject demonstrates what has been the best of English Common law that it will, whenever possible and where necessary apply existing principles to new set of circumstances: Vide - ''Rex v. Electricity Commissioners'' (1924) 1 K.B 171 at p. 192 : 93 L. J. K. B. 390 and it was in very general terms that opinion was expressed in - ''Rex v. Inhabitants of Glamorganshire'' 1 (394-1732) 1 LR 580, that the Court would examine the proceedings of all jurisdiction created by Acts of Parliament and in under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants, the Court would send a certiorari to them to have their proceedings returned to the Court to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it, to restrain them.

The whole law on the subject relating to issuing of writs of certiorari was thus summed up by Atkin L.J. in - ''Rex v. Electricity Commissioners'' (1924) 1 K.B. 171 at p. 205: 93 L.J. K. B. 390.

Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs. (Pages 238 and 239).

Das J. stated as follows:

The writ of certiorari is a very well known ancient high prerogative writ that used to be issued by the Court of King''s Bench to correct the errors of the inferior Courts strictly so called. It is with this writ that the Judges of the King''s Bench used to exercise control over Courts of inferior jurisdiction where the latter acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Gradually the scope of these writs was enlarged so as to exercise control over various bodies which were not strictly speaking, Courts at all, but which were by statute vested with powers and duties that resembled those of the ordinary inferior Courts. These statutory bodies were called quasi-judicial bodies and their decisions were called quasi-judicial acts and the Courts of King''s Bench freely began to bring up the records of these quasi-judicial bodies, examine them and, if thought fit, quash them. The real reason for this extension of the scope of the writ of certiorari was the distrust with which the Judges looked upon the numerous statutory bodies that were being brought into existence and vested with, large powers of affecting the rights of the subject and this extension was founded on the plausible plea that these statutory bodies exercised quasi-judicial functions. The law is now well settled that a will lie of certiorari will lie to control a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, provided that, on a true construction of the statute creating the body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It is equally well settled that a certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions. It is, therefore necessary, in order to determine the correctness of the order appealed from to ascertain the true nature of the functions entrusted to, and exercised by, the Provincial Government under the ordinance in question. (Page 250.)

Their Lordships had occasion to consider the same question in a later case which arose under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 3 of 1947 the relevant provisions of which are similar to those of the statute under consideration, in - ''Brij Raj Krishna v. S.K. Shaw and Bros.'' AIR 1951 SC 238 wherein the following is the concluding portion of their Lordships'' judgment:

The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final, and subject only to the decision of the Commissioner. The Act empowers the Controller alone to decide whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him u/s 11. Such being the provisions of the Act, we have to see whether it is at all possible to question the decision of the Controller on a matter which the Act clearly empowers him to decide. The law on this subject has been very lucidly stated by Lord Esher, M.R. in - ''The Queen v. Commrs. for Special Purposes of the income tax'' (188821 QBD 313) in these words:

When an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is Anr. state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave, them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, their is no appeal from such exercise of their jurisdiction.

On the same lines are the following observations of Sir James Colville in - ''The Colonial Bank of Australasia v. Willan (1874 LR 5 PC 417), which is a case dealing with the principles on which a writ of certiorari may be issued.

Accordingly, the authorities establish that on adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of the fact stated therein; and that the Court of Queen''s Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found.

There can be no doubt that the present case falls within the second category mentioned by Lord Esher, because here the Act has entrusted the Controller with a jurisdiction, which includes the jurisdiction to determine whether there is non-payment of rent or not as well as the jurisdiction on Hading that there is non-payment of rent, to order eviction of a tenant. Therefore, even if the Controller may be assumed to have wrongly decided the question of non-payment of rent, which by no means is clear, his order cannot be questioned in a Civil Court.

This Court has taken the same view in -''Dr. John Mathai v. Fakrudin'' (1951 KLT 714). I therefore accept the contention urged on behalf of the Respondents and hold, as I did in - ''Chinnakannu Pillai v. Gomathi Ammal'' 1951 KLT 638 that certiorari will not lie when the authority entrusted with the decision of a question acts within jurisdiction and the only criticism is that this decision is erroneous.

The result is that the petition should be dismissed with costs for the Respondents with advocate''s fee which is fixed at Rs. 100/- for each of the two Respondents who appeared by separate counsel.