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J.T. Gopalakrishnan Vs. H.S. Raja Iyengar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Petn. No. 34 of 1950-51
Judge
Reported inAIR1953Kant8; AIR1953Mys8
ActsConstitution of India - Articles 19(1) and 226; Mysore House Rent Control Order, 1948 - Sections 8, 9(3) and 14(5); Mysore House Rent Control Act, 1948 - Sections 9(3)
AppellantJ.T. Gopalakrishnan
RespondentH.S. Raja Iyengar and ors.
Appellant AdvocateK. Raja Iyer and ;V. Narasimhiah, Advs.
Respondent AdvocateO.S.N. Sheriff, Adv. General
Excerpt:
.....are upon their very face untenable and amount to failure in the exercise of jurisdiction. a writ of certiorari will lie against a decision, ruling or order which materially affects the right of the applicant and is due to a wrong decision with regard to a collateral fact or an erroneous decision without any competent evidence to support it or a wrong interpretation of law or failure to follow or apply law. 59 which holds that- where the decision o the appellate authority under the hyderabad rent control order about the application of doctrine of res judicata is incorrect, then the high court can in exercise of its extraordinary jurisdiction quash the decision on the ground that he has failed to exercise jurisdiction vested in him. holding that -the reasons for possession do not..........of india for the issue of a writ of certiorari calling for the records relating to the house rent control appeal no. 62 of 48-49 and house rent control revision petition no. 99 of 49-50 and for quashing the orders passed thereon.2. the facts leading to the case are as under: the petitioner purchased a house in bangalore on 14-11-1947 from its previous owners, under whom the first respondent was a tenant for a number of years. he issued a notice on 18-12-1947 terminating the tenancy from 1-2-1948. another notice was also issued on 1-4-1948 terminating the tenancy from 1-5-48 and claiming possession of the house for his bona fide occupation. in the first of these notices the petitioner alleged that he purchased the house for his bona fide occupation as he found it difficult to.....
Judgment:

Balakrishnayya, J.

1. This is a petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari calling for the records relating to the House Rent Control Appeal No. 62 of 48-49 and House Rent Control Revision Petition No. 99 of 49-50 and for quashing the orders passed thereon.

2. The facts leading to the case are as under: The petitioner purchased a house in Bangalore on 14-11-1947 from its previous owners, under whom the first respondent was a tenant for a number of years. He issued a notice on 18-12-1947 terminating the tenancy from 1-2-1948. Another notice was also issued on 1-4-1948 terminating the tenancy from 1-5-48 and claiming possession of the house for his bona fide occupation. In the first of these notices the petitioner alleged that he purchased the house for his bona fide occupation as he found it difficult to carry on his business and activities in public life from Robertsonpet, K. G. F. and also because some of the members of his family had been latterly falling frequently ill with the result that they had to undergo treatment in Bangalore continuously. In reply, the first respondent challenged the bona fides of the petitioner in demanding possession of the house and pleaded that he has been in occupation of the house ever since 1936, using it for residence and a lawyer's office and that as he is unable to find any other suitable accommodation for carrying on his profession he is unable to vacate the premises. Thereupon, the petitioner filed a case before the House Rent Controller under Section 8 of the Mysore House Rent Control Order of 1948.

On the pleadings and the evidence of the petitioner who was the only witness examined in the case, the House Rent Controller held that the house was needed for the bona fide occupation of the petitioner and allowed the petition directing the first respondent to quit and deliver possession of the premises to the petitioner. Thereupon the first respondent filed an appeal before the Commissioner of Labour in Mysore, who however, came to the conclusion that the reasons set forth by the petitioner were not convincing and in reversal of the order of the House Rent Controller, held that the petitioner had not made out a case for eviction under Section 9 (3) (a) of the said Control Order. The petitioner then availed himself of the remedy under Section 14 (5) of the said Control Order by filing a revision petition before the Government who confirmed the order of the Labour Commissioner in the following terms:

'The petitioner has extensive business in K. G. F. and it is most unlikely that he will stay in Bangalore needing a house therefor. Government agree that landlord cannot evict a tenant to accommodate a brother unless they are members of a joint family. In this case, the notice dated 18-12-19-17 makes nomention of any joint family and it appears from it that the petitioner is the exclusive owner of the property. The mention of the joint family in the application appears to be an after-thought. There is no reason shown why the son who is in the hostel should be disturbed therefrom to the prejudice of the tenant. The reasons for possession do not constitute bona fide grounds justifying an order of eviction.'

3. Respondent 2 is the Labour Commissioner and respondent 3 is the Government of Mysore State. One of the grounds taken by the petitioner is that under Article 19(1)(f) of the Constitution of India, the Petitioner is entitled to hold and dispose of the property as he likes. Sri Rajah Iyer, the learned Counsel for the petitioner, touched this aspect rather faintly but abandoned the contention during the course of the arguments.

4. The main ground urged on behalf of the petitioner is that the orders under consideration are in the nature of 'Speaking Orders', an expression used by Karl Cairus L. C. in --'Overseer of the Poor of Walsall v. L. & N. W. Rly. Co.', (1879) 4 A C 30. What exactly is meant by the expression 'Speaking Orders' is explained by His Lordship thus:

'If the Court of Quarter Sessions stated upon the face of the order by way of recital that the facts were so and so and the grounds of its decision were such as were so stated then the order becomes on the face of it a speaking order and if that which was stated upon the face of the order, in the opinion of any party was not such as to warrant the order, then that party might go to the Court of the Queen's Bench and point to the order as one which told its own story and ask the Court of Queen's Bench to remove it by Certiorari.'

Sri Rajah Iyer contended that the orders in question are in the nature of 'speaking orders' and the reason' set forth for arriving at the conclusion that the petitioners had not made out a bona fide case justifying an order of eviction are upon their very face untenable and amount to failure in the exercise of jurisdiction. The learned Advocate referred to the English Law quoted by Prem in his book, Law of Habeas Corpus at pages 336 to 341 and the conclusions stated therein may be summarised as follows. A writ of Certiorari will lie against a decision, ruling or order which materially affects the right of the applicant and is due to a wrong decision with regard to a collateral fact or an erroneous decision without any competent evidence to support it or a wrong interpretation of law or failure to follow or apply law. He next cited the decisions in -- 'Krishna-swamy Ayyar v. Mohanlal Binjani', ILR (1949) Mad 657 and -- 'Anand Krishna Chetty v. Messrs. M. K. & Co.', : AIR1950Mad56 where it is held that errors on the face of the record are open to correction under the extraordinary jurisdiction by the issue of appropriate Writs. In -- 'ILR (1949) -Mac! C57' it was held that-

'Errors on the face of the proceedings are always treated as errors of jurisdiction for the purpose of quashing by issuing a Writ of Certiorari.'

The error on the face of the record found by the High Court in the above case was that a tender of rent held to be invalid by the lower Court was found to be valid in the opinion of the High Court. In -- : AIR1950Mad56 the opinion of the Court below, that the mere factthat the applicant was carrying on business in a residential building was sufficient to prevent him from obtaining possession of a non-residential building of his own for carrying on his business and was held to be a substantial error on the face of the record demanding an interference by a Writ. In a recent case (copy of-which was produced) the same High Court following the decision of -- 'ILR. (1949) Mad, 657' held that-

'A Writ of Certiorari will issue when, on the face of the proceedings, it is clear that the determination o the inferior court is wrong, in law'.

The other case that was brought to the notice of the Court is -- 'Secundarabad Commercial Banking Co. v. Inder Mat', AIR 1950 Hyd. 59 which holds that-

'Where the decision o the appellate authority under the Hyderabad Rent Control Order about the application of doctrine of res judicata is incorrect, then the High Court can in exercise of its extraordinary jurisdiction quash the decision on the ground that he has failed to exercise jurisdiction vested in him.'

A Writ of Certiorari should be issued only when the tribunal is known to have acted without jurisdiction or in excess of it.

5. The term 'want of jurisdiction' to issue a Writ of Certiorari, it is argued, in the light, of the decisions cited above, has a more extended meaning than what is generally assumed. This is a proposition of law with which we are not inclined to agree. As incorrect finding of fact, or an untenable inference on facts nor even an erroneous interpretation of law, do not, in our opinion affect the jurisdiction of the tribunal, so as to call for interference with the exercise of high prerogative Writ in the nature of Certiorari.

6. In this case, the question for consideration before the tribunals was whether the requirements under Section 9 (3) (a) of the Mysore House Rent Control Act of 1948 had been complied with in order to enable the petitioner-landlord to get possession of his house. The relevant portion of the section of the said Act runs thus-

'If the house being a residential building is required for the bona fide occupation of the landlord and he is not already occupying another residential building of his own in the same city, town or other area....'

The explanation under the Sub-section reads as follows:

'For purposes of this sub-clause the expression 'landlord' shall not include a rent farmer, or rent collector or estate manager or other agent but includes the wife and children of the landlord.'

Under Section 9 (3) (a) of the said Act, it is argued that the petitioner had only to establish his bona fides for the occupation of his house, that the House Rent Controller had rightly found that the bona fides had been established, but that the Labour Commissioner and the Revisional Authority viz., the Government, in coming to a different conclusion from that of the Controller, were influenced by irrelevant and extraneous considerations not at all warranted by the Rent Control Act and that the said determination by both the latter tribunals is not merely wrong in law on the face of it but tantamounts to a defect in the exercise of jurisdiction so as to attract the provisionof Article 226 of the Constitution of India to issue a Writ for quashing the proceedings.

7. It was further contended by the learned Advocate for the petitioner that in view of the presumption of Hindu Law being in favour of the petitioner, in that the members of the family were all members o a Hindu joint family, for whose occupation the premises might be necessary, the petitioner had amply established the bona fides for the occupation of the house by his family members. The decision of the Labour Commissioner that;--'These reasons are not imperative as to order eviction of the present tenant living for a long time' & the Govt. holding that -- 'The reasons for possession do not constitute bona fide grounds justifying an order of eviction' are clearly decisions influenced by extraneous considerations liable to be quashed. The finding in this case as to the jointness of the family of the petitioner was not gone into on the ground that it was an after-thought. It is not a pure question of law but a mixed question of law and fact. It was open to the Petitioner to have urged that aspect at an early stage and on his failure to do so, the tribunals were within their just limits in drawing an adverse inference.

8. A Writ of Certiorari is a high prerogative Writ issued by a superior Court in respect of the exercise of judicial or quasi judicial functions by another authority, when the contention is that the exercising authority had no jurisdiction or exceeded jurisdiction. It cannot be denied that the tribunals concerned in this case had jurisdiction to deal with the matter. It is argued that the tribunals have acted arbitrarily and illegally in that they have failed to give a proper finding on facts and the circumstances of the case. This Court is not sitting as a Court of Appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. 'If there is any evidence the Court will not examine whether the right conclusion is drawn from it' (vide -- 'R. v. Nat Bell Liquors Ltd.', (1922) 2 A. C. 128 (P.C.). It is a well established principle of law that a Writ of Certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of fact or on merits.

Thus in a very recent case -- 'Parry & Co. Ltd. v Commercial Employees Association', : (1952)ILLJ769SC the Supreme Court of India held

'No certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such a decision is erroneous. The High Court cannot, under Article 226 of the Constitution exercise powers of an appellate Court and correct what it considers to be an error in the decision of the inferior tribunal'.

In another case the same Court held

'A certiorari cannot be granted to quash the decision of the appellate tribunal on these points on the ground that the decision is wrong' -- 'Ebrahim Aboobakar v. The Custodian General of Evacuee Property', 1952 Mad W N 502 (SC).

It is therefore clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction the decision of the tribunal must be deemed to be final.

The position is authoritatively summed up in Halsbury's Laws of England Vol. IX in para 1492 where it is laid down thus:

'Where proceedings are regular upon their face and the Magistrate had jurisdiction, the superior Court will not grant the Writ of Certiorari on the ground that the court below has misconceived a point of law. When the Court below has jurisdiction to try a matter it cannot be deemed to exceed or abuse its jurisdiction merely because it incidentally misconceives a statute or admits illegal evidence or convicts without evidence. No Writ will be granted on the ground that the decision is wrong in matters of fact and the Court will not hear evidence impeaching the decision on facts.'

Similarly in the case reported in -- 'Colonial Bank of Australasia v. Willan', (1874) L. R. 5 P. C. 417, it is observed by their Lordships thus:

'The question is whether the inferior court has jurisdiction to enter upon the enquiry and not whether there has been miscarriage of the procedure in the course of enquiry.'

At page 443 of the same case, the learned Judges observed-

'An adjudication by a Judge having jurisdiction over the subject-matter is, if no defect appears on the face of it, to be taken as conclusive of facts stated therein.'

The case in (1874) L R 5 P C 417 has been approvingly cited by Fazl AH J. who held --'Brij Raj Krishna v. S. K. Shaw & Brothers', : [1951]2SCR145 that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil Court.

9. The learned Advocate-General for the respondents argued that the facts of the present case that fell for decision before the tribunals related to the needs of the petitioner who was admittedly a businessman at Robertsonpet. K. G. F. whose stay even on business and other activities would necessarily be short as rightly held by the tribunals that the needs of the son and the brother studying in the colleges, who were found to have been lodged in hostels and the need of another brother in Government service who was subsequently transferred to Bangalore did not deserve consideration as the question of their being members of a joint family was raised subsequently and considered to be an after-thought. These, it was urged, were all questions of fact which the tribunals were competent to enquire into and the tribunals did not believe in the bona fides of the grounds and their findings could not be impugned in a collateral action even though such findings are deemed to be erroneous upon the face.

It is further contended that such findings are only examinable in a direct proceeding as by way of an appeal or other proceedings in the nature of an appeal and where such remedies are exhausted or where there is no further remedy of that kind, the findings are concluded; and that in coming to the decision in this case, the tribunals concerned followed the well recognised principles of approach and so long as their determination of the question was well within the ambit of the particular provision of law which conferred that power upon them, their decision whether right or wrong cannot be called in question in a collateral action before this Court.

10. The jurisdiction exercised by this Court in the matter of issuing writs is limited tocases where the authority whose action is questioned has acted without jurisdiction or in excess of jurisdiction. Sri Rajah Iyer has not been able to show that the tribunals concerned had no jurisdiction to enquire into the case; nor is it his case that the procedure or formalities required under the provisions had been violated. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a Writ of Certiorari. In a recent case before the King's Bench Division in -- 'R v. Brighton and Area Tribunal', (1950) 1 All E R 946, Lord Goddard C. J. observed that:

'As the tribunal had observed all the formalities of the Act, had offended against none of its provisions or against the regulations made under it, there was no ground for holding that the tribunal's determination was not in accordance with law and therefore the motions for Certiorari and Mandamus should be refused'.

The purpose of Certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. In a very recent case the Supreme Court of India --'Veerappa Pillai v. Messrs Raman & Raman Ltd.', 1952-7 D.L.R. (SC) 220 observed

'such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases, when the subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of natural justice or refuse to exercise jurisdiction vested in them or there is an error on the face of the record and such act, omission, error or excess has resulted in manifest injustice. However expensive the jurisdiction may be, it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or otherwise to be made.'

This, it is submitted with very great respect, represents the correct position of the law upon the point.

11. It is thus clear that the issue of a Writ is entirely a discretionary matter. It is used only in cases where it is shown that there has been a failure to exercise jurisdiction vested in a tribunal or an illegal assumption of the jurisdiction not vested in it (Vide also--'Globe Theatres Ltd. v. Chief Judge of Small Cause Court', 48 Bom L R 691 and -- 'Province of Bombay v. Khushaldas S. Advani', : [1950]1SCR621 .) These principles have been consistently followed by this court. (-- Ratilal Bros. v. Government of Mysore)', C. Ps. Nos. 17, 90 and 61 of 1950-51. As both the Labour Commissioner and the Government have found on facts that the claim of the land-lord petitionerto occupy the premises under consideration was not bona fide I am of opinion that no interference is called for with those findings as in the circumstances of the case, they appear to be not unjustified.

12. The petition fails and is dismissed, parties bearing their own costs.

13. In concluding this order, I cannot help remarking that the decision of the Government based as it is on rather insufficient evidence, is erroneous. Had the question come up in appeal it would very probably, and very properly too, been subjected to serious criticism; but, in these proceedings for a Writ, which is an extraordinary remedy, it can neither be set aside, nor could any discussion on its merits be entered into.

Medapa, C.J.

14. The facts leading up to this petition are stated succinctly by my learned brother in the order which I have had the advantage of perusing and which he is about to pronounce. I am in agreement with him in his conclusion that on a consideration of all the relevant facts and circumstances of the case there are not sufficient grounds for the issue of a writ of certiorari. The reasons for reversing the order of the learned House Rent Controller are set out in the orders of both the Labour Commissioner and the Government though it must be said--to put it mildly--rather cursorily. It is contended that the findings and the reasons in support of the findings given by the learned Labour Commissioner and concurred in by the Government are very much strained. This contention appears to be largely well-founded. The observation that because the petitioner has extensive business in K. G. F. he has no need to keep a house in Bangalore is neither convincing nor satisfactory, the more so because the petitioner had admittedly to come to Bangalore off and on for the purpose of his business. The petitioner is a member of the local Legislature and in that capacity has necessarily to stay in Bangalore for quite some time in a year if he has to discharge his duties as a representative of the people properly and satisfactorily. The other observation that the petitioner--a Hindu--apart from his statement has not let in independent evidence to prove that he is joint with the members of his family and the further observation that his submission that he is a member of the joint family is an afterthought cannot be said to be in consonance with the well-known and well-accepted presumptions of Hindu Law in such matters.

15. The petitioner has paid a sum of Rs. 42,000/- for the house in the year 1948 but has been successfully kept out of the same tilt now by a tenant who, if the sale price for the house is taken into consideration, must be held to be paying only a nominal rent. The petitioner's son is a student studying in one of the colleges in Bangalore and his brother is an officer of the Government with his headquarters in Bangalore and both of them have to shift for themselves somehow for a residence, though they are joint owners entitled to be in joint possession of the bungalow in Bangalore. These are hard facts and go a long way to justify the contention of the petitioner that he has been subjected to a raw deal in the matter of securing possession of the house which he purchased for his own occupation and that of the members of his family.

16. The question however remains whether these circumstances will justify the issue of awrit of certiorari. It must be remembered that this Court, in hearing this petition, is not sitting as an appellate or a revision Court to interfere and correct errors of judgment, particularly on questions like the bona fides o a petition. The orders of the Government and the learned Labour Commissioner as already pointed out, contain in them the reasons for the conclusions embodied in them. The findings regarding the bona fides of the petitioner arrived at by the learned Labour Commissioner and the Government are, for the reasons already stated, manifestly wrong and orders based on wrong findings must necessarily be erroneous but even so it cannot be said that either the Government or the learned Labour Commissioner acted without jurisdiction or beyond their jurisdiction. It is well settled that the issue of a writ of certiorari is not only discretionary but exceptional and, what is more, should be resorted to only when the person aggrieved has no other remedy available or open to him. The Government has, since the date of the petition, invested the High Court with powers of revision over the orders of the Rent Controllers and all matters arising out of the Rent Control Act are now entrusted to, and performed by, Judicial Officers. The petitioner can in this new set up approach the Rent Controller for redress according to law and it cannot therefore be said that he has no other remedy.

17. For the foregoing reasons, this petition is dismissed. Having regard to the circumstances of the case already mentioned, there will be no order as to costs.

18. Petition dismissed.


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