Govinda Menon, J.
1. This is a petition under Articles 226 and 227 of the Constitution for a writ of certiorari to quash the order passed by the 3rd respondent, the District Judge of Quilon under Clause 16 of the Travancore-Cochin Buildings (Lease and Rent Control) Order, hereinafter referred to as Rent Control Order. The petitioner is the proprietor of Lakshmi Talkies, Quilon, situated in Survey Nos. 8069 and 8070 in Quilon Pakuthy.
The owners of the building are respondents 1 and 2 to this petition. They leased the said building to one P.K. Subbiah Pillai of Trivandrum on a monthly rent of Rs. 500/- for a period of 5 years from 1-4-1127 (M.E.). Subbiah Pillai, it is stated, assigned his lease-hold right to the petitioner with the knowledge and consent of respondents 1 and 2 and the petitioner says that he is now running the cinema.
The petitioner filed B.R.C. No. 54 of 195S under Section 4 of the Rent Control Order for fixing the fair rent of building. The Rent Controller by his proceedings dated 28-7-1956 fixed the fair rent at Rs. 475/- per mensem. Ext. P-l is the order. Against the said order both the petitioner and respondents 1 and 2 filed appeals before the Collector, who was the appellate authority. He disposed of the appeals by his order Ext. P-12 dated 1-12-1956 fixing the fair rent at Rs. 500/- a month.
Against the order of the appellate authority respondents 1 and 2 and the petitioner filed revision petitions Nos. 5 and 6 of 1957 before the Government. By virtue of the amendment to Clause 10 of the Rent Control Order and the notification thereunder the revision petitions were heard by the District Judge of Quilon and the learned District Judge by a common order Ext. P 3 dated 9-12-1957 held that the petition to fix the fair rent was not maintainable on the ground that the petitioner was not a tenant within the meaning of the Act.
2. The petitioner now seeks to quash the order of the District Judge, Quilon, Ext. P-3 dated 9-12-1957. The grounds taken up by the petitioner are that the District Judge has no jurisdiction to exercise any powers of revision by virtue of amendment to Clause 16 of the Rent Control Order and that the notification amending Rule 16(1) of the Rent Control Order delegating the power of revision, said to vest in the Government, to any officer, specially authorised by the Government, is illegal and ultra vires of the provisions contained in Ss. 15 and 22 of the. Public Safety Measures Act, V of 1950 under which the Control Order has been promulgated, that the revision petitions were pending before the Government, when Clause 16 of the Rent Control Order was amended, and so the revision petitions ought to have been disposed of only by the Government and cannot be transferred to the District Judge. It is also contended that the District Judge has erred in holding that the petitioner was not a tenant within the meaning of Rule 2(4) of the Rent Control Order.
3. Respondents 1 and 2 in their counter, beside denying the various contentions raised in the petitioner's affidavit, have taken a preliminary objection that the question of the lack of jurisdiction should have been raised by the petitioner before the tribunal itself and the petitioner, having submitted to the jurisdiction of the District Judge and having argued the case on the merits and taken a chance of getting a decision in his favour and having failed, is now precluded and estopped from questioning the jurisdiction of the District Judge and claiming the extraordinary remedy provided under Articles 226 and 227, of the Constitution of having the order quashed. According to them the notifications amending Clause 16(1) of the Rent Control Order are not illegal or ultra vires of the provisions of the Travancore-Cochin Public Safety Measures Act. V of 1950.
4. The main ground pressed before us by the petitioner is that the revision petitions were filed before the amendment came into force, that the amendment has no retrospective operation and that the revision petition pending at the time of the coming into force of the amendment should have been heard and decided only by the Government, and they contend that there was a total lack of jurisdiction in the Court of the District Judge to decide this case.
5. Reliance was placed on the decision in Garikapati Veeraya v. N. Subbiah Choudhry, (S) AIR 1957 SC 540. The Supreme Court held that:
'The right of appeal is not a mere matter of procedure but is a substantive right and that right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.' Their Lordships of the Supreme Court observe:'In construing the Articles of the Constitution we must bear in mind certain cardinal rules of construction that statutes should be interpreted, if possible, so as to respect vested right. The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.'
6. A similar question came up for consideration before this High Court in Chinna Kunju Kunju v. K. Neelakantan, 1957 Ker. L.T. 980 : AIR 1958 Kerala 251. The question was whether the venue for appeal against the 3 decrees, appealed against should be determined with reference to the provisions of the Kerala Civil Courts Act, 1957, or with respect to the corresponding provisions in the Travan-core-Cochin and Madras Civil Courts Act. If the former law applies, the proper forum for the appeals against the decrees would be the District Court of Trivandrum and the District Court of Palghat.
If the latter Act applies, all three appeals have to be heard by the High Court, and it was held that us the suits have been instituted prior to the enactment of Kerala Civil Courts Act, the venue of the appeal should be determined with reference to the provisions of the Travancore-Cochin and Madras Civil Courts Act. Their Lordships held, after discussing the case law including the case reported in (S) AIR 1957 SC 540, that:
'A right of appeal is a vested right and not a matter relating to practice or procedure. A party, in whose favour a vested right has accrued cannot be deprived of that right by supervening legislation, unless the legislation by express words or by necessary intendment took away that right and that the substantive right to prefer an appeal arises, when the suit is instituted, and not when the decision, which is to be appealed against is rendered, and their Lordships also observed that retrospective operation is given only to statutes affecting practice and procedure and not to enactment affecting vested rights'.
In the light of the above rulings, there is very great force in the submission made by the learned counsel for the petitioner that there is total lack of jurisdiction in the Tribunal which passed the impugned order.
7. It is then argued that if there is total lack of jurisdiction, submission to jurisdiction by the petitioner or waiver of the question of jurisdiction on his part would not better the position of the respondent in the eye of the law when the decision so given is a mere nullity. Reliance was placed on Kiran Singh v. Chaman Paswan, AIR 1954 SC 340. Their Lordships observed at page 342 as follows:
'It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity; and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.'
Various other decisions have also been brought to our notice relating to decrees passed in suits where the decree was challenged as one passed without jurisdiction. It was held in those cases that where a suit has been decreed by a court having no jurisdiction, the parties cannot by their mutual consent, convert proceedings into a judicial process and that where there is no inherent jurisdiction in the court neither submission to jurisdiction nor acquiescence nor taking part in these proceedings will debar the party from contending that the decree is one passed without jurisdiction. But the question is whether these principles apply in cases where a party invokes the extraordinary jurisdiction of this court under Articles 226 and 227 of the Constitution when he has not raised the question before the Tribunal itself.
8. The question of a party's disability to raise the question of jurisdiction in certiorari proceedings on the ground that he had failed to raise the question before the subordinate Tribunal had come up for consideration in various cases. Most of these cases refer to the well known case of Rex v. Williams, 1914-1 KB 608. That was a case where a baker was convicted under Section 4 of the Bread Act of 1836 by two Justices of the Peace.
One of the Justices who constituted the Bench was debarred from sitting on the Bench by virtue of the provisions contained in Section 15 of the Act which provided that no person concerned in the business of a baker shall be capable of acting of shall be allowed to act as a Justice of the Peace under the Act. The accused did not raise the question of jurisdiction during the trial.
He applied for the issue of a writ of certiorari to question the conviction on the ground that Section 15 of the Act had been contravened and therefore the conviction is illegal and void. He did not also state in the affidavit that he was not aware of the disqualification of one of the Justices of the Peace at the time the case was heard. Channell, J., observed as follows :
'No objection was taken to the jurisdiction of the Court below at the hearing before that court; that being so, it is the rule of this court not to grant a writ of certiorari except upon an affidavit which negatives knowledge on the part of the applicant when he was before the court below of the facts on which he bases his objection. That rule is established on good grounds. It applies equally whether the objection is on grounds which make the act of the Justices voidable or void.' The learned Judge also observed :'In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned, he was unaware of the facts on which he relies to impugn them.'
9. This decision has been followed in a Full Bench case of the Madras High Court in Latchmanan Chettiar v. Corporation of Madras, ILR 50 Mad 130 : AIR 1927 Mad 130. In that case application was made for the issue of a writ of certiorari to quash the order of the Commissioner of the Corporation of Madras and the Chief Judge of the Court of Small Causes, Madras, declaring the petitioner to be disqualified as a candidate for the election to the Corporation.
The contention was that both these officers acted without jurisdiction and hence their order was a nullity. A preliminary objection was raised that certiorari should not be issued where the person who applies for the writ has, by his conduct, taken the chance of a pronouncement in his favour on the merits without challenging the jurisdiction of the Tribunal. Their Lordships observed that:
'The English authorities which were cited prima facie establish the proposition that in such circumstances the applicant cannot obtain a writ of certiorari ex debito justitiae, but the court is exercising a purely discretionary power.'
Regarding the contention that failure to object to jurisdiction of this tribunal debars the applicant when the object is one involving the investigation of facts which were or should have been within the knowledge of the applicant when he was before the lower court, and does not apply to a contention of law_ the learned Judges stated:
'We see no warrant in the cases for drawing any such distinction, because, in our opinion the test that they lay down is whether the applicant armed with a point either of law or of fact which would oust the jurisdiction of the lower court has elected to argue the case on its merits before that Court. If so, he has submitted himself to a jurisdiction which he cannot be allowed afterwards to seek to repudiate. We are of opinion that the applicant has so conducted himself as to preclude this court from exercising a discretionary jurisdiction in his favour.'
10. These decisions were followed in M.U.M. Services Ltd. v. R.T. Authority, Malabar, AIR 1953 Mad 59 and Surya Rao v. Board of Revenue, AIR 1953 Mad 472. To the same effect is the decision in Elenak Ramakka v. State AIR 1955 Hyd 97, to which one of us was a party. There, relying on the case reported in 1914-1 KB 608, it was held that:
'It is well known that in the matter of issue of a writ by way of certiorari, the High Court's powers are discretionary and where the applicant, armed with the point which would oust the jurisdiction of the subordinate tribunal has elected to get the case decided by the court on its merits, he must be taken to have submitted to its jurisdiction and he cannot be allowed later to repudiate that decision in a petition for a writ of certiorari.'
11. Reference may also be made to the decision of the Bombay High Court in G.M.T. Society v. Bombay State, AIR 1954 Bom 202. That was a case under the Motor Vehicles Act. The Regional Transport Authority had granted a permit to the petitioners. The State Transport Authority bet ore whom the matter was taken in appeal dismissed the appeal. A further appeal was taken to the Government and the Government reversed the decision of the Regional Transport Authority.
The party who obtained the permit and who-lost the same before the Government filed an application under Article 226 for quashing the order of the Government as being without jurisdiction. Objection was raised that the petitioners were precluded from raising the question of jurisdiction for the first time in the High Court when they had not raised it before the Tribunal. The learned Judges observed;
'The petitioners never raised the point as to the jurisdiction of Government when Government heard the matter. The petitioners were quite content to permit Government to hear the appeal preferred by respondent 4. If Government had decided in favour of the petitioners we would not have heard anything further about the jurisdiction of Government to bear appeal from die decision of the State Transport Authority, but it is because Government have decided against the petitioners that the petitioners have thought of coming to us in Order to exercise our jurisdiction under the Constitution.''
Their Lordships also stated that the High Court exercised a special jurisdiction in such matters and is entitled to know what the tribunal has to say On the question of jurisdiction which the petitioner wants to agitate before the court. High Court does-not exercise ordinary jurisdiction under Articles 226 and 227 of the Constitution.
It is always open to the petitioner to assert his rights in a suit properly filed, but when be chooses to assert his rights by calling upon the High Court to exercise its special jurisdiction, the High Court must itself lay down certain principles for the exercise of that jurisdiction. After pointing out the-rights of parties in a suit and the right to take up the question of jurisdiction at any stage, their' Lordships observed:
'But the principle is different when the petitioner comes to this court for a writ. The Court must tell the petitioner, it was open to you to raise that point before the tribunal whose order you are challenging. You have sat on the fence, yon have taken a chance of the tribunal deciding in your favour, and it is not open to you now to come to us and ask for a writ.'
The writ was therefore refused.
12. We may now refer to the decision of the Supreme Court in Messrs. Pannalal Biujraj v. Union of India, (S) AIR 1957 SC 397. There the petition was under Article 32 of the Constitution questioning the validity of the transfer of certain income-tax files and the subsequent assessment orders passed in those cases. The ground that was taken was that Section 5(7-A) of the Income-tax Act was ultra vires of the Constitution as infringing the fundamental rights enshrined in Article 14 and Article 19(1)(b) and that the whole proceedings were without jurisdiction and void. In. dealing with the objection that the question of jurisdiction was not raised before the tribunal, their Lordships observed as follows;
'There is moreover another feature, which is common to both these groups and it is that none of the petitioners raised any objection to their cases being transferred in the manner stated above and in fact submitted to the jurisdiction of the Income-Tax Officers to whom their cases had been transferred. It was only after our decision in Ridi Supply Co. v. Union of India, 1956 SCR 267: ((S) AIR 1956 SC 479) was pronounced on 20th March, 1958, that these petitioners woke up and asserted their alleged rights, the Amritsar group on 20th April 1956, and the Raichur group on 5th November 1956. If they acquiesced in the jurisdiction of the Income-tax Officers, to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this court under Article 32, It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this court. (Vide Halsbury's Laws of England Vol. II, 3rd Edn. p. 140, para 265, Rex v. Tabrum, Ex parte Dash, (1907) 97 LT 551 : ILR 50 Mad 130: (AIR 1927 Mad 130) (FB).'
The Supreme Court therefore held that they were not entitled to challenge the order of transfer as unconstitutional and void.
13. The learned counsel for the petitioner has referred us to the case reported in Dholpur Co-op. T. and M. Union v. Appellate Authority, AIR 1953 Raj 193. That ease related to proceedings under Article 226 of the Constitution and related to the constitution, of the appellate authority to hear appeals against the orders of a Regional Transport Authority under the Motor Vehicles Act.
There were certain defects in the constitution of the Tribunal. But no objections to such constitution were taken before the Tribunal itself. When the question of jurisdiction was sought to be raised, objection was taken that the question of jurisdiction cannot be gone into, as the applicant did not raise the question before the appellate Tribunal. In dealing with this contention the learned Judges observed at page 196 of the report:
'Coming to the third objection, it is true that if a party does not raise any objection to the jurisdiction of a court or tribunal, which depends upon the allegations and proof of certain facts, that party will not be allowed to raise objection about jurisdiction in an application under Article 226. Where. however, the lack of jurisdiction is patent, the mere fact that no objection was taken before the statutory authorities would not disable the applicant from raising such question in an application under Article 226 '
The decision in 1914-1 KB 608 and the Full Bench decision of the Madras High Court reported in ILR 50 Mad 130: (AIR 1927 Mad 130) were relied upon in support of the proposition that the question of jurisdiction cannot be taken for the first time in the writ proceedings. It is seen from the judgment that the applicant before the High Court in that case had filed affidavits to the effect that they did not know about the irregularities and illegalities in the constitution of the tribunal before whom they appeared.
In the affidavit the applicants had clearly stated that in consequence of such absence of knowledge on their part, they were prevented from raising any objection as to the jurisdiction of the appellate authority. These statements were not denied by the-opposite parties and therefore the learned Judges-observed:
'There is, therefore, no wonder if the petitioners were unable to raise any objection on the-ground of jurisdiction before the appellate authority.'
This must have weighed with their Lordships-in granting the writ. So this decision cannot betaken as an authority for the position that without any such explanation, in all cases, where the Jack, of jurisdiction is patent, the High Court is bound to issue a writ to quash the order. It is on the same grounds that a Division Bench of the Allahabad High Court granted a writ in the case reported in Musai Bhant v. Ganga Charan, AIR 195$ All 118.
14. The learned counsel for the petitioner placed great reliance on the decision of the Supreme Court in U.C. Bank, Ltd. v. Their Workmen, AIR 1951 SC 230. That is a case under the Industrial Disputes Act, where it was found that the Tribunal was not properly constituted according to law and their Lordships held that it was a-matter going to the root of the jurisdiction of the Tribunal. The learned Chief Justice observed as follows:
'Nor can consent give a Court jurisdiction it a condition which goes to the root of the jurisdiction has not been performed or fulfilled. No appearance or consent can give a jurisdiction to a. court of limited jurisdiction which it does not possess. The distinction clearly is between the jurisdiction to decide matters and ambit of the matters to be heard by a Tribunal having jurisdiction to-deal with same. In the second case, the question of acquiescence or irregularity may be considered and overlooked. When, however, the question is of the jurisdiction of the Tribunal to make the award under the circumstances summarized-above, no question of acquiescence Or consent can affect die decision.'
On reading the decision of the Supreme Court, it will be seen that objection was raised about the sitting of the two members as a Tribunal and it had been overruled and therefore no question or acquiescence or estoppel arises. This decision therefore, cannot be taken as an authority for the position that such a question on jurisdiction can be raised for the first time in certiorari proceedings.
15. Reliance is then placed on the decision in N. Gopalan v. Central Road Traffic Board, Tri-vandrum. 1958 Ker LT 410: (AIR 1958 Ker 341). In an exhaustive order, Vaidialingam, J., considered all the decisions bearing on the question in eluding a decision of Raman Nayar, J., in Venkitasubramonia Iyer v. Catholic Bank of India, Ltd... 1957 Ker LT 411: (AIR 1957 Ker 109) and held:.
'It is not Open to a party to raise for the first time in certiorari proceedings the question of jurisdiction of the subordinate Tribunal, unless he has challenged, this jurisdiction before that Tribunal itself or he satisfies the court that he was unaware of the circumstances which will put him on an inquiry as to the lack of jurisdiction of the subordinate Tribunal.'
The learned Judge on the facts of that case found that there was no total lack of Jurisdiction and that it was only a case of defective jurisdiction. In the course of considering some of the decisions cited on behalf of the petitioners the learned Judge distinguished these cases also on the ground that they were cases of total want of jurisdiction and as such no question of submission to jurisdiction arose. Reliance has been placed on these observations for the argument that in a case of total lack of jurisdiction the petitioners are as a matter of right entitled to the issue of a writ.
16. In a later case under the Motor Vehicles Act, Calicut Wynad Motor Service (Private) Ltd. v. State of Kerala, 1959 Ker LT 521: (AIR 1959 Ker 347), Justice Varalaraja Iyengar, made a distinction between total non-existence of the authority on the one side and defective constitution of the authority on the other. He relied on the following observation of Justice Vaidialingam reported in 1958 Ker LT 410: (AIR 1958 Ker 341):
'It is not open to the applicants to raise the question about the defective constitution (as contradistinguished from the absence of altogether) of the State Transport Authority for the first time in High Court under Article 226. The petitioner has submitted to the jurisdiction of the State Transport Authority and by such conduct, the petitioner has disentitled himself to get any relief from the High Court in proceedings under Article 226'
and held that in that particular case, R.T.A. was non-existent altogether in point of law and there was absolutely no scope for deciding the question of issue of permit legally as between the rival applicants. The petitioner had no knowledge of the defect that attached to the R.T.A. at the time it purported to pass the order and therefore the petitioner is not precluded from raising the question of jurisdiction.
17. This case went up in appeal in Rajalakshmi Motor Service v. Govt of Kerala, 1960 Ker LT 85: 1959 Ker LJ 1425 ; (AIR I960 Ker 229) and in dealing with the contention that the petitioner should not have been allowed to raise the question of Jurisdiction our learned brother M.S. Menon, J., observed as follows:
'that the petitioner did not raise the question of jurisdiction before the Regional Transport Authority is admitted. As a matter of fact the petitioner appears even to have sought and obtained a stage carriage permit for another route from the same authority. It is also admitted that the petitioner has filed an appeal in accordance with the provisions of the Act, and that it is pending disposal.
These are circumstances, however, which cannot be considered as ousting or limiting the jurisdiction of this court under Article 226 of the Constitution. They are only factors which may induce a Judge to refuse a remedy under that Article.
Iyengar, J., did not consider these factors as sufficient to decline interference and in such a case whatever may have been our own reactions in similar circumstances we should not interfere unless we are satisfied that the decision is perverse'
18. It is true that want of jurisdiction cannot be cured by waiver. But it does not involve the further proposition that the High Court is obliged to grant an application for prohibition or certiorari made by a party who has approbated the defective proceedings. Certiorari and prohibition are in general, discretionary remedies and the conduct of the applicant may in particular cases have been such as to disentitle him to a remedy. Whether the Tribunal lacked jurisdiction is on a question, whether the Court having regard to the applicant's conduct ought, in its discretion, to set aside the proceedings is another.
Even though his conduct in invoking a nonexistent jurisdiction would have done nothing to confer jurisdiction on the Tribunal, yet if a party who had taken part in the proceedings of a Tribunal which had no jurisdiction were subsequently to apply to the Court to have the proceedings set aside, it is hardly conceivable that he would be awarded a remedy. This distinction, we are afraid, seems to have escaped the notice of Iyengar, J., and there was also the further fact that in that, particular case there was evidence that the petitioner had no knowledge of the want of jurisdiction of the Tribunal.
19. Reference may in this connection be made to the decision in Jagatjit Cotton Textile Mills Ltd., Phagware v. Industrial Tribunal, Patiala, AIR 1959 Punj 389. The petition was under Article 226 of the Constitution by which the award made by the Industrial Tribunal was sought to be questioned by certiorari on the ground that the Tribunal had no jurisdiction. It was found in that case that the award was null and void having been made by a Tribunal that had no jurisdiction in the matter. The entire case law has been reviewed and the principles have been summarized as follows:
'(i) The court has always the power and the discretion to grant Or refuse to grant the writ and while exercising the discretion it will take into consideration all the relevant factors;
(ii) the failure to raise objection to defect or lack of jurisdiction of the Tribunal before it is always a material and relevant factor and must be taken into account and it makes no difference whether such a defect is patent or latent:
(iii) ordinarily such a conduct would preclude the petitioner from claiming the writ unless a cogent explanation is furnished by stating the necessary facts upon affidavit which should satisfy the court that the failure to raise the objection relating to jurisdiction was not deliberate, or that the petitioner had no knowledge of facts on which the objection could be based;
(iv) it would naturally depend on the facts of each case whether such conduct has been established as would disentitle the petitioner to any such relief.'
20. Following largely on the above decision Velu Pillai, J., in Umaprabha Thampuratti v. State of Kerala, 1960 Ker LT 7: (AIR 1960 Ker 186), held that:
'The Court has the power to giant or refuse to grant a writ of certiorari. The failure to raise the objection to the jurisdiction of the inferior Court is a relevant point to be borne in mind; the ordinary rule is to refuse a writ in such circumstances.'
21. It cannot be said that these decisions lay down any general rule that in every case in which objection to jurisdiction had not been taken before the Tribunal, no relief should ever be granted in the exercise of the discretionary powers vested in the High Court. How far the conduct of a petitioner has disentitled him to any relief, would depend on the facts of each case and if a reasonable explanation is given for not taking any objection to jurisdiction before the Tribunal, that can be accepted by the High Court and relief could be granted by way of certiorari.
22. In this case the petitioner took his chance of obtaining a favourable order from the District Judge and when the order finally wont against him he has come forward with this petition questioning the want of jurisdiction of the Tribunal for the first time. There can be no doubt that such a conduct in the absence of any explanation or statement of facts in the petitioner's affidavit with regard to the failure to raise the point before the Tribunal would disentitle the petitioner to the reliefs now claimed by him in this petition.
23. For these reasons we would dismiss the petition, but under the circumstances leave the parties to bear their own costs.