Hari Singh and Others vs Dy. Commissioner and Others

Mehar Singh, J.—This is a petition under Article 226 of the Constitution and Section 60 of Ordinance No. 10 of 2005 Bk. for writ of certiorari, mandamus, prohibition, or such other direction or order as may be deemed appropriate in the circumstances of the case.

The Petitioner is a tenant of a shop that is the property of Respondent No. 3, Mahan Singh. The shop is situate at Mandi Rampura Phul and the rent is Rs. 120/- payable half-yearly.

On 9-3-1951, Respondent No. 3 made an application u/s 13, Pepsu Urban Rent Restriction Ordinance (Ordinance No. 8 of 2006 Bk.) for ejectment of the Petitioner on the ground of nonpayment of rent. The Rent Controller found that there had not been payment of rent for nine months previous to the date of the application by, Respondent No. 3 and that there was no substance in the plea of the Petitioner that he could set off the amount spent by him upon repairs as against the arrears of rent because he did not carry out the repairs with the consent of or notice to the Respondent No. 3 as the landlord. So by his order, dated 25-4-1953, he directed ejectment of the Petitioner from the shop on the ground, urged by Respondent No. 3. The Rent Controller is Respondent No. 2 in the case.

The Petitioner went in appeal to the Deputy Commissioner at Barnala against the order of Respondent No. 2 passed by him as Rent Controller. It appears that before the appeal could be heard there was some kind of administrative combination of districts of Barnala and Sangrur and one Deputy Commissioner at Sangrur was appointed for both the districts, with the Additional Deputy Commissioner at Barnala. The appeal was heard by the Additional Deputy Commissioner at Barnala Respondent No. 1, and was rejected on 25-8-1953, on the ground of non-payment of rent by the peti tioner and of non-tender of rent by him at the first hearing of the application of Respondent No. 3 before the Rent Controller.

It is against the orders of both the Rent Controller and the appellate authority (Additional Deputy Commissioner at Barnala) that the Petitioner has filed this writ petition urging that both the orders are without jurisdiction and so should be quashed and a direction issued to Respondent, No. 4, Sub-Judge 2nd Class, at Phul, not to execute those orders and eject the Petitioner from the shop.

The contention on behalf of the Petitioner is that the Additional Deputy Commissioner at Barnala had not been vested with the powers of an appellate authority u/s 16(1) of Ordinance No. 8 of 2006 Bk. and, therefore, there was total want of jurisdiction in him to hear the appeal. The reply on behalf of the Respondents is that the Additional Deputy Commissioner was exercising the same powers under the said Ordinance as the Deputy Commissioner and, therefore, he had the appellate authority u/s 16(1) of that Ordinance and further that the question of want of jurisdiction not having been raised before the Additional Deputy Commissioner disentitles the Petitioner to a discretionary relief by way of writ from this Court. I may state here that although in the beginning of his petition, the Petitioner has stated that it is under Article 226 of the Constitution and Section 60 of Ordinance No. 10 of 2005 Bk., but in para 9 (v) of his petition he claims that in the alternative in exercise of the powers under Article 227 of the Constitution the orders of the Additional Deputy Commissioner and the Rent Controller, Respondents Nos. 1 and 2, be quashed.

The appellate authority under Ordinance No. 8 of 2006 Bk. is to vest in such officers and authorities as the Government may confer by a general or special order published in the official Gazette as is provided in Section 16(1)(a) of that Ordinance. In pursuance of this power a general order No. 6 of 20-5-1949 was issued by the Government in the following terms-

In exercise of the powers conferred by Clause (a) of Sub-section (1) of Section 15 (in fact. Section 16) of the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 Bk. the Government of the Union is pleased to appoint the Deputy Commissioners as the appellate authority within the limits of their respective districts.

The Deputy Commissioner at Barnala was exercising appellate authority u/s 16 (1)(a) of Ordinance No. 8 of 2006 Bk. under this notification. As stated, due to certain administrative changes in the set-up of the districts, later on only one Deputy Commissioner at Sangrur was appointed for both the districts of Sangrur and Barnala and Notification No. 318 of 5-8-1953, appointed S. Damodar Dass as officiating Additional Deputy Commissioner of the Barnala district. But no modification was made in the general Notification No. 6 of 20-5-1949, made u/s 16(1)(a) of Ordinance No. 8 of 2006 Bk.

The learned Counsel for the Respondents has not been able to point out to any notification or order of the Government that the powers of the Additional Deputy Commissioner at Barnala were the same as that of the Deputy Commissioner for that district. It is apparent that Additional Deputy Commissioner at Barnala has not been conferred the powers of an appellate authority u/s 16 (1) (a) of Ordinance No. 8 of 2006 Bk. and so, although the appeal was lodged by the Petitioner before the competent authority in the beginning, it was heard by an authority which had no power and jurisdiction to hear the appeal. This is a case in which there was thus want of initial and total jurisdiction in the Additional Deputy Commissioner to hear the appeal of the Petitioner against the order ''of the Rent Controller.

In - Gandhinagar Motor Transport Society Vs. State of Bombay, it has been held that where the question of want of jurisdiction of a tribunal is not raised before the tribunal, the Petitioner is not entitled to a writ of certiorari. In that case reliance has been placed on - ''Rex v. Williams; Philips, Ex parte'' (1914) 1 KB 608 (B) and the learned Judges cited the following observations of Channell J. on the point:

A party may by his conduct preclude himself from claiming the writ ''ex debit-to justified'' no matter whether the proceedings which he seeks to quash are void or avoidable. If they are void it is true that no conduct of his will validate them; but such considerations do hot affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debit justified'' to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them".

It is evident from this observation of the learned Judge that the question of want of jurisdiction of a tribunal must first be raised before that tribunal if it is to be permitted to be taken in a petition asking for a writ, as in this case, unless the party shows that at the time of proceedings impugned he was not aware of the facts which indicated the want of jurisdiction in the tribunal. But in this case there is no such averment on the part of the Petitioner. It follows that the Petitioner is not entitled to the remedy by way of writ under Article 226.

However, as stated, the Petitioner has in the alternative claimed that the order of the appellate authority (the Additional Deputy Com- missioner) be quashed under Article 227. In the head-note of - ''Gandhinagar Motor Transport Society v. State of Bombay (A)'', it is stated that the principle that the question of want of jurisdiction of a tribunal must be raised before the tribunal whose order is being challenged before it can be allowed to be raised in a petition under Article 228, also applies to a petition under Article 227, but from the body of the judgment it is no clear whether that was also a case under Article 227. There is reference to Article 227 in para. 4 of the judgment, but it is not clear from the judgment that that principle governs the power of the High Court under Article 227. .

I am inclined to the view that where there initial and total want of jurisdiction and the Petitioner comes to the High Court under Article 22. the High Court has power to grant relief in spite of the question of want of jurisdiction not having been raised before the tribunal whose order in under question, because there is difference in the nature of the powers under the two Articles. The jurisdiction under Article 227 is more in the nature of revisional jurisdiction and where it a patent case of want of initial jurisdiction I think It is a proper case for interference under Article 227 and to such a case the principle relied upon in -- ''Gandhinagar Motor Transport Society State of Bombay (A)'', would not apply. .

It has been shown above that the Addition. Deputy Commissioner at Barnala had no jurisdtion to hear and decide the appeal of the toner against the order of the Rent Control: and there was initial want of jurisdiction in that authority to dispose of the appeal. In the view taken above, the petition under Article 226 fails, but the prayer of the Petitioner under Article 227 must succeed. So to that extent this petition succeeds and the appellate order, dated 25-8-1953 of the Additional Deputy Commissioner is quashed and the appeal is remitted to the Deputy Commissioner of Sangrur who is now the appellate authority also for Barnala district, for hearing and disposal on merits.

In the circumstances of the case the parties are left to their own costs.