Surindra Mohan vs Dharam Chand Abrol

Ali, C. J.

(1) This is an application against an order passed by the Rent Controller dated 28270 rejecting the application of the petitioner for giving him an

opportunity to rebut the additional evidence produced by the nonapplicant, landlord.

(2) The petitioner had filed an application before the Rent Controller for fixation of fair rent of the premises let out to him by the nonapplicant on

the ground that the rent agreed to between the parties was excessive and therefore a fair rent under S. 8 of the Houses and Shops Rent Control

Act (hereinafter to be referred to as the Act) should be fixed by the Controller. The Controller took evidence of both parties and wanted to

adjourn the case for arguments when the petitioner filed an application before him that as the nonapplicant landlord had introduced certain new

matters in evidence which were not touched in the objections, he should be given a right to rebut that evidence. The learned Controller was of the

view that as both parties had led evidence there was no reason to give any further opportunity to the petitioner. He accordingly rejected the

application of the petitioner and fixed the case for arguments. Against this interlocutory order of the Rent Controller, a revision was preferred in this

court which was heard by Bhat J. who has referred the case to the Full Bench.

(3) The main point involved in this case is as to whether or not the inter locutory order passed by the Controller is revisable by this court either

under S. 115 of the Civil PC or under S. 104 of the State Constitution. In other words it has to be determined whether the order passed by the

Controller was passed as persona designate or as a civil court, subordinate to the High Court. The petitioner's contention before us is that the

Chief Judicial Magistrate was appointed as Controller by the Government not as persona designate, but as a member of a civil court, or in other

words as presiding officer of a civil court and therefore any order passed by him should be an order passed by any court subordinate to the High

Court and therefore revisable. On the other hand the contention of the respondent was that the Controller was a purely executive authority and his

appointment was a persona designate and therefore no revision could lie to this court.

(4) Before we examine the contentions raised before us, it may be necessary to mention the scheme of the Act. The present dispute arises from an

interlocutory order passed by the Controller under S. 8 of the Act. The relevant portions of S. 8 (1) run as follows :

In any of the following cases the controller shall, on application by any landlord or tenant, fix the fair rent as set forth hereunder :

(a) Where the provisions of Schedule A apply and there is no cause for the alteration of the rate of the fair rent as determined accordingly to the

schedule for any of the reasons mentioned in the following clauses, in accordance with the provisions of schedule A.

(b) Where during the currency of a fair rent payable for any house or shop there has been an increase in the municipal taxes etc. by adding to it the

amount of such increase as is payable by the landlord by agreement with the tentant over and above what is payable by the landlord himself under

the local municipal law.

(c) Where during the currency of a fair rent payable for any house or shop the landlord has made some addition, alteration or improvements in the

house or shop.......

Provided that when the house or shop is in occupation of a tenant at the time of the said addition, alteration improvement etc. the addl. rent shall

not be recoverable from such tenant unless the improvement etc. has been made at the written request of the tenant.

(d) Where during the currency of fair rent the landlord has supplied any furniture for use of the tenant in the house or shop.............

(e) Excepting the case covered by cl. (f) following were the provisions of schedule A for determining the fair rent do not apply, either because the

house or shop or the whole of the house or shop was not let during the 12 months prior to 1st Baisakh 1998, or for some other reasons, such as

rent free or at a normal rent, or for some consideration other than money rent or by fixing the fair rent at a rate in accordance with sch. A, taking

the rent which would have been reasonably payable for the house or shop if let as 'basic rent under the said schedule

(f) Where any house or shop has been constructed after the last day of Chet 2005, by fixing the fair rent payable for one year at the rate not less

than 4 per centum and not more than six per centum of the reasonable costs of construction added to the reasonable price of the land included in

the house or shop as on the date of the commencement of such construction taking into account the prevailing rate of rent in the locality for similar

accommodation with similar advantages and amenities and the comparative advantages or disadvantages of accommodation in the house or shop.

(5) Provided that where the house or shop in respect of which fair rent is to be fixed from a part of the construction, the fair rent shall be fixed at a

rate which is fairly proportionate to the total fair rent of the entire construction.

(g) Where no provisions of this Act for fixing fair rent apply to any premises, by determining the fair rent at a rate which is fair and reasonable.

cls (a) to (g) to S. 8 and SubS. (2) of this section contain various factors which have to be determined by thy Controller for fixing fair rent. A

perusal of S. 8 and the Subclauses to this section clearly show that confers judicial power on the Controller determine to the act fair rent after

hearing both parties, and taking evidence. Thus it cannot be disputed that the power exercised by the Controller under S. 8 is a quasijudicial

power, where the parties have the right to give evidence on the various factors mentioned in cls (a) to (f), (Supra). S. 18 lays down the mode of

hearing of an application filed before the Rent Controller and provides that the hearing should be continued from day to day.

S. S. 19 of the Act runs thus :

Subject to other provisions of the Act, before exercising any of the powers conferred on him by this Act, the Controller shall give notice by

registered post of his intention to do so to the land lord and to the tenant, if any, and shall cause a copy of such notice to be affixed in a

conspicuous place at the office of the Controller, and shall duly consider any application received by him within the period specified in the notice

from any person having any interest in the house or shop in respect of which such power is exercised"".

(6) It would therefore appear from a perusal of Ss. 18 and 19 that the inquiry before the Rent Controller is a quasi judicial inquiry where it is

enjoined on the Controller to give notice to the parties and hear them. Under S. 17 of the Act the Revenue Minister is given the power to appoint a

person by a notification to be the controller. S. 21 lays down that against a final order of the Controller an appeal shall lie to the District Judge of

the district in which the house or shop in respect of which the order is made is situate. S. 21 (4) provides for a revision to the High Court against an

order passed in appeal by the District Judge. Thus it would appear that the order of the Controller under the Act is not made final but is subject to

an appeal before the District Judge and revision by the High Court. It is true that S. 21 gives the right of appeal only against a final order and not

against an interlocutory order, and similarly he revisional powers of the High Court are confinted to final orders passed by the Controller or the

District Judge. In view of this special provision, the main point that falls for determination is whether a Controller appointed under S. 17 of the Act

is appointed as persona designate or as a member o a civil court. This point is not free from difficulty and there appears to be a serious divergence

of judicial opinion on the subject between various High Courts in India, but much of the controversy has been set at rest by a decision of the

Supreme Court in Central Talkies V. Dawarka Prasad. AIR 1961 S. C. 606 to which reference will be made later.

(7) Before we enter into the merits of the argument raised before us, it will be necessary to determine the true import and legal significance of the

words ''persona designate."" In Osborn's Concise Law Dictionary (Second edn) at page 235 the words persona designate have been defined thus :

A person pointed out or described an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character.

(8) This definition appears to have been accepted by there Lordships of the Supreme Court in Central Talkies V. Dwarka Prasad (Supra).

(9) An identical definition appears to have been given by Byrne in his Law Dictionary (1923 edn) at page 664 where the words persona designate''

have been defined as 'a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a

particular character'.

(10) A more pointed and simpler definition has been given in Mosley and Whiteley's Law Dictionary (fifth edn) at page 237 where these words are

defined thus:

An individual as distinguished from a member of a class1"".

(11) A similar definition has been given by Teague in his pocket Law Lexicon (7th edn) at page 271.

(12) From the aforesaid definitions it would appear that persona designate in ordinary parlance indicates the appointment or selection of a person

in his individual capacity rather than as being a member of a particular class, post, job or profession For instance A may be a District Judge. He

may be referred to as merely A and descrioed as A the District Judge of place X Here the designation of A has been mentioned only to identify

him but essentially he has been referred to in his individual capacity. Again A may not be referred to by his name but by his designation alone, for

instance as the District Judge of X, In such a case it is manifest that A has not been appointed in his individual capacity but as a member of the

class or post which he holds. In other words the main test to determine whether an appointment has been made as a persona designate or as a

member of a class is to find out whether the person appointed has been appointed by his name alone, the description or designation being given

only to identify him. Where only the profession or the occupation of the person or the post held by him is mentioned, the appointment is not as

persona designate. We are fortified in our view by a large number of decisions cited at the Bar. To begin with, as far back as 1913 in National

Telephone Company and H. M. 's Post Master General, 1913 AC 546 Viscount Haldane observed as follows:

When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the

procedure of that court are to attach, and also that any general right of appeal from its decision likewise attaches

(13) Similar observations were made by Lord Parker which are as follows :

''Where by statute matters are referred to the determination of a court of record with no further prevision, the necessary implication is, I think, that

the Court will determine the matters as a Court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal

from its decision, remain the same.''

(14) This case was followed by a Full Bench of the Madras High Court at Parthasabadhi Naidu V. Koteswara Rao, AIR 1924 Madras 561. This

decision was endorsed by the Supreme Court in AIR 1961 SC 606 (Supra). In the Supreme Court case their Lordships while defining the scope

and ambit of the words persona designate observed as follows :

The argument that the District Magistrate persona designate cannot be accepted. Under the definition of 'District Magistrate' the special

authorization by District Magistrate had the effect of creating officers exercising the powers of a District Magistrate under the Eviction Act. To that

extent, those officers would, on authorization, be equated to the District Magistrate. A persona designate is ""a person who is pointed out or

described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character"". (See Osborn's Concise

Law Dictionary, 4th edn. page 253). In the words of Schwabe C J. in Parthasadhi Naidu V. KoteswaraRao AIR 1924 Mad. 561 (FB) persona

designate are 'persons selected to act in their private capacity as judges"".

(15) The decision of the Supreme Court therefore sets at rest all controversy on this point. The effect of the decision of the Supreme Court is that

where a judge is appointed purely in his individual capacity by name, he acts as a persona designate, but where he is pointed by his designation

alone, he acts as a court and not as a persona designate. In the instant case it would appear that the Notification dated 131268 by which the

Controller was appointed runs thus:

In exercise of the powers conferred by S, 17 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (XXXIV of 1966) and in

supersession of Notification on the subject published in the Government Gazette dated 9th Poh 2005 and the notification forming Annexure to

Revenue Minister Order No: 32 of 2007/J951 dated 1421951 published in the Government Gazette dated 18th Phagon 2007, I Girdhari Lal

Dogra, Revenue Minister, hereby appoint the Chief Judicial Magistrates Srinagar and Jammu to be the Controllers within the Municipal limits of

Srinagar and Jammu respectively to exercise the powers and discharge the duties conferred and imposed upon the Controller by or under the said

Act.

(16) A persual of this notification implies two things.

(1) The Revenue Minister was aware as to who was the person holding charge of the post of the Chief Judicial Magistrate which is the post held

by a Senior Sub Judge (2) If his intention was that the Controller should be appointed as a persona designate, then instead of merely describing the

designation of the post held by the Chief Judicial Magistrate the Revenue Minister would have taken care to mention the name of the officer who

was holding the post. Since this has not been done in this case, the intention of the Revenue Minister was to appoint the Chief Judicial Magistrate

merely as the presiding officer of the court or as a member filling a particular post. In other words suppose Mr. Durani who is at present Chief

Judicial Magistrate Jammu is transferred and is re placed by another man as Chief Judicial Magistrate Can it be said that his successor would cease

to be the Controller ? Having regard to the Notification, the answer must be in the negative. By virtue of the Notification it is the Chief Judicial

Magistrate who has been appointed as a Controller irrespective of the person who may be holding the post. In Nandalal V. Monnatha Nath, AIR

1962 Cal. 597 under similar circumstances it was held that the Chief Judge of a small causes court appointed by the Government was not

appointed as a persona designate bur as the presiding officer of the court In this case their Lordships of the Calcutta High Court observed as

follows :

In the present instance this deeming clause occurs not merely in relation to appellate Officer in isolation but in conjunction with the 'Controller'.

With reference to the Controller this was a very necessary provision and the draftsman while putting in this clause may have acted 'ex abundanti

cautela' in including Appellate officer also, which he might have well left out. Therefore because of Sub S. (5) alone we are unable to accede to the

contention of the learned Advocate General and we hold that the authority empowered to hear appeal by S 29 of the Act is a Court and merely a

persona designate"".

(17) We might mention here that the provisions of the State Act follow the pattern of the West Bengal Act and therefore the Calcutta case appears

to be directly in point.

(18) A similar view was taken by the Lahore High Court in Kishan Chand V. Nur Mohd , AIR 1919 Lahore 94 where their Lordships observed

as follows :

''The duties that have been assigned to the Controller' under the Act concern the determination of disputes between one citizen and another as to

the conditions upon which the property of one could be held by the other or the amount which are should pay to the other for its use or

occupation. These disputes are undoubtedly of a civil nature involving as they do 'the right to property' within the meaning of the explanation to S.

9, Civil P. C. and are not of a political or executive description. It is also significant that experienced judicial officers were selected to act as

'Controllers' or 'appellate authority presumably for their knowledge of civil law and procedure and their training in sifting facts and appreciating

evidence. It is true that there, was nothing to force the Provincial Government to restrict its field of choice to the judicial cadre, but the fact that it

was indicated the anxiety of the Government that the members of the public, though hampered to certain extent in the interest of public good in the

freedom of their contracts, should find no legitimate cause for complaint that their valuable rights were to be determined by inexperienced or

incompetent officers. The 'Controller' under the Act exercises all the powers of a civil court and must be regarded as such"".

(19) It may be noted that in the instant case also the Chief Judicial Magistrate is essentially a judicial officer and he had to hear applications under

S. 8 of the Act purely in a judicial manner after giving due notice to the parries and after taking their evidence. The Chief Judicial Magistrate being

a senior officer was chosen by the Government because he could bring to bear his experience in deciding the issues arising before him Lastly the

Chief Judicial Magistrate as the Senior Sub Judge is undoubtedly a court of record, and where matters are referred to such a court of record and

where matters are referred to such a court of record, the presumption will be, as held by Lord Parker in 1913 AC (Supra) that the appointment

was made as a court and not as a persona designate. The decisions reported in AIR 1955 J & K 29 AIR 1962 Andhra Pradesh 58, AIR 1931

Bom. 582. and AIR 1963 MP 218 take the view which we have taken in this case. We might, however, refer to a decision of a single judge of this

Court in Zaina Bibi V. Jamal Bhat AIR 1966 J & K 121. In that case Bhat J. held that the Rent Controller acted only as a persona designate and

therefore no revision against his interlocutory order could lie to the High Court. It appears however, that the learned judge relied only on a decision

of the Calcutta High Court in AIR 1943 Cal. 247 and his attention was not drawn to the Supreme Court case (Supra) Furthermore we find that

even the Calcutta case on which the learned judge relied is clearly distinguishable. In that case their Lordships held that it was only a legislative

enactment that could confer powers of a civil court on any person. The order which was being construed by their Lordships was a purely executive

order and not a legislative enactment and therefore their Lordships held that the appointment of a person by an executive order would be

presumed to be appointment as persona designate and not as a court.

(20) In the instant case, however, we are dealing with the legislative enactment which empowers the Revenue Minister to choose any persons as a

Controller. Apart from this distinction, the law laid down in this decision does not appear to be correct, in view of the exposition of the term

'persona designate' by the Supreme Court in AIR 1961 SC 606 (Supsa),

(21) In Sholapur Municipality V. Tuljaram. AIR 1931 Bom. 582 it was held that where the presiding officer of a court is appointed, the

appointment is as a court and not as a persona designate. It is true that a contrary view appears to have been taken in the following cases :

AIR 1950 Cal. 96

AIR 1950 E. P. 181

AIR 1947 Cal. 455

AIR 1952 Rajasthan 59

AIR 1961 A P 498

and AIR 19^:7 Madras 93

(22) In AIR 1950 Cal. 96 (Supra) no reasons are given by the learned judge, but it was held that the District Judge was not appointed as a

persona designate. This decision runs contrary to a later Division Bench decision of the same Court' reported in AIR 1962 Cal. 597 and therefore

must deemed to be overruled by the later Division Bench case. The other decisions are in our opinion no longer good law in view of the

observation of the Supreme Court in AIR 1961 SC 606 (Supra)

(23) Thus the position that emerges from a discussion of the authorities is as follows :

(1) The question whether an authority has been appointed as a persona designate or as a court depends on the nature of the duties which the

authority performs and the manner in which its appointment is made.

(2) Where the appointment of an authority is made only by name in its individual capacity, the appointment is persona designate and not in the

capacity of the post held by such authority.

(3) Where a presiding officer of a civil court is selected as an authority, the election is not a persona designate but as a member of the court,

because the authority so appointed is filling a particular character, e. g. a Chief Judicial Magistrate, Civil Judge, so on and so forth.

(4) Where the authority has been empowered to act judicially and possesses all the trappings of a court and has to abide by the rules of evidence,

then its selection by designation must be presumed to be as a court and not as a persona designate. Applying the afore said tests to the facts and

circumstances of the present case, it would appear that the appointment of the Chief Judicial Magistrate as Rent Controller by the Revenue

Minister was not as persona designate, but as a court and therefore any interlocutory order passed by him would be revisable by this court under S

115 of the Civil P. C. We are therefore clearly of the opinion that the revision is maintainable and the decision of Bhat J. in AIR 1966 J&K 121

(Supra) does not lay down the correct law.

(24) We now come to the merits of the revision. The petitioner has made a clear assertion before us that the respondents had introduced new and

additional matters in their evidence which was not even mentioned in the objections. In these circumstances the petitioner was entitled to an

opportunity to rebut such new evidence. The Controller acted with material irregularity in throwing out the application of the petitioner without

applying his mind to the grounds raised therein. Either the Rent Controller should have excluded the evidence produced by the land lord which was

beyond the scope of the objections filed before him or he should have given an opportunity to the petitioner to rebut that evidence.

(25) For these reasons we allow this application, set aside the order of the Controller dated 28270 and direct him to reconsider the application of

the petitioner and give him an opportunity of rebutting the evidence produced by the respondents In the circumstances there will be no order as to

costs.