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Sm. Suhashini Das W/O Surendra Nath Das Vs. Mahendra Kumar Bose - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1947Cal455
AppellantSm. Suhashini Das W/O Surendra Nath Das
RespondentMahendra Kumar Bose
Cases ReferredKiran Chandra Bose v. Kalidas Chatterjee
Excerpt:
- .....in occupation of the house. permission was granted on 12-7-1945, but against the order of the rent controller, the tenant preferred an appeal to the learned district judge of alipore under the calcutta house rent control order. that appeal was, in the first instance dismissed on 20-9-1945, and the order of the rent controller, according permission to the petitioner to bring a suit in ejectment, was upheld. in pursunance of the permission thus secured, the petitioner actully filed a suit in ejectment in the court of the munsif at sealdah on 25-9-1945, which we understand, is pending. on 12-1-1946, however, the tenant filed an application for review before the learned district judge and that application was allowed on the 30th february following. the learned. judge set aside the order.....
Judgment:

Chakravartti, J.

1. This rule fails on a preliminary ground and it is therefore unnecessary to refer to the merits of the order against which it is directed. The facts, briefly stated, are the following: The petitioner, along with her husband was the tenant of premises No. 1, Girish Vidyaratna Lane, Calcutta, which however came to be required by the landlord for his own occupation. When the petitioner came to know of that circumstance, she purchased a house, for herself, namely premises No. 9, Jugipara Bye Lane, in September, 1944. A tenant, however was in occupation of the house purchased by the petitioner. On 18-1-1945, the petitioner made an application to the Bent Controller for leave to bring a suit for ejectment against the tenant in occupation of the house. Permission was granted on 12-7-1945, but against the order of the Rent Controller, the tenant preferred an appeal to the learned District Judge of Alipore under the Calcutta House Rent Control Order. That appeal was, in the first instance dismissed on 20-9-1945, and the order of the Rent Controller, according permission to the petitioner to bring a suit in ejectment, was upheld. In pursunance of the permission thus secured, the petitioner actully filed a suit in ejectment in the Court of the Munsif at Sealdah on 25-9-1945, which we understand, is pending. On 12-1-1946, however, the tenant filed an application for review before the learned District Judge and that application was allowed on the 30th February following. The learned. Judge set aside the order of the Rent Controller, and withdrew the permission granted. It is agayist that order that the present Rule is directed.

2. The first question which arises is whether the learned District Judge, in hearing the appeal filed by the petitioner's tenant and the subsequent application for review, was acting as a Court at all and whether the order passed by him is liable to interference by this Court in the exercise of its revisional powers. In a case dealing with the Bengal House Rent Control Order, namely Kiran Chandra Bose v. Kalidas Chatterjee : AIR1943Cal247 , it was held by Mukherji and Blank JJ., that an order passed by the District Judge in exercise of the powers conferred upon him by para. 12, Bengal House Bent Control Order could not be revised by the High Court, inasmuch as the District Judge, in exercising those powers, did not act as a Court but only as a persona deisgnata and a superior executive authority. Broadly stated, that decision was grounded on two reasons. The first was that the relevant para of the Bengal House Rent Control Order, namely para 12, named only the 'District Judge' and the language used in the order gave no indication that the District Judge was contemplated as the presiding Office of the principal Court of original civil jurisdiction, in the district. The second reason given was that the House Rent Control Order itself was not a legislative provision of the ordinary kind, but an executive order by which the existing jurisdiction of the civil Courts could not be enlarged. It was accordingly held that the District Judge, in exercising the powers conferred by para. 12 of the Bengal House Rent Cortrol Order, could not be held to be a Court at all, far less a Court subordinate to this High Court.

3. Mr. Mookherjee, who appears in support of the present Rule, accepts the decision we have referred to as correct, but he argues that by reason of the enactment of the Calcutta Rent Ordinance, 1946, the second reason relied upon by the learned Judges has disappeared. There is now, he says, an enactment which has the force of a statute, He then refers in particular to the provisions of Section 26, of the Ordinance which reads as follows:

Any proceedings commenced under any provision of the Calcutta House Rent Control Order, 1943, or of the Bengal House Rent Control Order, 1942, or the Bengal Hotels and Lodging Houses Control Order, 1942, shall, on the said Orders ceasing to be in operation, be continued and be, as far as may be, deemed to have been commenced under the corresponding provision of this Ordinance and any appointment made under any of the said orders shall, for the purpose of the said proceedings, be deemed to have been made under this Ordinance as if this Ordinance was in operation when the said proceedings were commenced or such appointment was made.

The Ordinance came into force on 1-10-1946 Mr. Mookherjee contends that under the first part of the section above quoted, the proceedings in the present case must be deemed to have commenced under the Calcutta Rent Ordinance, 1946, although in fact they were initiated under the Calcutta House Rent Control Order. In the second place, it is contended that the appointment of the District Judge as the appellate authority under the Calcutta House Rent Control Order must now be deemed to be an appointment under the Calcutta Rent Ordinance, so that it is an appointment under a statutory provision and not an executive order. Accordingly, he argues that the District Judge in the present case must be deemed to have been converted into the presiding officer of the Court of the District Judge with retrospective effect, as would appear from the second part of the section.

4. In our opinion this contention cannot be accepted. Paragraph 12 of the Bengal House Rent Control Order, on which this Court had occasion to pronounce in the case already referred to, mentioned only the 'District Judge of the district' as the appellate authority in respect of houses outside the presidency town of Calcutta. The corresponding provision in the Calcutta House Rent Control Order, namely, Section 14(1)(b), however, mentioned not only the 'District Judge of the 24 Parganas', but also 'such other person or persons as may be appointed by the Provincial Government to hear such appeals, either concurrently with, or to the exclusion of, the said District Judge'. It is perfectly clear that if this Court thought that the reference to the District Judge in para. 12 of the Bengal House Rent Control Order, as distinguished from the Presiding Officer of the Court of the District Judge, indicated that the District Judge was not acting in his normal judicial capacity, there is far greater reason to think that the Calcutta Rent Control Order, which makes room for persons other than the District Judge does not contemplate the District Judge as a judicial officer or the Presiding Officer of the Principal Court of original jurisdiction in the district. The appeal, as appears from the provision we have quoted may be presented either to the District Judge or such other person or persons as may be appointed by the Provincial Government. Such other person or persons may be any person or persons, and it could not possibly be contended that a man in private life or an officer of some other Department, say the Forest Service or the Irrigation Department, if empowered by the Provincial Government to hear such appeals, would be a court. It is perfectly clear that the status of the District Judge under this clause must be the same as, and cannot be different from, that of the other person or persons whom the Provincial Government may choose to appoint. In our opinion, it follows that the District Judge as contemplated in Section 14(1)(b) of the Calcutta House Rent Control Order, is not the District Judge in his ordinary judicial capacity or the Presiding Officer of the principal Court of original civil jurisdiction in the district, but a persona designata. It is noticeable that under the section, the District Judge might be excluded altogether by an order of the Provincial Government which is inconsistent with his being contemplated as the Court of the District Judge to whose existing appellate jurisdiction a new subject matter is being added.

5. The corresponding provision in the Calcutta Rent Ordinance, 1946, is Section 25(1)(b) and there the language is 'District Judge of the district in which the premises in respect of which such order is made are situated or to such other person or persons as may be appointed by the Provincial Government to hear such appeals, either concurrently with, or to the exclusion of, the said District Judge.'

6. It will be noticed that in all essential respects, the language used in the Ordinance is the same as the language used in the Calcutta House Rent Control Order and the considerations to which we have referred as indicating that the District Judge in his ordinary judicial capacity is not contemplated by the Calcutta Rent Control Order apply equally to the Calcutta Rent Ordinance, 1946.

7. Reverting now to Mr. Mookherjee's argument based on Section 26, it may be conceded that since the present rule was pending on 1-10-1946, the proceedings before the District Judge must be deemed to have commenced under the Calcutta Rent Ordinance, though, strictly speaking, the section would seem to apply only to this rule. But the applicability of the section or rather the latter part of it to the status of the District Judge is still not clear. The section speaks of 'appointment' and it speaks of 'any appointment made under any of the said Orders.' We doubt whether the naming of the District Judge as the appellate authority was an 'appointment' at all within the meaning of Section 20; but assuming it was an appointment, we doubt further whether it was an appointment 'under the Calcutta House Rent Control Order'. If the nomination of the District Judge as the appellate authority be an appointment at all, we think it is an appointment by the Calcutta House Rent Control Order and not an appointment made under it. An appointment 'under' a provision is an appointment made in exercise of powers thereby conferred, a further act by the authority empowered to appoint. But conceding in Mr. Mookherjee's favour that the case is one of appointment and also of an appointment under the Order, his argument is in no way assisted, if, for the provisions occurring in Section 14, Calcutta House Rent Control Order, those contained in Section 25, Calcutta Rent Ordinance, are substituted. The same language which excludes the District Judge as the principal judicial officer of the District from the purview of the Calcutta House Rent Control Order is used in the Ordinance and equally excludes the District Judge in his normal judicial capacity from the purview of the latter. Accordingly, in our opinion, even if the District Judge who dealt with this matter when the Calcutta House Rent Control Order was in force, be now to be taken as the appellate authority appointed under the Calcutta Rent Ordinance, he remains a persona designata and is not converted into a Court with retrospective effect. For the reasons given above, we are of opinion that the order passed by the learned Judge is not an order passed by a Court and accordingly is not revisable by us under Section 115, Civil P.C. The Rule is accordingly discharged, but in the circumstances of the case we make no order as to costs. Let the counter-affidavits filed be kept on the record.


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