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Francis Paul v. Fakir Ummerkutty And Another Counter Petitioners.
Factual and Procedural Background
The petitioner was the tenant of a non-residential building (No. C 57, Ward VII, Kottayam Municipality). He sought a writ of certiorari to quash an eviction order passed by the District Collector, Kottayam, dated 27-11-1950 (R.C.A. 22/50). The petition named two respondents: the landlord (first respondent) and the District Collector (second respondent).
Relevant lease and payment facts: the petitioner initially took the building on lease for six months ending 24-8-1124 at Rs. 30 per month. The parties agreed to increase rent to Rs. 125 per month and, after holding over, the petitioner executed a rent deed on 10-10-1124 for twelve months ending 24-8-1125. The rent for the last month (ending 24-8-1125) was paid in advance and a receipt was given by the landlord; it was stipulated that the remaining 11 months' rent would be paid on the 24th of each month. Payments for the first three months after the rent deed were regular.
On 10-4-1125 the petitioner applied to the Rent Controller under the Travancore Building Rent Control Order, 1122 to have the fair rent fixed and requested either a refund of excess rent collected by the landlord or permission to adjust the excess against rent due from 24-3-1125. On 25-6-1125 the landlord applied for eviction on ground of default in payment of rent, stating (inter alia) that Rs. 250 had been paid by the tenant towards arrears and that, even allowing for the advance payment, the tenant would have been in arrears from 24-3-1125.
On 7-8-1950 the Rent Controller dealt with both applications: he fixed the fair rent (Rs. 24-12-0) in favour of the tenant and also allowed the landlord's petition for eviction on the ground of tenant's default. The Travancore-Cochin Buildings Lease and Rent Control Order, 1950 (which later prohibited eviction during the contractual tenancy period) came into force on 17-8-1950 and did not apply to the Rent Controller's decisions under the earlier Order. Both parties appealed to the District Collector, who on 27-11-1950 dismissed both appeals. The petitioner applied for revision to the Government of Travancore-Cochin; the Government, by order dated 31-3-1951, confirmed the Collector's order (this Government order is on the record but the Government are not respondents in the present petition). The petitioner obtained an interim stay from this Court on 23-4-1951 and thereafter presented the present petition for certiorari.
Legal Issues Presented
- Whether the Rent Controller and the Collector erred in failing to advert to and apply Section 5(c) of the Travancore Building Rent Control Order (the petitioner's contention that he had exercised his option to have excess rent refunded or adjusted and that this prevented him from being a defaulter).
- Whether the excess rent, once the Controller fixes a fair rent, can be adjusted against rent due prior to the Controller's order (in particular, the rent due on 24-3-1125).
- Whether this Court can entertain a writ of certiorari to quash the eviction order when the Rent Controller and the Collector acted within the jurisdiction conferred by the statute (i.e., limits on interference by writ where the statutory tribunal has jurisdiction to decide the facts).
Arguments of the Parties
Appellant's (Petitioner's) Arguments
- The Rent Controller and the Collector omitted to advert to and apply Section 5(c) of the Rent Control Order which gave the tenant a right to refund or, at his option, adjustment of any sum paid in excess of the fair rent.
- The petitioner asserted he had exercised his option to have the excess adjusted against rent from 24-3-1125 and that this adjustment meant he was not in default for the rent due on 24-3-1125; accordingly eviction could not be sustained.
- It was also stressed that the Rent Controller passed orders on both petitions on the same day and that amply available funds (by way of the excess later determined) could be adjusted to avoid any default.
Respondents' Arguments
- The Rent Control Order creates a complete statutory machinery to decide the matters specified; where authorities functioning under that Order decide matters within their jurisdiction, this Court should not interfere (i.e., writ of certiorari is not available to correct mere errors of decision within jurisdiction).
- Even if the Controller or Collector's decision appears erroneous, where the statute entrusts them with the jurisdiction to determine facts such as non-payment of rent, their decision on those facts is final and not open to quasi-judicial review by this Court by certiorari.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Navaneethammal, In re (1950-2 Mad LJ 579) | Cited as authority for the view that the right to refund/adjustment arises when fair rent is fixed and cannot be used to avoid earlier defaults. | Placed alongside other decisions to support the interpretation of Section 5 that refund/adjustment arises on and after fixation of fair rent. |
| Rama Subbiah v. C.J. Cole (1951-2 Mad LJ 663) | Same principle as above — cases taking the view that refund/adjustment follows fixation of fair rent. | Relied on as part of an array of decisions endorsing the court's reading of Section 5. |
| Krishnaswami Mudaliar v. Rahman Baig (1952-1 Mad LJ 61) | Same principle as above. | Used to show consistency of authority for the statutory interpretation adopted. |
| Pandurang Rao v. Gopala Rao (1952-1 Mad LJ 289) | Same principle as above. | Included among cases that have taken the view relied on by the Court. |
| Dharendra Krishna v. Banwarilal (83 Cal LJ 229) | Same principle as above. | Referred to in support of the statutory construction of Section 5. |
| Baijnath Sao v. Ram Prasad (AIR 1951 Pat 529) | Same principle as above. | Counted among authorities that favor the Court's interpretation. |
| Augustine v. Uthuppu (1951-6 DLR (Trav-C) 76) | Same principle as above. | Also cited in support of the view about timing of the right to refund/adjustment. |
| Province of Bombay v. Khushaldas S. Advani (AIR 1950 SC 222) | Sets out conditions for issuing writ of certiorari: (1) decision must be judicial or quasi-judicial; and (2) the challenge must be for excess or want of jurisdiction. | The Court relied on this Supreme Court exposition to emphasise the limited scope of certiorari and to frame the test whether interference was appropriate. |
| Rex v. Electricity Commissioners ((1924) 1 KB 171) | Explains that bodies with legal authority to determine rights and duty to act judicially are subject to certiorari when they act in excess of their legal authority. | Quoted via English authority to illuminate the general principles governing certiorari and judicial control of quasi-judicial bodies. |
| Rex v. London County Council ((1931) 2 KB 215) | Sets out four conditions for issuance of certiorari (body of persons; legal authority to determine rights; duty to act judicially; acting in excess of authority). | Used to articulate the established tests for certiorari that the Court applied in assessing whether to quash the eviction order. |
| The Queen v. Commissioners for Special Purposes of the Income-tax (1888-21 QBD 313) | Explains the distinction between (a) tribunals given jurisdiction only if a preliminary fact exists (where error as to fact can be jurisdictional) and (b) tribunals entrusted with the power to decide the preliminary facts themselves (where their factual determinations are final). | Applied to reason that where the statute gives the Controller jurisdiction to determine non-payment, his factual finding is within jurisdiction and not open to certiorari. |
| The Colonial Bank of Australasia v. Willan (1874 LR 5 PC 417) | Illustrates the principle that adjudications by a judge or tribunal having jurisdiction are to be taken as conclusive of the facts stated unless a defect appears on the face of the record. | Reinforced the Court's conclusion that the Controller's adjudication on non-payment could not be set aside by certiorari where statute entrusted that fact-finding to him. |
| Brij Raj Krishna v. S.K. Shaw & Bros (1951 SCJ 238) | Holds that where the Act sets up a complete machinery and entrusts the Controller to decide non-payment, his decision is final and cannot be questioned in a Civil Court. | The Court relied on this Supreme Court decision as directly analogous and determinative of the scope of review: the Controller's decision on non-payment could not be questioned by certiorari. |
| Dr. John Mathai v. Fakrudin (1951 Ker. L.T 714) | Kerala precedent consistent with the view that certiorari will not lie where the statutory authority acts within jurisdiction and the complaint is mere error. | Adopted as supporting authority for the Court's conclusion on the limits of certiorari. |
| Chinnakannu Pillai v. Gomathi Animal (1951 Ker. L.T 638) | Same local principle regarding the non-availability of certiorari to correct errors of fact where jurisdiction has been properly exercised by the statutory authority. | Relied upon in confirming the Court's stance that certiorari is inappropriate where the authority acted within the jurisdiction conferred by statute. |
Court's Reasoning and Analysis
The Court proceeded in two principal strands of analysis: (1) statutory construction of Section 5 of the Travancore Building Rent Control Order, 1122 and its effect on the timing and scope of any right to refund or adjustment; and (2) the scope of judicial review by certiorari of factual determinations made by the Rent Controller and the Collector under the statutory machinery.
On Section 5 the Court reproduced and examined the provision (sub-clauses (a), (b) and (c)). The Court interpreted the opening word "When" in Section 5 to mean that the right to refund or adjustment arises on and as a consequence of the Controller's order determining the fair rent. The Court held that:
- The right to refund/adjustment accrues only on and after the date of the Controller's order fixing the fair rent (i.e., it is not retrospective to create a right to adjust payments so as to wipe out earlier defaults).
- Therefore any excess so determined can be applied only to rent that becomes payable after the date of the order; it cannot be unilaterally appropriated by the tenant against rent already payable and in default prior to that order.
- Consequently, during the pendency of proceedings to fix fair rent, the tenant is obliged to continue to pay or tender the contractual rent to avoid becoming a defaulter and incurring liability to eviction.
On the facts, the records (which the petitioner himself had produced) showed that the Rs. 125 paid on the date of the rent deed was earmarked and accepted by the landlord specifically as rent for the month ending 24-8-1125. The Court held that such an amount, having been appropriated and accepted as rent for a specific later month, could not be unilaterally adjusted by the tenant to meet an earlier obligation (24-3-1125). The petitioner's contention that he had exercised an option to have the excess set off did not, in any event, extend to the earlier rent due on 24-3-1125 because the petitioner's proposed adjustment related only to rent payable on 24-4-1125 and thereafter.
Regarding judicial review, the Court canvassed established authorities (including the Supreme Court decision in Province of Bombay v. Khushaldas S. Advani and Brij Raj Krishna v. S.K. Shaw & Bros) and principles from English authority. The Court accepted the following propositions:
- Where a statute entrusts a tribunal (here the Rent Controller) with the power to determine particular preliminary facts (such as non-payment of rent) and gives it a statutory machinery to do so, the tribunal's factual determination is part of its jurisdiction and is, in general, final.
- A writ of certiorari lies to correct excess or want of jurisdiction, or violation of principles of natural justice, but it does not lie simply to correct an erroneous exercise of jurisdiction where the authority has in fact acted within the jurisdiction conferred by statute.
- Accordingly, since the Act entrusted the Controller to decide whether there was non-payment and to order eviction under the statute, his decision on that question could not be questioned before a Civil Court by certiorari merely on the ground of error.
The Court also addressed procedural posture: the petitioner had produced records for examination; the Court held it was competent to regard undisputed facts appearing on those records even if the Controller or Collector had not explicitly referred to them in their orders. The records revealed the allocution of the Rs. 125 to a specific later month and the absence of any valid adjustment applicable to 24-3-1125; thus the petitioner remained a defaulter and the eviction order was sustainable.
Holding and Implications
Holding: The petition is dismissed. The Court held that the petitioner was a defaulter in respect of the rent due on 24-3-1125 and that the orders for eviction passed by the Rent Controller and confirmed by the Collector were unassailable in the circumstances. The petitioner was ordered to pay costs, including advocate's fee fixed at Rs. 100/- for each of the two respondents.
Implications:
- The direct effect is that the eviction order of the Controller and the confirmation by the Collector remain operative and are not quashed by this Court.
- The Court reaffirmed that, under Section 5 of the Rent Control Order, the right to refund or adjustment in respect of excess rent arises on and after the date of the Controller's determination of fair rent and therefore, ordinarily, can only be applied against rent payable subsequent to that determination.
- The opinion reiterates the settled principle that certiorari is not available to correct mere errors of fact or law where the statutory tribunal has acted within the jurisdiction conferred upon it by the statute; certiorari is available only where there is excess or want of jurisdiction or other recognized grounds (e.g., violation of natural justice).
Disposition recorded in the opinion: "Petition dismissed" with costs and advocate's fees as specified in the text.
1. The petitioner is the tenant of the non-residential building No. C 57 in Ward VII of the Kottayam Municipality. He asks the Court:— “(a) to issue a writ of certiorari quashing the order for eviction passed by the District Collector, dated 27-11-1950 in R.C.A 22/50 and (b) to give such further and other directions as the circumstances of the case require.” There are only two respondents to this petition of whom the first is the landlord and the second the District Collector, Kottayam.
2. The petitioner took the building on lease for a period of six months ending 24-8-1124 on a rent of Rs. 30/- per month. Having agreed to enhance the rent to Rs. 125/- per month he held over and on 10-10-1124 executed a rent deed for a period of 12 months from the date of expiry of the previous lease till 24-8-1125. The rent of the last month ending 24-8-25 was then paid in advance on a receipt passed by the landlord and it was stipulated that the rent for each of the remaining 11 months would be paid on the 24th of every month commencing from that month. Payments for the first three months were regular. On 10-4-1125 the petitioner applied before the Rent Controller for fixing fair rent under the provisions of the Travancore Building Rent Control Order, 1122 & requested that the excess rent collected from him may be directed to be refunded by the landlord or that he may be permitted to adjust it towards the rent due from 24-3-1125. On 25-6-1125 the landlord in his turn applied for eviction on the ground that the tenant had defaulted payment of rent. He mentioned in his application the fact that Rs. 250/- had been paid by the tenant towards arrears of rent in Vrischigom 1125 and that even if the advance payment made on the date of the rent deed be adjusted, the tenant would be in arrears from 24-3-1125 with the result that on 10-4-1125 when the tenant applied for fixing the fair rent, he would have been a defaulter as regards the rent payable on 24-3-1125 which would have remained unpaid for more than 15 days after the due date. On 7-8-1950 the Rent Controller passed orders on both the petitions. He allowed the petition of the tenant and fixed Rs. 24-12-0 as the fair rent. He also allowed the petition of the landlord for eviction on the ground that the tenant was a defaulter. The prohibition against eviction during the contractual period of tenancy contained in the Travancore-Cochin Buildings Lease and Rent Control Order, 1950 which came into force on 17-8-1950 did not exist in the Travancore Building Rent Control Order, 1122 under which the applications were made and orders passed. Both the parties felt aggrieved by these orders and they filed appeals before the District Collector, Kottayam who, on 27-11-1950, dismissed both the appeals. The petitioner applied to the Government of Travancore-Cochin for revising the order of the Collector confirming that of the Rent Controller allowing the landlord's prayer for eviction. The Government by order dated 31-3-1951 confirmed the order sought to be revised. On presentation of this petition in this court, the petitioner obtained an order of interim stay on 23-4-51.
3. The Government who passed the last and final order for eviction are not on record here nor is their order sought to be quashed by this court.
4. The only point raised by learned Counsel for the petitioner is that the Rent Controller as also the Collector omitted to advert to the fact that the petitioner had exercised his option regarding the adjustment of the excess rent collected by the landlord in having prayed for permission for its being set off against the future rent payable from 24-3-1125, that is to say, had omitted to advert to and apply the provisions of S. 5(c) of the Rent Control Order.
5. A copy of the order of the Government dated 31-3-1951 was produced by the petitioner in this Court along with his petition. All the records of the proceedings sought to be quashed have been brought up. The Government did not find their way to interfering with the concurrent finding of fact recorded by the Rent Controller and the Collector to the effect that the petitioner was in default which entailed eviction. In that view the question of adjustment of the excess rent collected did not fall to be decided by them.
6. Neither the Rent Controller nor the Collector adverted to the prayer of the petitioner for adjustment of the excess rent collected by the landlord against future rent. Both of them alike found that the petitioner did not pay or tender the rent as he was bound to do and that the landlord became entitled to an order for eviction. The details of facts on which the said finding was based are however not mentioned in the orders. It would have been satisfactory had they referred to the prayer for adjustment and stated the facts in full. The omission however does not lead to any material result as the facts appear on the face of the records which have been brought up at the request of the petitioner. Those records reveal that it was by taking into account the amount of Rs. 125/- paid by the tenant on the date of the rent deed that he thought he had made good the rent due till 24-3-1125. The circumstance that the said amount had been earmarked as the rent of a specific month ending 24-8-1125, was not either remembered or regarded as disentitling the tenant from claiming its adjustment towards the rent of an earlier month. If the amount that was appropriated and paid as for a specific month and accepted as for that month by the landlord would not admit of a unilateral adjustment for an earlier month at the instance of the tenant, as I think it would not then the petitioner is not right in saying that the rent due on 24-3-1125 had been paid. This leads to the further consequence that the petition for fixing the fair rent, mention wherein as to the adjustment of the excess amount collected by the landlord towards future rent from 24-3-1125 is relied upon as the exercise of his choice and as tending not to make him a defaulter thereafter, would not avail him because no adjustment is even proposed as regards the rent that was due to be paid on 24-3-1125, the proposal being confined to the period subsequent thereto and operating on the rent payable only on 24-4-1125 and thereafter. A scrutiny of the papers brought up having led to this disclosure, learned counsel for the petitioner Page: 72was forced to contend that it is beyond the competence of this Court to find a fact not found by the Controller or the Collector.
7. The records of the proceedings were brought up for examination at the instance of the petitioner himself with a view to have the proceedings quashed. If on examination the records reveal facts which are beyond controversy, though they have not been specifically dealt with by the authorities concerned, it is well within the competence of this court to have regard to those facts and their hearing on the sustainability of the orders sought to be quashed. The petitioner having invited the Court's attention to certain papers in the hope that they would support his cause cannot, when they are seen to be against him, object to the Court's use thereof according to their real tenor. The result is that the petitioner was and continues to be a defaulter in respect of the rent due to be paid on 24-3-1125. This circumstance carries with it the inevitable consequence of his liability to be evicted from the premises. The order for eviction passed by the Controller and the Collector is thus unassailable.
8. The point that was stressed by learned counsel for the petitioner was that the Rent Controller having passed his orders on the application of the tenant for fixing fair rent as also of the landlord for eviction on the same day, the order for eviction whose only basis was the default of the tenant in payment of rent cannot be supported as there was ample fund with the landlord by way of the excess collected by him in view of the fixation of fair rent at a very much lower rate than that collected, available for adjustment which, if done, there will be no default in payment of rent. Though the orders are passed on the same day and may be taken to have been pronounced at, about, or even at the same time, there is no simultaneity in their operation. Default in payment or tender of rent which is the cause of action for ordering eviction arose as on the date or dates when the payment or tender should have been made which preceded the application of the landlord. The order for eviction merely declares that cause of action arose on the particular date or dates and enables the landlord to have the benefit thereof. No substantive right accrues to the landlord on the date or on account of the order for eviction which only operates to enforce an already existing right. On the other hand, in the case of the excess amount on the right to the adjustment of which the tenant depends it arises on account of and after the order fixing the fair rent. Section 5 reads as follows:
“5. When the Controller has determined the fair rent of a building—
(a) The landlord shall not claim or receive any premium or other like sum in addition to fair rent or any rent in excess of such fair rent, amount not exceeding one month's rent,
(b) Any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent except in cases falling under clause (4) or sub-clause (a) of this clause shall be null and void in respect of such addition or excess and shall be construed as if it were an agreement for payment of the fair rent
(c) Any sum paid in excess of the fair rent, whether before or after commencement of this order, in respect of the use of the, building after the commencement of this order, shall be refunded to the person by whom it was paid or at the option of such person, otherwise adjusted.”
9. The first word “when” indicates that the right to refund or adjustment arises on and on account of the order of the Controller determining the fair rent. The excess to whose refund or adjustment the tenant becomes thus entitled can therefore be utilised only in respect of rent, if any, that may become payable subsequent to the date of the order. Until the date when fair rent is fixed at lower than the contractual rate, the tenant has to continue to pay or tender the rent even during the pendency of the proceedings for fixing the fair rent in order that he may not become a defaulter and incur liability for eviction as such. The matter appears to be clear upon the language of the Section. Reference may however be made to the following cases which have taken this view. (1) Navaneethammal, In re, 1950-2 Mad LJ 579 (2), Rama Subbiah v. C.J Cole, 1951-2 Mad LJ 663 (3), Krishnaswami Mudaliar v. Rahman Baig. 1952-1 Mad LJ 61(4), Pandurang Rao v. Gopala Rao, 1952-1 Mad LJ 289(5), Dharendra Krishna v. Banwarilal, 83 Cal LJ 229 (6), Baijnath Sao v. Ram Prasad, AIR 1951 Pat 529 and (7), Augustine v. Uthuppu. 1951-6 DLR (Trav-C) 76.
10. Indeed learned counsel for the petitioner his-not been able to refer to any decision which has taken a contrary view.
11. Learned counsel for the respondents contended that the Rent Control Order creates a self-sufficient and complete machinery for the decision and disposal of matters specified therein and if the authorities functioning thereunder decide matters within their jurisdiction, it is beyond the competence of this court to interfere with such exercise even though their decision may appear to be erroneous. Their Lordships of the Supreme Court of India dealt with, the question of the scope of interference of the Court in an application for a writ of certiorari in — ‘Province of Bombay v. Khushaldas S. Advani’, AIR 1950 SC 222. Kania C.J stated at page 227:
“It is clear that such writ, can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial or quasi-judicial, and, secondly, the challenge must be in respect of the excess or want of jurisdiction of the deciding authority. Unless both those conditions are fulfilled, no application for a writ of certiorari can succeed.”
12. Fazl Ali J. said:
“It is well settled that a writ of certiorari can be issued only against inferior Courts or persons or authorities who are required by law to act judicially or quasi-judicially in those cases where they act in excess of their legal authority.” (pages 227 & 228).
13. He stated further at p. 231:
“As I have already stated, a petition for a-writ of certiorari can succeed only if two conditions are fulfilled: firstly, the order to be-quashed is passed by an inferior Court or a person or authority exercising a judicial or quasi-judicial function, and secondly, such court or quasi-judicial body has acted in excess of its legal authority.”
14. Mahajan J. stated thus:
“It is well settled that a writ of certiorari lies if the order complained of is either a judicial Page: 73or a quasi-judicial order but it is not competent if the order is an administrative or an executive order. The circumstances under which a writ of certiorari can be issued are succinctly stated by Atkin L.J in — ‘Rex v. Electricity Commissioners’, (1924) 1 KB 171 at p. 205: 93 LJ KB 390 in these terms: ‘Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.’
15. It is said in—‘Rex v. London County Council’. (1931) 2 KB 215 at p. 243: 100 LJ KB 760 that four conditions have to be fulfilled before a writ of certiorari can issue. (1) there must be a body of parsons. (2) it must have legal authority to determine questions affecting the rights of subjects, (3) it has the duty laid upon it to act judicially, and (4) it acts in excess of its legal authority.” (p. 231). Mukherjea J. stated as follows:
“In the words of Bankes L.J the course of development of law on the subject demonstrates what has been the best of English Common law that it will, whenever possible and where necessary apply existing principles to new set of circumstances: Vide — ‘Rex v. Electricity Commissioners’, (1924) 1 K.B 171 at p. 192: 93 L.J K.B 390 and it was in very general terms that opinion was expressed in — ‘Rex v. Innabitants of Glamorganshire’, (1694-1732) 1 Ld. Raym 580, that the Court would examine the proceedings of all jurisdictions created by Acts of Parliament and if under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants, the Court would send a certiorari to them to have their proceedings returned to the Court to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it, to restrain them.
16. The whole law on the subject relating to issuing of writs of certiorari was thus summed up by Atkin L.J in — ‘Rex v. Electricity Commissioners’, (1924) 1 K.B 171 at p. 205: 93 L.J K.B 390.
‘Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in, these writs.’” (Pages 238 & 239.)
17. Das J. stated as follows:
“The writ of certiorari is a very well known ancient high prerogative writ that used to be issued by the Court of King's Bench to correct the errors of the inferior Courts strictly so called. It is with this writ that the Judges of the King's Bench used to exercise control over Courts of inferior jurisdiction where the latter acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Gradually the scope of these writs was enlarged so as to exercise control over various bodies which were not strictly speaking, Courts at all but which were by statute vested with powers and duties that resembled those of the ordinary inferior Courts. These statutory bodies were called quasi-judicial bodies and their decisions were called quasi-judicial acts and the Courts of King's Bench freely began to bring up the records of these quasi-judicial bodies, examine them and, if thought fit, quash them. The real reason for this extension of the scope of the writ of certiorari was the distrust with which the Judges looked upon the numerous statutory bodies that were being brought into existence and vested with large powers of affecting the rights of the subject and this extension was founded on the plausible plea that these statutory bodies exercised quasi-judicial functions. The law is now well settled that a writ of certiorari will lie to control a statutory body if it purports to act without jurisdiction or in excess of it or in violation of the principles of natural justice, provided that, on a true construction of the statute creating the body, it can be said to be a quasi-judicial body entrusted with quasi-judicial functions. It is equally well settled that a certiorari will not lie to correct the errors of a statutory body which is entrusted with purely administrative functions. It is, therefore necessary, in order to determine the correctness of the order appealed from to ascertain the true nature of the functions entrusted to and exercised by, the Provincial Government under the ordinance in question.” (Page 250.)
18. Their Lordships had occasion to consider the same question in a later case which arose under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 3 of 1947 the relevant provisions of which are similar to those of the statute under consideration, in — “Brij Raj Krishna v. S.K Shaw & Bros..’. 1951 SCJ 238 wherein the following is the concluding, portion of their Lordships' judgment:
“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 Commissioner. The Act empowers the Controller alone to decide-whether or not there is non-payment of rent, and his decision on that question is essential before an order can be passed by him under S. 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 v. Commrs. for Special Purposes of the Income-tax’, (1888-21 QBD 313) in these words:
“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, Page: 74which 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 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 their jurisdiction.”
“On the same lines are the following observations of Sir James Colville in — ‘The Colonial Bank of Australasia v. Willan’, (1874 LR 5 PC 417), which is a case dealing with the principles on which a writ of certiorari may be issued.
‘Accordingly, the authorities establish that on adjudication 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 fact 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 non-payment of rent, to order eviction 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.”
19. This Court has taken the same view in — ‘Dr. John Mathai v. Fakrudin’, (1951 Ker. L.T 714). I therefore accept the contention urged on behalf of the respondents and hold, as I did in — ‘Chinnakannu Pillai v. Gomathi Animal’, 1951 Ker. L.T 638 that certiorari will not lie when the authority entrusted with the decision of a question acts within jurisdiction and the only criticism is that this decision is erroneous.
20. The result is that the petition should be dismissed with costs for the respondents with advocate's fee which is fixed at Rs. 100/- for each of the two respondents who appeared by separate counsel.
A./M.K.S
21. Petition dismissed.
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