1. In this case the petitioner, Bhagwan Das, has moved the High Court for issue of a writ in the nature of certiorari for calling up and quashing the order of the Commissioner of Chotanagpur Division dated 9-9-1953 affirming an order of the Deputy Commissioner of Singhbhum dated 6-3-1952, directing the petitioner to vacate certain premises under the provisions of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947). In the alternative, the petitioner has prayed that the High Court may interfere with the order of eviction passed by the two tribunals under Article 227 of the Constitution. The petitioner is a tenant in respect of a house in Mouza Dhatkidih of which opposite party No. 1 is the landlord. On 5-12-1950, the land-lord Sled an application before the House Controller for eviction of the tenant on the ground of personal necessity. The application was dismissed by the House Controller, and an appeal was taken to the Deputy Commissioner on behalf of the landlord. The appeal was allowed by the Deputy Commissioner on 23-1-1952. But in revision the Commissioner of Chotanagpur Division held that, the application of the landlord should be dismissed. On 16-5-1952, the tenant deposited in Court the rent due for the house from 12-12-1850 to 12-5-1952. The Controller issued notice to the landlord to withdraw the deposit of rent.

2. On 20-5-1952, the landlord filed an application before the House Controller for evicting the petitioner on the ground of non-payment of rent for the period from November, 1950 till May, 1952. The Controller dismissed the application on the ground that although the petitioner was liable to pay rent every month the petition for eviction should be rejected on the ground that on the date the application was used there was actually no arr car of rent as the petitioner had deposited all the amount due. Against this order, an appeal was preferred by the landlord. The Deputy Commissioner of Singhbhum allowed the appeal holding that there was a default for over a long period and no payment was offered and the petitioner was, therefore, liable to be evicted. The Deputy Commissioner took the view that the petitioner was liable to be evicted since he was a month to month tenant and there was default in payment of rent on the dates the monthly rent became due. It was held by the Deputy Commissioner that even though there was, in fact, a deposit of the entire amount of rent before the date of the application, there was in the eye of law a non-payment of rent on the part of the petitioner and so the petitioner was liable to be evicted under the provisions of S. 11 of the statute.

3. Against the order of the Deputy Commissioner, the tenant made an application in revision before the Commissioner of Chotanagpur Division. The Commissioner affirmed the order of the Deputy Commissioner holding that the petitioner was a month to month tenant and “there has certainly been non-payment of rent in this case in which the landlord is entitled to be put in possession”. In these circumstances, the petitioner has moved this Court for issuing a writ in the nature of certiorari or, in the alternative, for interfering with the order of the Deputy Commissioner and the Commissioner under the provisions of Article 227 of the Constitution.

4. In support of this application, Mr. B.C Ghosh put forward the argument that in coming to a finding that there was non-payment of rent the two tribunals, namely, the Deputy Commissioner of Singhbhum and the Commissioner of Chotanagpur Division, have committed an error of law. It was pointed out by learned counsel that in this case the petitioner had deposited in the office of the House Controller the entire rent which was due for the period from November, 1950 to May, 1952. Counsel laid stress upon the circumstance that this fact has been accepted as correct by both the tribunals. The argument was that the Deputy Commissioner and the Commissioner of Chotanagpur were not justified in holding that there was non-payment of rent on the petitioner's part within the meaning of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act (3 of 1947). Counsel also made submission that the eviction of the petitioner in spite of the fact that he had made deposit of the arrear rent was contrary to natural justice.

5. But, in our opinion, the argument of learned Counsel cannot be accepted as correct. The reason is that this case falls directly within the principle enunciated by the Supreme Court in — ‘Brij Raj Krishna v. S.K Shaw and Bros.’, AIR 1951 SC 115 (A). The respondents in that case had been in occupation as monthly tenants of several blocks of buildings belonging to the appellants. It appears that the rent for the months of March, April, and May 1947 had fallen into arrears and the respondents had remitted the amount to the appellants by means of two cheques. The appellants refused to accept these cheques whereupon the respondents remitted the amount subsequently by postal money order. On 12-8-1947, the appellants filed an application with the Controller maintaining that there was non-payment of rent and praying that the respondents should be evicted from the premises of which they had taken lease. On 30-8-1947, the respondents, whose money order had been in the meantime 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 10-5-1948, directing eviction of the respondents. The order of the House Controller was upheld by the Commissioner on appeal and thereafter the respondents filed a suit in the Civil Court for declaration that the order of the House Controller was illegal and without jurisdiction. The suit was dismissed by the Munsif, but in second appeal the High Court decreed the suit holding that the order of the House Controller was without jurisdiction.

6. The judgment of the High Court was based upon the ground that the expression “non-payment of rent” in S. 11 must not be given an interpretation which would have the effect of enlarging joyed by a tenant under Section 111 of the Transfer of Property Act. It was held by the High Court that the intention of the Legislature was that a tenant should not be liable to be evicted if he brought into Court all the rent due from him before the order of eviction came to be passed. The following passage from the judgment of the High Court is important:

“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 affection of tenants’ from buildings, it would seem that the expression ‘non-payment of rent’ in S. 11 in the context in which it is used must be given an interpretation which would have the effect of enlarging the protection against determination of the tenancy enjoyed by a tenant under the ordinary lav. The legislature, therefore, by enacting that a tenant shall not be liable to be evicted ‘except for non-payment 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, S. 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-S. (1) of S. 11, and sub-s. (3) of S. 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 forfeiture 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 have been very much curtailed. A construction of these provisions, which is calculated to bring about these consequences cannot and is not in accordance with the circumstances 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 overruled.”

7. Before the Supreme Court this part of the decision of the Hieh Court was challenged as wrong, Bihar Act 3 of 1947 cannot be construed in the context of Section 111 or Section 112 of the Transfer of Property Act. The Supreme Court, held, in the first place, that the Controller had not misconstrued the provisions of S. 11 on the question of non-payment of rent. In the second place, the Supreme Court held that even if the Controller had wrongly decided the question of non-payment of rent this order was not liable to be questioned in a Civil Court. Fazl Ali, J., who pronounced the opinion of the Supreme Court, referred in this connection to the statement of law made by Lord Esher in — ‘The Queen v. Commrs. for Special Purposes of the Income Tax’, (1883) 21 Q.B.D 313 at p. 319 (B).

“When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established 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 conclusively 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 entrust 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 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 legislature 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 the jurisdiction.”

8. It is manifest that the material facts in the present case are closely parallel to the material facts of AIR 1951 SC 115 (A). The principle of I this case is directly applicable to the present case, and even if it is assumed in favour of the petitioner that the Deputy Commissioner has misconstrued the provisions of S. 11, there is no case made out for interfering with his order under Article 226 or under Article 227 of the Constitution.

9. In course of his argument, Mr. B.C Ghosh placed much reliance upon — ‘T.C Basappa v. T. Nagappa’, AIR 1954 SC 440 (C). The argument of learned Counsel was that the High Court is competent in a proceeding for writ of certiorari to interfere with the order of the subordinate tribunal not only on the ground that there was ??? of jurisdiction but also on the ground that there was a manifest error of law on the face of the proceedings. Mr. B.C Ghosh, in support of his argument, laid special stress on the following passage from the opinion of Mukherjea, J. in AIR 1954 SC 440 (C):

“A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of ‘certiorari’ may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of ‘certiorari’ but it must be a manifest error apparent on the face of the proceedings, e.g when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by ‘certiorari’ but not a mere wrong decision.

The essential features of the remedy by way of ‘certiorari’ have been stated with remarkable brevity and clearness by Morris L.J in the recent case of — ‘Rex v. Northumberland Compensation Appeal Tribunal, 1952-1 KB 338 at p. 357 (D). The Lord Justice says:

“It is plain that ‘certiorari’ will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown.”

10. In our opinion, the argument of Mr. B.C Ghosh is correct and in a proceeding for the grant of writ of certiorari the High Court may consider not only the question of jurisdiction of the subordinate tribunal but also whether there is manifest error of law on the face of the proceedings. That was the view taken by the English Court of Appeal in 1952-1 KB 338 (D), and that view of the law has been expressly approved by the Supreme Court in AIR 1954 SC 440 (C). Counsel for the petitioner pointed out that he had deposited the full amount of rent on 16-4-1952 even before the landlord filed the application before the House Controller for the eviction of the petitioner. The argument of Counsel was that on the date the application was filed there was actually no arrear of rent as the petitioner had deposited all the amount due. It was contended, therefore that the Deputy Commissioner had committed an error of law in holding that there was non-payment of rent within the meaning of Section 11 of the Bihar Act 3 of 1947.

11. But this identical question was examined by the Supreme Court in AIR 1951 SC 115 (A), and in view of the decision of the Supreme Court in that case we cannot accept the argument that there was an error of law committed by the Deputy Commissioner or the Commissioner in these proceedings. It was stated by the Supreme Court in that case that the provisions of S. 11 ought not to be construed in the context of Sections 111 and 112 of the Transfer of Property Act, relating to relief against forfeiture for non-payment of rent. The Supreme Court expressly said that the view taken by the High Court on this aspect of the case was erroneous and an irregular payment of rent may be tantamount to “non-payment of rent” within the meaning of S. 11 of the Act.

12. It was argued on behalf of the appellant before the Supreme Court that the respondent had not paid rent for three months, and, since it was a monthly tenancy, the rent was payable from month to month, so the rent for each month became due in subsequent month and non-payment of rent at the proper time was sufficient to attract the provisions of S. 11(1)(a) of the Act. This argument had been rejected by the High Court, but the view taken by the Supreme Court was that the High Court had not placed the proper construction on the expression “non-payment of rent” which occurs in S. 11 of the Act. In our opinion, therefore, the Deputy Commissioner and the Commissioner in this case did not commit any error of law in construing Section 11(a) of the Bihar Act 3 of 1947.

13. Mr. B.C Ghosh also put forward the argument that the Bihar Ordinance 5 of 1952 and Bihar Act 5 of 1953 were constitutionally invalid. This argument was examined by a Bench of this Court in — ‘Kedar Nath v. Nagindra Narayan’, AIR 1954 Pat 97 (E). The argument was rejected, and the view taken by the High Court was that at the time when the Bihar Act 5 of 1953 (the Amending Act) and the Bihar Ordinance 5 of 1952 were promulgated the Bihar Act 3 of 1947 was not dead but alive and the term of the statute had been validly extended. As the decision of the Bench is binding upon us, we cannot entertain the argument of learned Counsel on the same point.

14. For the reasons we have expressed, we hold that there is no case made out for interference with the order of the Deputy Commissioner of Singhbhum or the Commissioner of Chotanagpur Division under Article 226 or 227 of the Constitution. This application must, therefore, be rejected with costs. Hearing fee Rs. 50/-. Mr. B.C Ghosh submitted that a time may be fixed before which the petitioner should vacate the premises in question. We grant the petitioner three months time from today to give vacant possession of the premises to the landlord.

D.R.R

15. Application rejected.