Shri P.L. Morada (Retd. Major) vs Shri S.D. Bakshi

R.S. Pathak, C.J.—I agree with my brother Thakur that the review petition should be dismissed. The High Court dismissed the revision petition filed by the present petitioner on its merits. The point now sought to be raised is that the order of the Rent Controller and of the appellate authority were null and void as no power had been vested in them under the relevant statute and, therefore, the revision petition should have been allowed. That is a contention which, in my opinion, cannot be raised by the petitioner in the revision petition because a revision petition u/s 15(5) of the East Punjab Urban Rent Restriction Act, 1949, lies to correct an order made under the Act and not an order which is a nullity. On this should ground I would dismiss the review petiton.

Chet Ram Thakur,

This is a review petition filed under Order 47, Rule 1, read with Section 151 of the CPC for setting aside the order passed by a Division Bench of this Court in civil revision application No. 33 of 1972, on November 9, 1972, dismissing the revision application tiled by the: Petitioner against the order of the appellate authority affirming the order of eviction of the Petitioner passed by the Rent Controller, Simla, on an application moved by the present Respondent under Sections 13(2)(i) and 13(3)(a) of the East Punjab Urban Rent Restriction Act, 1949.

The only point urged for review of the order is that the Rent Controller as also the appellate authority had not been conferred the powers either under the East Punjab Rent Restriction Act, 1949 or under the Himachal Pradesh Rent Restriction Act, 1971, by the appropriate Government. This fact that the Rent Controller as also the appellate authority were not conferred the powers by a notification as required under the aforementioned two Acts came to the notice of the Petitioner only after the decision of the revision petition by this Court. Since the orders passed by Shri P.L. Sharma, as Rent Controller, and Shri T.R. Handa, as appellate authority, have been passed without any authority being conferred on them, therefore, these orders are without jurisdiction and as such nullities in the eyes of law. Consequently the order passed by the High Court in revision is also illegal and, therefore, he prays for review of the order of this High Court passed on revision u/s 15(5) of the East Punjab Urban Rent Restriction Act.

The learned Counsel for the Respondent has raised a preliminary objection with regard to the maintainability of the review petition under the provisions of Order 47, Rule 1, read with Section 151 of the Code of Civil Procedure. Without going into this preliminary objection, I think this review petition is not sustainable otherwise also.

The Petitioner filed the revision petition under Sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act and the Sub-section (5) reads as:

(5) The High Court may, at any time, on the application of any aggrieved party or on its own motion, call and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order or proceedings and may pass such order in relation thereto as it may deem fit.

The submission made by the learned Counsel for the Petitioner is that the order passed by Shri T.R. Handa exercising the powers of an appellate authority was without jurisdiction. He came up in revision against that order. But the perusal of Sub-section (5) of Section 15 reveals that a revision u/s 15(5) of the aforesaid Act is maintainable only when an order is passed by the appellate authority under the Act. If there is no order passed under the Act or in exercise of the power under the Act, then there being no order under the Act, no revision as such is maintainable. Similarly a person can exercise the power of an appellate authority, if so, empowered, only in case there is an order passed by the Rent Controller, who has been clothed with the authority under the Act. If no such power of a Rent Controller has been conferred on a person, then any order passed by him cannot be said to be an order under the Act which may be open to appeal to the appellate authority. Therefore, there being no valid orders passed by any of the authorities clothed with the powers under the Act there could not be any valid orders and if there were no valid orders then no revision under the Act was maintainable. The orders are non-est and they can be safely ignored without getting the same set aside and there could not be any revision maintainable under the Act. If there was no revision maintainable, then no petition will also lie to review that order. The statute does not confer any such power on the High Court to review its order and the Court had decided the case on the merits and, therefore, in my opinion, the review petition is not maintainable. I am fortified in this view by a Full Bench case of the Punjab High Court, reported as Deep Chand and Ors. v. Additional Director, Consolidation of Holdings, Punjab and Anr AIR 1964 PH 249, where the question of void order or orders which are without jurisdiction and were nullities and were required to be set aside was considered and it was held that "the case of void orders, or orders which are without jurisdiction certainly stands on a different footing. An order which is a nullity or which is invalid docs not require to be set aside and may be properly ignored, for, it is not only bad but is incurably bad. It is automatically null and void without more ado, though it is sometimes convenient to have it declared to be so. Again, power to correct apparent clerical or similar mistakes may also be presumed, but only if they do not affect the substance of the decision; otherwise there can be no power of review on the merits except to the extent that the statute confers it".

There is no apparent clerical or similar mistake which may require correction of the order passed by the High Court. The result, therefore, is that the review petition is not maintainable and the same fails and is hereby dismissed. However, I pass no orders as to costs.