Research › Browse › Judgment

Calcutta High Court · body

1949 DIGILAW 523 (CAL)

Amulya Ranjan De v. Pulin Bihari Shaha

1949-11-14

body1949
JUDGMENT Sen, J. - These two Rules have been obtained by a landlord in connection with orders passed by the Rent Controller under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which have been upheld on appeal by the Chief Judge of the Court of Small Causes, Calcutta. The orders passed relate to the provisions of Section 38 of the aforesaid Act. Having regard to the conclusion at which I have arrived, it will not be necessary for me to consider in detail the merits of the case or to set out in detail the facts. 2. Broadly speaking, the facts are these: The Petitioner is a landlord of certain premises and the opposite party is the tenant. The Petitioner is a lessee from the Port Commissioners, Calcutta. The Port Commissioners acquired a portion of the land, which formed this tenancy, under the terms of their lease. Thereafter, the tenant applied to the Rent Controller praying for the repair of a wall abutting these premises. The Rent Controller purported to proceed according to the provisions of Section 38 of the aforesaid Act and gave certain directions to the landlord. The landlord was unwilling to carry out these directions and thereupon, Rent Controller passed an order whereby he allowed the tenant to make the construction at the cost of the landlord. Against this order, an appeal was taken to the Chief Judge and it was dismissed on February 9, 1949. Thereafter, the tenant made certain constructions purporting to be in accordance with the Rent Controller's order and applied to the Rent Controller for payment by the landlord of the expenses incurred by him in the construction. After hearing the parties, the Rent Controller passed an order directing the landlord to pay a certain sum for the expenses of the construction. This order was passed on March 15, 1949. Against this order an appeal was taken and it was likewise dismissed by the Chief Judge of the Court of Small Causes. Against these two orders of dismissal these Rules have been obtained. 3. The contention of the Petitioner inter alia is that the Rent Controller had no jurisdiction to pass the order which he passed on October 19, 1948, inasmuch as he had ordered a new construction and not repairs. Against these two orders of dismissal these Rules have been obtained. 3. The contention of the Petitioner inter alia is that the Rent Controller had no jurisdiction to pass the order which he passed on October 19, 1948, inasmuch as he had ordered a new construction and not repairs. Learned advocate contended that Section 38 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, permits the Rent Controller to direct a landlord to make repairs, but it does not contain any provision which empowers the Rent Controller to direct a landlord to make a new construction. There were other points also taken, but the main point is the one stated above. 4. On behalf of the opposite party a preliminary objection is taken that this Court has no jurisdiction to revise an order passed on appeal by the Chief Judge of the Court of Small Causes, Calcutta, inasmuch as the Chief Judge was functioning not as a Court subordinate to this Court, but as a persona designata. In support of this contention, learned advocate for the opposite party referred to two cases: Kiran Chandra Basu v. Kali Das Chatterji ILR (1943) 2 Cal. 272 and Suhasini Das v. Mahendra Kumar Basu ILR (1948) 1 Cal. 376. The first case dealt with an order passed by a District Judge under the Bengal House Rent Control Order, 1941 and the second case dealt with an order passed by a District Judge under the Calcutta Rent Ordinance, 1946. In both the cases this Court held that the District Judge mentioned in the aforesaid Order and Ordinance was not a court subordinate to the High Court but a persona designata, from whose decisions no revision or appeal lay to this Court. 5. The first point for consideration, therefore, is whether in the present case the Chief Judge of the Court of Small Causes is a court within the meaning of the CPC or whether he is a persona designata. In my opinion, the Chief Judge is a persona designata and not a court. The words of Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, have to be looked into for the purpose of deciding this point. In my opinion, the Chief Judge is a persona designata and not a court. The words of Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, have to be looked into for the purpose of deciding this point. The relevant provisions of the section are as follows: 32(2) Any person aggrieved by an order of the Controller may, within thirty days from the date of the order, present an appeal in writing,-- (a) in respect of premises in the Presidency town of Calcutta, to the Chief Judge of the Court of Small Causes of Calcutta, * (2) The Provincial Government may, by notification, appoint any person who has exercised the powers of a District Judge in West Bengal to hear appeals presented under Clause (a) of Sub-section (1) to the Chief Judge of the Court of Small Causes of Calcutta (3) The Chief Judge of the Court of Small Causes of Calcutta to whom an appeal is presented under Clause (a) of Sub-section (1) * * * * may transfer such appeal to any person appointed to hear any such appeal under Sub-section (2) and may withdraw any appeal so transferred and either hear and dispose of it himself or transfer it to any other person appointed to hear such appeals under Sub-section (2). * (6) The High Court, on application made in that behalf by any person aggrieved by an order passed in appeal by the Chief Judge or the District Judge or a person appointed under Sub-section (2), either imposing, or confirming any order passed by the Controller imposing, a fine u/s 20, Section 33 or Section 34 may, where the fine is not less than five hundred rupees and such application is made within thirty days of the date of such order call for and examine the record of, such appeal and after giving the parties an opportunity of being heard, revise the order passed in such appeal. (7) All decisions of the Chief Judge or the District Judge or a person appointed under Sub-section (2), as the case may be, shall, subject to the provisions of Sub-section (6) be final. 6. (7) All decisions of the Chief Judge or the District Judge or a person appointed under Sub-section (2), as the case may be, shall, subject to the provisions of Sub-section (6) be final. 6. These are the relevant portions of Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, which have to be considered in determining whether this Court has revisional jurisdiction over the decision of the Chief Judge of the Court of Small Causes, Calcutta. In the case of Kiran Chandra Basu v. Kali Das Chatterji (supra) which dealt with the Bengal House Rent Control Order, 1942, it was held, in construing para. 12 of that Order, that the District Judge was a persona designata and not a court subordinate to this Court. There were two grounds given for this view. The first ground was that para. 12 gave no indication that the District Judge is to exercise his authority as the principal court of civil original jurisdiction in the district. The second ground for the view that the District Judge was not invested with the authority of a court by the provisions of para 12 was that the Bengal House Rent Control Order, 1942, was not a legislative enactment or a rule having statutory authority and therefore, it could not constitute a court or invest a judge with authority as a court to determine matters outside his ordinary jurisdiction. In the case of Suhasini Dm v. Mahendra Kumar Basu, my learned brother Chakravartti J., in interpreting Section 25 of the Calcutta Rent Ordinance, 1946, referred to the case last mentioned and to the reasons given therein. He said that, so far as the second reason was concerned, it would not apply to the case before him, inasmuch as the Calcutta Rent Ordinance, 1946, was of the same effect as a statute passed by the legislature. He held however, that the District Judge referred to in Section 25(1)(b) of the Calcutta Rent Ordinance, 1946, was a persona designata and not a court because the words of the section supported that view. He held however, that the District Judge referred to in Section 25(1)(b) of the Calcutta Rent Ordinance, 1946, was a persona designata and not a court because the words of the section supported that view. The words of Section 25(1)(b) of the Calcutta Rent Ordinance, 1946, are as follows: ....the District Judge of the district in which the premises in respect of which such order is made are situated or to such other person or persons as may be appointed by the Provincial Government to hear such appeals either concurrently with, or to the exclusion of, the said District Judge; 7. Chakravartti J. construed these words to mean that the District Judge here was a persona designata and not a court. As I have said before, this is the view he took relying on the words of the section itself and not upon the circumstance that the Calcutta Rent Ordinance, 1946, was an Act and not merely an Order. In my opinion, the words of the section of the present Act of 1948 would lead to the same conclusion. 8. Learned advocate for the Petitioner seeks to distinguish the case of Suhasini Das v. Mahendra Kumar Basu (supra) by pointing out that under the Calcutta Rent Ordinance, 1946, the Government could appoint persons to hear appeals to the exclusion of the District Judge, while under the present Act the Chief Judge of the Presidency Court of Small Causes or the District Judge cannot be so excluded. The Act merely provides that other persons may be appointed by the Provincial Government to hear such appeals. The Act does not provide for the appointment of persons to the exclusion of the Chief Judge or the District Judge. 9. The next ground on which learned advocate for the Petitioner seeks to distinguish this case is as follows: In the Calcutta Rent Ordinance, 1946, any person could be appointed by the Provincial Government, to hear appeals, whereas under the Act of 1948 only persons having the qualifications of a Judicial Officer not below the rank of a Subordinate Judge could be so appointed. 10. 10. Lastly, he says that, whereas under the Calcutta Rent Ordinance, 1946, appeals in the town of Calcutta could be presented either to the Chief Judge of the Court of Small Causes, Calcutta, or to such persons as may be appointed by the Provincial Government, under the present Act of 1948 the appeals have to be presented to the Chief Judge of the Court of Small Causes, Calcutta and cannot be presented to any other officer appointed to hear such appeals. 11. I do not think that these differences in the two sections are such as would justify different conclusions being drawn regarding the status of the Chief Judge of the Court of Small Causes, Calcutta, hearing appeals from the orders of the Rent Controller under the Calcutta Rent Ordinance, 1946 and the status of the Chief Judge of the Small Cause Court hearing appeals under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. 12. If Section 32 of the Act of 1948 is looked into, it becomes abundantly clear that the Chief Judge of the Court of Small Causes must be a persona designata. In the first place, the Act does not say that an appeal shall lie to the Court of the Chief Judge, but it says that an appeal shall lie to the Chief Judge. Next, the section says that the appeal may be heard by persons appointed by the Government. It is true that such persons should have certain judicial qualifications; nevertheless such persons cannot by any stretch of language be said to constitute courts. Persons other than the Chief Judge who may hear the appeal clearly are persona designata. They cannot constitute courts. Now, if the construction sought to be put by learned advocate for the Petitioner upon the meaning of the section be accepted, it would give rise to a very anomalous position. An appeal heard by the Chief Judge would be an appeal heard by a court, whereas an appeal heard by a person appointed by the Government to whom the Chief Judge transfers the appeal would be an appeal heard by a persona designata. The result would be that in the one case revision would lie and in the other revision would not. Clearly the section cannot be given such an interpretation. The result would be that in the one case revision would lie and in the other revision would not. Clearly the section cannot be given such an interpretation. In my opinion, this conclusively shows that the Chief Judge of the Court of Small Causes, when hearing appeals u/s 32 of the Act of 1948, functions not as a court but as a persona designata. Next, by the provisions of Sub-section (6) of Section 32 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948, the High Court has been given revisional jurisdiction in respect only of the particular matters mentioned in the sub-section. The principle expressio unius est exclusio altvrius applies. I hold, therefore, that this Court has no jurisdiction to revise the decisions of the Chief Judge of the Court of Small Causes except those mentioned in Sub-section (6). 13. There is also another ground upon which I would discharge the Rules. The order passed by the Rent Controller empowering the tenant to carry out the repairs at his own expenses was confirmed by the Chief Judge of the Court of Small Causes on February 9, 1949. There was no application to this Court against such an order until June 24, 1949. It is true that there is no period of limitation prescribed by the legislature regarding the exercise of the revisional jurisdiction of this Court, but the invariable practice followed by this Court is that such applications should be made within ninety days of the passing of the order sought to be revised. As this has not been done, I would refuse to exercise the revisional powers of this Court in a matter like this. It is true that the order for the paying of the costs of the repairs was passed later, there was an appeal from that order which also forms the subject-matter of one of these Rules. The application for revision of the order dismissing the appeal in respect of the payment of the expenses is within time, but the order against which the latter Rule has been obtained is merely a consequential order and it would stand or fall with the previous order which gave the tenant permission to execute the construction at the expense of the landlord. 14. Having regard to the view which I have taken, both these Rules must be discharged. 14. Having regard to the view which I have taken, both these Rules must be discharged. There will be one set of costs for these two Rules.