Lachhman Dass vs Smt. Sheilla Emile

R.S. Pathak, C.J.—This is a tenant''s revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949 against an order of the Controller, Simla, declining to quash the proceedings before him.

The landlord, who is the Respondent in the present case, applied u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for ejectment of the tenant, the Petitioner before me. The application was filed before the Senior Subordinate Judge, Simla, as Controller under that Act. The tenant raised an objection that the Senior Subordinate Judge had not been validly appointed as Controller and therefore had no jurisdiction to entertain the application. The objection has been rejected by the Controller by an order dated September 18, 1973. The order is impugned by the present revision petition.

Two points have been raised by the tenant before me. The first is that there is no valid notification appointing a Controller, and the second is that assuming that the notification dated April 14, 1947, can be said to validly appoint a Controller the appointment made thereby is from Subordinate Judges of the first class and not from Senior Subordinate Judges.

In regard to the first point, the tenant''s submission is as follows. Section 2(b) of the East Punjab Urban Rent Restriction Act, 1949, defines a "Controller" as a person appointed by the provincial Government to perform the functions of a Controller under the Act. A notification dated April 14, 1947, was made with reference to Section 2(b) of the Act appointing Subordinate Judges of the First Class as Controllers under the Act. It was issued after the Act was passed but before the Act had come into force. The contention is that as it was issued before the Act had come into force it is void. Consequently, it is urged, that notification cannot be deemed on the basis of Section 22 of the Punjab General Clauses Act, to be a notification under the East Punjab Urban Rent Restriction Act, 1949. There being no Controller, it is said, the application made by the landlord u/s 13 of the Act of 1949 has been made before a person having no jurisdiction in the matter. And if that is so, Section 28(2) of the Himachal Pradesh Urban Rent Control Act, 1971, which saves proceedings under the Act of 1949, can be of no assistance to the landlord.

The entire submission, it seems to me, is misconceived. There is no dispute that the notification of April 14, 1947, appointing Subordinate Judges of the First Class as Controllers was made after the passing of the Act of 1947 and before the said Act had come into force. The notification purports to have been made under the Act of 1947. Now, the Act of 1947 must be construed in the light of Section 20 of the Punjab General Clauses Act. Section 20 provides:

Where under any Punjab Act, which is not to come into force immediately on the passing thereof, a power is conferred to .... issue orders with respect to .... the appointment of any ... officer thereunder, .... then that power may be exercised at any time after the passing of the Act, but .... orders so made or issued shall not take effect till the commencement of the Act.

Clearly, on this rule of construction, the provision in the Act of 1947 enabling the provincial Government to appoint a person as a Controller should be construed as being capable of application after the passing of the Act and before it came into force. The notification of April 14, 1947, is, therefore, valid. The notification being valid under the Act of 1947, it must be treated as a valid notification under the Act of 1949 by reason of Section 22 of the Punjab General Clauses Act. The Act of 1949, in substance, repeals and re-enacts the Act of 1947 and inasmuch as there is no inconsistency between the provisions of the Act of 1949 and the notification the latter must be treated as continuing in force and be deemed to have been made under the Act of 1949. Therefore, a Subordinate Judge of the First Class appointed under the notification of April 14, 1947, has jurisdiction to entertain an application u/s 13 of the Act of 1949. The first point ''must fail.

As regards the second point, the submission of the tenant is that where the notification of April 14, 1947, appoints Subordinate Judges of the First Class as Controllers, it does not include Senior Subordinate Judges. The submission proceeds on the basis that Senior Subordinate Judges should not be confused with Subordinate Judges of the First Class. In my opinion, there is no force in this contention. The district of Simla was, before November 1, 1966, a district in Punjab. The Punjab Courts Act, 1918, makes provisions for a hierarchy of courts in the province. Section 18 declares that, besides the courts of Small Causes and other courts already established, there would be three classes of civil courts: (1) The Court of the District Judge, (2) The Court of the Additional Judge, and (3) The Court of the Subordinate Judge. No fourth court is contemplated. Section 26 of the Act empowers the High Court to constitute classes of Subordinate Judges in relation to the pecuniary jurisdiction to be exercised in original civil suits. By a notification dated January 3, 1928'', the High Court constituted four classes of Subordinate Judges. Class I consisted of Subordinate Judges exercising jurisdiction without limit as to the value of the cases, and Class II consisted of Subordinate Judges exercising jurisdiction in cases of which the value did not exceed Rs. 5,000/-. In the case of Class III the pecuniary limit was Rs. 2,000/-, and as regards Class IV the pecuniary limit was Rs. 1,000/-. Therefore, in the contemplation of Section 18 read with Section 26 while one class of Civil Courts was the court of the Subordinate Judge, the Subordinate Judges themselves were constituted into four classes. Now, Section 39(3) of the Punjab Courts Act empowers the High Court to direct that appeals lying to the District Courts from decrees or orders passed in original suits by any Subordinate Judge should be preferred to such other Subordinate Judge as may be specified by it. Acting under that provision, the High Court issued notification No. 170-Gaz./XXI-C. 6, dated May 16, 1935, (amended by notification No. 53-Gaz./XXI-C. 6, dated February 23, 1940)2 whereby appeals from certain decrees or orders passed by Subordinate Judges lie to "the Senior Subordinate Judge of the First Class exercising jurisdiction within such Civil District". It appears that of the Subordinate Judges of the First Class one of them has been conferred the power of hearing appeals and has been designated accordingly as a Senior Subordinate Judge of the First Class. It will be noted that he continues to be described as a Subordinate Judge of the First Class, with this difference only that the descriptive "senior" has been added to indicate his enjoyment of the additional power of hearing appeals. Neither the conferment of the additional power nor the word "senior" takes him out of the category of Subordinate Judges of the First Class. He continues to belong to that category, being always a Subordinate Judge of the First Class. That conclusion accords with the Punjab Courts Act, which does not provide for a separate court of Senior Subordinate Judge. The conclusion is reinforced by a reference to Rule 1 of Part ''A'' of Chapter 14 of Vol. 1 of the Rules and Orders of the Punjab High Court, which declares that there are four classes of appellate courts in Punjab, the High Court, the Court of the District Judge, the Court of the Additional Judge and the Court of the Subordinate Judge of the First Class if so empowered u/s 39(3) of the Punjab Courts Act. Rule 2 specifically provides that an appeal from a decree or order of a Subordinate Judge lies to the Subordinate Judge of the First Class who is so empowered in that behalf. In Abdul Wahab v. Phiraya Lal AIR 1959 Pun. 586 a Division Bench of the Punjab High Court observed that a Subordinate Judge exercising appellate power has been described as a Senior Subordinate Judge for the sake of convenience. It is apparent from the discussion in that case that a Senior Subordinate Judge is only one of the Subordinate Judges of the First Class. Considerable reliance has been placed by the tenant on Kuldip Singh Vs. The State of Punjab and Another, . The Supreme Court held that the court of a Senior Subordinate Judge could not be identified as the court of a Subordinate Judge of the First Class. To appreciate this observation, it is pertinent to recall that the Supreme Court was considering whether when an offence of perjury could be said to have been committed before a Subordinate Judge of the Frst Class a complaint could be made by the Senior Subordinate Judge. It appears from the facts of the case that a post of Subordinate Judge in that district was held by Mr. Barlow, a Subordinate Judge of the First Class, before whom the offence was committed. He was succeeded by Mr. Augustine, and after the latter''s transfer the post was not filled by any Subordinate Judge of the First Class. Thereafter Mr. Pitam Singh, a Senior Subordinate Judge, was appointed in the district. He was not considered as having succeeded Mr. Augustine. It was upon those facts that the Supreme Court held that while Mr. Barlow, and after him Mr. Augustine, could have made the complaint, it was not open to Mr. Pitam Singh to do so.

There is one further consideration which persuades me to the belief that the notification of April 14, 1947, was intended to refer to Senior Subordinate Judges of the First Class also. It is common knowledge that a district may be manned by a Senior Subordinate Judge of the First Class only and no other Subordinate Judge of the First Class may be posted therein. To exclude a Senior Subordinate Judge of the First Class from the scope of the notification would result in such a district being without any officer empowered to perform the functions of a Controller under the Rent Restriction Act. That could not have been contemplated by those who framed the notification. They must be taken to have intended that all the districts would be manned by Controllers, so that the benefit of the Act would have full application throughout Punjab.

The notification of April 14, 1947, as has been mentioned above, continued in effect under the Act of 1949, and upon the inclusion of the district of Simla in Himachal Pradesh on the reorganisation of Punjab on November 1, 1966, the Act of 1949 and the said notification continued in force. The application made by the landlord u/s 13 of the Act of 1949 was made before the Senior Subordinate Judge, Simla, acting as a Controller under the Act. It was made before an authority competent to entertain the application. By virtue of Section 28(2) of the Himachal Pradesh Urban Rent Control Act, 1971, the proceedings taken on the application are entitled to continue and to be disposed of in accordance with the Act of 1949, as if the Himachal Pradesh Act had not been passed.

In my judgment the proceedings arc pending before a competent authority, and the objection raised by the tenant is without substance.

The revision petition is dismissed with costs.