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Rakhaldas Mukherjee Vs. S.P. Ghose - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Reported inAIR1952Cal171
ActsWest Bengal Premises Rent Control Rules, 1949 - Rule 10; ; Constitution of India - Article 226; ;Code of Civil Procedure (CPC)
AppellantRakhaldas Mukherjee
RespondentS.P. Ghose
Appellant AdvocateS. Banerjea, Adv.
Respondent AdvocateA.K. Sen, Adv.
DispositionApplication dismissed
Cases ReferredKhursed Mody v. Rent Controller of Bombay
- .....of the house, there is a dispensary. several inmates of the house made applications before the rent controller, some for fixing fair rate of their lodgings as lodgers under the west bengal premises rent control act 1948, and others for fixation of fair rent as tenants. the tenants also made applications for repairs. the rent controller (the respondent) dealt with these applications, and as regards the first group, they have already been the subject-matter of an application under article 226 before me. the present rule relates to eight applications made by three persons who claim to be tenants, for fixation of rent) and repairs. the names of the tenants are harendranath datta (case no. 2755 c and 2758 c of 1949), paresh kanti sarkar (case nos. 2760 c and 2761 c and 2756 c and 2757 c.....

Sinha, J.

1. This is a rule upon the respondent, the Second Additional Rent Controller, Calcutta, directing him to show cause why his orders dated February 23, 1950, and March 22, 1950, as mentioned in the rule, should not be set aside and/or why a writ of certiorari should not issue for quashing the same. As the application, with regard to the last named order has been abandoned, I am only concerned with the order dated February 23, 1950.

2. The facts are shortly as follows: Premises Nos. 116A and 118A, Mechua Bazar Street, were requisitioned by the Government for a 'public purpose'. The petitioner describes himself as the 'Secretary of the Calcutta Sub-Committee of the Khulna District Congress Committee', and Secretary, 'Khulna Nibas' Boarding Establishment', and he says that me Government made over the premises to him for the purppses of starting educational institutions, residential boarding house for (evacuees and for affording accommodation facilities to-displaced business men from East Bengal. It appears that in a portion of the house there is a school, and in another portion, a boarding house under the name and style of 'Khulna Nibas. It is also alleged that rooms are let out on rent and in a part of the house, there is a dispensary. Several inmates of the house made applications before the Rent Controller, some for fixing fair rate of their lodgings as lodgers under the West Bengal Premises Rent Control Act 1948, and others for fixation of fair rent as tenants. The tenants also made applications for repairs. The Rent Controller (the respondent) dealt with these applications, and as regards the first group, they have already been the subject-matter of an application under Article 226 before me. The present rule relates to eight applications made by three persons who claim to be tenants, for fixation of rent) and repairs. The names of the tenants are Harendranath Datta (Case No. 2755 C and 2758 C of 1949), Paresh Kanti Sarkar (Case Nos. 2760 C and 2761 C and 2756 C and 2757 C of 1949), and Krishna Gopal Kundu (Case Nos. 2754 C and 2759 C of 1949). A boarder called Parimal Mazumdar made an application for fixation of standard rent (Case No. 59 C of 1950). So far as Case No. 59 C of 1950 is concerned, it is admitted that Parimal Majumdar was a boarder and therefore his case is governed by the rule that has already been disposed of by me previously. I am now concerned with the order in respect of the three tenants who had instituted the eight cases above named, all of which eight cases were disposed of by the respondent, by one order dated the 23rd February, 1950. By that order, the Rent Controller fixed the standard rent and gave certain directions for repair. If the applicants were tenants, it is not disputed that the Rent Controller was quite competent to fix the standard rent and order repairs to be carried out. It is however, alleged that the applicants were not tenants but boarders and/or lodgers of the boarding house called 'Khulna Nibas'. It is equally not disputed by the respondent that if they are in fact not tenants but lodgers, the respondent had no right to fix the standard rent or; order any repairs to be carried out. Therefore, the only dispute is as to the question of fact, namely, whether the three applicants before the. Rent Controller are 'tenants' or 'lodgers'. The matter, has been dealt with by the respondent in his order dated 23rd February 1950 as follows:

'Secondly it was contended by the learned lawyer for the O.P. that the applications are not maintainable in view of the provisions of clause (b) of Sub Section 8 of Section 2 of W.B.P.R.C. Act, 1948. It has been stated there that the expression 'premises' does not include a room or part of a room or other accommodation in a hotel or lodging house. The learned lawyer argued that there is a hotel or lodging house in the disputed premises run by Khulna Nibas No. 1, merely because there is a hotel situated in a portion or portions of premises which is used as a hotel or a lodging house., The portions in the occupation of the present applicant are quite distinct and separate from the portions where there is a boarding house or a hotel. So, I am of opinion that there is also no substance in the second contention of the learned lawyer for the O.P. The applications are therefore maintainable from all points of view.'

3. It is therefore clear that the Rent Controller came to a clear finding that the applicants in the eight cases lived in a portion which was quite distinct and separate from the Boarding House. It is argued on behalf of the applicant that this finding was based entirely without evidence. It appears form the certified copy of the recorded evidence in these] eight cases that there is nothing in the depositions recorded which bear on this point. It was however stated on behalf of the respondents that there was evidence placed before the Rent Controller on this point. When the application was first made before me, I suggested that in order to close all controversy, I should be pre- ' pared to hear this issue upon evidence, namely, as to whether the three applicants are, tenants or lodgers; the respondent and the said three persons upon whom the rule was served and who are appearing before me, readily agreed to that course. The applicant, however, after obtaining an adjournment for considering the matter, has declined to go into evidence.

4. The tenants were somewhat late in filing their affidavits and I allowed affidavits to be filed on terms which they have complied with, and a joint affidavit was filed by Harendra Nath Dutta, Dr. Krishna Gopal Kundu and Dr. Paresh Kanti Sarkar dated 31st July 1950 in opposition to the rule. The applicant had the right to reply, but he has not availed himself of it and he has not denied the allegations made in the said affidavit. In that affidavit, it has been stated that certain portions of the said two premises are used for purpose of a boarding house, while certain other distinct and separate portions have been let out to several monthly tenants for residential and business purposes. It is stated that the deponents were in occupation of the distinct and separate portions let out to them as tenants. It is further denied that there was any unchallenged testimony that the applicants were lodgers or that there was no evidence to the contrary. The deponents also refer to the fact that the Rent Controller had caused inspection of the premises.

5. I further allowed the tenants to make an affidavit to show what evidence was placed before the Rent Controller with liberty to the applicant to reply to such affidavits. Dr. Krishna Gopal Kundu and Dr. Paresh Nath Sarkar filed a joint affidavit dated 9th December 1950 but the applicant has not replied to the statements of fact stated therein and the facts stated thereon stand uncontradicted.

6. Dr. Krishna Gopal Kundu says in his said affidavit, that he had himself deposed before the respondent to the effect that he was a 'Tenant' in respect of two rooms on the ground floor of premises No. 116A, Mechua Bazar Street. He further says that in support of his statement, he had produced before the Rent Controller the original receipt dated 19th August 1948, for Rs. 2,000/- granted to him by the authorities of 'Khulna Nibas' on account of payment of rent, and that two receipts granted to Dr. Paresh Kanti Sarkar, which had been filed with the records of the application No. 1492 C of 1949 were also produced before the Rent Controller. He further says that he had produced before the Rent Controller the bills for electric installations made by him, as also the monthly bills of the Electric Supply Corporation. Dr. Paresh Kanti Sarkar also says that the receipts filed before the Rent Controller in Application No. 1492 C of 1949 were produced. The records were all produced before me and I have seen the receipts filed on behalf of Dr. Paresh Kanti Sarkar in Case 1492 C of 1949. These receipts are Nos. 602 and 608 for Rs. 1,000/- and Rs. 58/- respectively. I have also looked at the receipt granted to Parimal Majumdar, being receipt No. 1252 dated 18th September 1949 and filed in Case No. 59 C of 1950. Parimal Majumdar is admittedly a boarder and I found that the receipt granted to Parimal Majumdar is in a completely different form to that granted to Dr. Paresh Kanti Sarkar, and specifically mentions the charge to be a 'boarding charge' whereas the receipts in favour of Dr. Paresh Kanti Sarkar are ordinary rent receipts. These having been placed before the Rent Controller together with the fact that he had caused the premises to be inspected, it is difficult to hold that there was no evidence before him to enable him to come to the finding set out above.

7. In view of this evidence it is not surprising that the applicant declined to go into evidence before me on this point. I must also mention here, that I have before me an affidavit affirmed by the Rent Controller himself in which he states that it was not proved before him that the applicants before him were lodgers or that they were mere licensees and he further confirms the fact of inspection.

8. Mr. Sen has relied on 'R. v. Brighton and Area Rent Tribunal', (1950) 1 All E R 946 and argues that the Rent Controller is merely an executive officer and that he might or might not take any evidence and may decide on his personal knowledge. The wordings of the English Act, viz., the Landlord and Tenant (Rent Control) Act 1949 and the regulations made thereunder are however completely different and it is always dangerous to interpret Indian Statutes by reference to English Statutes the wordings whereof are different.

9. I am, therefore, not prepared to go to the extent of saying that the Rent Controller can decide the questions before him without any evidence or that he holds the position of merely an executive officer. The matter is set at rest by the West Bengal Premises Rent Control Rules 1949, which runs as follows:

Procedure for Inquiries:'10. In making enquiries under the Act. the Controller, the Chief Judge of the Court of Small Causes of Calcutta, the District Judge or the person or persons appointed under sub-section (2) of Section 32 shall follow as nearly as may be, the procedure laid down in the Code of Civil Procedure, 1908 for the regular trial of suits, the substance only of the evidence being recorded as in unappealable cases and shall record in brief the reason for his findings.'

10. If the affidavit of Dr. Krishna Gopal Kundu and Dr. Paresh Nath Sarkar is to be believed, it follows that there is a great deal of irregularity in the procedure adopted by the Rent Controller. It is true that the Rent Controller, can record the substance of the evidence but he cannot, or in any event it is highly undesirable that he should, entirely omit to mention, the evidence on a very important point, particularly a point involving the question of his own jurisdiction, if the Rent Controller relies on the results of his own inspection he should make a record of it. If he relies on reports of Inspectors, these reports must be treated in the same way as similar reports are treated under the Code of Civil Procedure. In this case, the Reports of the inspectors could not be traced from the records. If the Kent Controller looks into records of other cases and treats the same as evidence in the proceedings before him, he must make them part of the evidence in such proceedings in the same man-form but of substance, will appear from a conducted and as is required by the Law of Evidence. The findings of the Rent Controller are subject to review and appeal and it is obvious that such review or appeal would be rendered immensely difficult in the absence of a proper record. That this is not merely a matter of form but of substance, will appear from a consideration of another aspect of the matter which I will deal with now. I have held as a fact that the Rent Controller had some evidence before him to come to the conclusion that he did. But what would have been the position if I was not so satisfied? Could the Rent Controller decide that the applicants before him were tenants without any evidence? Mr. Sen argues that the Rent Controller had jurisdiction to decide the point and it matters not whether he decides it with or without evidence. That at best was an error of Law. In my opinion, the matter is not at all so simple. If the issue was one directly the subject-matter of the application, this may well be so, but the application was for fixation of rent. The issue whether the applicants were tenants, arose only collaterally. The law on the point has been set out thus in Halsbury Vol. 9, 881-882 & 1485:

'The case is more difficult where the jurisdiction of the Court below depends not upon some preliminary proceeding, but upon the existence of some particular fact. If the fact be collateral to the actual matter which the lower Court has to try, that Court cannot by a wrong decision with regard to it, give itself jurisdiction which it would not otherwise possess. The lower Court must indeed decide as to the collateral fact in the first instance but the superior Court may upon a certiorari inquire into the correctness of a decision and may quash the proceedings in the lower Court if such decision is erroneous or at any rate there is no evidence to support it.'

11. What is a 'collateral' fact, is of course a matter of some difficulty and must depend on the facts of each case. In 'Re Bailey (1854) 3 El & Bl 607' it was held that in a charge for absenting himself from service, the question whether the defendant was a 'servant' was collateral. In R v. Manchester Justices, (1899) 1 Q.B. 571,' on an application for a license to sell intoxicating liquors to be granted only to the 'Real resident and occupier' the question as to who was the real resident and occupier was held to be collateral. In 'R v. Armagh Justices (1924) 2 I.R. 55 C.A.' Justices having power to authorise the entry on lands not being an orchard' it was held that the question as whether the land in question was an 'orchard' was a collateral question. Upon a similar reasoning the question whether the petitioners before him were tenants or not was a collateral question and the Rent Controller could not give himself jurisdiction by deciding the point wrongly or without evidence. Lord Cockburn explained this in 'Brown v. Cocking', (1868) 3 Q.B. 672' thus:

'An inferior tribunal cannot give itself jurisdiction by deciding without evidence, on the other hand it cannot refuse to go into evidence in order to ascertain whether it has or it has not jurisdiction; and, if it takes upon itself jurisdiction without evidence, or after refusing to go into evidence it turns out that there was no jurisdiction, the Court will interfere by prohibition...............'

In 'Exp. Vaughan (1867) 2 Q.B. 114' Shee J. said:

'... I cannot distinguish the case from Reg v. Bolton', (1841) 1 Q.B. 66............ If there was no evidence at all upon which the Justices could adjudicate then they would be acting improperly . . .but here they have arrived at a decision on the evidence before them and we cannot interfere.'

If I had been satisfied that the Rent Controller acted without evidence or that his conclusion was wrong by reason of his not caring to take evidence on the point I would have had no hesitation in quashing his order.

12. Mr. Sen has next taken the point that no writ of certiorari should be granted inasmuch as there was a remedy provided in the Act itself. Section 32 of the Rent Control Act 1948 laid down a procedure for review and in this case the applicant before me has actually filed an application for review, which is still pending. It is therefore relevant to consider whether I should grant a writ of certiorari, where there exists a remedy by the Act itself and the citizen is actually availing himself of such a remedy.

13. In 'Annie Besant v. Advocate General of Madras'. 46 Ind. App. 176 it was contended that a writ of certiorari should not be issued as the appellants could have proceeded by way of revision. Lord Phillimore observed as follows:

'Certiorari, according to the English Rule, is only to be granted where no other suitable remedy exists. If the order of the Magistrate were a judicial order, it would not have been made in the exercise either of its' civil or of its criminal jurisdiction and procedure by way of revision would have been open.'

It is a question to be considered whether Lord Phillimore intended to state that the Courts, entitled to issue a writ of certiorari are without jurisdiction where there is an alternative remedy. I do not think that he intended to do so, since such a wide proposition of Law is contrary to the decided cases.

14. In 'Rex v. Post Master General', (1928) 1 K.B 291, a Post office workman applied for a writ of certiorari to quash a certificate given by a medical officer who was not entitled to issue it under the Workmen's Compensation Act. The Act itself contained a provision for appeal. Avory J. said as follows:

'I have throughout the argument certainly entertained the view that the section gives the applicant all the relief which she can require and that she might under that appeal section have the matter determined by the medical referee, whose decision would be final as to whether she is in fact suffering from this disease. But even if that remedy is open to her, it is undoubtedly good law that if the application for a certiorari is made by a party aggrieved, then it ought to be granted ex debito justitiae, and the Court has not the general discretion which it would have, when the application is made by one of the public who is not personally concerned. That was decided long ago in the case of 'Rex v. Surrey Justices', (1870) LR 5 Q B 466 and on that principle, even although she has the remedy by appeal in this case, I am prepared to agree that the certiorari should go...........'

Where, want of jurisdiction is patent on the lace of the proceedings, writs of certiorari or prohibition are granted as a matter of course and it is no defence to state that there is an alternative remedy. See Halsbury's Laws of England, Vol, 9, p. 879 'Farquharson v. Morgan', (1894) 1 Q.B. 552. Even in the case of mandamus, the rule is not inflexible: The 'Queen v. Thomas', (1892) 1 QB 426. In 'Rex v. North Oakey' (1927) 1 K.B. 491, Lord Atkin said as follows:

'I think it is quite plain that the fact of there being a remedy by way of, appeal is no answer to a writ of prohibition where the want of jurisdiction complained of is based upon the breach of a fundamental principle of justice...............'

This view is also supported in two cases of this Court, 'Dorman Long & Co. v. Jagadish Chandra', 62 Cal 596 at p. 605 and 'In re Ramjidas Mahaliram', 62 Cal 1011 at p. 1035. See also 'R v. Wandsworth', (1942) 1 All E R 56. But the Court has an undoubted discretion in the matter. If the alternative remedy is an efficient remedy and there is no want of jurisdiction, patent on the face of it, or any breach of natural justice, then the writ may be refused: 'R v. Kindsland Parish etc', (1922) 8 Tax Cas 327 (Halsbury Vol. 9, p. 879 n(s) ).

15. In 'Wan Ten Lang v. Collector of Customs', ILR (1939) 2 Cal 541 at p. 549, Ameer Ali J. held that until the applicant had exhausted his remedies by way of appeal under Sections 188 and 191 of the 'Sea Customs Act', the Court would not interfere by way of mandamus. This view was upheld in 'Collector of Customs v. Charles Ezra Sassoon', ILR (1947) 1 Cal 426 at p. 437. I however do not take, any of the authorities mentioned, above to hold that in a proper case, the Court could not interfere. All that they decide is that it does not as a matter of practice of expediency, interfere, where there is an alternative remedy equally efficacious and adequate.

16. In 'Mariamman Koil Devasthanam v. Madras Hindu Religious Endowments Board,' A. I. R. (24) 1937 Mad 103, it was held that the petitioner had a remedy by the Statute (The Madras Religious Endowments Act) itself and so a writ of certiorari should not be granted.

17. In cases under Section 45 of the Specific Relief Act, relief is not granted if there is a statutory provision under which the applicant could proceed for redress of his grievance. The authorities for this proposition are numerous and need not be mentioned. (See 'Venkatachalam Chettiar v. Commissioner of Income-tax 58 Mad 367 where it was held that an application could not be granted where the assessee could proceed under S, 50A (1) of the Income Tax Act).

18. In 'Khursed Mody v. Rent Controller of Bombay,' A. I. R. (34) 1947 Bom 46, Chagla J. referring to the statement of the Law by Lord Phillimore in 'Annie Besant's case', 46 Ind App. 176, pointed out that the English cases do not bear out the statement in the wide form in which it is expressed. According to the learned Judge, the Court will ordinarily require the petitioner to have recourse to his ordinary remedies but if the Court finds that there is a breach of fundamental principles of justice it would not hesitate to issue the writ. There was no inflexible rule that because an appeal lay, no writ could be issued.

19. With the general enunciation of the law as made by Chagla J. I entirely concur. I wish to point out however that there is no reason to construe the statement of such an eminent Judge as Lord Phillimore, to mean anything more than stating that the Court under such circumstances does not grant the remedy by way of certiorari, and not that it has no jurisdiction to do so.

20. In my opinion nett result of the authorities cited is as follows: -

(a) The writs of mandamus, certiorari and' prohibition, and for the matter of that, all high prerogative writs, are ordinarily not issued where there exists an alternative remedy equally efficient and adequate.

(b) But there is no inflexible rule that such writs cannot be issued where the Court thinks it just and convenient to do so. The fact that it ordinarily does not do so is a question not of want of jurisdiction but of expediency.

(c) Whether the alternative remedy is equally efficacious or adequate is a question of fact to be decided in each case.

(d) Where a complaint is made against any act done or purported to be done under any statutory provision, the fact that there exists in the Statute itself a possible remedy, is an important fact, to be taken into consideration. Where such provisions exist the Court will be extremely reluctant to interfere by way of high prerogative writs and especially so if the applicant has actually taken recourse to his remedy under the Statute.

(e) But the fact that there exists a remedy under the Statute does not take away the jurisdiction of the Courts to issue the writs in appropriate cases.

(f) In the following cases it has been held that a writ will be issued notwithstanding an alternative remedy, whether under a statutory provision or otherwise: -(i) where an inferior tribunal assumes jurisdiction and the want of jurisdiction is patent on the face of it; (ii) where the proceedings complained of are against the principles of natural justice; and (iii) where the alternative remedy is too costly or ineffective or entails such delay that the applicant would be irreparably prejudiced or the remedy might prove valueless.

21. Applying these principles to the facts of this case I am of opinion that Mr. Sen's contention that no writ of certiorari should be issued is quite sound. In this case there is no question raised of the proceedings being against natural justice. If, for example, the applicant had tendered evidence before the Rent Controller showing that the tenants were really lodgers, and such evidence was disallowed, or if he was prevented from cross-examining the witnesses tendered on behalf of the opposite party, those might have been grounds upon which this Court might interfere. The want of jurisdiction complained of, is far from being patent on the face of the proceedings. In this particular case it depended on certain facts, which appears to have been adjudicated upon, and, as I have held, not without evidence. The relevant Rent Control Act contains a provision for review, and the applicant has actually made an application for review, which is pending. But, above all, what weighs with me. is that I find no injustice being done. The petitioner had ample opportunity to adduce evidence before the Rent Controller. While I find that the opposite parties made some attempt to prove that they are tenants, and not lodgers no attempt was made by the applicant in that behalf. Here before me, an opportunity was afforded to him to have the point decided, but he has refused to avail himself of it.

22. In my opinion, therefore, this Court -should not interfere with the findings of the Rent Controller, and in the result, this application fails and should be dismissed. The rule is discharged and the applicant must pay the costs of the respondent as well as of the tenants upon whom the rule has been served and who appeared before me and contested this application.

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