Judgement
Order. - Nathu Ram, the petnr. on 1-8-1918 made an appln. for the ejectment of Ram Partap, his tenant. The matter was refd. to the Rent Controller as an arbitrator who gave an award on 4-4-1949. He allowed the ejectment and also put a condition that if and when the property was reconstructed the shop which had been taken from the tenant would be offered to him, but should the landlord want the shop for his own purpose the tenant would be entitled to get the shops B and C. An order was passed in terms of this award on the same day. The shop was re-erected but the landlord elected to take the shop himself, and it appears that he did not offer to the tenant, Ram Partap, the shops B and C which were reconstructed. The tenant Ram Partap, then made an appln. to the Rent Controller u/s. 13, East Punjab Urban Rent Restriction Act. The Controller ordered the landlord to give possession of the shops B and C to the tenant, Ram Partap, and also fixed the standard rent at Rs. 6 per mensem. Against this order an appeal was taken to the learned Dist. J. who affirmed the order. A revn. has been brought against this order to this Ct. and the rule was issued by my Lord, the Chief Justice, on 29-9-1950.
2. A preliminary objection has been raised that no revn. lies against this order, because the Dist. J. when he is sitting in appeal against the order of a Controller, is not a Ct. and reliance is placed on a F. B. judgment of this Ct. To that extent the objection is sustainable; but after the Constitution has come into force, this Ct. has been given the power of superintendence and interference under Art. 227 of the Constitution, although the power will be exercised sparingly. This is one of those cases in which the power should be exercised because the Rent Controller and the Dist. J. have acted without any jurisdiction.
3. Under S. 13 (3) (a) (iii), Punjab Urban Bent Restriction Act, it is provided that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession in the case of any building if he requires it for the re-erection of that building or for its replacement by another building, or for the erection of other buildings. Under sub-s. (4) of that section a landlord who has obtained possession of a building in pursuance of an order under sub-para (iii) of Para (a) puts that building to any use or lets it out to any tenant other than the tenant evicted from it, the tenant who has been evicted may apply to the Controller for an order directing the restoration of possession to him and the Controller shall make that order accordingly. In the present case no doubt the landlord got this building vacated on the ground that he wanted to rebuild it. He has rebuilt it. Under the circumstances it cannot be said that an appln. can be made to the controller to put back in possession the tenant.
4. Counsel for the resp. submits that what Ram Pratap, the tenant, has done is that he has asked for execution of the decree which had been passed at the time which was that the landlord shall get possession of the building on the condition that after rebuilding he will allow to the tenant the choice of taking at least shops B and C. In the first place, this is not an appln. for execution. It is merely an appln. made u/s. 3 for restoration of possession, and secondly after a building has been rebuilt it is not open, under the law, to the Controller to put the tenant back in possession. His power of restoring possession arises only when the building has not been rebuilt. Such an order, as was passed in this case, may be enforceable by other proceedings or may not be, put this is not the proceeding which the tenant could take, nor did the Controller have any jurisdiction to entertain this appln. In my opinion, the orders of the Controller and the Dist. J. are coram non judice and must therefore be set aside.
5. I therefore allow this petn. and make the rule absolute but in the circumstances of this case the parties will bear their own costs throughout.
Petition allowed.