dedol-hf/india-case-legal-rag huggingface dataset:
suit  was dismissed by the Munsif and his decree was  upheld
on appeal, but the 'High Court decreed the suit holding that
the  order of the Rent Controller was without  jurisdiction.
The  appellants were thereafter granted leave to  appeal  by
the  High  Court, and they have accordingly  preferred  this
appeal.
  The  High Court has delivered a somewhat elaborate   judg-
ment in the case, but it seems to us that the point '  aris-
ing  in  this appeal is a simple one.  The  main  ground  on
which  the respondents have attacked the order  of  eviction
passed by the House Controller is that in fact there was  no
non-payment  of rent, and, since no eviction can be  ordered
under  the Bihar Act unless non-payment is established,  the
House 'Controller had no jurisdiction to order eviction.  On
the   other  hand,  one of the contentions  put  forward  on
behalf  of the appellants is that there was  non-payment  of
rent  within the meaning of that expression as used  in  the
Act, since the rent was not paid as and when it
148
fell due. It was pointed out that the rent for the month  of
March became due in April and the rent for April became  due
in May, but no step was taken by the respondents to pay  the
arrears  until the 28th June, 1947.  It appears that at  the
inception  of  the  tenancy, the respondents  had  paid  one
month's rent in advance, and it had been agreed between them
and  the appellants that the advance rent would be  adjusted
whenever  there was default in payment of rent for full  one
month.  It was however pointed out that the advance  payment
could  be  adjusted only for one month's rent, but,  in  the
present case, the rent for three months had become due, and,
since in a monthly tenancy the rent is payable for month  to
month,  the rent for each month becoming due in  the  subse-
quent month, non-payment of that rent at the proper time was
sufficient to attract the provisions of section 11(1) (a) of
the  Act.  The appellants also raised a  second  contention,
namely,  that  having regard to the scheme of the  Act,  the
House  Controller was fully competent to decide whether  the
condition  precedent  to eviction had been  satisfied,  anal
once  that  decision had been arrived at, it  could  not  be
questioned in a civil court. This contention was accepted by
the first two courts, and the first appellate court  dealing
with it observed as follows :--
    "But  the Buildings Control Act has authorised the  Con-
troller to decide whether or not there is nonpayment of rent
and  it  is only when he is satisfied that  there  has  been
nonpayment  of  rent that he assumes  jurisdiction.  If  the
question  of jurisdiction depends upon the decision of  some
fact  or  point of law, and if the court is called  upon  to
decide such question, then such decision cannot be collater-
ally  impeached (vide 12 Patna 117). In my opinion when  the
Controller assumed the jurisdiction on being satisfied  that
there was non-payment of rent and proceeded to pass an order
of  eviction. I think the Civil Court can have no  jurisdic-
tion to challenge the validity of such order."
The  High Court did not however accept this view, and  after
referring to section 111 of the Transfer of-
149
Property  Act, proceeded to propound its own view in  these-
words:--
    "Regard being had to the circumstances in which the  Act
under consideration was enacted and its object, as stated in
the  preamble  as being  'to  prevent unreasonable  eviction
of  tenants' from buildings, it would seem that the  expres-
sion 'non-payment of rent'  in section 11 in the context  in
which it is used must be given an interpretation which would
have the effect of enlarging the protection against determi-
nation  of a tenancy enjoyed by a tenant under the  ordinary
law.  The Legislature, therefore, by enacting that a  tenant
shall not be liable to be evicted 'except for nonpayment  of
rent'  should be held to have intended to protect  a  tenant
from  being  evicted from a building in his  possession  for
being  a  defaulter in payment of rent, if  he  brings  into
Court  all  the rent due from him before the  order  of  his
eviction comes to be passed  ......
    If,  as  contended  for on behalf  of  the  respondents,
section  11 of the Act were to be construed as  entitling  a
landlord to apply for eviction of a tenant on the ground  of
irregular  payment of rent amounting to ' non-payment  '  of
rent  and  as empowering the Controller to determine  as  to
whether irregular payment of rent amounts to non-payment  of
rent within the meaning of sub-section (1)of section 11, and
subsection (3) of section 18 were to be construed as  making
the  decision  of the Controller on this question of  law  a
final  one, it will appear that not only this Act will  have
conferred  a right upon the landlord very much in excess  of
the  right  that  he enjoys under the ordinary  law  in  the
matter of determination of tenancies, but that it will  have
conferred very much larger power on the Controller than that
possessed by the Civil Courts under the ordinary law in  the
matter  of  passing decrees for eviction  of  tenants.   The
principle of law and equity on which relief against  forfei-
ture  for  ',non-payment of rent' is based, will  have  been
completely  abrogated,  and the protection of  a  tenant  in
possession of a building instead of being enlarged will
150
have  been  very much curtailed.  A  construction  of  these
provisions, which is calculated to bring about these  conse-
quences,  cannot and is not in accordance with  the  circum-
stances  to which this Act was intended to apply and  indeed
cannot be accepted. The contention of Mr. Lalnarain Sinha on
behalf of the respondent that the circumstances disclosed in
the  petition raised the question for determination  by  the
Controller whether a case of non-payment of rent in law  was
established,  and  his decision of that  question,  even  if
wrong  in law, is not liable to be questioned in  the  Civil
Court must be over-ruled."
    It seems to us that the view taken by the High Court  is
not correct. Section 11 begins with the words "Notwithstand-
ing  anything contained in any agreement or law to the  con-
trary,"  and  hence  any attempt to  import  the  provisions
relating  to the law of transfer of property for the  inter-
pretation  of  the section would seem to be  out  of  place.
Section  11  is a self-contained section, and it  is  wholly
unnecessary to go outside the Act for determining whether  a
tenant is liable to be evicted or not, and under what condi-
tions  he can be evicted. It clearly provides that a  tenant
is  not liable to be evicted except on  certain  conditions,
and  one of the conditions laid down for the eviction  of  a
month  to month tenant is non-payment of rent.   Sub-section
(8)  (b) of section 11 provides that the "Controller  shall,
if  he is satisfied that the claim of the landlord  is  bona
fide, make an order directing the tenant to put the landlord
in possession of the building" and if he is not so satisfied
he  shall make an order rejecting the application.   Section
16 empowers the Controller to make enquiries and inspections
and  to summon and enforce the attendance of  witnesses  and
compel the production of documents in the same manner as  is
provided  in the Code of Civil Procedure.  Section  18  pro-
vides  that any person aggrieved by an order passed  by  the
Controller  may within 15 days of the receipt of such  order
by  him, prefer an appeal to the Commissioner of  the  Divi-
sion,  and it also prescribes the procedure for the  hearing
of the appeal. Sub-section (3)
151
of this section states that "the decision of the Commission-
er  and subject only to such decision, an order of the  Con-
troller shall be final, and shall not be liable to be  ques-
tioned  in any Court of law whether in a suit or other  pro-
ceeding by way of appeal or revision." The Act thus sets  up
a complete machinery for the investigation of those  matters
upon  which  the  jurisdiction of the  Controller  to  order
eviction  of  a tenant depends, and it expressly  makes  his
order final and subject only to the decision of the  Commis-
sioner.  The  Act empowers the Controller  alone  to  decide
whether  or not there is non-payment of rent, and his  deci-
sion  on that question is essential before an order  can  be
passed by him under section 11. Such being the provisions of
the  Act  we have to see whether it is at  all  possible  to
question  the decision of the Controller on a  matter  which
the  Act  clearly empowers him to decide. The  law  on  this
subject  has been very lucidly stated by Lord Esher M.R.  in
The  Queen  v.  Commissioners for Special  Purposes  of  the
Income Tax(1), in these words :--
    "When  an inferior court or tribunal or body, which  has
to  exercise  the power of deciding facts, is  first  estab-
lished by Act of Parliament, the legislature has to consider
what  powers it will give that tribunal or body.  It may  in
effect  say that, if a certain state of facts exists and  is
shown  to  such tribunal or body before it  proceeds  to  do
certain  things,  it  shall have  jurisdiction  to  do  such
things, but not otherwise. There it is not for them  conclu-
sively to decide whether that state of facts exists, and, if
they  exercise the jurisdiction without its existence,  what
they  do  may be questioned, and it will be held  that  they
have acted without jurisdiction.  But there is another state
of things which may exist.  The legislature may intrust  the
tribunal  or  body with a jurisdiction, which  includes  the
jurisdiction  to determine whether the preliminary state  of
facts exists as well as the jurisdiction, on finding that it
does exist, to proceed further or do
(1) 21 Q.B.D. 313, at .319.
20
152
something more. When the legislature are establishing such a
tribunal  or body with limited jurisdiction, they also  have
to  consider, whatever jurisdiction they give them,  whether
there shall be any appeal from their decision, for otherwise
there  will be none.  In the second of the two cases I  have
mentioned  it is an erroneous application of the formula  to
say that the tribunal cannot give themselves jurisdiction by
wrongly deciding certain facts to exist, because the  legis-
lature  gave them jurisdiction to determine all  the  facts,
including  the existence of the preliminary facts  on  which
the  further exercise of their jurisdiction depends; and  if
they  were  given  jurisdiction so to  decide   without  any
appeal being given, there is no appeal from such exercise of
their jurisdiction."
On the same lines are the following observations of  Sir
James  Colville in The Colonial Bank of Australasia v.  Wil-
lan(1), which is a case dealing with the principles on which
a writ of certiorari may be issued :--
    "Accordingly, the authorities...establish that an  adju-
dication  by a Judge having jurisdiction over  the  subject-
matter  is,  if no defect appears on the face of it,  to  be
taken  as conclusive of the facts stated therein;  and  that
the Court of Queen's Bench will not on certiorari quash such
an  adjudication on the ground that any such  fact,  however
essential, has been erroneously found."
    There can be no doubt that the present case falls within
the  second category mentioned by Lord Esher,  because  here
the  Act has entrusted the Controller with  a  jurisdiction,
which  includes the jurisdiction to determine whether  there
is non-payment of rent or not, as well as the  jurisdiction,
on finding that there is nonpayment of rent, to order  evic-
tion  of a tenant. Therefore, even if the Controller may  be
assumed to have wrongly decided the question of  non-payment
of  rent, which by no means is clear,  his order  cannot  be
questioned  in a civil court.  It seems to us that  on  this
short ground this appeal must succeed, and we
(1) 5 P. C. 417, at p. 443.
153
accordingly  allow  the appeal, set aside the  judgment  and
decree  of  the  High Court and restore the  decree  of  the
courts  below.   The appellants will be  entitled  to  costs
throughout.
                                Appeal allowed.
Agent for the appellant: R.C. Prasad,
Agent for the respondent: S.P. Varma.
PETITIONER:
TARAPADA DE AND OTHERS
        Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT:
25/01/1951
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  174            1951 SCR  212
 CITATOR INFO :
 R          1952 SC 350  (11)
 E          1974 SC 183  (32)
 R          1979 SC1925  (8,13)
ACT:
Constitution  of  India, 1950, Art.  22  (5)--Preventive
detention-Duty  to communicate grounds of detention as  soon
as may be--DUty to give earliest opportunity to make  repre-
sentation--Grounds furnished after 15 days--"  Supplementary
grounds"    furnished    after   4    months--Legality    of
detention--Vague  grounds  and  irrelevant  grounds  distin-
guishd--Supply  of grounds first and details  laterLegality-
Serving printed orders on same date on several  persons-Bona
fides of detention.
HEADNOTE:
    A large number of persons were detained under the Bengal
Criminal Law Amendment Act, 1930.  The validity of this  Act
was  being  challenged in the High  Court.   Meanwhile,  the
Preventive  Detention Act of 1950 was passed on 26th  Febru-
ary, 1950, and on the same date detention orders under  this
Act  were  served on them.  The grounds  of  detention  were
served on them on the 14th of March, and on the 16th of July
the  Government  served on them "supplementary  grounds"  in
continuation of the grounds already furnished on the 14th of
March.   A  second set of grounds were communicated  to  the
appellants on the 22nd or 23rd of July. They applied to  the
High Court of Calcutta for writs of habeas corpus contending
that  the  orders  of  detention  were  invalid  on  various
grounds.   The  High Court rejected these  applications  and
they appealed to the' Supreme Court.
  Held per KANIA C.J., FAZAL ALI, MUKHERJEA and  CHANDRASEK-
HARA AIYAR JJ.--(i) that in the particular circumstances of
the case, especially in view of the fact that a large number
of causes had to be dealt with on the passing of the Preven-
tive Detention Act in February, 1950, it cannot be said that
the grounds were not communicated to the appellants "as soon
as nay be" within the meaning of Art. 22 (5);            '
213
    (ii)  it  cannot be held that the  appellants  were  not
given  the "earliest opportunity" to make a  representation,
as  required by Art. 22(5), merely because  further  details
and  facts were communicated to the appellants on  the  16th
July  and  22nd July as these later communications  did  not
contain  any new or additional grounds  (though  they   were
described  as "supplementary grounds ") but  only  furnished
details of the heads of grounds furnished on the 14th March;
    (iii)  merely  because a ground is vague  it  cannot  be
considered that it is no ground at all and therefore  cannot
be  sufficient  to ' satisfy '.the authorities; a  '  vague'
ground  does not stand on the same footing as an  irrelevant
ground, which can have no connection at all with the  satis-
faction of the Government;
    (iv) the sufficiency of the grounds for the purposes  of
satisfaction of the Government is not a matter for  examina-
tion  by the court; their sufficiency to give  the  detained
person the earliest opportunity to make a representation can
be examined by the court, but only from that point of view.
    Held  also, per DAS J.--The fact that a large number  of
fresh orders of detention were made overnight did not neces-
sarily indicate bad faith on the part of the authorities  in
the  circumstances  of these cases as  the  authorities  had
already  applied their minds to the suspected activities  of
each  of the detenus and were satisfied that with a view  to
prevent them from  doing some prejudicial act, it was neces-
sary to detain them.
  The  State  of Bombay, v. Atma Ram  Sridhar  Vaidya  supra
P.167 followed.
JUDGMENT:
                 CRIMINAL  APPELATE JURISDICTION: (Case  No.
24 of 1050).  Appeal under Art. 132 (1) of the  Constitution
of  India, against the judgment and order of the High  Court
of Judicature at Calcutta in Criminal Miscellaneous Case No.
361 of 1050.
    A.C. Gupta  and  Sudhansu  Sekhar  Mukherjee (Arun Kumar
Dutta and S.N. Mukherjee, with them) for the appellants.
    M.C. Setalvad, Attorney-General, (B. Sen, with him)  for
the respondent.
    1051.  Jan.  25. The Judgment of Kania C.J.,  Fazl  Ali,
Mukherjea  and  Chandrasekhara Aiyar JJ., was  delivered  by
Kania  C.J. Patanjali Sastri and Das JJ. delivered  separate
judgments.
KANIA  C.J.--This  is  an appeal under article  132  of  the
Constitution of India from the judgment of the
214
High  Court  at Calcutta, which rejected the  habeas  corpus
petitions of the appellants. The detention orders under  the
Preventive Detention Act, 1950, in all cases were served  on
the  appellants on the 26th February, 1950, and the  grounds
for  the detention were served on the 14th March, 1950.   By
way of specimen we quote one of them:
"You  are  beings detained in pursuance of  a  detention
order made under sub-clause (ii) of clause (a) of subsection
(1)of section a of the Preventive Detention Act,  1950, (Act
IV of 1950), on  the  following grounds:-
    (1)  That you have been assisting the operations of  the
Communist  Party  of India, which along with  its  volunteer
organisations has been declared unlawful by Government under
section 16 of the Indian Criminal Law Amendment Act (Act XIV
of 1908), and which has for its object commission of rioting
with deadly weapons, robbery, dacoity, arson and murder  and
possession  and use of arms and ammunitions  and  explosives
and  thus acting in a manner prejudicial to the  maintenance
of public order and that it is necessary to prevent you from
acting in such manner.
    (2) That as a member of the C.P.I. on its Kishan  front,
you  have  fomented trouble amongst the peasants  of  Howrah
District  and incited them to acts of lawlessness  and  vio-
lence:
    and  have thereby acted in a manner prejudicial  to  the
maintenance of public order:
    That as a worker of the C.P.I. you have tried to  foment
trouble  amongst the tramways men and other workers at  Cal-
cutta and in speeches which you delivered at the  University
Hall and other places you actually incited them to resort to
acts of violence and lawlessness; and have thereby acted  in
a manner prejudicial to the maintenance of public order."
On the 16th of July, 1950, the Government of West Bengal
served  on  the appellants "in continuation of  the  grounds
already furnished on the 14th of March, 1950,  supplementary
grounds"  for their detention a specimen of which is in  the
following terms:--
215
    "In continuation of the grounds already furnished  under
order  No. 6163 H.S. dated 14th March, 1950, you  are  being
informed  of  the supplementary grounds for  your  detention
which are as follows: -
You  as  the  Secretary of the  Bengal  Chatkar  Mazdoor
Union, as a member of the Executive Committee of the Federa-
tion of Mercantile Employees' Union, as the honorary report-
er of the 'Khabar' newspaper (C. P.I. organ) carried on  the
disruptive  programme of the C.P.I. On the 29th July,  1948,
you  along with others led a procession at Howrah  preaching
discontent against Government and have been thus acting in a
manner  prejudicial to the maintenance  of public order. ''
As  in the case of the first grounds, these  "supplemen-
tary grounds" were also served on each appellant separately.
The appellants applied for a Rule of habeas corpus separate-
ly  under section 491 of the Criminal Procedure Code and  on
the  21st July, 1950, the High Court issued a Rule  in  each
case  on the Chief Secretary to the Government of West  Ben-
gal.   A  second  set of grounds were  communicated  to  the
appellants on the 22nd or 23rd of July, 1950.  A specimen of
one is in the following terms:--
    "In continuation of the grounds already furnished  under
order  No.  12820 dated 14th July, 1950, you are  being  in-
formed of the supplementary grounds for your detention which
are as follows:--
    1. That in a meeting held at the University Institute on
the  19th  March, 1947, under the auspices of  the  Calcutta
Tramway  Workers'  Union, you held out the threat  that  any
attempt to take out tram cars on the 20th March, 1947, would
be  inviting disaster and you further said that if  the  au-
thorities  tried  to resume the tram service  you  and  your
friends would not hesitate to remove the tram lines and  cut
the wires.
    2.  That  on the 13th June, 1948, you  presided  over  a
meeting under  the  auspices  of  the  Students'  Federation
(C. P.I. controlled) and delivered speech
28
216
advocating withdrawal of ban on the Communist Party of India
and its organ Swadhinta."
The  High Court after considering the whole  matter  re-
jected  the petitions of the appellants and  the  appellants
have thereupon come in appeal before us.
    In  the High Court, it was first contended on behalf  of
the  appellants that the communication of the grounds  dated
the  14th March was not a compliance with article  22  (5)of
the Constitution of India, as those grounds were not  commu-
nicated  "as soon as may be." The High Court  rejected  this
contention.   Under the circumstances of the case, we  agree
with the High Court and are unable to hold that in  furnish-
ing the grounds dated the 14th March, 1950, the  authorities
had failed to act in accordance with the procedure laid down
in  article  22 (5) of the Constitution.  Under  the  Bengal
Criminal  Law  Amendment Act, 1930, a very large  number  of
persons  were detained. The validity of that Act  was  being
challenged  in the High Court and the judgment was  expected
to  be  delivered  towards the end of  February,  1950.  The
Preventive Detention Act, 1950, was passed by the Parliament
of  India  in  the last week of February,  1950,  and  these
orders  on  all  those detenus were served on  the  26th  of
February,  1950. Having regard to the fact that the  Provin-
cial  Government  had  thus suddenly to deal  with  a  large
number  of  cases on one day, we are unable to  accept  this
contention of the appellants.
    On behalf of the appellants it was next urged that there
has  been a non-compliance with the procedure laid  down  in
article  22  (s)of  the Constitution and section  7  of  the
Preventive Detention Act in the manner of supplying  grounds
to  the appellants resulting in not providing to the  appel-
lants  the  earliest opportunity to make  a  representation,
which  they had a right to make. In the  judgment  delivered
today in Case No. 22 of 1950(1) we have discussed in  detail
the nature of the two rights conferred under article 22 (5).
We  have  to  apply those principles to the  facts  of  this
appeal for its decision.
(11 Supra, P. 167.
217
    When  the  authorities sent their  second  communication
dated  16th July,  1950,  to  the  appellants they described
it  as  "in continuation of the grounds  already  furnished"
and   as  the  "supplementary grounds for  your  detention".
Relying  on the wording of this communication it was  argued
that  these were additional grounds which were furnished  to
the  detenu  and therefore the  procedure  prescribed  under
article  22 (5) had not been followed.  It was  argued  that
the  obligation to communicate grounds "as soon as  may  be"
was absolute.  The grounds for detention must be before  the
Provincial  Government before they could be satisfied  about
the necessity for making the detention order. If the grounds
before  the detaining authorities on the 26th  of  February,
1950, were only those which they communicated on the 14th of