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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • I.P. Mukherjee
  • Kalyan Kumar Bose and Subodh Kumar Bhattacharjee
  • Hemendra Kumar Das
  • Smriti Kumar Rai Chaudhury
  • (for No.1) and Nirmal Chandra Sen (for No.5)
Judges
  • Bose, J.
Acts
  • Ss. 28, 29, 30, 31(2) and the various sub-sections of Section 32 of the West Bengal Rent Control Act, 1948 and Rr. 9, 10, 11, West Bengal Rent Control Rules, 1949
  • SECTION 22 LIMITATION ACT 1908
  • provisions of the Rent Control Order of 1943 and the Rent Control Ordinance 1946
  • provisions of the West Bengal Premises Rent Control Act, 1948 (Act 38 of 1948),
  • provisions of the West Bengal Rent Control Act 17 of 1950
  • provisions of Section 30 of the Rent Control Act, 1948
  • provisions of the West Bengal Rent Control Act, 1948
  • SECTION 32 LIMITATION ACT
  • Section 32 of the Rent Control Act, 1948.7.
  • 11, West Bengal Rent Control Rules, 1949
  • provisions of the Rent Control Act
  • Section 29(2) of the Limitation Act,
  • SECTION 18 LIMITATION ACT
  • provisions of Act 38 of 1948
  • Rent Control Act, 1948, act
  • Rent Control Act of 1950
  • S. 32 of Act 17 of 1950
  • S. 32 of Act of 1950
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • I.P. Mukherjee
  • Kalyan Kumar Bose and Subodh Kumar Bhattacharjee
  • Hemendra Kumar Das
  • Smriti Kumar Rai Chaudhury
  • (for No.1) and Nirmal Chandra Sen (for No.5)
Judges
  • Bose, J.
Acts
  • Ss. 28, 29, 30, 31(2) and the various sub-sections of Section 32 of the West Bengal Rent Control Act, 1948 and Rr. 9, 10, 11, West Bengal Rent Control Rules, 1949
  • SECTION 22 LIMITATION ACT 1908
  • provisions of the Rent Control Order of 1943 and the Rent Control Ordinance 1946
  • provisions of the West Bengal Premises Rent Control Act, 1948 (Act 38 of 1948),
  • provisions of the West Bengal Rent Control Act 17 of 1950
  • provisions of Section 30 of the Rent Control Act, 1948
  • provisions of the West Bengal Rent Control Act, 1948
  • SECTION 32 LIMITATION ACT
  • Section 32 of the Rent Control Act, 1948.7.
  • 11, West Bengal Rent Control Rules, 1949
  • provisions of the Rent Control Act
  • Section 29(2) of the Limitation Act,
  • SECTION 18 LIMITATION ACT
  • provisions of Act 38 of 1948
  • Rent Control Act, 1948, act
  • Rent Control Act of 1950
  • S. 32 of Act 17 of 1950
  • S. 32 of Act of 1950
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner, owner of premises No. 1/2 Lovelock Street, Calcutta, repaired and let the premises first in December 1947 to Sashi Prova Debi at Rs. 200 per month; Sashi Prova vacated in May 1948. The petitioner thereafter let the premises to respondents 5 and 6 from 15-6-1948 at Rs. 150 per month (plus occupier's share of taxes). Respondents 5 and 6 paid rent up to June 1949 but defaulted thereafter for July–September 1949.

Respondent 5 filed an application for fixation of standard rent before the Rent Controller (Case No. 748A of 1949). A notice of the application was sent by registered post on 5-3-1949 to the petitioner's father's address (28/1 Allenby Road); the petitioner in fact resided with her husband at 23 Bechu Chatterjee Street at the time. The registered letter was returned with the endorsement “Refused.”

The Rent Controller inspected the premises (inspection said to have been on 27-5-1949), heard the case ex parte on 2-6-1949, and fixed the standard rent at Rs. 35 per month with effect from 1-2-1949. The petitioner first learned of that order on 24-11-1949, applied for review on 5-12-1949, and the Rent Controller dismissed the review application on 23-12-1949 as time-barred under Rule 11 of the West Bengal Rent Control Rules, 1949. The petitioner appealed to the District Judge at Alipore; respondent 3 (Subordinate Judge) heard and confirmed the Rent Controller’s order on 25-7-1950.

The petitioner then filed the present application under Article 226 seeking writs of certiorari and mandamus to quash the orders dated 2-6-1949, 23-12-1949 and 25-7-1950 and to restrain the respondents from giving effect to those orders.

Legal Issues Presented

  1. Whether the Rent Controller and the Appellate Authority under the West Bengal Rent Control Act, 1948 function as a Court (so that the Limitation Act, 1908 applies to proceedings under the 1948 Act).
  2. Whether Section 32 of the West Bengal Rent Control Act, 1950 (and related amendments) can be given retrospective effect so as to make the Limitation Act applicable to proceedings initiated under the 1948 Act.
  3. Whether the Rent Controller erred in law in sending notice to the petitioner's father's address instead of the petitioner's ordinary place of residence, thereby violating Section 30 of the Rent Control Act, 1948.
  4. Whether the orders of the Rent Controller and the Appellate Authority contain an error of law apparent on the face of the record such as to warrant quashing by certiorari under Article 226.
  5. Whether the petitioner is precluded from maintaining the present application by reason of an earlier Article 226 application which the petitioner had filed and withdrawn.

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. I.P. Mukherjee)

  • The orders of the Rent Controller (refusal to entertain the review) and of the Appellate Authority confirmatory of that order are grounded on an error of law apparent on the face of the record and therefore should be quashed by certiorari.
  • Provisions of Sections 28–32 of the West Bengal Rent Control Act, 1948 and Rules 9–11 of the West Bengal Rent Control Rules, 1949, read with Section 29(2) of the Limitation Act, 1908, mean that the Rent Controller and the appellate authority act as Courts, so the Limitation Act applies to proceedings before them.
  • The petitioner was kept from knowledge of the application for fixation of standard rent by respondents 5 and 6 by fraud (the registered notice being returned “Refused”), and therefore she should benefit from Section 18 of the Limitation Act to get an extension of time to apply for review.
  • Section 32 of the West Bengal Rent Control Act, 1950 (and sub-section (5) of Section 32 of the Limitation Act as invoked) confirms that the Rent Controller and Appellate Authority are judicial officers and that Limitation Act provisions apply to their proceedings.
  • The Rent Controller contravened Section 30 of the 1948 Act by sending notice to the petitioner's father's address rather than to her ordinary residence at 23 Bechu Chatterjee Street, thereby invalidating the 2-6-1949 order.

Respondents' Arguments (as advanced by Mr. Nirmal Chandra Sen for respondents 5 and 6)

  • The petitioner’s earlier Article 226 application filed on 4-6-1951 praying for the same reliefs precludes the petitioner from maintaining the present second application; Mr. Sen relied on Halsbury (Vol. 9) in support.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
S. Girdharilal Son & Co. v. B. Kappini Gowder, AIR 1938 Mad 688 Consideration of cases on retrospective operation of procedural laws; used to test the proposition that laws of procedure can be retrospective without creating vested rights. Cited to show that the petitioner’s contention that the Limitation Act (a law of procedure) can be applied retrospectively is not an accurate statement of the law; the court relied on this to reject the argument that Section 32 of the 1950 Act operates retrospectively to affect rights under the 1948 Act.
Kiron v. Kalidas, 47 Cal WN 460 Held that under earlier Rent Control legislation the Rent Controller and Appellate Authority acted as persona designata and not as Courts. Relied upon as authority that Rent Controllers are not Courts in the strict sense; used to support the conclusion that the Limitation Act did not apply to proceedings under the 1948 Act.
Sm. Suhashini v. Mahendra, 51 Cal WN 818 Same principle as Kiron — Rent Controller/Appellate Authority are not Courts under prior instruments. Followed alongside Kiron to support the view that the Rent Controller does not act as a Court under the 1948 Act.
Indra Kumar v. C.C. Ganguli, 87 Cal LJ 130 Judgment construing provisions of the West Bengal Rent Control Act, 1948 to the effect that the Rent Controller does not act as a Court. Cited as binding or persuasive authority for the proposition that the Rent Controller, under the 1948 Act, does not act as a Court; the present court agreed with this view.
Shell Co. of Australia v. Federal Commissioner of Taxation, (1931) A.C. 275 Characterization of administrative tribunals as “Tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense.” Quoted to describe the status of the Rent Controller and Appellate Authority as tribunals possessing attributes of a court but not being courts in the strict sense; this supports the court's conclusion about non-application of the Limitation Act to 1948 proceedings.
Ebrahim Aboo Baker v. Custodian General, Evacuee Property, New Delhi, 1952 S.C.A. 501 Authority cited as casting doubt about the power of the High Court to correct an error of law by certiorari under Article 226. Cited to indicate that even if there had been an error of law, it was uncertain whether certiorari under Article 226 could be used to correct such an error; the court noted this doubt.
Queen v. Mayor of Bodmin, (1892) 2 QB 21 Authority suggesting that where an earlier application was allowed to be withdrawn (not refused after hearing on merits), a subsequent application is not necessarily barred. Applied to reject the respondents' contention that the petitioner's earlier withdrawn Article 226 application precluded the present application; the court held a second application was not barred where the first was withdrawn without merits being decided.
Ex parte Inhabitants of Carlton High Dale, 4 N & M 312 Case referred to by Charles J. in Queen v. Mayor of Bodmin in support of the proposition about withdrawal of applications. Referred to as supporting authority for the proposition that withdrawal of a prior application does not bar a second application when the first was withdrawn without a merits determination.

Court's Reasoning and Analysis

The court proceeded by addressing the key legal contentions in sequence and applying the cited authorities to the facts before it:

  1. Limitation Act applicability: The petitioner argued that the Rent Controller and appellate authority functioned as Courts and thus the Limitation Act, 1908 (including Section 18) applied to allow extension of time. The court analysed prior decisions (Kiron v. Kalidas; Sm. Suhashini v. Mahendra; Indra Kumar v. C.C. Ganguli) and concluded that under the law as it stood prior to the 1950 amendment the Rent Controller and Appellate Authority did not act as Courts but as tribunals or persona designata. The court quoted Shell Co. of Australia v. Federal Commissioner of Taxation to describe these bodies as "Tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense."
  2. Retrospectivity of Section 32, Act of 1950: The petitioner urged that Section 32 of the 1950 Act (making Limitation Act applicable) could be given retrospective effect. The court examined the contention, referred to S. Girdharilal Son & Co., and concluded that Section 32 of the 1950 Act could not be construed as retrospective so as to affect vested rights acquired under proceedings initiated under the 1948 Act. As a result, the Limitation Act did not apply to the 1948 proceedings and respondents 5 and 6 had acquired vested rights which Section 32 of 1950 could not, in the absence of express retrospective intent, impair.
  3. Alleged contravention of Section 30 (service of notice): The petitioner argued that the Rent Controller violated Section 30 by sending notice to the petitioner's father's address rather than her ordinary residence. The court relied on the affidavit evidence showing that the petitioner's father had managed and administered the property and had collected rent from his residence. The application for fixation of standard rent had given the petitioner's address as the father's address. The court found no material to show that the Rent Controller or the tenants knew the petitioner's residential address at 23 Bechu Chatterjee Street, and therefore held there was no contravention of Section 30.
  4. Error of law and availability of certiorari: The petitioner urged that the orders contained an error of law apparent on the face of the record. The court observed that even if the orders were erroneous in law, there was doubt following the Supreme Court's pronouncement in Ebrahim Aboo Baker v. Custodian General whether the High Court, in exercise of Article 226, has the power to correct an error of law by certiorari. The court therefore did not rest solely on that route to grant relief.
  5. Earlier withdrawn application: Respondents contended that an earlier Article 226 application by the petitioner precluded the present one. The court distinguished the situation by noting the earlier application had been allowed to be withdrawn without determination on the merits. Relying on Queen v. Mayor of Bodmin, it held a second application is not barred where the first was withdrawn without a merits decision.
  6. Conclusion on merits: Having applied the law and the authorities, the court concluded that the orders dated 23-12-1949 and 25-7-1950 did not contain the errors of law alleged by the petitioner. Consequently, the Rule was discharged and the petition failed on the substantive points argued.

Holding and Implications

Holding: Petition dismissed.

Direct consequences as recorded in the opinion:

  • The Rule was discharged; the petition was dismissed.
  • The petitioner was ordered to pay the costs of respondent 5.
  • The hearing fee was assessed at five gold mohurs.

Broader implications: The court adhered to prior authorities holding that under the 1948 Rent Control regime the Rent Controller and Appellate Authority did not act as Courts in the strict sense, and it held that the 1950 amendment (Section 32) could not be construed as retrospective so as to affect vested rights already acquired under the 1948 Act. The opinion does not purport to create a new precedent overturning those earlier decisions; rather, it applies and affirms them in the resolution of this petition.

Show full summary ...

    Sm. Gita Mitra - v. S.P Ghose And Others Opposite Party.

    1. This is an application under Article 226 of the Constitution for writs in the nature of ‘certiorari’ and ‘mandamus’ for quashing of certain orders dated 2-6-1949, 23-12-1949 and 25-7-1950 purported to be made under the provisions of the West Bengal Premises Rent Control Act, 1948 (Act 38 of 1948), and for direction upon the opposite parties 1 to 4 to forbear from giving effect to the said orders.

    2. The petitioner is the owner of premises No. 1/2 Lovelock Street in the suburbs of Calcutta. After purchasing the said premises the petitioner repaired and improved the said premises at a cost of about Rs. 4,000/- and converted the same into a good dwelling house consisting of 6 living rooms, 2 covered verandahs, one open verandah, 2 lavatories and one servants room and it was surrounded by boundary walls. The premises stands on land measuring about 3 cottahs and its estimated value is said to be Rs. 40,000/-. In December 1947 the petitioner let out the premises to one Sashi Prova Debi at a rent of Rs. 200/- per month, from 16-12-1947 as a monthly tenant. Sashi Prova vacated the premises at the end of May 1948. Subsequently the petitioner let out the premises to respondents 5 and 6 at a rent of Rs. 150/- per month plus occupier's share of taxes. The said tenancy commenced from 15-6-1948. The said respondents duly paid rent at the said rate up-to the end of June 1949 but put off payment of rent for the months of July, August and September 1949 on various pretexts. It appears, however, that in the meantime on 24-2-1947 the respondent 5 filed an application for fixation of standard rent before the Rent Controller. Calcutta, under the provisions of Act 38 of 1948 which came into force on 1-12-1918.

    3. On 5-3-1949 a notice of the application was sent by registered post from the Rent Controller's office to the petitioner c/o S.K Ghosh at the address 28/1 Allenby Road which is the address of the petitioner's father's residence. It may be pointed out at this stage that the petitioner is a married lady and she resides with her husband at No. 23 Bechu Chatterjee Street, Calcutta and was actually residing at her husband's place at the time the said notice was sent to the address of her father. It appears that the said registered letter was returned through the Post Office with the endorsement of the postal peon “Refused”.

    4. The Rent Controller fixed the hearing of the application which was numbered as Case No. 748A of 1949, on 25-4-1949. On 27-5-1949 an Inspection is alleged to have been carried out by the Inspector of the Rent Controller. The petitioner's case is that such inspection was not made in her presence or in the presence of any of her representatives. On 2-6-1949 the Rent Controller heard the case ‘ex parte’ and fixed the standard rent at Rs. 35/- per month with effect from 1-2-1949. In October 1949 the petitioner's father wrote from, Hazaribagh Road two letters to Mr. S.N Chowdhury, Solicitor, (who had introduced the tenants respondents 5 and 6 to the petitioner's father) requesting Mr. Chowdhury to realise the rents from July to September from the tenants.

    5. On 24-11-1949 Mr. Chowdhury informed the petitioner's father that respondents 5 and 6 had applied for fixation of standard rent and such rent had been fixed at Rs. 35/- per month long ago. It is alleged that the petitioner and her father came to know of the order of 2-6-1949 for the first time on 24-11-1949. On 5-12-1949 the petitioner made an application for review of the order of 2-6-49 and on 9-12-1949 the petitioner's Solicitors rote a letter to the Presidency Post-Master making inquiries about the registered letter sent by the Rent Controller.

    6. On 23-12-1949 the Rent Controller dismissed the application for review on the ground that as it was not made within 30 days from the date of the order as required by R. 11, West Bengal Rent Control Rules, 1949 the application could not be entertained. He further held that as the Rent Controller was not a Court the petitioner could not take advantage of Section 18 of the Limitation Act upon which she relied for the purpose of getting an extension of the period of limitation as prescribed in the said R. 11 and by Section 32 of the Rent Control Act, 1948.

    7. On 5-5-1950 the Superintendent of Post Office intimated to the petitioner's Solicitor that the postman who carried the letter for delivery did not care to verify the correctness of the alleged refusal and that consequently disciplinary action was being taken against the said Postman. The petitioner preferred an appeal from the order of the Rent Controller to the District Judge at Alipore. The said appeal was heard by respondent 3 who was the Subordinate Judge at Alipore on 25-7-1950. Respondent 3, however, confirmed the order of respondent 1 and dismissed the said appeal. The petitioner challenges the orders made by respondents 1 and 3 as illegal and as being orders which are erroneous on the face of the record.

    8. It has been contended by Mr. I.P Mukherjee that the order of the Rent Controller refusing to entertain the application for review and the order of respondent 3 confirming the order of the Rent Controller are grounded on error of law which is apparent on the face of the record and therefore, the orders should be quashed by ‘certiorari’.

    9. Mr. Mukherjee has submitted with reference to Ss. 28, 29, 30, 31(2) and the various sub-sections of Section 32 of the West Bengal Rent Control Act, 1948 and Rr. 9, 10, 11, West Bengal Rent Control Rules, 1949 that the Rent Controller or the appellate authority when exercising their functions under the Rent Control Act, 1948, act as a Court and consequently the provisions contained in Section 4 and Sections 9 to 18 and Section 22 of the Limitation Act, 1908 apply to proceedings before the Rent Controller or the appellate authority by virtue of Section 29(2) of the Limitation Act, and as the petitioner was kept from the knowledge of the application for fixation of standard rent made by respondents 5 and 6, by means of fraud, the petitioner was entitled to have the benefit of Section 18 of the Limitation Act for the purpose of getting an extension of the period of limitation prescribed by the provisions of the Rent Control Act for making an application for review of the order passed by the Rent Controller.

    10. It was further contended by Mr. Mukherjee that at any rate the provisions of the West Bengal Rent Control Act 17 of 1950 have put the matter beyond all doubt by enacting in Section 32 of the Rent Controller and the Appellate Authority act as judicial officers and may exercise powers given to Courts by Sections 151 and 152 of the CPC and by further providing in sub-section (5) of Section 32 of the Limitation Act applies to proceedings before the Rent Controller and the Appellate Authority.

    11. It is true that S. 32 of Act 17 of 1950 has made the Limitation Act applicable to proceedings under the Rent Control Act of 1950 but I do not think that by virtue of this Section 32 of the Act of 1950 the Limitation Act can be made to apply to proceedings initiated under the Act of 1948. The argument of Mr. Mukherjee is that the law of limitation being a law of procedure it can have retrospective operation, as nobody has a vested right in procedure. This is however not an accurate statement of the law (see — ‘S. Girdharilal Son & Co. v. B. Kappini Gowder’, AIR 1938 Mad 688 where most of the cases bearing on the point are considered.) The question moreover is not so much a question of the retrospective operation of the Limitation Act but the real question is whether Section 32 of the Act of 1950 is retrospective in effect. I am of the view that it cannot be so construed.

    12. It has been held by this Court in constrain the provisions of the Rent Control Order of 1943 and the Rent Control Ordinance 1946 that the Rent Controller and the Appellate Authority exercised their functions under the provisions of the said Order and Ordinance as ‘persona designata’ and not as Courts. See — ‘Kiron v. Kalidas’, 47 Cal WN 460 and — ‘Sm. Suhashini v. Mahendra’, 51 Cal WN 818. B.P Mukharji J. has also held in construing the provisions of the West Bengal Rent Control Act, 1948 that the Rent Controller while exercising functions under this Act does not act as a Court: See — ‘Indra Kumar v. C.C Ganguli’, 87 Cal LJ 130 at pp. 135, 137. No argument has been advanced in this case which includes me to take a different view from that expressed in the cases referred to above and so I agree with those decisions. To quote the words of the Judicial Committee, the Rent Controller and the Appellate Authority are

    “Tribunals with many of the trappings of a Court which nevertheless are not Courts in the strict sense”: See — ‘Shell Co. of Australia v. Federal Commr. of Taxation’, (1931) A.C 275.

    13. It is clear that as a result of these decisions the Legislature thought fit to amend the Rent Control legislation and has enacted Section 32 of the Act of 1950 in its present form. Under the law as it stood before this amendment the Limitation Act had no application to proceedings initiated under the previous Statutes and by reason thereof respondents 5 and 6 acquired vested rights which cannot be affected by S. 32 of Act of 1950 which has not been made expressly or by necessary intendment retrospective in operation. In my view the orders dated 23-12-1949 and 25-7-1950 cannot be said to contain any error of law, as suggested by Mr. Mukherjee.

    14. It was also contended by Mr. Mukherjee that the Rent Controller not having acted in conformity with the provisions of Section 30 of the Rent Control Act, 1948 the order made by him on 2-6-1949 should be quashed. It is argued that by addressing the registered letter to the residential address of the petitioner's father and by not sending it to the petitioner's ordinary place of residence at 23 Bechu Chatterjee Street the Rent Controller has violated the terms of Section 30 of the Act. It appears to me that this contention of Mr. Mukherjee has no force.

    15. It is clear from the affidavit filed in the present proceedings that the petitioner's father had been managing and administering the property on behalf of and in the name of the petitioner, and he realised rent in respect of the premises from his own residence at 28/1 Allen-by Road. There is nothing on record to show that respondents 5 and 6 or the Rent Controller knew or had any information about the petitioner's residential address at 23 Bechu Chatterjee Street. The application for fixation of standard rent gave the address of the petitioner as 28/1 Allenby Road and accordingly the Rent Controller sent the Notice to that address. It cannot, therefore, be said that the Rent Controller has contravened the terms of Section 30 of the Act.

    16. Even assuming that the orders of the Rent Controller and the Appellate Authority are erroneous in law it is a matter of some doubt having regard to the latest pronouncement of the Supreme Court in the case of — ‘Ebrahim Aboo Baker v. Custodian General, Evacuee Property, New Delhi’, 1952 S.C.A 501 whether this Court has power to correct an error of law by writ of ‘certiorari’ issued in exercise of its jurisdiction under Article 226 of the Constitution.

    17. Mr. Nirmal Chandra Sen, the learned Advocate appearing for respondents 5 and 6, contended that the previous application made by the petitioner under Article 226 on 4-6-1951 praying for the same reliefs as are asked for in this application precludes the petitioner from maintaining this second application. Mr. Sen Relies on Halsbury Vol. 9 p. 786 para 1329.

    18. I do not think that this contention of Mr. Sen can be accepted. What happened with regard to the first application was that this Court allowed the petitioner to withdraw that application without going into the merits thereof. The observations made by Charles J. in the case of — ‘Queen v. Mayor of Bodmin’, (1892) 2 QB 21 at p. 24 suggest that if the former application is not refused after hearing it on merits, but it is allowed to be withdrawn for want of sufficient materials to support the application, a second application is not barred. The case of — ‘Ex parte Inhabitants of Carlton High Dale’, 4 N & M 312 is referred to by Charles J. in support of this observation.

    19. Having regard however to my findings on the points urged by Mr. Mukherjee this petition must fail. The Rule is accordingly discharged. The petitioner must pay the costs of respondent 5. Hearing fee is assessed at five gold mohurs.

    A/V.R.B

    20. Petition dismissed.

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    Comments

    Sm. Gita Mitra - v. S.P Ghose And Others Opposite Party.
    (Sep 5, 1952)