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Cheru Ouseph Vs. Kunjipathumma - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1865 of 1980
Reported inAIR1981Ker266
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 23
AppellantCheru Ouseph
Appellant Advocate K.V. Augustine,; K.V. Prakash and; T.T. Josephina, A
Respondent Advocate V. Harihara Iyer, Adv.
DispositionRevision dismissed
Cases ReferredDhani Devi v. S. B. Sharma
.....supreme court has categorically laid down that tribunals in india are also exercising, like the courts, judicial powers which inherently vest in a sovereign state. observed :when, therefore, parliament entrusts it with judicial duties, parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently. and still, the court found no difficulty in granting to the appellate tribunal a power similar to the one under order 41, rule 5. the enumeration of certain powers by the legislature and the mere failure to grant others, was thus held to be no bar, if the recognition of such power was necessary for making the power granted effective. part of the..........supreme court has categorically laid down that tribunals in india are also exercising, like the courts, judicial powers which inherently vest in a sovereign state. gajendragadkar c. j. said (at p. 1599) :--'they are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. the procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. the procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is substantially the same, and there is no essential difference between the functions that they discharge. as in the case.....

M.P. Menon, J.

1. The landlord was not present in Court when her eviction petition under Act 2/65 was taken up for trial, and the petition was dismissed for default. She applied for restoration and the Rent Control Court allowed the application, on being satisfied that there was sufficient cause to do so. The tenant appealed, but without success. His revision under Section 20 fared the same fate. And that is how he has come to this Court, under Section 115. C. P. C,

2. The question whether a Rent Control Court has power to restore a petition dismissed for default was considered by this Court in Asher v. Raru (1979 Ker LT 260). The rival contentions were based on the provisions of Section 23 of the Act. Clause (h) of Section 23 (1) confers on the Rent Control Court the same powers as are vested in a Civil Court in the master of setting aside ex parte. orders; and Clause (k) ropes in the power of review also. Janaki Amma J. held that the power to restore was different from the power to set aside ex parte orders, and that Clause (h) was not applicable. At the same time it was indicated that the power to review conferred by Clause (k) could be used for restoring a petition dismissed for default.

3. Counsel for the revision petitioner suggests that the above approach requires reconsideration. The argument is that if the power under Clause (h) of Section 23 (1) to set aside ex parte orders is not a substitute for the power under Order 9, Rule 9, C. P. C., the same must be said about the power of review under Clause (k) also. The court's power under Section 114 and Order 47 is distinct and different from the power under Order 9, Rule 9; and when Section 23 (1) (k) of the Act confers only one of these powers on the Rent Control Court, the other should be deemed to have been denied A tribunal, it is said, can exercise only those powers specifically conferred by statute; and when the legislature has addressed itself to the question as to what powers of a civil court could be conferred on a tribunal and has chosen to confer only a few of them, the others cannot be found to exist. No other decision has been cited; and if the power to restore were traceable solely to Section 23 (1) (k), I would have bestowed more serious attention to the objection raised in the above form. But I think, as I will presently show, that an entirely different approach is possible.

4. We are today familiar with different kinds of tribunals appointed for different purposes and exercising different shades of power, There are tribunals for enquiry which merely collect data, and there are others which determine legal rights. Some exercise original jurisdiction while others enjoy appellate or revisional powers. We hear of 'special tribunals', 'statutory tribunals', and 'administrative tribunals'; despite, the difference in names many of them are adjudicatory bodies, pure and simple. They dispense 'administrative justice' doing exactly the same kind of work, in a specialised field, as ordinary courts of law, with the same degree of freedom from political pressure or official influence. In regard to this category at least, the proposition that a tribunal can exercise only those powers conferred by the statute creating it, has to be understood with caution, and its application limited to exorcise of substantive powers, as distinct from matters which are purely procedural. The tendency of the English lawyer to deny wider powers to special tribunals has its origin in history. Memories of the Star Chamber and the ecclesiastical courts excited resentment in him; and the rule of law, as expounded by Dicey, appeared to many as the central feature of the British Constitution. It was felt that the powers exercised by politicians and officials must have a legitimate foundation, based on authority conferred by law and that the law itself should conform to certain minimum standards of justice, both substantive and procedural, The regular courts alone could be trusted with the power to affect individual liberty and rights, and the development of parallel adjudicating bodies like committees and tribunals was anathema. Dicey denied the very existence of such bodies in the British constitutional system. Lord Hewart whose eyes were more open revolted against the 'new despotism' which neither looked nor functioned like a court of common law. To people like them, the creation of tribunals which interfered with freedom of property and contract, following an informal method of adjudication, was subversive of the rule of law. Nevertheless, the Donoughmore Committee conceded in 1932 that in exceptional circumstances 'ministerial tribunals' could be preferred to ordinary courts on grounds of cheapness, accessibility to parties, freedom from technicality, speed and expert knowledge of the subject matter. The Franks Committee report of 1957 was also not all praise for some of the administrative methods till then employed, but the Committee had no doubt about the usefulness and necessity of special tribunals to cope with the increasing activities the State was undertaking from time to time. It suggested the acceptance of some general and systematic, yet reasonably elastic, principles in the branch of administrative law, in the place of the chaos and disorder which was inevitable in the course of its unplanned and spasmodic growth. The Committee expressed the firm view that statutory tribunals were essentially adjudicating bodies and not appendages to the executive and that as in the case of other instruments of adjudication, their proceedings should be open, fair and impartial. Thus, despite the misgivings rammed down the throat of generation after generation of English lawyers, special tribunals came to stay, and even proliferate, if only for the reason that the ordinary courts of the land, both in the matter of number and expertise, were unequal to the task of resolving the baffling variety of disputes thrown up by complex social problems and the need for social control. Such tribunals, it was realised in course of time, had to be tolerated at least as a necessary evil. Even Dicey was forced to reconcile with this position, after the decision of the House of Lords in Local Govt. Board v. Arlidge (1915 AC 120). (See 'An introduction to the Study of the Law of the Constitution'. Tenth Edn, Appendix. 2) when he wrote :--

'The imposition upon the government of new duties inevitably necessitates the acquisition by the government of extended authority. But this extension of authority almost implies, and certainly has in fact promoted, the transference to the departments of the Central Government of judicial or quasi judicial is obvious enough that there is a great convenience in leaving to a Government Department, which deals with any business in which large numbers of persons are interested (such, for example, as the payment of old age pensions, national health insurance or unemployment insurance), power to decide questions which are more or loss of a judicial character ......But we must remember that when the State undertakes the management of business properly so-called, and business which hitherto has been carried on by each individual citizen simply with a view to his interests, the government, or in the language of English law, the servants of the Crown, will be found to need that freedom of action necessarily possessed by every private person in the management of his own personal concerns.....The management of business, in short, is not the same thing as the conduct of a trial.'

5. While Dicey was prepared to recognise the need for adjudicating bodies outside the ordinary courts only in regard to matters of business 'properly so-called', the very flexibility of the procedure found useful by him led to the creation of such bodies or tribunals in other areas also, with the result that even in England where their creation was being objected to on constitutional principles, tribunals have now become more and more the order of the day. There tribunals also decide legal disputes and it is no longer valid to say that judicial functions are the exclusive preserve of the ordinary courts, Wade ('Administrative Law' --2nd Edn. pp. 233-234) says :--

'Outside the ordinary courts of law there is a host of special statutory tribunals with jurisdiction to decide legal disputes. They are one of the by-products of an age of intensive government, and in particular they multiply under the welfare State, The movement of progressive society nowadays might be said (inverting the famous remark of Maine) to be from contract to status, Less and less are people left to rely on personal transactions enforced by the ordinary law courts. More and more are they made subject to regulatory schemes -- national insurance, the health service, State education, agricultural control, rent control, and many other such things are administered under elaborate Acts of Parliament. Here is a new spurge of social friction, for there are bound to be many disputes',

'To add all this work to the tasks of the ordinary courts would not only cause a breakdown : it would also in many cases be wrong in principle. The process of the courts is elaborate, slow, and costly. Its defects ate those of its merits, for the object is to give the highest standard of justice; generally speaking, the public wants the best possible article, and is prepared to pay for it. But in administering social services the aim is different. Disputes must be disposed of smoothly, quickly and cheaply. The object is not the best article at any price, but the best article that is consistent with efficient administration. Moreover, many of these disputes are best decided by bodies on which technical experts can sit, Special forms of tribunals have therefore been devised, and the contrast between them and the ordinary courts is striking. A new system for the dispensation of justice has grown up side by side with the old one. National insurance tribunals, rent tribunals, transport tribunals, health service tribunals, together with many others, have come to play a part in the life of the ordinary citizen which is (assuming the ordinary citizen to be law-abiding) likely to be of more direct concern to him than that of the courts of law.'

A new system of dispensation of justice has thus been growing up, even overshadowing the ordinary courts in its reach and range; and in such a situation, is it wise or useful to still adhere to the theory that tribunals are little bodies with only some of the powers of a court, if at all granted by the legislature If they are equally important as the courts of the land by reason of their discharging the same functions though in their respective specialised fields, why should they be denied the powers ordinarily available to courts, so long as such powers are not specifically denied to them by the statutes, in the matter of administering justice? 6. This is not to say that the difference between tribunals and courts could or should be ignored, but to suggest that the traditional approach to the question of the tribunals' powers requires reconsideration if their usefulness is not to be belittled. The Indian Constitution does not rest on a rigid separation of powers in the sense that the judicial power of the State is exclusively vested in courts. But even in, countries where such separation is constitutionally sacrosanct, special tribunals co-exist with the courts and perform similar adjudicatory functions; they are just called quasi-judicial authorities. Article 136 of our Constitution speaks of courts and tribunals and this is an indication that despite differences in procedure, both the bodies are exercising the same function. In Associated Cement Companies v. Sharma (AIR 1965 SC 1595) : ((1965) 2 SCR 366) the Supreme Court has categorically laid down that tribunals in India are also exercising, like the courts, judicial powers which inherently vest in a sovereign State. Gajendragadkar C. J. said (at p. 1599) :--

'They are both adjudicating bodies and they deal with and finally determine disputes between parties which are entrusted to their jurisdiction. The procedure followed by the courts is regularly prescribed and in discharging their functions and exercising their powers, the courts have to conform to that procedure. The procedure which the tribunals have to follow may not always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is substantially the same, and there is no essential difference between the functions that they discharge. As in the case of courts, so in the case of tribunals, it is the State's inherent judicial power which has been transferred and by virtue of the said power, it is the State's inherent judicial function which they discharge, Judicial functions and judicial powers are one of the essential attributes of a sovereign State, and on considerations of policy, the State transfers its judicial functions and powers mainly to the courts established by the Constitution; but that does not affect the competence of the State, by appropriate measures, to transfer a part of its judicial powers and functions to tribunals by entrusting to them the task of adjudicating upon special matters and disputes between parties. It is really not possible or even expedient to attempt to describe exhaustively the features which are common to the tribunals and the courts, and features which are distinct and separate. The basic and the fundamental feature which is common to both the courts and the tribunals is that they discharge judicial functions and exercise judicial powers which inherently vest in a sovereign State.'

Even in England a vast transformation has taken place with more and more special tribunals taking over that part of the administration of justice which originally belonged to the courts. A statute creating a special tribunal sometimes even ousts the jurisdiction of the civil courts in that field. C. K. Alien ('Law in the making' -- 7th Edn. pp. 591-592) notes:--

'A vast change has come over our 'administration of justice'. It can no longer be considered as the monopoly of the courts of law.....The government has created tribunals with a lavish hand....Of course, these are all subordinate jurisdictions and most of them, especially since the passing of the Tribunals and Enquiries Act, 1958 are subject to some form of appeal; while, as we have seen, even the determination of non-statutory (e. g. domestic) tribunals are subject to control by the courts by declaratory judgment. But it is obvious that when we come to consider the 'administration of Justice' in England, we are confronted with a system utterly different from that which prevailed a hundred or even fifty years ago, The courts of justice have often the last word, but the first word is usually of more importance to the citizen'.

In Arlidge's case (1915 AC 120) the House of Lords noticed that adjudication by the Local Government Board was one.

'affecting property and the liberty of a man to do what he chooses with his own'.

and that such powers were conferred on it in the interests of the public. Viscount Haldane L. C. observed :--

'When, therefore, Parliament entrusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended it to follow the procedure which is its own, and is necessary if it is to be capable of doing its work efficiently.'

7. Two or three, important things follow from what has been seen so far, First, the administration of justice, or at any rate, a substantial part of it is now patterned in a manner different from what it was some half a century ago. Second, the special tribunals which constitute the core of this new pattern are exercising judicial functions inherent in the sovereign State. Third, the powers exercised by them are in many cases indistinguishable in content from those exercised by courts of justice. Further, exercise of such powers by them is vital to the citizen despite the supervisory powers of superior courts over such exercise. If this be the true position, the reality which cannot be overlooked from the functional point of view, how are we to proceed in delimiting the powers of these bodies in matters of procedure, at least in areas not directly covered by statutes?

8. The Motor Vehicles Act, 1939 provides for an Appellate Authority to hear complaints against the decision of Regional Transport Authorities, and the question had often arisen whether the appellate authority had the power to remand. The statute docs not confer any such power, and the argument has been that only those powers conferred by statute could be found to exist. A Full Bench of this Court, in Dharmadas v. S. T. A. T. (AIR 1963 Ker 73) repelled this contention by relying on the principle that where an Act confers a jurisdiction, it also impliedly grants 'the power of doing all such things, or employing such means, as are essentially necessary to its execution.' The same principle was invoked by the Supreme Court in I. T. Officer v. Mohammed Kunhi (AIR 1969 SC 430) to hold that the Income-tax Appellate Tribunal had the power to stay recovery of penalty. The court held that an express grant of appellate power carried with it by necessary implication the authority to use all reasonable means to make such grant effective. The argument that there was no room for equitable approaches in matters of taxation was rejected by observing that the principle applied only to the taxing part of the statute and not to the procedural part.

9. It is important to notice here that Section 131 of the Income-tax Act confers on the Income-tax Officer, the Asst. Commissioner and the Commissioner the same powers as are vested in the court under the Code of Civil Procedure in matters relating to discovery and inspection, enforcing the attendance of witnesses, compelling production of books, and issuing commissions and allied matters. Section 255 (6) of the Act extends these powers to the Appellate Tribunal also. The case before the Supreme Court was thus one where certain powers under the Code were expressly conferred on the tribunal, while others were not; and still, the court found no difficulty in granting to the Appellate Tribunal a power similar to the one under Order 41, Rule 5. The enumeration of certain powers by the legislature and the mere failure to grant others, was thus held to be no bar, if the recognition of such power was necessary for making the power granted effective.

10. It may be possible to explain away the aforesaid two decisions as based on the principle that an appellate authority should have the power to preserve the property or the rights involved pending disposal of the appeal itself. But in Dy. Conservator v. Sarojini (1980 KLN 28) : (AIR 1981 Ker 44) Chandrasekhara Menon, J. referred to the authorities as cited therein observe that (at p. 47 of AIR) :

'Inherent -jurisdiction is there even with tribunals of limited jurisdiction'.

Counsel characterised the above approach as revolutionary, but a reference to Note 1-C of the Commentary on Section 151 C. P. C. by AIR Commentaries, C. P. C. 9th Edition, Vol. 2,. p. 771 indicates that some other courts at least have taken the same view.

11. In Lipton Ltd, v. Their Employees (1959) Lab LJ 431 : (AIR 1959 SC 676) the Supreme Court held, without reference to the provisions of the statute and the rules, that the Labour Appellate Tribunal had the power to correct accidental slips or clerical errors. And in Dhani Devi v. S. B. Sharma (AIR 1970 SC 759) it was held that where an applicant for a stage carriage permit (under the Motor Vehicles Act) died before, the final disposal of his application, the Regional Transport Authority had power to substitute the person succeeding to the possession of the vehicle in the place of the deceased and to allow the successor to prosecute, the application. The court said (at P. 761 of AIR) ;

'In the absence of any statute or statutory rule, the Regional Transport Authority may devise any reasonable procedure for dealing with 'the situations......The Regional Transport Authority has complete discretion in the matter of allowing or refusing substitution.'

This was not a case of appellate power, and the Act and the Rules did not confer any power on the R. T. A. to bring successors on record; but the court held that in the absence of any prohibition, the R. T. A. was entitled to exercise its discretion.

12. What, after all, is the inherent power saved by Section 151 of the Code of Civil Procedure? A court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. Of course, the court must have jurisdiction over the proceedings before it can exercise the inherent power; but when that is granted, its power to advance the cause of justice by relying on unenumerated powers --on inherent or residuary power, as it is often called -- cannot be denied to it, And therefore, where a tribunal exercises the same kind of power i.e. part of the judicial power of the State, as the Supreme Court has observed, why should it be denied similar inherent or residuady powers If you do not like the name, call it by another; but so long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot. without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognise the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and the rules, in the interests of justice. If a tribunal goes out of its way in the fulness of its powers, the superior courts are there to correct it, as noticed by Alien: and as also observed by him, the first adjudication is more important to the litigant than the last.

13. I would therefore say, as indicated by the Supreme Court in Dhani Devi's case (AIR 1970 SC 759), that in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a tribunal so that it may effectively exercise its judicial function. Corpus Juris Secundum (Article 157, 'Public Administrative Bodies and Procedure.') contains the following passage :--

'Apart from and without reference to statutory authority therefore and subject to some restrictions and limitations it has been held that an administrative agency may correct or amend its orders, Thus it has been held, except as qualified by statute, administrative tribunals possess the inherent power to modify their judicial acts to serve the ends of essential justice and the policy of the law; and that the general power of an administrative body over its decisions includes the right to modify a decision so as to reach a different result on the same record'.

This almost amounts to recognition of a power of review; but Article 114 contains the following also ;--

'An administrative body may generally conduct its proceedings in such manner as will best conduce to the proper dispatch of its business and to the ends of justice, It is generally permitted a wide discretion and latitude in procedural details and ordinarily may establish its own rules and regulations as to practice and procedure, although it must conform to standards of fairness and reasonableness'.

14. A litigant may sometimes fail to reach a court in time for reasons beyond his control, The train may be late, the bus may break down, the car may be held up at a railway-crossing. If a Rent Control Court dismisses his application for default in the meanwhile, and if it is held to be powerless to restore it even when proper reasons are shown, that will be to allow the past to persist into the present, with all the merits on one side and dry technicality on the other. Section 23 of Act 2/65 is not designed to make the tribunal powerless in such matters, but only to supplement its powers with some of the well-known trappings of a court. In this view, I hold that a Rent Control Court has the power, in appropriate cases, to restore an application dismissed for default,

The C. R. P. is therefore dismissed, but without costs.

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