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Kiron Chandra Bose Vs. Kalidas Chatterji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal247
AppellantKiron Chandra Bose
RespondentKalidas Chatterji
Cases ReferredLaishmanan Chettiar v. Kannappar
Excerpt:
- .....rule is directed against an order made by the district judge of rangpur under para. 12, bengal house rent control order of 1942. the petitioner's case is that he is a permanent resident of the town of mymensingh and owing to war exigencies had to evacuate with his family to rangpur during the summar months of 1942. he hired a house at rangpur belonging to the opposite party at a rental of rs. 44 per month. the petitioner states that the house was in a bad state of repairs and he was not allowed to use one of its rooms which was packed with things belonging to the owner; and although in normal times the house could not fetch more than rs. 20 a month as rent, the opposite party with a view to make unreasonable profits compelled him to agree to pay rupees 44 a month. the petitioner.....
Judgment:
ORDER

1. This rule is directed against an order made by the District Judge of Rangpur under Para. 12, Bengal House Rent Control Order of 1942. The petitioner's case is that he is a permanent resident of the town of Mymensingh and owing to war exigencies had to evacuate with his family to Rangpur during the summar months of 1942. He hired a house at Rangpur belonging to the opposite party at a rental of Rs. 44 per month. The petitioner states that the house was in a bad state of repairs and he was not allowed to use one of its rooms which was packed with things belonging to the owner; and although in normal times the house could not fetch more than Rs. 20 a month as rent, the opposite party with a view to make unreasonable profits compelled him to agree to pay Rupees 44 a month. The petitioner filed an application before the Sub-Divisional Magistrate of Rangpur who is a Rent Controller appointed by Government under the House Rent Control Order and the latter on inspection of the premises and taking evidence, fixed the rent at Rs. SO per month. This order was made on 30th July 1942. The opposite party thereupon presented a petition of appeal against this order to the District Judge of Rangpur under the provisions of para. 12, House Rent Control Order, Bengal, and the District Judge without issuing any notice to the petitioner or giving him an opportunity to say what he had to say on the matter, modified the order of the Rent Controller and directed the petitioner to pay Rs. 37-8-0 as rent per month in addition to the occupier's share of the municipal tax. It is against this order that the present rule has been obtained.

2. The learned advocate appearing for the opposite party has raised a preliminary point and his contention is that the District; Judge exercising powers under para. 12, House Rent Control Order, Bengal, is not a Court and consequently his order could not be revised by us under Section 115, Civil P.C. This is the only point for our consideration in this case, for, it is conceded on behalf of the opposite party that if the order of the District Judge be taken to be a judicial order made by a Court it could not possibly be supported as it was made behind the back of the petitioner and without giving him a hearing. When a Judicial Officer is given the right to determine certain matters of a judicial or quasi-judicial character unconnected with the ordinary jurisdiction which he exercises under law, the question frequently arises, whether in determining such matters he acts as a Court or as persona designata. The authorities on this point cannot be said to be uniform but it seems to be established that when a statute provides that; a particular matter shall be determined by 'a Court' and not by an individual Judge, the officer presiding over the Court must be deemed to exercise his jurisdiction as 'Court' and not as persona designata. The case in National Telephone Co. Ltd. v. Postmaster-General (1913) 1913 A.C. 546 is the leading English authority on this point. There the question arose as to whether the Railway and Canal Commission which was constituted a Court of record acted as 'Court' or as arbitrators in certain matters. Lord Parker of Waddington said:

Where by a statute matters are referred to the determination of a Court of record without any further provision the necessary implication is, I think, that the Court will determine the matters, as a Court. Its jurisdiction is enlarged but all the incidents of jurisdiction, including the right of appeal from its decision, remain the same.

3. The identical view was expressed by their Lordships of the Judicial Committee in Balakrishna Udayar v. Vasudeba Aiyar ('17) 4 A.I.R. 1917 P.C. 71. In this case the order challenged was one made under Section 10, Religious Endowments Act, which authorised the civil Court to fill up a vacancy in the temple committee. The words 'civil Court' and 'Court' are g defined in the Act itself, so their Lordships observed, to mean the principal Court of original civil jurisdiction in the district in. which the mosque, temple or religious establishment is situate, and it was pointed out by their Lordships that it is to the civil Court and not to the individual Judge who may preside in or constitute the civil Court that jurisdiction is given. 'It appears to their Lordships' so runs the judgment,

to be clear that in all these matters the civil Court exercises its powers as a Court of law, not merely as persona designate....

4. Difficulties do arise however when the expression used is not 'Court' but 'Judge' and in such cases one has got to look to the entire provision for the purpose of determining whether the matter is to be heard by the Judicial Officer as a Court or in his own personal capacity. In Balaji Sakharam v, Merwanji Nowrojl ('97) 21 Bom. 279 the question arose under Section 23, Bombay District Municipal Act, and it was held that the District Judge referred to in that section when he decided an election dispute acted not as a Court but as persona designata and his orders were not revisable by the High Court under Section 622, Civil P.C. The same view was taken in a later decision of the Bombay High Court in Gangadhar Baburao v. Hubli Municipality : AIR1926Bom344 . On the other hand, this Court in Nara Narayan Mondal v. Aghore Chandra ('35) 163 I.C. 735 took the view that the District Judge referred to in and contemplated by Sections 36 to 44, Bengal Municipal Act, was not persona designata but the Court of the District Judge over which the High Court had powers of super, intendence under Section 107, Government of India Act. In coming to this decision, the learned Judges laid much stress on the fact that under Section 37(1), Bengal Municipal Act, the District Judge was given the power of transferring the election petition for decision by any other judicial officer subordinate to him and not below the rank of a Subordinate Judge. This shows that the Act recognises the ordinary judicial hierarchy of a District with the District Judge at the head and the election petition is to be heard in the Court of the District Judge and not by the District Judge personally for as persona designata the District Judge could not have any judicial officer subordinate to him. A Full Bench of the Madras High Court in Parthasaradhi Naidu v. Koteswara Rao ('24) 11 A.I.R. 1924 Mad. 561 took the same view. In a Full Bench case of the Rangoon High Court, viz., Municipal Corporation of Rangoon v. M.A. Shakur ('26) 13 A.I.R. 1926 Rang. 25 the question arose as to whether the Chief Judge of the Rangoon Small Cause Court exercising powers under the provisions of the Rangoon Municipal Act acted as Court or as persona designata. It was held that he was a mere persona designata and one of the reasons given was that the Rangoon Small Cause Court consisted of a plurality of Judges and the Rangoon Municipal Act instead of vesting jurisdiction in the Court of Small Causes as a whole singled out the Chief Judge of that Court as the authority who was to exercise the jurisdiction created by that Act. This decision was followed by the Madras High Court in the Full Bench case in Laishmanan Chettiar v. Kannappar : AIR1927Mad93 , House Bent Control Order, Bengal 1942, provides as follows:

(1) Any person aggrieved by an order of the Controller may, within fifteen days from the date on which the order is communicated to him, in respect of houses in the presidency town of Calcutta present an appeal in writing to the Chief Judge of the Court of Small Causes of Calcutta and, in respect of houses elsewhere, to the District Judge of the district:

(2) The Chief Judge or the District Judge, as the case may be, shall then send for the record of the case from the Controller and, after perusing such record and after making such further enquiry as he thinks fit, shall decide the appeal:

(3) The decision of the Chief Judge or the District Judge, as the case may be, and subject only to such decision, an order of the Controller shall be final.

5. It will be seen from the above provisions that the paragraph contemplates only an appeal in writing to the Chief Judge of the Presidency Small Cause Court Calcutta or to the District Judge of the district, as the case may be, against an order of the Rent Controller. There is no indication in this paragraph, unlike Section 37(1), Bengal Municipal Act that the District Judge is to exercise his authority as the principal Court of original civil jurisdiction in the district. Quite apart from this, it seems to us that there are other reasons of a weightier kind which incline us to hold that the District Judge was not and could not have been invested with the authority of a Court by the provisions referred to above. It is only a legislative enactment or a rule having statutory authority that can constitute a Court or invest a Judge with authority to determine matters outside his ordinary jurisdiction. The Bengal House Rent Control Order of 1942 is an order made by the Governor in the exercise of his powers under Rule 81(2)(bb), Defence of India Rules. It is not a case of the exercise of legislative powers by the Governor, as are contemplated by Sections 88 to 90, Government of India Act 1935. If is an instance of an executive act pure and simple. Section 2(1), Defence of India Act, authorises the Central Government to make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war or for maintaining supplies and services essential to the life of the community. Sub-section (2) of this section lays down that without prejudice to the generality of the powers conferred by Sub-section (1), the rules may provide for or may empower any authority to make orders providing for certain matters which are enumerated under this sub-section. Under Sub-section (4) of this section the power or duty which by a rule under Sub-section (1) is conferred or imposed upon the Central Government may be delegated to the Provincial Government or other authorities specified in it.

6. The Defence of India Rules are framed under Section 2, Defence of India Act and under Rule 81(2)(bb) the Central Government or the Provincial Government may by an order provide for regulating the letting and subletting in any urban area of residential accommodation whether furnished or unfurnished and whether with or without board, and in particular (1) for controlling the rents for such accommodation. The Defence of India Rules undoubtedly possess statutory authority but the rule mentioned above under which the Bengal House Rent Control Order, 1942, was passed does not contemplate or authorise the creation of a tribunal for regulating house rent in any urban area or investing any judicial officer with additional authority for that purpose. As the provisions of the order show, the machinery that is set up for controlling house rent is a purely executive machinery acting under the control of the Governor or the executive authority. The procedure that is laid down in the order is not a judicial procedure at all. Certain executive officers are given the authority to act as Rent Controllers and they are to fix the rent in the way laid down in para. 7 of the order. Paragraph 12 which has been set out above shows that the District Judge or the Chief Judge of the Small Cause Court before whom a petition of appeal can be presented acts merely in the capacity of a superior executive officer. He has got to go through the papers and may make further enquiry if he considers proper but he is not bound to hear the parties even if they appear and pray to be heard. He does not really find facts and apply the law; the basis of his decision is not legal but economic and he has to determine what is reasonable rent and not what is the legal rent, in all circumstances. We cannot hold that the District Judge in exercising these powers acts as a Court and consequently his orders are not revisable by us under Section 115, Civil P.C. The result therefore is that the rule is discharged. We make no order as to costs.


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