Case ID: 26

Judgment:
Appeal from a judgment and decree of the Patna High Court dated 25th March	 1949	 in A.S. 2280 of 1948 reversing an appellate _decree of the Subordinate Judge in Suit No. 62 of 1948. Baldev Sahay (T. K. Prasad	 with him) for the appel lant. N.C. Chatterjee (H.J. Umrigar	 withhim) for the respond ent. 1951. February 2. The judgment of the Court was deliv ered by FAZL ALL J. This is an appeal from a judgment and decree of the High Court of Judicature at Patna reversing the appellate decree of a Subordinate Judge in a suit insti tuted by the respondents. The facts of the case are briefly these. The respondents have been in occupation as a monthly tenant of several blocks of premises belonging to the appellants at a monthly rental of Rs. 112. The rent for the months of March	 April and May	 1942	 having fallen into arrears	 they remitted it along with the rent for June	 on 28th June	 1947	 by means of two cheques. As the appellants did not accept the cheques	 on 4th August	 1947	 the re spondents remitted the amount subsequently by postal money order. On 12th August	 1947	 the appellants	 maintaining that there was non payment of rent and hence the respond ents were liable to be evicted	 under section 1 1 (1) (a) of the Bihar Buildings (Lease	 Rent and Eviction) Control Act	 1947 (Bihar Act III of 1947)	 applied to the House Control ler for the eviction of the respondents from the premises. Section 11 (1) (a) of the Act runs as follows : "Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of section 12	 where a tenant is in possession of any building	 he shall not be liable to be evicted therefrom	 whether in execution of a decree or otherwise	 except 147 (a) in the case of a month to month tenant	 for non payment of rent or breach of the conditions of the tenancy	 or for subletting the building or any portion thereof with out the consent of the landlord	 or if he is an employee of the landlord occupying the building as an employee	 on his ceasing to be in such employment ;" On 30th August	 1947	 the respondents	 whose money order had in the meantime been returned by the appellants	 deposited the rent up to the month of June in the Office of the House Controller. Notwithstanding this deposit	 the House Controller passed an order on the both November	 directing the eviction of the respondents by 10th May	 1948	 and holding that they had made themselves liable to eviction by reason ' of non payment of rent. The order of the House Controller was upheld by the Commissioner on appeal on the 27th April	 1948	 and thereupon the respondents filed the present suit in the Patna Munsif 's Court for a declaration that the order of the ContrOller dated the 10th November	 1947	 was illegal	 ultra vires and without jurisdiction. The 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 vs 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) 	 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 vs 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) 	 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.

Summary:
Section 11 of the Bihar Buildings (Lease	 Rent and Eviction) Control Act	 1947	 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 non payment of rent	 to order eviction of a tenant. Therefore	 even if a Controller has wrongly decided the question wheth er there has been non payment of rent	 his order for evic tion on the ground that there has been non payment of rent cannot be questioned in a civil court. Queen vs Commissioners for Special Purposes of Income Tax (21 O.B.D. 313) and Colonial Bank of Australasia vs Willan (L.R. P.C. 417) relied on. 146