(1) This petition raises an important question as to the power of the High Court under Arts. 227 and 228, Constitution of India to transfer an application filed under the Madras Buildings (Lease and Rent Control) Act from the file of the Rent Controller to the High Court.
(2) The second respondent before the Rent Controller is the petitioner is this petition. The respondent in the present petition filed B. A. P. No. 3 of 1953 on the file of Rent Controller, Gudivada, under S. 4, Madras Buildings (Lease and Rent Control) Act, 1949, on 11.2.1953 for the fixation of fair rent. On 24.3.1953, the petitioner herein filed his counter. The petition was enquired into. The respondent's counsel concluded his arguments on 27.10.1954. On that day, the respondent (Petitioner herein) filed an application under O. 27-A, Civil P. C. before the House Rent Controller. That petition is pending. On 29.10.1954 the present petition has been filed in this Court.
(3) It is alleged by the petitioner that the respondent's petition is not maintainable, that S. 4, Madras Buildings (Lease and Rent Control) Act, 1949, violates the fundamental rights of every citizen guaranteed under Art. 19 of the Constitution, that the said section places restrictions that are not reasonable and are not justified in public interest ; that the Madras Buildings (Lease and Rent Control) Act and in particular S. 4 of the said Act is ultra virew the powers of the Legislature. It is further submitted that on the formation of the Andhra State, the Madras Buildings (Lease and Rent Control Act has ceased to be in force in the Andhra State and the Rent Controller has no jurisdiction to proceed with a petition under S. 4. It is, therefore, prayed that the High Court may withdraw the proceedings in B. A. P. No. 3 of 1953 on the file of the Rent Controller, Gudivada to the file of the High Court.
(4) The respondent filed a counter, wherein it is alleged that he has been declared to be a tenant entitled to the benefit of the Rent Control Act, not merely by the Subordinate Judge's Court but also by the High Court of Madras in C. M. A. Nos. 87 and 88 of 1953 ; that the application for the withdrawal of the proceedings is belated, that the question touching the constitutional validity of the Madras Buildings (Lease and Rent Control) Act have not been raised so far before the House Rent Controller ; that such questions are foreign to the scope of these proceedings and that this petition has been filed mala fide with the motive of putting of the determination of the fair rent.
(5) The relevant articles of the Constitution of India may be extracted :
'227 (1) : Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generally of the foregoing provision, the High Court may -
(a) call for returns from such courts :
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the Officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the Sheriff and all clerks and Officers of such courts and to attorneys, advocates and pleaders practising therein :
Provided that any rules made, forms prescribed or tables settled under Cl. (2) or Cl. (3) shall not be inconsistent with the provisions of any law for the time being in force and shall require the previous approval of the Governor.
(4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
228 : If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may -
(a) either dispose of the case itself ; or
(b) determine the said question of law and return the case to the court from which the case has been so withdrawn, together with a copy of its judgment on such question and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.'
(6) Article 228 makes it obligatory on the High Court to withdraw from the subordinate courts all cases which involve a substantial question of law as to the interpretation of the Constitution. The object of the article is to make the High Court the sole interpreter of the Constitution in the State and to deny the subordinate Courts a right to interpret the Constitution. One of the essential conditions for the application of Art. 228 is that a case must be pending in a court subordinate to the High Court. The learned counsel for the petitioner has conceded before me that the House Rent Controller is not a court in view of the decisions of the Supreme Court in -- 'Waryam Singh v. Amarnath', : 1SCR565 (A), wherein their Lordships of the Supreme Court have laid down that the Rent Controller and the District Judge exercising jurisdiction under the East Punjab Urban Rent Restriction Act are not courts. But he contended that the power of transfer is implicit in the power of superintendence given to the High Court over all courts and Tribunals throughout the territories in relation to which it exercise jurisdiction.
He relied upon two decisions of the Hyderabad High Court : -- 'Mohamed Abdul Raoof v. State of Hyderabad', AIR 1951 Hyd 50 (FB) (B) and -- 'Mohammed Baquar v. State of Hyderabad', AIR 1951 Hyd 82 (C). In -- 'Mohamed Abdul Raoof v. State of Hyderabad (B)' the High Court had to deal with applications for transfer by the accused, who were being prosecuted with 10 others in the Court of the Special Tribunal No. IV, Hyderabad, for offences of criminal conspiracy, promoting class hatred, robbery, 'dacoity etc. The applications were filed under S. 495, Hyderabad Criminal Procedure Code corresponding to S. 526 of the Indian Criminal Procedure Code. But some of the applicants had also invoked the provisions of Arts. 226 and 227, Constitution of India in support of their appoications for transfer. The Full Bench of the Hyderabad High Court held that Art. 227 of the Constitution is applicable to the Court of the Special Tribunal and the powers of superintendence conferred on the High Court are sufficiently wide to include the principles laid down in S. 494, Hyderabad Criminal Procedure Code and to empower them to deal with the transfer applications. In that view, they held that it was unnecessary to give any finding as to the applicability of S. 494 or of Art. 226 of the Constitution.
(7) In -- 'Mohamed Baquar v. State of Hyderabad (C)', a Bench of the Hyderabad High Court was dealing with an application for transfer of a case before the Special Judge at Warrangal constituted under the Special Judges Regulation. On behalf of the State of Hyderabad an objection was raised that the High Court had no jurisdiction to transfer cases triable by the Special Judges to another Court. Mohamad Ahmed Ansari and Srinivasachari JJ. took the view that the word 'Superintendence' used in Art. 227 of the Constitution cannot be confined to mere matters of adminstrative control but confers judicial powers also on the High Court. The learned Judges pointed out that the mention of the word 'Tribunal' in the said articles goes to show that the Constitutent Assembly intended to confer on the High Courts powers of Superintendence, not only over Tribunals or courts as are subject to its appellate jurisdiction, but also on those whose decisions are not subject to appeal before the High Courts.
They said :
'If we were to place a narrow interpretation on the word 'superintendence' as covering matters of administration only, it would follow that the High Court will have adminstrative control over these tribunals, but not judicial, and that appears to us to be hardly the intention of the framers of the Constitution. We are, therefore, of opinion that the word 'superintendence' used in Art. 227 in the Indian Constitution is wide enough to cover matters of Judicial nature also, and it this High Court thinks as proper to exercise its power of revision or transfer that can be done notwithstanding the restrictive provisions contained in the laws passed by the State for the jurisdiction conferred on this court by the Constitution Act cannot be controlled by State Legislature'.
(8) 'In Re: Tirupuliswamy Naidu', : AIR1955Mad287 (D), Satyanarayana Rao J. and Rajagopalan J., held that the jurisdiction vested in the High Court under Art. 227 of the Constitution is a revisional jurisdiction and hence no Letters Patent Appeal is competent from an order passed by a Judge of the High Court in exercise of such a jurisdiction. The question as to whether the High Court has power to direct a transfer under Art. 227 did not fall for consideration in this decision.
(9) 'In Re : Annamalai Mudaliar', : AIR1953Mad362 (E), Ramaswamy J., held that all agencies whether courts or not, performing the duty of deciding disputed questions of right between parties on behalf of and under the sanction of the State and in accordance with State-made laws are placed under the adminstrative and judicial control of the High Court and that the High Court has got revisional jurisdiction under Art. 227 by way of superintendence over the judicial work of a duty constituted tribunal, like the Deputy Registrar under the Co-operative Societies Act. He further held that the word 'superintendence' includes power to guide and to direct subordinate courts and tribunals to carry out orders of the High Court.
(10) 'In re : Gangalakurthi Pattisan', : AIR1954Mad573 (F), Rajamnnar C. J., and Venkatarama Iyer J., had to consider the scope and effect of Art. 227, Constitution of India, The learned Judges considered the provisions of S. 15 of the Charater Act of 1861 and S. 107, Government of India Act, 1915 and Sec. 224, Government of India Act, 1935, in relation to Art. 227 of the Constitution. But in these two decisions there was no need for the learned Judges of the Madras High Court to consider as to whether the High Court has power under Art. 227 to transfer a petition which is pending on the file of a tribunal to the High Court. Section 107, Government of India Act, 1915 is almost a reproduction of S. 15 of the Charter Act of 1861. Section 224, Government of India Act, 1935 provided for the superintendence of the High Court over all courts for the time being subject to its appellate jurisdiction. Section 225 provides for transfer of certain cases for trial to the High Court.
That section ran thus :
'225 (1). If on an application made in accordance with the provisions of this section a High Court is satisfied that a case pending in an inferior court being a case which the High Court has power to transfer to itself for trial, involves or is likely to involve the question of the validity of any Dominion or Provincial Act, it shall exercise that power'.
Article 227 of the Constitution corresponds to S. 224, Government of India Act 1935 with certain changes and Art. 228 of the Constitution corresponds to S. 225, Government of India Act 1935 with certain changes. Order 27-A, Civil P. C., which has been inserted by S. 2, Code of Civil Procedure (Amendment Act) Act 23 of 1942 (as subsequently adopted and amended) provides for notice to the Advocate General where, in any suit, it appears to the Court that any such question as is referred to in Cl. of Art. 132 read with Art. 147 of the Constitution is involved.
Rule 2 of Order 27-A also provides that the court may at any stage of the proceedings order that the Central Government of a State Government shall be added as a defendant in any suit involving any such question as is referred to in Cl. 1 of Art. 132 read with Art. 147 of the Constitution.
(11) Articles 227 and 228 occur in juxtaposition indicating thereby that they are not intended to serve the same purpose. Article 228 of the Constitution expressly confers power on the High Court to transfer a case pending in a court subordinate to it, which involves a substantial question of law as to the interpretation of the Constitution, while Art. 227 provides that every High Court will have power of superintendence over all courts and tribunals in relation to which it exercise jurisdiction. Article 227 cannot comprehend a power which is specifically embodied in Art. 228. When an application for transfer is made, it must come only under Art. 228, and that article makes no mention of Tribunals, though Tribunals are specifically referred to in Art. 227. If the framers of the Constitution intended to confer upon the High Court a power to transfer a matter pending before a Tribunal involving a substantial question of law as to the interprestation of the Constitution, nothing could have been more easy than to add the words 'or Tribunal' in Art. 228. In the two decisions of the Hyderabad High Court referred to above, this point has not been considered. The power of superintendence conferred by Art. 227, it is no doubt true, is both judicial and adminsitrative. But, I have it difficult to hold that it comprehends a power to withdraw to thefile to the High Court, a case pending before a Statutory tribunal.
(12) In the above view, I do not think this application can be granted. It is, therefore, dismissed.
(13) Petition dismissed.