Kishorilal and Others vs Raja Rameshwardas

A. Srinivasa Chari, J.—These are a batch of applications in which a common question of law is involved as to whether the remedy of a party aggrieved by the order of the Collector, in his capacity as the Appellate Authority over the House Rent Controller is by way of a revision or by a writ of certiorari. In these cases applications for the issue of writs of certiorari were originally filed; later it was alternatively prayed that if for any reason a writ of certiorari be not the proper remedy they may be treated as revision applications. The Division Bench hearing these applications in view of the difference of opinion as regards the remedy open to a party aggrieved by such an order thought it advisable to refer the question to a Full Bench for finally setting at rest the conflict. Two divergent views have been expressed in � 38 D.L.R. 357 and � 39 D.L.R. 440. In � 38 D L R 357 the learned Judges have held that the remedy against the order of a Collector as the appellate authority in Rent Control proceedings is by way of an application for the issue of a writ of certiorari while in the latter decision it has been decided that an application by way of revision would lie to the High Court.

It has to be observed at the outset that after the inauguration of the Constitution, this question has become purely academic. Article 227 of the Constitution empowers each High Court to exercise superintendence not only over courts but also over tribunals throughout the territories within its jurisdiction. It can further issue writs of certiorari etc., under Article 22G. It is clear that the Authorities or Tribunals against which a writ of certiorari can be issued or power of superintendence exercised can be other than mere courts of justice. Therefore after the 26th of January 1950, though not in revision but in the exercise of its powers of superintendence, the High Court can always set right the order passed by a Court of a Tribunal or any Authority. The remedy by way of a writ of certiorari is limited in its scope and it is not in all cases that such a remedy would lie, for, it is only in cases of excess of jurisdiction or utter want or absence of jurisdiction, that the High Court would exercise its powers for the issue of a writ of certiorari. The powers under the revisional jurisdiction, however, though to a certain extent limited in their scope, are wider than the powers under certiorari. If the orders now sought to be attacked were orders passed subsequent to the 2Gth January 1950, the determination of the question of the remedy would not have arisen. But these orders were passed just three days prior, to the coming into force of the Constitution. So we have to determine the question as to what the proper remedy would be having regard to the powers of the High Court prior to the coming into force of the Constitution. Further a conclusive decision is also necessary in order to remove the doubt in the minds of the litigant public as regards the remedy that they have to pursue in view of the conflicting rulings referred to above.

The High Court at Hyderabad used to exercise its revisional jurisdiction u/s 615 of the Hyderabad CPC read with Section 17 of the High Court Act. It would be desirable at this stage to refer herein to the state of the case law in Hyderabad prior to the coming into force of the Constitution. The first case in this connection which may be referred to is a case reported in � ''23 D L R 106''. This was revision against the order of the Land Acquisition Officer. In this case a revision was filed by the aggrieved party and the court after admitting the revision called for the files from the Collector, Land Acquisition. The Collector Land Acquisition, declined to send the files stating that he was not subordinate to the High Court. The majority of the Judges constituting the Full Bench held that the contention of the Collector, Land Acquisition was wrong and that the highest court was entitled to send for the files and it would be open to the parties to urge before the Court as to whether a revision would lie against the order of the Land Acquisition Officer or not. Having regard to the particular facts of this case, this decision is not of much assistance so far as the point involved in this reference is concerned.

(b) The next case that may be referred to is the case of Vithal v. The Government 29 D L R 57. A petition was filed before the District Judge, Osmanabad, by Vithal Rao stating that his father as the Manager of a Hindu joint family died possessed of certain promissory notes, that the applicant was the Manager of the joint family now and that the promissory notes be renewed in the name of the Manager under the provisions of the Securities Act. This application was rejected by the ''Nazim Jilla'' on the ground that the applicant should apply for a succession certificate. The applicant filed a revision to the High Court against the aforesaid order. Two questions arose before the Court; (i) whether when exercising the powers vested in him to renew the Government promissory notes in the name of the Manager of a joint family under the Securities Act, the ''Nazim Zilla'' was exercising judicial powers and whether therefore he was subordinate to the High Court and (ii) Whether the High Court could interfere in revision against his order. With regard to these points, the Division Bench held that in exercising these powers the ''Nazim Zilla'' was doing so as a court and that he was subordinate to the High Court. Secondly they held that the High Court could interfere in revision against an order passed by the ''Nazim Zilla'' u/s 10 of the Securities Act. It has to be observed that in this case the reasoning on which the judgment of the High Court appears to have been based is that the ''Nazim Zilla'' was already a Judicial Officer, subordinate to the High Court and if he was already subordinate to the High Court any other power given to him under any special enactment which he may exercise would be deemed to be a power exercised by the ''Nazim Zilla'' as a Judicial Officer alone and if he exercised those powers as a judicial officer he would be subordinate to the High Court and if he is subordinate to the High Court, Section 615 of the Hyderabad Civil P. C, read with Section 17 of the High Court Act, would come into operation and his orders would be subject to the revisional jurisdiction of the High Court. This decision was in consonance with the decision of the Privy Council in the case of Balakrishna Udayar v. Vasudeva Aiyer 44 I A 261 : AIR 1917 PC 71 which was a case under the Religious Endowments Act. This Act gave the Civil Court special powers to determine certain matters in connection with religious endowments. The Privy Council held that where the Civil Courts acting under the above Act exercised jurisdiction not vested in them by law the High Court could interfere u/s 115, Code of Civil Procedure

(c) The next case that has to bo considered is the case of Gunde''rao v. Lingappa 32 D L R 27 decided by a Full Bench of five Judges and reported in 32 D L R 27. This was a revision which came up to the High Court against the order of the Additional Sessions Judge, Gulbarga, and the question was whether a revision would lie against the order of the Taluqdar in his capacity as the ''Nazim'' under the Cattle Trespass Act and whether he was subordinate the High Court for the purpose of the exercise of the revisional jurisdiction of the High Court. In this Full Bench case, after referring to certain cases decided in the British Indian High Courts which arose under the Rent Control Act, the learned Judges held (a) that u/s 360 of the Hyderabad Code of Criminal Procedure such officers in so far as they purported to exercise their powers under the Cattle Trespass Act. were subject to the revisional jurisdiction of the High Court. The reasoning that their Lordships followed was that although they were Revenue Officers they were invested with the power of a criminal court under a special enactment, viz., the Cattle Trespass Act, and where judicial powers were exercised sum authority was subject to the revisional jurisdiction of the High Court. The question arises as to whether this decision could be regarded as laying down the proposition of law that the order of a non-judicial officer also was amenable to the revisional jurisdiction of the High Court. It has to be observed that under the Code of Criminal Procedure it has been provided for in Section 5 that the procedure with regard to the trial as regards crimes under the Hyderabad Penal Code shall be according to what has been laid down in the Criminal Procedure Code. It has also been stated therein that the investigation and the judgment with regard to offences under special enactments shall also be in accordance with the provisions of the Code of Criminal Procedure Therefore the Taluqdar or the Revenue Official when he purports to investigate and puss orders in a case under the Cattle Trespass Act, he has to follow the procedure laid down under the Code of Criminal Procedure If it is an order passed by him after trial under the Criminal P. C, it would be subject to the revisional jurisdiction of the High Court u/s 360, because Section 360 contemplates revisions being filed against orders passed under the Code of Criminal Procedure For the reasons explained by me above, in that case a revision was competent against the order of the District Judge acting as the ''Nazim'' under the Cattle Trespass Act. The Taluqdar was only exercising the judicial powers under the Code of Criminal Procedure

(d) The next case that might be referred to in this connection is the case of Irbadrappa v. Sheikh Abdur Rahim 33 Deccan Law Report 413. This was a case which came up before a Full Bench of this Court and the question that arose for consideration was whether the High Court could interfere in revision against the order of the Debt Conciliation Board, as much to say as to whether the Debt Conciliation Board was subordinate to the High Court for purposes of the exercise of Revisional jurisdiction by the High Court. The then Chief Justice, Mr. Alam Ali Khan (as he then was) with whom the ex-Chief Justice Shri Ramchander Section Naik concurred, held that Section 7 of the Charter granted to the High Court read with Section 17 of the High Court Act gave the High Court unlimited powers and jurisdiction which could be exercised by it suo motu without being moved in that direction. They held that u/s 25 of the Debt Conciliation Act, the inferior courts alone were prohibited from entertaining an appeal or revision against the order of the Debt Conciliation Board and that that did not in any way affect the wide powers of the High Court. In that case they held that the powers exercised by the Debt Conciliation Board in deciding cases were judicial and that the law had made an appeal or revision against the order of the Debt Conciliation Board incompetent, but that did not in any way affect the powers of the High Court conferred upon it by the Charter. It would appear from the decision of this case that their Lordships did not hold that the High Court could exercise its revisional powers in dealing with an order passed by the Debt Conciliation Board, but they laid down that the special powers of the High Court vested in it by the sovereign for the administration, of justice empowered the High Court to set right any order passed by a tribunal or authority whether it was a court or not.

The separate but concurrent judgment of Khaliluzzaman Siddiqui J. shows that His Lordship relied upon the powers of the High Court as the ''Naib'' of the sovereign and the decisions that have been referred to in his judgment are decisions which refer to the exercise of the powers by the High Court under its certiorari jurisdiction. This decision therefore must be regarded as laying down this principle that the High Court can interfere under its extraordinary powers. This decision has been referred to and approved of in the leading case of seven Judges, namely, the case of Raja Pratab Gir v. The Government 35 D. L. R. 153 wherein the powers of the High Court as the ''Naib'' of the Sovereign were recognized and it was held therein that the High Court could interfere with the order of a Requisitioning Officer on the executive side. That case might be regarded as laying down for the first time the powers, of the High Court to issue writs of certiorari.

(e) After the above case the case that is in point is the case of Hasan Bin Yusuf v. Chandbi 38 D.L.R. 357. This was a revision filed against the order of the first Taluqdar, Bhaghat who heard an appeal against the order of the Rent Controller. There was also an application for the issue of a writ of certiorari. They held that when the Collector was exercising his functions under the Rent Control Act although they were judicial or quasi-judicial he was exercising the powers not as a Court subordinate to the High Court but as ''persona designata'' and therefore they held that inasmuch as he was exercising the powers as persona designata and not as a court his orders were Only subject to the certiorari jurisdiction of the High Court and as such an application for a writ of certiorari alone would lie against an order passed by the Collector in This capacity as an appellate authority in Rent Control proceedings. This is the first case wherein a definite ruling had been given to the effect that the Collector in Rent Control Proceedings was acting as persona designata and not as a Court.

(f) Soon after, the same question came up before, a Division Bench of the High Court in the case of Syed Mohiuddin Ali Khan v. Avval Taluqdar Bhaghath 39 D L R 440. In this case their Lordships preferred to follow the decision of the Full Bench of five Judges, reported in � 32 D L R 27 (Cr) adverted to by me in the foregoing paragraphs and one of the Judges opined that although the latter trend of decisions had been that the Rent Controller or the Appellate Authority was not subordinate to the High Court, 1 still inasmuch as there was a decision of a Full Bench of this High Court he found no reason to deviate from the principle laid down by the Full Bench while the other learned Judge rest content by saying that he was not prepared to follow the decision in � 38 D L R 357 holding that the Rent Controller was acting as persona designata in view of the Full Bench decision in � 32 D L R 27. It would therefore appear that in this case the learned. Judges found themselves bound by the decision of the Full Bench case reported in � 32 D L R 27 (Crl.)'' and therefore did not agree with the ratio decidendi of the decision in � 38 D L R 352. It may be mentioned here that one of the Judges, Manoher Pershad J. states in his judgment (at page 443) that although the principle in the original decision of Calcutta High Court in 49 Cal. 528 wherein it was held that revision would lie on the ground that the Rent Controller was a court of civil jurisdiction, was deviated from in a subsequent ruling of the Calcutta High Court in 1943 Cal. 247, he was not prepared to follow the latter ruling of the Calcutta High Court in the face of the Full Bench decision of the local High Court.

Reference may be made to another case reported in � ''12 Nazair Osmania, 396 which followed � 38 D L R 357''. This has been the trend of decisions so far as this High Court is concerned, on the question now under consideration.

It. would appear from the decisions referred to by me that this High Court laid down that it had the power to exercise its jurisdiction to correct an excess of jurisdiction by any tribunal or authority, not necessarily a court, under the powers vested in it as the ''Naib'' of the Sovereign. As I have already stated the decision in the case of Syed Mohiuddin Khan v. Awal Taluqdar Saheb Bhaghath, Qamar Hasan and Rai Manoher Pershad JJ. regarded that their hands were tied because of the decision in the Full Bench (five Judges) case of Gunderao v. Lingappa 32 D L R 27, because in that case the Full Bench held that the High Court could exercise its revisional powers against the order of the ''Nazim'' under the Cattle Trespass Act. Qamar Hasan and Manohar Pershad JJ., thought that it was not open to them to hold that the power to exercise revisional jurisdiction against an authority, not necessarily a court, was not vested in the High Court. I have already distinguished the Full Bench case in � 32 DLR 27 (Crl.) (holding?) that the order against which a revision was filed in the High Court was a sentence passed by the ''Nazim'' under the Cattle Trespass Act, that is to say, a special Act and where a sentence is passed under a special act by a ''Nazim that would be subject to the revisional jurisdiction of the High Court u/s 360 of the Hyderabad Code of Criminal Procedure Therefore, if the High Court exercised its revisional powers, in those circumstances, it would be deemed to have exercised such a power u/s 360 read with Section 5 of the Hyderabad Cr. Pro. Code. The result of this discussion is that the decisions of the Hyderabad High Court do not lay down that a revision would lie against an authority or tribunal, otherwise than a court, This is the position so far as the decisions of the Hyderabad High Court are concerned.

So far as the decisions of the High Courts in British India are concerned, the revisional jurisdiction was exercised only in respect of decisions made by courts subordinate to the High Court because the words of Section 115, Code of Civil Procedure, which pertain to revision read as follows:

The High Court may call for record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies there to�..

The condition precedent to the exercise of revisional jurisdiction according to the above Section is that the Court whose decision is under consideration must be one subordinate to the High Court. That clearly shows that it can only apply to decisions of such of those courts which are subordinate to the High Court. The Court there in would not include a person acting in an administrative capacity or a person acting as persona designata. The mere fact that an executive officer was exercising judicial function would not constitute him a Court. This view is supported by the decision of the Full Bench of the Patna High Court, in Jaganath Lall v. Land Acquisition Deputy Collector Patna (1940) 19 Pat. 321 wherein they held that the Collector under the Land Acquisition Act was not subordinate to the High Court. The Judges therein remarked :

All Courts are not subordinate to the High Court. For example Revenue Courts are subordinate to the Board of Revenue and this Court has no power whatsoever to revise any orders passed by them, yet they act judicially.

In a case which arose under the Oudh Rent Act of 1886, a.Full Bench of the Oudh Chief Court! held that the District Judge to whom an appeal lay against the order of the Deputy Commissioner under the Oudh Rent Act must be considered only to be a Court of Revenue and as such was not subordinate to the Chief Court: vide Gaya Prasad v. Kalap Nath 4 ALL 1929 Oudh 389. The Madras High Court held that the Board of Revenue when directing the revision of proceedings u/s 172 of the Estates Land Act was not a Civil Court and therefore the High Court cannot, interfere either u/s 115, CPC or Section 107, Government of India Act Raja of Mandasa v. Jaganayakulu 1932 Mad 612 F.B.

In a case before the Rangoon High Court viz. Mohideen v. Bukshiram 3 Rangoon 410, F. B.: 1926 Rangoon 33 F. B., the majority of the Judges, Heald and Rutledge JJ. were of opinion that the Controller of Rents under the Rangoon Rent: Act was not a court nor a Civil Court, but an executive officer appointed by the local Government under the provisions of the Act.

But apart from Section 115, Civil P. C, there was a provision in the Government of India Act, namely, Section 107, under which the High Court had powers of superintendence. So cases arose in British India wherein the question was canvassed whether apart from Section 115, Civil P. C, the High Court could exercise its powers u/s 107, Government of India Act. I might herein refer to a case which came up before Calcutta High Court. This was a case where a person was convicted of an offence against the Arms Act. He was convicted under She Bengal Emergency Powers Ordinance. Under the ordinance an appeal from the order of a Special Magistrate should have been brought within 7 days and that period could not be extended. The accused filed the appeal beyond the period of limitation; but it was argued before the High Court that the High Court could interfere u/s 107, Government of India Act, but the Judges of the Calcutta High Court held that Section 107, Government of India Act, could not apply. They said that the powers of superintendence of the High Court u/s 107, Government of India Act, extended only to the right of the High Court to keep the lower Court which were under its jurisdiction within the bounds of their authority and this right u/s 107 did not involve a responsibility for the correctness of the decisions of the lower courts. They had merely to see whether the lower courts did their work in a legal manner. To this effect were the observations of Rankin C.J. in the above case: see Manmadanath Biswas v. Emperor 1993 Cal 132.

The same question was discussed by the Allahabad High Court in the Full Bench case of Mukundmal v. Daya Pershad, wherein Sulaiman C.J. observed as follows:

The High Court is not competent in the exercise of this authority to interfere and set right the orders of a subordinate Court on the ground that the order of the subordinate court has proceeded on an error of law or an error of, fact (1935 All 599).

Thus, it would appear that the powers of the High Court u/s 107, Government of India Act, were regarded as being confined to merely exercising a control over the subordinate courts to see that they discharged their duty in a legal manner and interfering in the decisions of the courts and correcting them was not warranted in the exercise of this power. Therefore where the matter which comes up before a High Court is an order or a decision by a tribunal or an authority not subordinate to the High Court who exercises those powers on the executive side or as persona designata, the High Court could only interfere with it by way of a writ of certiorari. I am, therefore, of opinion that when the Rent Controller enquired into the case before him under the special enactment, he was exercising the powers as a persona designata and as such his decisions were subject only to the certiorari jurisdiction of the High Court. I hold that in so far as the decisions of the Rent Controller and those of the Appellate Authority on appeal therefrom prior to the coming into force of the Constitution are concerned, they are only subject to the certiorari jurisdiction and the remedy of a party is only to apply by way of a writ of certiorari.

The question that has been referred to the Full Bench is answered as follows :

The remedy of a party aggrieved by the order of the Appellate Authority in Rent Control Proceedings is by way of an application for the issue of a writ of certiorari. The file be sent over to the Division Bench with the above answer for further proceedings in the case. This order will govern all the applications in which the same question was referred to the Full Bench.

Mohommed Ahmed Ansari, J.

I agree.

Qamar Hasan, J.

It is with great regret that I find myself unable to agree with the view propounded by my learned brother Srinivasachari J. I would have liked to deal with the question in greater detail but as the question has after the advent of the Constitution of India become one of purely academic interest, I would briefly state my reasons for the contrary view which I am going to hold. Before the constitution, the remedy by way of certiorari was not a universal remedy. As pointed out by their Lordships of the Privy Council in Ryots of Garbando v. Zamindar of Parlakimedi 69 Ind App 129, the power to issue writ of certiorari was limited to the High Court of Bombay, Calcutta, and Madras with this qualification that it could not issue on any one outside Presidency Towns Unless he was a British subject. It was also laid down that the power of superintendence given by Section 15 of the Indian High Courts Act, 1861 and then by Section 107, Government of India Act, 1915, does not include a right to issue a Writ of certiorari to individuals or official bodies excepting judicial functions in the mofussil.

So far as our High Court is concerned, the law bearing on the question under consideration may be culled from decided cases. In the case of� ''Muhammad Abdul Aziz Khan Sarkar-e-Aali 23 Deccan Law Report 106 the question arose whether the Collector acting as the Land Acquisition Officer was subject to the revisional jurisdiction of the High Court. A Bench of three judges following Krishna Das Roy v. The Land Acquisition Collector of Patna 16 CWN 327 and Haridas Pal v. The Municipal Board, Lucknow 22 IC 652 by majority held that the Land Acquisition Officer was subject to the extraordinary revisional jurisdiction of the High Court. In the same case decided after the receipt of the record of the case another V Bench also consisting of three Judges took a contrary view and following a Full Bench ruling of the Madras High Court, Abdus Sakar Sahib V. The Special Deputy Collector, Vizagapatam I. L. R. (1947) Mad 357 unanimously held that the High Court has no power to exercise its revisional jurisdiction either u/s 615, Hyderabad CPC or Section 17, Hyderabad High Court Act inasmuch as the Collector was not a Court subordinate to the High Court. A different note was however struck in Akarab Singh v. Sarkar-e-Aali 33 Deccan Law Report 515 at p. 517 that the order of the Collector refusing to refer the question of compensation etc., for the determination of the court was revisable by the High Court.

My learned brother has discussed Vithal v. Sarkar-e-Aali 29 Deccan Law Report 57, and Gunde Rao v. Lingappa 32 DLR 27. I need not cover the same ground again. It is true that the line of reasoning adopted in the former case was that Nazim-e-Zila was acting in his capacity as the District Magistrate under the Hyderabad Government Securities Act and in the latter case that the Collector or Deputy Collector should be deemed to be a Special Magistrate within the meaning of S.13, Hyderabad Criminal P. C, and as such these officers were subject to the revisional jurisdiction of the High Court. But at the same time the learned Judges who decided those cases based their conclusions on another ground also. At page 34 of Deccan Law Report 27, their Lordships of the Full Bench approving � 29 DLR 57 observed :

Ordinarily when a functionary is bound to take evidence before forming an opinion, such proceedings are judicial proceedings.

In laying this dictum they inter alia made reference to H. D. Chatterjee v. L. B. ILR 49 Cal 523 wherein it has been held that the Rent Controller is a court of civil jurisdiction and the High Court has the power of revision under its general power of superintendence over the Rent Controller''s Court u/s 107, Government of India Act.

The question as to the extent of the devisional jurisdiction of the High Court again came up before the High Court in the Full Bench case of Eer Bhadrappa v. Syed Abdur Rahim 33 DLR 413. There the preliminary objection raised was that the High Court has no jurisdiction to interfere in revision with the orders passed by the Debt Conciliation Board inasmuch as Section 25, Hyderabad Debt Conciliation Act, expressly ousted the appellate and revisional jurisdiction of the Civil courts. Mir Alam Ali Khan who delivered the leading judgment repelled this contention and held that the expression ''subordinate court'' used in Section 615, Hyderabad CPC was not confined to courts which were subject to the administrative or appellate jurisdiction of the High. Court but included any Government department or official who performed the functions of a court. The learned Judge further observed that Section 17, Hyderabad High Court Act, read with Section 7 of the Charter was wide enough to cover such cases. Khaleel-uzzaman J. who wrote a concurring judgment added that u/s 17, Hyderabad High Court Act, the High Court is competent to exercise those powers which were open to the Bombay, Calcutta, and Madras High Courts on an application for writ of certiorari.

The ''locus classicus'' on the point under discussion which under some misapprehension is supposed to have incorporated the extraordinary legal remedy by way of certiorari with all its limitation in the law as then obtained -in the State of Hyderabad, is to be found in the case of Raja Partebgir v. Sarkar-e-Aali 35 DLR 153. This is a decision of seven judges. I need not discuss this ruling in detail. It would be sufficient to point out that the case of Eer Bhadrappa v. Syed Abdur Rahim which was approvingly quoted by one of the Judges at page 200 of the report. Abu Sayeed Mirza and Hashim Ali JJ. Observed at page 178 that :

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and at page 185 the same learned judges said

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Abdul Hameed J. at page 188 said:

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Shripat Rao J. as he then was observed at page 196:

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Ramchander Naik J. as he then was, did not express any opinion on this particular point. Husain Ahmed Beg J. struck a dissentient note and at p. 213 he said:

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It would thus be clear that these two Full Bench cases did not lay down that the remedy by way of certiorari was a common law or inherited or codified remedy in so far as the State of Hyderabad was concerned. What these cases decided was that any Government department or official which or who dealt with the rights and obligations of the subject in a judicial and quasi-judicial manner was a court within the meaning of Section 17, Hyderabad High Court Act, and consequently subject to the extraordinary revisional jurisdiction of the High Court.

This view continued to be held in several subsequent cases but in the case of Hasan Bin Yousuf v. Chand Bi 38 DLR 357 Suryanarain and Siadat Ali JJ. drew a distinction between an application for the issue of a writ of certiorari and application for revision and held that inasmuch as the Extracts quoted in Urdu. Rent Controller was a "persona designata and not a court his orders were only subject to the certiorari jurisdiction of the High Court and as such an application for a writ of certiorari alone would lie against an order passed by the Collector in his capacity as an appellate authority." For the first time the concept of persona designata was brought in on the strength of � Kiron Chandra Bose Vs. Kalidas Chatterji, . The following quotation from Suhashini Das Vs. Mahendra Kumar Bose, '' was extracted by the learned Judges in support of their reasoning:

In our opinion the District Judge as contemplated in the Calcutta House Rent Control Order is not a District Judge in his ordinary judicial capacity of the presiding officer of the principal court of original jurisdiction in the District but a persona designata. It is I noticeable that the District Judge might be excluded altogether by an order of the Provincial Government which is inconsistent with his being contemplated as the court of District Judge to whose existing appellate jurisdiction a new subject matter is added.

And from the Allahabad case the following quotation was cited:

The Additional District Magistrate has purported to act under the House Rent Control and. Eviction Order. It appears that under Sec. 2, Defence of India Act, the power to frame certain rules and orders has been conferred in the first place on the Central Government. The Central Government can however delegate that power to the Provincial Government and the latter again under Sub-sec. 5 of Sec. 2 of the Act can. delegate its powers to any officer or authority subordinate to it. The House Rent Control and Eviction Order was passed under the powers so delegated and the Additional District Magistrate has purported to act in the exercise of the power so delegated to him. The simple question for consideration therefore is whether the officer or authority to whom power is delegated by the Provincial Government (under Sub-sec. 5 of Sec. 2, Defence of India Act, is a court within the meaning of the Criminal Procedure Code so that this Court would be authorised to call for the record of that court under Sec. 435 and to deal with it under Sec. 439, Criminal Procedure Code. In my opinion the answer is obviously in the negative. The officer or authority to whom powers are delegated by the Provincial Government is really a persona designata and not a court.

After referring to these passages the learned Judges observed that this interpretation applied With equal force to the expression ''subordinate Court'' used in Section 17, Hyderabad High Court Act. This view is in accord with the minority view expressed by Husain Ahmed. Beg J. in the Raja Pertabgir''s case and divergent from the view taken by the majority. The case of Eer Bhadrappa was distinguished on the ground that the Full Bench purported to hold that the Board of Conciliation under the Hyderabad Debt Conciliation Act was a court within the meaning of Section 17, High Court Act.

I have shown above that what the two Full Bench cases decided, in effect and substance was that a Government functionary, official or authority may not be a court within the meaning of Civil or Criminal Procedure Code but if it performs the functions of a court in deciding upon the rights and obligations of the subject, he would be subject to the extraordinary revisional jurisdiction of the High Court. This view is not the solitary view of our court. Similar view has been adopted by the Nagpur High Court in Srinivas Laxman Rao v. Superintendent, Printing Press, Nagpur AIR 1945 Nag. 94, Debi Dutt v. Central India Electrical Supply Co. Ltd. AIR 1945 Nag 244, and by the Lahore High Court in Works Manager, Carriages and Wagon Shop v. K. G. Hashmat AIR 1946 Lah 316. Similarly a Commissioner acting under Workmen''s Compensation Act was held to be a court in Mt. Dirji Vs. Smt. Goalin, . .There is also a decision of the Lahore High Court in Kishen Chand & Co. v. Nur Muhammad AIR 1949 Lah 44 where a Division Bench held that a Rent Controller under the Punjab Urban Rent Restriction Act acts as a Civil Court and not as a persona designata.

I have already referred to the fact that the Full Bench had approvingly quoted 49 Cal 528 in which it has been held that the Rent Controller is subject to the revisional jurisdiction of the High Court.

If the test adopted in 38 DLR 357 were applied to the cases reported in 29 DLR 57 : 2 DLR 27 the District Magistrate in one and the Collector and Deputy Collector in the other case would be no more than persona designata, which position cannot be maintained unless the whole question is re-opened in a Fuller Bench.

These were the reasons which emboldened me & my learned brother Manohar Pershad J. to differ from the view taken in 38 DLR 357 and I still stick to that view unless and until the Full Bench cases to which I have referred above are overruled and the law is brought in consonance with the latter view of Calcutta and Allahabad High Courts.

Therefore my answer to the question is that the Rent Controller is subject to the extraordinary jurisdiction of the High Court under Sec. 17, Hyderabad High Court Act