Siddiqi, J.:— The petitioner Munnalal is a banker carrying on business as such, in a shop on Station Road Hyderabad Deccan. He had leased the premises which consist of two shop rooms (Malgees) and a Motor Garage from one Doctor Ameer Hassan since deceased, at a monthly rent of Rs. 70 per month. These two shop rooms were sold subsequently by the deceased Doctor's heirs to the Anjuman-e-Ialamia, Hyderabad, Deccan. The petitioner executed a fresh lease in favour of the Secretary, an juman-e-Islamia on 13th Amardad 1349 Fasli. Of course, the Motor garape is not included in this lease and there is no dispute in regard to that portion of the premises. It appears that the Secretary Anjuman-e-Ialamia on behalf of the Anjuman endowed these shops for public religious trust and had this property registered accordingly in the Ecclesiastical Department of Hyderabad, a department which looks after certain religious public trusts in this country. On the representation made by the Secretary of the Anjuman, the department called upon the petitioner to pay up the arrears of rent and to execute a fresh lease in accordance with the terms agreed to between the parties. The only important term of the agreement was as to the amount of the rent to be calculated at a higher rate from a certain date, the other terms of the lease continued as formerly. The respondent, Director (Nazim) Ecclesiastical Department, as it is alleged for failure to execute a fresh lease, and to pay the rent at proper periods contracted, and for non-settlement of arrears of rent, and on allegations of subletting, directed an officer of his a department to eject the petitioner from these premises. Thereupon two notices were issued on the petitioner on the same date which were served on him by being posted on some part of the premises; the first one on 18th Bahman 1359 Pasli and another a day later. The first notice was for a month and one served subsequently for a week. The petitioner contends that both the notices equally referred to the whole of the premises that is the two shops. The respondent contends that these notices are issued in respect of these two shops separately, and each deals with one shop only. It appears that on the termination of the week's notice, the office Bent out some subordinate officer to eject the petitioner. There upon a Bhort period of few days was obtained by the petitioner from the Director of the department for vacating the premises. About the time when the period was about to expire the petitioner moved the High Court through his petition under disposal (lodged in the office on 11th January 1950) praying that an injunction may be issued against the Director restraining him from carrying out his order of ejectment. There was another application for a similar interim order to be made pending the disposal of the application. This came up for first hearing before this Divisional Bench the following day that is on 12th January 1950 at about 3 P.M On account of the affidavit filed by the petitioner and the reasons stated therein an ex parte order was made calling upon the respondent to show cause on both these applications and an interim order was made restraining him from carrying out his order of ejectment. This order was made at about 3.30 p.m that day. It appears from the statements made by the lawyers and the affidavit of the parties that the order was communicated at not earlier than the end of that day and was delivered at the office just at the closing time. There is a third application by the petitioner complaining that the orders of the High Court have not been carried out and in reply (supported by affidavit) it is claimed by the respondent that the ejectment of the petitioner to the extent of one front shop was carried out at about 1 P.M, that day and the whole proceedings to that extent including the punchnama was completed by 2-80 P.M Respondent on the other hand complains that the petitioner should have informed the High Court when his petition was taken up for hearing at about 3 P.M that ejectment has been accomplished at the time the petition was under disposal. It appears that there was some resistance in the ejectment proceedings. Punchnama was made and some of the articles in the front shop belonging to the petitioner were taken away and deposited in the Ecclesiastical Department for safe custody. Nor this particular incident that the articles were so deposited is availed of by the petitioner and he, therefore, argaes that in fact no ejectment has been accomplished. It is argued that so long as his things are there with the respondent the possession could not be said to have been completed, and dispossession is, therefore, in the stage of being carried out to completion.
2. Respondent appeared at the High Court on the next hearing through his lawyer Mr. Gopal Rao Ekbute (who has produced office files) and has put in his replies to the different applications accompanied by affidavits. The petitioner is represented by Raja Bahadur Basheaheear Nath and Shri Bishanber Dayal, Advocates. The parties by consent have argued the case without tendering any evidence so that to the extent of their proceedings we have to decide the facts on the present record which consists of the allegation, affidavits, inspection report and the files of the Ecclesiastical Department.
3. After going through the record tendered very carefully, we conclude that the petitioners have not been prompt and punctual in payment of the monthly rent to the landlord and that wo are not satisfied that he really made any serious effort to execute the fresh lease deed agreed to with the respondent. On the present record, we are unable to decide whether there is actually any arrears of rent due and whether the allegation of sub-letting is true however both these facts are not important enough in view of our reasons for this ???. We bad that the ejectment was actually carried out to the extent of only one shop before the orders of the High Court were communicated and even before these were passed but certainly after the High Court was moved by the petitioner through ins application under disposal. There is nothing on the record to show and no allegation is made that the department was informed of the proceedings at the High Court until after the orders were issued on 12th at 3.30 P.M The lawyers representing the parties have mostly confined their case to the arguments of law advanced as to the nature of the writs that may or may not issue, but as to the jurisdiction to issue prerogative writs on proper occasions no objection is raised. We, may, however, casually mention that the authority in the High Court to issue such writs is well established in the rules mentioned in the column: (i) 33 Deccan L.R 413 (2) 1351 Nazir Osmania p. 257. (3) Kuppal Nonayan Misti v. Government, 1356 Nazir Osmania vol. 9, p. 1. (4) Nazair Osmania 1351 p. 392. (5) Mitho Bai v. Sarkar Ali (6) A. Rahim v. Sarkar Ali, No. 130 of 1354 Fasli. It is contended by the applicant in the first place that the Director's order of ejectment is not based on any appropriate material and the allegations in that respect as to the cause of ejectment were unfounded and untrue. In the respect we are fully satisfied that the petitioner was actually beard and decisions were given either in his presence or after due notice to him, on each occasion, and it is so evident from the files that it is unnecessary to go into details. It appears from the files of the Department that every possible opportunity was given to the tenant to present his case before the Department, with regard to arrears, sub-letting, non-execution of lease etc. The proceedings commence on the motion of the Secretary. Anjuman Islamia, on 17-3-57 Fisli and continued upto the final order of ejectment, notices were given for arrears, amounts collected under process and attachment, the petitioners lawyer was heard and orders passed alter due notice to him. When the Nazir went for ejectment 4 days time was taken by the petitioner. This incident is relied upon by the respondents' Advocate as an act of submission. In fact both the questions of subletting and arrears of rent and of execution of the lease has been subject of a protracted inquiry and proceedings before the respondent or his subordinate officer. These proceedings were instituted in the department on the complaint of Secretary, Anjuman-e-Islamia. We are, therefore, not in a position to hold that there was want of natuiaf justice or any undue partiality in favour of a new tenant as alleged by the petitioner. No particular allegation has been made in that respect except that it was so suggested generally by the appellants' lawyers. In the matters entrusted to the Director of that Department under the law, we are not prepared to sit as a Court of Appeal or Revision in matters within his authority acted upon bona fide.
4. However, the second contention of the petitioner has some weight that the Department cannot actually carry out the ejectment directly i.e through his own officers or Nazer and even if practice prevalent there and the rules of the department support the existence of such authority to so eject, then the rules to that extent are ultra vires of the Local Wakhf Act. Local Act is named Dastur-ul-amal Wakhf. This was sanctioned by H.E.H the Nizam on 16th Aban 1358 Fasli. The preamble to this Dastur-ul-amal points out that it is considered necessary to lay down certain principles so that the duties (protection and management of Religious Publia Trusts) may be carried out with convenience and in a better manner, so as to accomplish the purpose of the donor to benefit the humanity and therefore these rules are framed. The 1st heading deals wish the Register to be kept, and the 2nd relates to the management of the public Religious Endowments the 3rd heading having possession in public religious endowment consists of only one section, S. 14, and under the last beading S. 16 provides and confers authority on the Government to frame rules in respect of items enumerated therein. The authority of this Act is not disputed; however, wre have to deal with the contentions relating to the interpretations of certain section of this Dastur-ul-amal. Section 14 of this Dastur-ul-amal enacts that when any person is found in possession of any wakbf property (entered in the Wakhf Register) who is not recognised by the Ecclesiastical Department, (in the city of Hyderabad). The first Nazim of the City Civil Court will have the possess on delivered to the Ecclesiastical Department as in execution of a decree and the provisions relating to the execution of a decree shall apply to these proceedings and the order of that Court passed in this connection are made expressly subject to the re visional jurisdiction of the High Court.
5. There are some other provisions in this section with which we are not concerned. Under s. 16 of the said Dastur-ul-amal or regulation Ecclesiastical Department will frame certain rules by sanction of the Prime Minister in respect of certain matters enumerated in that section. Apart from the general principles in that respect, that the rules framed under an Act must be within the four corners of the authority conferred by the act, this section further curtails the rule-making authority by laying down that “tho rules will not be repugnant to the Dastur-ul-amal.” Sub clauses 7 and 8 of this section has been subject of able arguments advanced by the lawyers and it is admitted that we are concerned only with these two clauses. Clause 7 runs that the “powers of the Director of the Ecclesiastical Department relating to the wakhf property.” Clause 8 runs “the mode of obtaining possession of the wakhf property under S. 14.” We may state it here that the petitioner argues that obtaining possession of wakhf property from a tenant is exclusively dealt with by cl. 8 and not by cl. 7 as contended by the respondent. The rules were framed in pursuance of the authority conferred by this Dastur-ul-amal, s. 16, cls. 7 and 8 above and were sanctioned by the Prime Minister. The opening sentence of the trust property rules is that the rules are framed under the authority conferred to the Prime Minister under s. 16, Dastur-ul-amal Wakhf.
6. Clauses 322 to 325 of the rules deal with letting the property on lease and the rule relied on by the respondent for his authority to eject is cl. 326, a two line clause which lays down that if a tenant fails to carry out the terms of the lease, the lease will terminate and “he will be dispossessed from the endowed (Mokafa) property.” This is interpreted by the respondent to mean that on account of these words he can directly eject the tenant. However, as no power of directly affecting ejectment is conferred by the Act (Daatur-ul-amal) under which these rules are framed and the power conferred in S. 14 of the Act lays down a special procedure and is inapplicable here (to the case of accepted tenancy), therefore, this rule can be interpreted only in one way that on termination of lease on breach of terms of the conditions of the lease the tenant will be liable to dispossession. The rule does not specify and cover the procedure to be adopted for ejectment and therefore it will be altogether outside the scope of this clause to confer any authority in the department to proceed to eject the tenant directly, by employment of their own personnel. This rule does not confer such power, but only lays down that liability to ejectment arises. Of course the mode of ejectment and effecting possession must be determined by other provisions, and therefore this rule must be read subject to cl. 827 which runs that the power to dispossess in the city of. Hyderabad will be with the Assistant Director, Ecclesiastical Department. If this rule is to be interpreted to mean that the Nazim can justly dispossess his tenant himself there being no such authority in the department in that respect accordingly the provisions of that rule have no force and no such authority can be conferred by these rules I mean if these rules are interpreted to mean that the Department can through its own officials directly carry out the ejectment then it can be justly contended that the rule making authority has exceeded its authority and that the rules are ultra vires to the Dastur-ul-amal to that extent if that proposition needs any authority a number of rulings have been cited by the petitioner that a rule cannot exceed the four comers of the authority conferred by the Act itself under which the rules are framed in particular and the law in general.
7. Apart from the limitations in rule-making, power under an Act in general as pointed out above there is an express prohibition to that effect in the Dastur-ul-amal itself that the rules will be framed within the four corners of the authority conferred by the present Act. We have no doubt in our mind whatever that cl. (8) covers the cases where rules are made relating to the powers of the Director, Ecclesiastical Department in general and in accordance with the Act;, but power of ejectment cannot to conferred by the rules, in the first instance. Clause 7 of the rules relates to the provisions to be made relating to ejectment of persons in possession not recognized by the Department. The petitioner is a recognised tenant of the department therefore any provision in the rules relating to the subject-matter under argument in cl. (8) will not be covered or overlapped by cl. (7). The wording of the rule and the two sections of the Dastur-ul-amal under discussion are obvious enough. The Act purposely and expressly confers no authority on the department to carry out the possession and ejectment directly by its own officers, in the case of unrecognized persons and we are unable to read into the Act the existence of authority to eject its tenants directly merely on account of absence of provision to that effect. If there is no provision the ordinary law of the land will apply, even in case of Government Departments. The omission (if any) in the Act will not justify a rule in excess of the law in general. It was certainly obvious that these cases will arise, but instead of providing, for the case of tenancy in the Act, the matter was left out and the omission there (intentional or accidental) was covered by the rules, Casusomisses ought not to be created by interpretation except in some case of strong necessity, Where however a casus omissus does really occur, the rule is that the particular case, thus left unprovided for must be disposed of according to the law as it existed before such statute: (see authorities cited in Brooms Legal Maxim 10th Edn p. 361.) No doubt it is purely a matter of procedure but that would take away statutory right of the subject to be ejected in civil proceedings and to have recourse to the law of the land. It is unnecessary for us to consider the varicus contentions advanced as to the interpretations of the provisions of a rale that lays down a procedure not sanctioned by the Act conferring the rule, making power.
8. Almost all the contentions advanced by the parties are disposed of by reference to the authorities discussed hereafter, in Frewin v. Lewis, it was said that
“the limits within which the Court interferes with the acts of a body of public functionaries are perfectly clear and unambiguous. So long as those functionaries strictly confine themselves within the exercise of those duties which are confined to them by the law, this Court will not interfere. The Court will not interfere to see whether whit is done is good or bad, but if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, the Court no longer considers them as acting under the authority conferred, but treats them, whether they be a corporation or individuals merely as persons dealing with property without legal authority.”
9. I have pointed out in 1356 Nazair Osmania, p. 1, that the powers of this High Court are well established and arise from the Division of departments and definite limitations of the authority of public servants in relation to the duty to the public.
10. In Commissioner of Income tax, Bombay v. Bomlay Trust Corporation Ltd., 161 I.C 18 : (A.I.R (23) 1936 P.C 269) the case of the Queen v. Lord Commissioners of the Treasury, 1872-7 Q.B 387 : 41 L.J Q.B 178) is referred. The principle stated therein is that
“the Court cannot claim even in appearance to command the Crown, and where an obligation is cast upon the principal the Court cannot enforce it against the servant merely as such. Before mandamus can issue to a public servant it must, therefore, be shown that a duty towards the applicant has been imposed upon the public servant by statute so that he can be charged thereon, end independently of any duty which as servant he may owe to the Crown, his principal.”
11. In 188 I.C 203, † it was pointed out that the jurisdiction of Court is limited to cases where there is a clear breach of duty to do or forbear from doing, as the case may be. What is or is not clearly incumbent must be determined by reference to the provisions of the statute or regulation under which the act complained of should have been done or forborne.
12. Respondent further contends that the ejectment having been accomplished partially there is no occasion for the issue of writ of prohibition to that extent, and that there is no occasion for certiorari and the writ of mandamas is not prayed for.
13. Raja Bahadur on the other band argues as there are no definite rules of practice in the Hyderabad High Court relating to this matter this application must be taken to cover all such relief by way of a prerogative writ whether prohibition or otherwise that circumstances demand.
14. Here the Director of the Ecclesiastical Department looks after the Public Religious Endowments. He has public duty entrusted to hint and the contention that if the rules do not afford him such an authority his acts are mere nullity and no writ may issue to avoid such a void act has no force. It is for him to terminate the tenancy and proceed thereon, he has simply acted in excess of his authority under bona fide mistake that he possesses such powers under the rules in his official capacity as a public servant in discharge of public duties.
15. Here the relationship of landlord and tenant was actually Established as between the applicant and the Anjuman Islamia not only on account of the second lease but also on account of the Department having recognised the respondent as their tenant. He was called upon to execute the lease and payment of the arrears, was accepted. Notices were served with a view to terminate his tenancy. All this was done over a long period, not under any reservation of right; but as landlord and tenant on terms embodied in the order of the Department. Therefore, I have no hesitation in holding that S. 14 and the rules relating thereto will not apply to the applicant i.e to the case of a tenant recognised and accepted by the Detriment. There is nothing in the Wakhf Act authorizing the Department (or any officer thereof) to eject a tenant directly. It was admitted by the parties that there is no other effective provision in this respect. I am unable to come to any other conclusion than that the department is subject to the ordinary law of the land so far and with such conditions as are applicable to the Wakhf property. Mr. Ekbute argues that such powers, are necessary and incidental to the management of the Wakhf property and powers of taking over possession and ejectment have been given to the city Improvement Board in respect of its tenants. It may be so but the applicable provisions of a particular enactment cannot be overridden by procedure and anology. It is open to the legislative authority to confer such powers, and thus place the tenants of the Department in a different footing in the matter of their ejectment. The right of peaceful residence, subject to the laws of the land even in a leased house, according to the terms of the lease are one of the valuable rights of the citizen, and the recourse to any extra jurisdiction or authority in addition to Civil Procedure must he expressly conferred, and will not be inferred on the ground of mere unauthorized practice or convenience.
16. As I have laid down in a number of cases that this Government is a constitutional Government; and every department of the Government acts under its authority, within certain defined limits, and there can be no encroachment on the public rights without a remedy.
17. Therefore to consider whether the rules in excess and ultra vires, it will have to be seen whether it was contemplated that the rule-making authority can confer such a power, of direct ejectment on the Direct or of its own accord. These rules are sanctioned by the or me Minister (Government) and he has no authority generally or under the Act to confer right to execute ejectment. It is a matter which is Ordinarily in the nature of civil right. The Act does not confer such power expressly and it cannot be included as incidental to the powers of a Mutawalli or Manager. No Manager or Mutawalli can do it without express provision on Law. The position of the department here is that of a party clothed with certain statutory powers, as the power of actual ejectment is not accidental to the power of management of Manager or Mutawalli, it is not possible to import this authority in the rule-making body by necessary implication. It is an accepted principle of interpretation that ordinary law cannot be superseded except by statutory authority.
18. The limitation of authority in this respect is supported generally by the following rulings: Sri Rama Vilas Service Ltd. v. Road Traffic Board, Madras, A.I.R (35) 1948 Mad. 400 : (1948-1 M.L.J 85). In Estate & Trust Agencies (1927), Ltd. v. Singapore Improvement Trust, A.I.R (24) 1937 PC 265 : (170 I.C 425) it was pointed out that where the powers are strictly limited by the statute,
“within those powers it can determine question gravely affecting the property and the rights of the inhabitants, but if it steps in any degree beyond the limits imposed, any person aggrieved is at liberty to invoke the assistance of the Law.”
19. It was farther pointed out that a petition for a writ is never too late “so long as there is something left for it to operate upon”. As pointed out by Kania Ag. C.J in Din Bai v. M.S Noronha, 225 I.C 517 : (A.I.R (33) 1946 Bom. 407) the two writs of prohibition and Mandamus are two independent writs, issued under different circumstances. Its object is to compel Courts by issuing writs to keep them within the limits laid down by the statute “and the Court issuing the writ keeps Courts within those limits.” The powers of this High Court are similar to those of the Indian High Courts, and are in their nature inherent. In Tang Bug Taim v. Collector of Bombay, 221 I.C 476 : (A.I.R (33) 1946 Bom. 216) a strict construction was put upon those provisions of a certain Act which went to curtail the liberty of the subject or impose burdens and obligations on him.
20. In view of these findings the position is this, the respondent has actually taken possession of the front shop out of the leased premises, before ??? order of the High Court was actually passed on the 12th. I am satisfied in going through the departmental files and in view of the prevalent practice in the department that this was done bona fide, under a mistake and not in mere intentional unwarranted assumption of authority by the department. The respondent had no knowledge of the proceedings at the High Court until some hours after the actual possession effected. The fact that some of petitioner's things are in safe custody with the department does not alter the situation. Petitioner is a recognised tenant of the disputed premises. Anjumaa Islamia, the beneficiaries and the department desires the petitioner's ejectment and they have partially effected it. The application under disposal refers not only to the portion from which the petitioner had been ejected but it relates to the other portion of the premises in his possession also. I hold that the Department is not authorise under the law to effect ejectment directly and therefore will not eject the tenant from the rest of the premises now in his (tenants) possession.
21. The two cases cited by the respondent in 11 M.L.J 858† and Latckmanan Cheittar v. Commr. Corporation of Madras, A.I.R (14) 1927 Mad 130 : (50 Mad. 130 F.B) on the question of submission of the petitioner can be easily distingu shed. In the first case the writ was asked for after 2 years of the reference. In both, these cases it was laid down that the test is whether the applicant armed with a point of Law or fast which would oust the function has refrained from pressing his objection, has submitted to a decision on merits. Here the petition resisted has ejectment from the very beginning, he took time as he would have been ejected otherwise. This however, does not amount to his consent, he wanted time as he thought that he will be ejected immediately otherwise. In any case the question of submission does not arise in respect of the premises from which he has not yet; been ejected. There was some resistance in the occupation of the part of the premises. Applicant refused to take away his articles and these are still kept in safe custody with the Department. It is stated that petitioner also resides in some portion behind their shops. But as to the premises already occupied by the Department after ejecting the petitioner there was no reason whatever for his not moving the High Court in time even on the 11th when the application was lodged. He should have informed his lawyer that ejectment was actually effected before the application cams up for hearing. Perhaps he has evaded to execute the lease on his own account and his payments of rent have be perhaps spasmodic and irregular. The allegation of arrears and subletting may or may nos be true, and there is some record to that effect in departmental tiles. We are not in a position to say whether he was justified or not in refusing to vacate. In view of all these facts and the unnecessary delay I shall not help him regain the possession of the ejected portion. His dealings with the department in this connection have at least not been prompt and as can be expected from one who is so much to suffer on account of ejectment as he alleges. He may have his general remedy in respect of ejectment already effected if he has any as the petitioner partially succeeds I make no order as to costs. It is important that according to the terms of the lease two months' notice was required for eject meat; and it is unnecessary for me to decide the fact that whether the notice of a lesser period is effective enough to terminate the tenancy, in view of the provisions of the trans, for of Property Act, and rulings of this High Court. I find it unnecessary to touch the points covered by my learned brother in his judgment and in conclusion I agree with him.
Srinivasachari, J.:— This is an application for the issue of a writ of certiorari filed by one Munnalal a tenant of the Ecclesiastical Department, Hyderabad Government. The facts set out in the petition are that the petitioner took on lease a ??? about 14 years ago on a ??? of Rs. 70 per meneem from one Dr. Mohd. Amcer Hassan. The heirs of the said Dr. Mohd. Ameer Hassan sold the ??? on 18th Amrdad 1349-F to the ??? Island a and the petitioner renewed his lease in favour of the Secretary Anjumm-e-Islamia fixing the rent at Rs. 72 per mengem and a ??? garage which was attached to his Maigi was retained and left in the possession of the heirs of the late Dr. Mohd. Ameer Hassan.
22. That the Secretary of the Anjuman-e-Islamia Abdul Aziz Khan filed a suit against the petitioner claiming rent at Rs. 80 per menasm and the said suit was withdrawn Later the Ecclesiastical Department made demands claiming rent at Rs. 80 per mensem and finally on 20th ??? 1359 Fasli it was decided that a lease deed agreeing to pay rent at Rs. 80 per mensem from Aban 51 Fasli be executed. The petitioner has been willing to execute such a rental agreement but the department wanted the ??? agreement to be executed in favour of the Anjuman and the Anjnman did not enter into any agreement. Nevertheless the petitioner paid rent at the rate of Rs. 80 per mensem and there was no default on his part.
23. On 18th Bahman 1359 Fasli the petitioner received a notice that he should vacate the premises wherein he had his Bank, within one month from the date of the receipt of the notice. Another notice was received on 19th Bahrain 1359 Fasii stating that the petitioner bad sub-let the premises to a third party and was realizing rent from him and therefore he should vacate the premises within one week from the date of the receipt of the notice. The petitioner protested and told the Department that there was no third party to whom the premises had been sub-let but never ??? some officers of the Department called upon the petitioner to vacate the premises and finally some time was given to the petitioner fo vacate it. After setting out these foots the petitioner urged that the Department bad no right to evict him without recourse to the House Rent Controller. Secondly the petitioner urged that the Department had no right to evict him as long as he was paying the rent regularly. Finally he prayed that as injunction be issued restraining the Department from taking possession of the Malgi from his possession. Along with this an application supported by an affidavit was filed staging that the department was trying to evict the petitioner and if he were evicted he would suffer irreparable loss. Oo this application an ex parte order was passed in these terms:
“Pending disposal of this application for writ we direct that the Department does out carry out its order and the Department might be given notice to show cause why this interim order should not be made absolute.”
24. On notice being served on the department the department appeared by its counsel and filed a counter. The gist of the counter is that the fact that the premises have not been sub-let is not correct. The petitioner had been evading execution of the lease deed and the department had started proceedings wish reference to the complaint that the petitioner has sub-leased. The petitioner had been taking time after time and finally on 6th Bahaman 59F after hearing the petitioner's Vasil, the Director Ecclesiastical Department passed orders and after this order was passed the Deputy Commissioner of the Ecclesiastical Department issued notice giving the petitioner one month's time to vacate and as regards the other Malgi inasmuch as the petitioner bad sub-leased it he was asked to vacate it within one week and when he failed to vacate the Malgi within the period the departmental men were sent on 4th isfandar 1359 Fasli. The petitioner asked for 1 days time which was given. Even after this, he failed to vacate and again the Director, Ecclesiastical Department directed taking the possession of the Malgi on 11th January 1950 and in pursuance thereof, the Malgi which he had sub-leased to others was taken possession of on 12th January 1950. In the counter it was also urged by the Department that inasmuch as the orders of the department had been carried out already there was no question of any writ of prohibition being issued and, therefore, the petition was liable to be dismissed. Arguments have been heard in detail of the respective counsel.
25. The object of a writ of certiorari is to correct excess of jurisdiction. This power is exercised by the High Court by virtue of its extra-ordinary jurisdiction where the act complained of is a judicial or quasi-judicial act. The right to petition this writ is a very valuable right which a subject enjoys. Under this a subject can compel a quasi-judicial body to act within the four comers of its jurisdiction. It is agreed on all hands that where there is an adequate remedy a writ of certiorari will not lie and that remedy should be such which should be equally beneficial and speedy and not merely one which at some further time will bring relief. As has been and down in the famous case of Raja Pratapgir v. Sarkar Ali, (35 Deccan L.R 153) a writ of certiorari is invoked before a trial is completed to secure a fairer trial than can be obtained before an inferior Court or to prevent an excess of jurisdiction after trial, it is in fact to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice. The question then arises as to whether the High Court can interfere in these proceedings having regard to the facts set forth above. In this connection it may be necessary to know under what authority the Department sought to eject the petitioner. The Anjuman-e-Islamia which is a public institution meant for the common good of the Muslim community made a charitable endowment of this property. The property was endowed for public purposes namely for the amelioration of the Muslim community and when any property is endowed for a public purpose it comes within the purview and operation of Dastur-ul-amal wakf.
26. The learned advocate for the petitioner argues that this is a fit case for the exercise of our extraordinary jurisdiction in that the action of the Ecclesiastical Department was arbitrary and unjust. In so far as this argument is concerned we have been apprised of the course of proceedings which finally led to the order by the Director, Ecclesiastical Department on 11th January 1850, to eject the petitioner. Our view is that the petitioner has had ample opportunity to put forward his case and it is also clear from the records placed before us that he has been taking time after time to vacate the premises. Thus it was after due enquiry that this order was passed, and therefore the order of the Director could not be said to be against natural justice. Therefore one of the grounds on which we could exercise our extraordinary jurisdiction by the issue of a writ is lacking in this case, as there was no want of natural justice.
27. Then the next question that falls to be decided is as to whether the act of the Director in ejecting the petitioner was in excess of jurisdiction and therefore liable to be quashed. The powers of the Director of the Ecclesiastical Department with reference to the tenants of endowed house property have been set out in the Dastur-ul-Amal Wakhf (Regulation relating to Endowment). This Regulation has received the assent of H's Exalted Highness and therefore has the force of law. We have been referred to S. 14 of this Regulation which says that where the endowed property is in the occupation or possession of a person who is not recognised by the Ecclesiastical Department, the Department would be able to get possession of the premises as in execution of a decree; and where the property 13 situated in Hyderabad the possession could be got through the City Civil Court and where it is-situated in the Districts through the District Court of that place, and in all these proceedings, the provisions relating to execution of decrees-would be applicable. This section makes it clear that where possession has to be obtained of an endowed property in the hands of a person not recognised by the Ecclesiastical Department e.g a trespasser, the procedure to be adopted is by way of execution of decree in the appropriate Court. The positions of the petitioner in this case is not that of a trespasser for the simple reason that he has been a tenant who had attorney to the Ecclesiastical Department and agreed to pay rent. Under the above circumstances the provisions of S. li cannot be said to cover a case of this kind.
28. Besides the above Section, there has been provision made in the Wakhf Regulation to make rules with reference to (a) the mode of ejectment from endowed property under S. 14, and (b) the mode of ejectment and execution under the Code of Civil Procedure. Under the rule-making power given 10 the Ecclesiastical Department under S. 16 of the Wakhf Regulation, the Department; is empowered to make rules with reference to the matters referred to above besides other matters: The Ecclesiastical Department has made rules under S. 16 and the relevant rules which pertain to ejectment from endowed property are la. 320 and 327, Rule 326 merely says that where there has been a breach of the agreement of tenancy the person would be ejected and R. 327 provides that where the tenancy has been forfeited the right to eject would vest is the Madadgar Ecclesiastical Dapartment in the Taluqa and in the Nazim Ecclesiastical Department is the City.
29. Section 14 of the Wakhf Regulation read with Rr. 326 and 327 of the Wakhf Rales merely give the right to the authorities mentioned therein to eject a tenant. Rules 326 and 327 cover cases of ejectment in cases of breach of tenancy. On an examination of these provisions we can only come to the conclusion that the Director Ecclesiastical Department has the power to evict the tenant where there has been a breach of the agreement of tenancy. Nowhere has it been provided either in the Wakhf Regulation or in the Rules made thereunder, that the Director could dispossess the tenant without due process of law.
30. It is argued before us by the learned advocate for the Ecclesiastical Department, that the department has not got to appear before the House Rent Controller and there has been an exception made in the case of the Ecclesiastical Department. This contention of the learned advocate is correct as under the House Rent Control Act the Department need not approach the House Rent Controller before evicting. An exception has been made in the case of the Ecclesiastical Department. Granting that the Ecclesiastical Department is not obliged to obtain the permission of the House Rent Controller to eject its tenant, it does not absolve the Department of the obligation to move a Court of law for directing possession of the property. The Rules referred to above give the right to apply for execution as though there was a decree already passed. They do not empower the Ecclesiastical Department to take possession without recourse to a Court or law. We are, therefore, of opinion that the Ecclesiastical Department has no right to eject a tenant of its own accord. It should move the Court for execution. Having come to this conclusion we have to deal with two arguments advanced by the advocate for the Department. The first argument is that the petitioner had taken the chance of the order being in his favour by submitting to the jurisdiction of the Director Ecclesiastical Department and having once submitted to the jurisdiction and failed the cannot invoke the jurisdiction of the High Court for the issue of a writ of certiorari. Reliance is placed on a Full Bench case of the Madras High Court reported in Latchmanan Chettiar v. Corporation of Madras, A.I.R (14) 1927 Mad. 130 : (50 Mad. 130 F.B). That was a case where the petitioner moving for a writ had filed a Revision Petition against the order of the Chief Judge of Small Causes in a Municipal Election matter. This Revision was dismissed. The petitioner invoked the powers of the High Court for the issue of a writ of certiorari. It was urged that the petitioner could not move the High Court for a writ of certiorari because by his conduct he had taken the chance of a decision in his favour by the lower Court. Their Lordships of the Madras High Court held that as it was only a discretionary power given to the High Court, and in the circumstances of that case they refused to grant the writ. In the first place this case is distinguishable on the ground that the petitioner had already chosen a ready viz. a Revision against she order of the Small Cause Judge and having become unsuccessful invoked the extraordinary jurisdiction of the High Court, and beings discretionary relief, the Judges rightly refused to grant the relief. The facts of the case before us are different. There was no petition for revision here. Apart from this in the view that we have taken viz. that the Director Ecclesiastical Department had no right to evict the tenant without applying to a Court of law, here there has been an excess of jurisdiction, where the High Court can issue a writ. The very object of a writ is to quash proceedings where there is an unwarranted usurpation of jurisdiction. We are supported in this view by the decision in the case of Rex v. Richmand Confirming Authority, 1921-1 K.B 248 : (90 L.J K.B 413). We are, therefore, not is agreement with the advocate for respondent in this regard.
31. The second argument advanced by the learned advocate is that possession having been taken by the Department before the application was filed here, there is no occasion foe the issue of a writ of prohibition. It is an accepted principle of law that a writ of prohibition is issued to prevent the commission of a ??? act and not to undo an act already performed. An application for such a writ cannot lie to restrain an inferior tribunal after its judgment has been executed, Where the Court has nothing further to do in pursuance of its order the question of restraining the action of the Court does not arise. This would be the position even if the order was void. The remedy by way of a writ of certiorari is open “where there is something left for it to operate upon” This principle receives support from the judgment of the Lordships of the Privy Council in the case of Estate and Trust Agencies v. Singapore Improvement Trust, 170 I.C 425 : (A.I.R (24) 1937 P.C 265).
32. Applying the above principle to the facts of the present case, we find, on the documents placed before us, that the Ecclesiastical Department had taken possession of the Malgee before the petitioner moved the High Court for an interim order of stay on the 12th. We, therefore think that no writ could be issued in so far as the Mulgee which has been taken possession of is concerned. In the view that we have taken about the right of the Department to eject a tenant we issue an order, to the respondent restraining it from taking possession directly of the part of the premises not yet occupied by the respondent. Of course the respondent is at liberty to take such steps as he is entitled to under the law. We make no order as to costs.
V.B.B
33. Order accordingly.