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Ramnarain Lal And Others v. Dr. Radharaman Das And Others

Patna High Court

Aug 18, 1953

Judgment

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Factual and Procedural Background

The plaintiffs, Ramnarahi Lal and others, instituted a suit seeking a declaration that an order of the House Controller, Patna, dated 20 June 1949 and the order of the Additional Commissioner, Patna Division, passed on appeal dated 30 March 1950 — directing the plaintiffs to vacate a house in mohalla Sabzibagh, Patna (holding no. 58, circle no. 16, municipal survey plot no. 46) — were illegal and without jurisdiction.

The plaintiffs' case was that they were tenants of the land but had built the house themselves and were not inducted as tenants into the house; accordingly, they contended that the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) did not apply and that the House Controller's order was not binding. They raised additional points, including that the order being executed was the Additional Commissioner's order on appeal and that that appellate order was void.

The defendants/respondents maintained that the plaintiffs had been inducted into the house as tenants, that the plaintiffs' claim of building the house for themselves was false, and that the House Controller's order affirmed on appeal was final and not open to re-examination by the Civil Court.

Procedurally, the learned Munsif originally decreed the plaintiffs' suit; on appeal that judgment was reversed, holding the plaintiffs' account untrue and declaring the House Controller's order and the Additional Commissioner's confirming order valid and binding. The present text records the further appeal to which this opinion responds.

Legal Issues Presented

Whether a substitution of parties (on the death of a original party) in proceedings before the House Controller was within jurisdiction when substitution under Order XXII CPC was relied upon, i.e., whether the Controller could effect substitution or treat subsequent proceedings as a fresh proceeding.
Whether the Additional Commissioner who heard the appeal was competent to do so — specifically, whether the appointment of the Additional Commissioner (and the timing of the Gazette notification/publication) complied with statutory requirements and rendered the appellate authority valid.
Whether Ordinance No. 1 of 1949 and Act 3 of 1949 (validating and incorporating provisions for Additional Commissioners) were repugnant to and therefore overridden by Act 3 of 1947 (the Bihar Buildings (Lease, Rent & Eviction) Control Act), which vested appellate power in the Commissioner under S.18(1).
What is the scope of finality under S.18(3) of Act 3 of 1947 — whether finality attaches to the House Controller's order (subject to any variation by the Commissioner) and what limited jurisdiction the Civil Court has to examine such orders.
Whether any alleged defect in the appointment or competence of the Additional Commissioner, even if established, would invalidate the House Controller's original order or affect the Civil Court's power to pronounce upon it.

Arguments of the Parties

Appellants' Arguments (as presented by Mr. T.K. Prasad)

The House Controller had no jurisdiction to effect substitution of parties after the death of Mewalal because Order XXII CPC does not apply to House Control proceedings. Reference was made to Madras High Court decisions (Devichand Mool Chand v. Dhanraj Kantilal and Abdul Khadir v. A.K. Murthy) holding the Code of Civil Procedure not applicable to that Madras Act context.
Even if substitution was attempted, in the present case there was neither an affidavit nor the particulars required (as argued by appellants) and thus the substitution process was defective.
The Additional Commissioner who heard the appeal was not competent because (a) the appointment notification was dated 24 January 1949 but S.5 of Act 3 of 1949 validated appointments only from 26 January 1949, and (b) Ordinance/Act creating Additional Commissioners (Ordinance No. 1 of 1949 and Act 3 of 1949) were ultra vires and repugnant to Act 3 of 1947 which vested appellate power only in the Commissioner.
If the Additional Commissioner lacked jurisdiction, the appellate order was void and the Civil Court should be able to inquire into the validity of the appellate order rather than being confined to the House Controller's order.
Specific challenge raised later (not pressed in lower courts) that Mr. Omar (an Additional Commissioner appointed by later notification) may not have been vested with power under Act 3 of 1947 as his predecessor reportedly was.

Respondents' Arguments (as presented by Mr. J.C. Sinha)

The plaintiffs were inducted as tenants into the house and their claim to have built and occupied the house independently was false; accordingly the House Controller's order and the Additional Commissioner's confirming order were valid and binding.
Even if substitution were regarded as a procedural infirmity under the Madras decisions, in the Bihar context the Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947) does not require an affidavit or prescribed particulars; S.11 only requires that the applicant indicate the grounds for eviction, which suffices to give jurisdiction.
The notification of appointment (dated 24 January 1949 but published in the Gazette on 26 January 1949) must be treated as valid from the date of publication under the Bihar General Clauses Act (Clause 36); therefore the appointment of the Additional Commissioner was valid from 26 January and not invalid by reason of the earlier drafting date.
The existence of Additional Commissioners authorised by Ordinance/Act does not necessarily create repugnancy with Act 3 of 1947; repugnancy requires inconsistency such that the two enactments cannot co-exist, and that preliminary condition has not been established.
Finality under S.18(3) of Act 3 of 1947 attaches to the order of the House Controller (subject to appeal), and the Civil Court's scope is limited to declaring the Controller's order ultra vires; it cannot go beyond that to re-open the appellate order or treat the Controller's order as incompetent merely because the appellate authority might be challenged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Devichand Mool Chand v. Dhanraj Kantilal, AIR 1949 Mad 53	Madras High Court view that the Code of Civil Procedure was not made applicable to the Madras House Control Act and therefore the House Controller had no jurisdiction to order substitution under the Code.	The court considered this authority but held that, under the Bihar Act, substitution could be treated as a fresh proceeding where the required particulars were before the Court; accordingly the order of the House Controller could be upheld on that alternative basis.
Abdul Khadir v. A.K. Murthy, AIR 1948 Mad 235	Earlier Madras High Court decision along similar lines to the above (that CPC did not apply to Madras Act, limiting substitution power).	Referred to as part of the Madras line of authority on non-applicability of CPC. The court noted those decisions but found the Bihar enactment's requirements different and sufficient to uphold the Controller's order.
Mangtuial v. Radha Shyam, AIR 1953 Pat 14 (Full Bench)	Clarified the meaning of "repugnancy" between enactments and set out that repugnancy requires inconsistency that prevents co-existence of the two provisions; mere variation is not repugnancy.	The court applied this principle to hold that giving appellate power to Additional Commissioners in addition to Commissioners did not create repugnancy with Act 3 of 1947; thus Act 3 of 1949 (and the Ordinance provisions) were not rendered void on that ground.
Brij Raj Krishna v. S.K. Shaw & Brothers, AIR 1951 SC 115	Authority stating that finality is attached to the order of the House Controller (subject to variation by the Commissioner on appeal).	The court relied on this Supreme Court pronouncement and on S.18(3) to conclude that finality is attached to the Controller's order and the Civil Court's jurisdiction is limited to declaring whether the Controller's order was ultra vires.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal questions and applied statutory text and cited authorities to reach its conclusions:

Substitution and jurisdiction: The court acknowledged the Madras High Court view that the CPC was not applicable to House Control proceedings and thus that substitution under Order XXII CPC might not be available in that jurisdiction. However, the court observed that the Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947) does not require an affidavit or specified particulars for substitution and that Section 11 requires only that an applicant indicate the grounds for eviction. On that basis the court held that, even viewing the proceeding after substitution as a fresh proceeding, the necessary jurisdictional material was present and the Controller's order could be upheld. The court also noted in passing that the Controller's Court might have inherent jurisdiction to do consequential acts such as substitution, but declined to decide that point, since it could uphold the order on the alternate basis described.
Validity of appointment of Additional Commissioner on date grounds: The court examined the notification dated 24 January 1949 and found it was actually published in the Bihar Gazette on 26 January 1949. Applying the Bihar General Clauses Act (Clause 36), the court held the appointment must be deemed valid from the date of publication (26 January). Therefore the contention that the appointment was invalid because it preceded the date validated by S.5 of Act 3 of 1949 failed.
Repugnancy of Ordinance/Act 3 of 1949 with Act 3 of 1947: The court reviewed the appellants' argument that Ordinance No. 1 of 1949 and Act 3 of 1949 were ultra vires and repugnant to Act 3 of 1947 (which vested appellate power in the Commissioner). Relying on the principle explained in Mangtuial v. Radha Shyam, the court emphasized that repugnancy requires real inconsistency so the two provisions cannot co-exist; a mere variation does not suffice. Applying that test, the court found no repugnancy: the conferral of appellate power on Additional Commissioners in addition to Commissioners did not encroach on a litigant's right of appeal or render the enactments inconsistent in the sense required for repugnancy.
Effect of possible invalidity of Additional Commissioner or appellate order: The court reasoned that even if the authority of the Additional Commissioner to hear appeals were held to be ultra vires, the validity of the House Controller's order would remain unaffected. The Civil Court's duty is to pronounce upon the validity of the Controller's order (a limited court of jurisdiction). The Civil Court could not go beyond that to declare the appellate authority invalid and thereby deprive the House Controller's order of operative effect. If an aggrieved person believed the appellate tribunal lacked jurisdiction they had other remedies; the Civil Court's review is constrained by S.18(3) of Act 3 of 1947.
Finality under S.18(3): Interpreting S.18(3), the court held that finality is attached to the Controller's order subject only to any decision by the Commissioner on appeal. The court relied on the clear phraseology of the section and on the Supreme Court decision in Brij Raj Krishna v. S.K. Shaw & Brothers to accept that conclusion. Consequently, the Civil Court's scope is narrow — limited to declaring whether the Controller's order was beyond jurisdiction (ultra vires) — and the Civil Court cannot re-open matters beyond that statutory limit.
Other points (appointments of specific Additional Commissioners): The court noted arguments about the appointment of Mr. Omar but observed that the point was not raised below and that because the court had already determined that finality attaches to the Controller's order, it was unnecessary to decide that discrete issue in detail.

Holding and Implications

Holding: The appeal is dismissed. The House Controller's order (dated 20 June 1949) and the Additional Commissioner's confirming order (dated 30 March 1950) stand as valid and binding on the parties; the appeal is dismissed with costs.

Implications:

The court confirmed that, under the Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947), finality is attached to the order of the House Controller subject to any decision on appeal by the Commissioner (S.18(3)), and the Civil Court's jurisdiction is limited to declaring whether the Controller's order was ultra vires.
The court held that substitution after death could be treated as a fresh proceeding under the Bihar Act where the statutory requirements (as interpreted by the court, including S.11's requirement of indicating grounds for eviction) are met; the Controller's order could therefore be sustained on that basis.
The court applied the General Clauses Act principles to validate the appointment of the Additional Commissioner from the date of publication in the gazette (26 January 1949) and rejected the argument that Ordinance No. 1 of 1949 or Act 3 of 1949 were repugnant to Act 3 of 1947 in the sense required to render them ultra vires.
The direct effect on the parties is that the Controller's and Additional Commissioner's orders remain operative and the plaintiffs' suit fails; the Civil Court may not re-open the appellate question beyond the narrow statutory review permitted.

A/V.R.B

Disposition: Appeal dismissed.

Show all summary ...

1. The plaintiffs, Ramnarahi Lal and others, instituted a suit giving rise to the present appeal for a declaration that the order of the House Controller, Patna, dated 20th June 1949 and that of the Additional Commissioner, Patna Division, passed on appeal, dated 30th March 1950, by which the plaintiffs were directed to vacate the house in mohalla Sabzibagh in Patna town bearing holding no. 58, circle no. 16, municipal survey plot no. 46 are illegal and without jurisdiction.

2. The case made out by the plaintiffs was that they were the tenants of the defendants-respondents in respect of the land where the house in question was situate, but they had built the house and they were not inducted as tenants into the house in question, and in that view, the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) did not apply to the present case, and, therefore, the order passed by the House Controller under this Act was not binding on them. There were other points of law raised by the plaintiffs for the purpose of showing that the order of the House Controller was otherwise illegal and beyond jurisdiction inasmuch as the order passed by the House Controller was not the order which was sought to be executed but the order which was passed on appeal by the Additional Commissioner which was void.

3. The defence case, however, was that the plaintiffs were inducted into the house duly as tenants, and their plea that they came to occupy the vacant site as tenants and they built the house for themselves was false and fraudulent. Further, that the order passed by the House Controller and affirmed on appeal was final and the Civil Court had no jurisdiction to go behind the order of the House Controller. The suit was decreed by the learned Munsif, First Court, Patna, but on appeal the judgment of the learned Munsif was reversed, and it was held that the case of the plaintiffs that they came into possession of the land as tenants and built the house at their own cost was untrue. It was also held that the order passed by the House Controller was valid & with jurisdiction and that likewise the Additional Commissioner's order confirming on appeal the order of the House Controller, Patna, was also good and binding upon the parties and could not be re-opened in the Civil Court.

4. Mr. T.K Prasad appearing on behalf of the appellants has urged a number of points, one of which is that the original proceeding was started against one Mewalal, father of the plaintiffs. Mewalal, however, died during the pendency of the proceeding in the Court of the House Controller and thereafter the appellants were brought on record as the sons of Mewalal in the Court of the House Controller. It is contended that the House Controller had no jurisdiction to resort to a substitution proceeding, as O. 22 of the CPC which provides for substitution does not apply to a House Control proceeding. Reference has been made in this connection to the case of — ‘Devichand Mool Chand v. Dhanraj Kantilal’, AIR 1949 Mad 53 (A), which followed the decision in the case of — ‘Abdul Khadir v. A.K Murthy’, AIR 1948 Mad 235 (B), where their Lordships took the view that Code of Civil Procedure was not made applicable to the Madras Act, and, therefore, the House Controller had no jurisdiction to order substitution.

5. In substance, however, they upheld the order on the ground that although there was lack of jurisdiction with regard to the substitution matter the order was still justified because the application for substitution was filed on an affidavit and all the particulars required under the Act were before the Court, so that the subsequent proceeding might be treated as a fresh proceeding after the heirs were brought on record on the death of the party concerned, and as such there was no lack of jurisdiction in the order actually passed by the House Controller.

6. Mr. T.K Prasad, however, argues that in the present case neither there is any affidavit nor are the particulars there required by the Act. Mr. J.C Sinha, however, has urged that we do not know in what terms the Madras Act relating to House Control actually stands, because Mr. T.K Prasad has not drawn our attention to the terms of the Madras Act. The Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947) does not require either any affidavit nor does it make any provision with regard to the particulars to be supplied in the application. All that is required is that in terms of S. 11 of the Act a person applying must indicate the grounds on which he wants eviction of the tenant, which alone is adequate to give jurisdiction to the Court.

7. I think there is substance in this contention I raised on behalf of the respondents, and it must the held that even in the view expressed by the/Madras High Court the order of the House Controller must be upheld treating the proceeding after substitution as a fresh proceeding, as the Bihar Act provides no bar to a new proceeding being treated as a fresh proceeding. It may well be that the House Controller's Court being a Court may be taken as having inherent jurisdiction to do consequential acts such as substitution. That, however, is a point which I need not decide at present, in view of the pronouncement of their Lordships of the Madras High Court, as the order can be upheld in another view of the matter.

8. It is next urged that the Additional Commissioner, who passed the order on appeal against the order of the House Controller, was not competent to pass the order as he cannot be regarded as a Court duly constituted. It is urged that Act 3 of 1947 in S. 18(1) speaks of Commissioner of the Division being the appellate authority against the order of the House Controller and does not refer to the Additional Commissioner having that power. The Additional Commissioner was vested with power to hear appeals under the Bihar suildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) in terms of an Ordinance promulgated on 14th January 1949, which Ordinance provided for the appointment of Additional Commissioners. It is urged that in terms thereof certain persons were appointed to the office and their appointment was published in the Gazette Notification No. 523-A dated 24th January, 1949, which was published, however, in Gazette Extraordinary dated 26th January 1949.

9. There was another Notification No. 4068 published in the Bihar Gazette Extraordinary dated 29th January 1949 by which the power to hear appeals conferred upon the Commissioners under Section 18(1) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) was also vested in the Additional Commissioners. Ordinance No. 1 of 1949, however, to which I have made a reference above (Ordinance dated 14th January 1949), gave place to Act 3 of 1949 which received the assent of the Governor on 5th March 1949 and was published in the Gazette on 12th March 1949 incorporating the provisions of that Ordinance relating to the appointment of Additional Commissioners.

10. On the facts stated above, Mr. T.K Prasad has endeavoured to build two arguments. One is that the Additional Commissioners appointed under the Ordinance were not competent to hear appeals against the orders of the House Controllers, because the persons appointed as Additional Commissioners by Notification dated 24th January 1949 could not be said to be validly appointed as according to S. 5 of Act 3 of 1949 the appointment of Additional Commissioners from 26th January, 1949 alone was validated; whereas the office of the Additional Commissioner, Patna Division, including the gentleman appointed to the office was made from 24th January 1949 as the Notification would indicate, and as such the appointment was invalid as having been made two days prior to the date from which onwards appointment of Additional Commissioners was validated by Act 3 of 1949.

11. It is, however, clear that although the notification relating to the appointment of Additional Commissioners bears date 24th January 1949 it was actually published in the Bihar Gazette on the 26th, so that according to the Bihar General Clauses Act (Cl. 36) it is clear that the appointment must be deemed to be valid only from the date of its publication in the gazette. Since, therefore, the appointment of the Additional Commissioner hearing the present appeal is valid from the 26th of January, there is no defect on the ground of a prior date as sought to be made out on behalf of the appellants. I think this contention on behalf of the respondents as urged by Mr. J.C Sinha is correct.

12. The date mentioned in the notification is the date when it actually was drafted and is valid, however, from the 26th and as such the date of drafting is immaterial. The appointment, therefore, is governed in terms of S. 5 of Act 3 of 1949 and it cannot be in any way held to be invalid. But it may also be stated here that the point of defect, if any, in the appointment of Additional Commissioner on the score of notification as is sought to be made out in this second appeal, in this Court, was not taken up in the Courts below and even on that ground the contention could be fit to be rejected. Since, however, the learned Counsel on either side took up the question on merits, it is clear that this argument of the learned counsel of the appellants must fail to the ground.

13. It is next urged that Ordinance No. 1 of 1949 providing for the appointment of Additional Commissioners and Act 3 of 1949 incorporating the provisions thereof must both be held to be ‘ultra vires’ as they are repugnant to Act 3 of 1947 which received the assent of the Governor General. Act 3 of 1949 did not receive such an assent and, therefore, to the extent to which Act 3 of 1949 is repugnant to Act 3 of 1947 must be held as null & void. The argument is that in terms of Section 18(1) of the Bihar Buildings (Lease, Rent & Eviction) Control Act (Act 3 of 1947), the Commissioners alone were vested with the power to hear appeals against the order of the House Controller, whereas under Act 3 of 1949 there is a list of Additional Commissioners who also have been given the same power which takes away a valuable right of the appellants as the appeal has got to be decided by an authority different from that provided for in Act 3 of 1947. It is urged that Act 3 of 1949 was purely an Act of the Bihar Legislature and cannot override Act 3 of 1947 which received assent of the Governor General.

14. Mr. J.C Sinha, however, on behalf of the respondents has contended that there is no denying the proposition that if there be real repugnancy, Act 3 of 1949 which has not received the assent of the Governor General must yield to Act 3 of 1947, but it must be established as a preliminary condition that there is such a repugnancy. His contention is that the mere fact that Additional Commissioners have been given power to hear appeals against the orders of House Controllers in addition to the Commissioner does not necessarily import any repugnancy between the two provisions of the respective Acts. He has drawn my attention to the case of — ‘Mangtuial v. Radha Shyam’, AIR 1953 Pat 14 (FB) (C), where their Lordships considered the meaning of repugnancy with reference to the previous decisions and enunciated in clear terms in what circumstances repugnancy can be held to arise.

15. The principle being, however, well settled that repugnancy would always mean inconsistency so that the two provisions cannot co-exist, it is the only test to apply to find out whether there is repugnancy in a particular enactment in another enactment on the provision appearing on the same question will not be synonymous with repugnancy. It may be that there is a mere variation or departure which is not the same thing as that they are inconsistent with each other. The case referred to above has gone into great details with regard to the enunciation of this consideration, and I am satisfied that in the present case the doctrine of repugnancy cannot be invoked, because if Additional Commissioners have been given power to hear appeals apart from the power of the Commissioner, the scope of the authority does not in any way encroach upon the right of a litigant to file an appeal from the order of the Controller to the proper appellate authority. The particular forum to hear an appeal, even if it is slightly different from the forum provided before, will not therefore mean that they cannot exist together.

16. But it is not necessary for me to elaborate this point further in view of many judicial pronouncements on this point. It is clear, however, that in this context repugnancy cannot be said to arise in any manner whatsoever. From the fact set forth above, it is also clear that even if the appointment of the Additional Commissioners would have been held to be invalid and ‘ultra vires’ either because of repugnancy or because of any technical oversight with regard to the date of appointment, the result of the order passed by the House Controller could not have been affected in the slightest degree, because the learned counsel for the appellants has not urged apart from what I have said above in the matter of substitution that there is any other defect in that order. That being so, even if the order passed on appeal by the Aaditional Commissioner were to be held as non-existent on account of the office of the Additional Commissioner itself being not duly constituted, at any rate, the order of the House Controller would be well operative and good.

17. The Civil Court has to pronounce upon the validity of the order passed by the limited Court of jurisdiction which is the Controller's Court, and it must be held to be final unless the Civil Court can declare that it is without jurisdiction. Mr. T.K Prasad, however, has urged that it is not so because what the Controller has done is subject to correction or modification or even cancellation on appeal by the appellate authority and, therefore, what the Civil Court is required to pronounce upon if they feel it at all necessary, is the validity of the order of the appellate Court, and not that of the House Controller. He has drawn my attention to Section 18(3) of the Bihar Buildings (Lease, Rent and Eviction) Control Act (Act 3 of 1947) which is in these terms:

“The decision of the Commissioner and subject only to such decision, an order of the Controller shall be final, and shall not be liable to be questioned in any Court of law whether in a suit or other proceeding by way of appeal or revision.”

It is urged that it is the decision of the Commissioner which shall be final, and not the order of the House Controller. I am afraid, a plain reading of sub-s. (3) of S. 18, however, would make it clear that finality has been attached to the order of the Controller subject to any variation made therein by the Commissioner on appeal before him. Mr. J.C Sinha has in this connection drawn my attention to the case of — ‘Brij Raj Krishna v. S.K Shaw & Brothers’, AIR 1951 SC 115 (D), wherein their Lordships of the Supreme Court stated in clear terms that finality is attached to the order of the House Controller. It is, therefore, urged that both in terms of the section and in terms of this pronouncement of their Lordships of the Supreme Court, finality attaches to the decision of the Controller subject to any decision on appeal. I think this argument must be accepted because there is no escape from that conclusion in view of the phraseology of this section itself.

18. Apart, however, from this matter, even if the authority of the Additional Commissioner to hear appeal against an order of the House Controller were found to be ‘ultra vires’, there is no question that the order of the House Controller will be still valid, and the Civil Court could not go beyond that order to make a pronouncement that the authority of the Appellate Tribunal was beyond jurisdiction and, therefore, the order passed by the House Controller must be held to be incompetent. Such a view is wholly unwarranted. If the person aggrieved by the appellate order thought that the Appellate Tribunal had no jurisdiction he might seek his remedy in the way he is advised, because the Civil Court must be bound by the terms of this Act, viz., Act 3 of 1947, sub-s. (3) of S. 18 of which is relevant to determine this question.

19. Mr. T.K Prasad has drawn my attention to a case of the Madras High Court as to whether an appeal is a continuation of the suit and whether it is the appellate judgment and decree which really matter even if the appellate judgment confirms the judgment and decree of the trial Court. That may be so, but so far as the Buildings (Lease, Rent and Eviction) Control Act is concerned, it is the House Controller who is a court of limited jurisdiction to whose order finality has been attached minting the scope of the Civil Court to the narrow compass of deciding only its ‘ultra vires’ character and it cannot travel beyond the terms of the statute. If, therefore, there is any order passed by the Court of limited jurisdiction, which is beyond challenge in terms of the provisions of that enactment, the Civil Court is bound to respect it and it is no part of its jurisdiction to go further into that question. This matter was set at rest beyond any doubt by the same decision to which I have made reference, viz., the case of — ‘AIR 1951 SC 115 (D)’

20. The next point which Mr. T.K Prasad sought to make out of all this was with regard to Mr. Omar's appointment, that is, the person who was actually appointed as Additional Commissioner. In view of what I have said above, I do not think it is necessary for me to go into any detail with regard to it, because Mr. Omar was appointed by notification dated 13-11-49 and Mr. T.K Prasad's argument is that Mr. Omar was not vested with the power under Act 3 of 1947 as was done in the case of his predecessor-in-office as Additional Commissioner, Patna Division, when such power was conferred by Gazette Notification dated 29th January 1949. This point was never raised in the court below and it is very difficult at this stage to say whether such power was conferred or not.

21. Apart, however, from this, since I have taken the view that finality is attached to the House Controller's order, this argument must also be rejected.

22. For the reasons given above, the appeal must be dismissed with costs.