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Petitioner: KAZI ALTAF HUSSAIN VS Respondent: THE HOUSE RENT CONTROLLER
P L D 1960 Dacca 400
P L D 1960 Dacca 400
Before Akbar and Asir, JJ
Kazi ALTAF HUSSAIN‑Petitioner
versus
THE HOUSE RENT CONTROLLER and others Respondents
Writ Petition No. 92 of 1959, decided on 22nd February 1960
(a) Writ‑Jurisdiction‑Not like ordinary appellate jurisdic tion‑Petitioner (tenant) failing in remedies by appeal and revision under East Bengal Premises Rent Control Act (XVI of 1953)‑Slight defect in procedure‑Remedy by writ refused‑Constitution of Pakistan (1956), Art. 170.
However wide the jurisdiction of the High Court may be to issue writs, it is not so wide or large as to enable the High Court to constitute itself into a Court of Appeal to examine for itself the correctness of all the impugned decisions.
Where the petitioner had failed in his remedies by appeal and revision available under the East Bengal Premises Rent Control Act (XVI of 1953), and the grievance of the petitioner consisted of a slight defect in procedure (touching ex‑parte order of Rent Controller allowing leave to sue in ejectment), the High Court refused relief by writ.
Khurshed Mody v. Rent Controller, Bombay and another A I R 1947 Bom. 46 distinguished.
(b) East Bengal Premises Rent Control Act (XVI of 1953) S. 18‑Rent Controller's order allowing leave to sue in ejectment or: ground of bona fide requirement of premises‑Tenant not precluded from challenging such ground in landlord's subsequent suit : [Debi Sankar Bhattacharjee v. Dr. Jogendra Bhusan Sanyal 52 C W N 602 ref.].
Asrarul Hossain and Md. Nurul Huq for Petitioner. K. M. Sobhan for Respondent 1. Hamidul Huq Chowdhury and Shafiqur Rahman for Respondent 2.
Date of hearing :15th February, 1960.'
JUDGMENT
AKBAR, J.‑This Rule nisi . was issued calling upon the respondent No. 1, the House Rent Controller, to show cause why a writ of certiorari or any other writ of like nature should not issue directing him to certify and transmit the records of the House Rent Controller Case No. 622 of 1957 to this Court for quashing the order dated 13‑9‑58 or such other or further order or orders be passed as to this Court may seem fit and proper.
Mst. Matia Begum and Suja Khan filed the above Case No. 622 of 1957 before the House Rent Controller for leave to sue in ejectment their alleged tenant, Kazi Altaf Hussain, of premised No. 4, Chandi Charan Basu Street in the town of Dacca on the grounds that he was a habitual defaulter and that they required the house for their benefit, use and occupation.
On 31‑5‑58 the said tenant filed an application praying for local enquiry and the Rent Controller, after two adjournments, fixed 13‑9‑58 for bearing of the said petition. On 13‑9‑58 the case was taken up during the absence of the lawyer for the tenant and was allowed ex parte. On that very day, the tenant filed an applica tion for review of the said ex parte order. On 15‑I1‑58 the Review application was rejected. On 2‑12‑58 the tenant filed an appeal before the District Judge, Dacca against the orders dated 13‑9‑58 and 15‑11‑58.
The District Judge held (1) that the appeal against the order dated 13‑9‑58 granting leave to sue in ejectment was barred by limitation, and (2) that no appeal lay against the order dated 15‑11‑58 rejecting the Review petition. He therefore dismissed the appeal.
Against the said orders, the tenant moved the High Court in its revisional jurisdiction and obtained a Rule. Murshed, J., who heard the application, discharged the Rule and affirmed the order of the District Judge.
The tenant then obtained this Rule nisi from a Division Bench of this Court.
At the outset, we may observe that it is now well‑settled that existence of an alternative remedy is not a bar to the entertainment of a writ petition. The question for determination in this petition is. When the party moving the Court for a writ has availed of the alternative remedy and failed, will the Court interfere within the impugned order in exercise of its writ jurisdiction ?
Mr. Asrarul Hossain, the learned counsel for the petitioner tenant, has contended that this Court would not refuse to issue a writ merely because the petitioner has already exhausted his remedies under the East Bengal Premises Rent Control Act (Act XVI of 1953) hereinafter referred to as the Act. He has argued that where a Court, which has been called upon to exercise judicial function, discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice, the Court must interfere. In support of his contention, he has relied on the following decisions:
(1) State of U. P. v. Mohammad Nooh (A I R 1958 S C 86).
(2) In Re. Authers reported in (1889) 22,Q B D 345.
(3) Khurshed Mody v. Rent Controller, Bombay and another (A I R 1947 Bom. 46).
On the other hand, Mr. Hamidul Huq Chowdhury, they, learned Advocate for respondent No. 2, has argued that the points taken in this application had been raised by the petitioner in his appeal before the District Judge and in the revision petition moved in the High Court, and the order of dismissal of his appeal and Revision petition by Authorities fully competent and having full powers and jurisdiction to decide the question must be taken as a rejection of that plea on merit. As no error or irregularity or illegality is alleged to have been committed at the stages of the, Appeal and the Revision, the High Court ought not to interfere in this matter.
The cases reported in 22 Q B D 345 and A I R 1947 Bom. 46, on which Mr. Asrarul Hossain has relied, have been discussed in the judgment of the Supreme Court of India in the case of State of U. P. v. Mohammad Nooh (AIR1958SC86).
In the above case of Mohammad Nooh, the facts were as follows: Mohammad Nooh who was a constable in the Uttar Pradesh Police Force was officiating as a Head Constable. As he failed in the Hindi test, he was not selected for the training at the Police Training College. Thereafter, a letter was received at the Uttar Pradesh Police Head Office intimating that Mohammad Nooh had been selected for training at the Police Training College. As the said letter was considered to be forgery, Mohammad Nooh was placed under suspension and a departmental enquiry was started against him. Mr. B: N. Bhalla, the District Superintendent of Police, who held the enquiry, founded him guilty and passed an order discharging him
from service. His appeal to the Deputy Inspector‑General of Police was dismissed. His review application to the Inspector General of Police also met with the same fate. Having exhausted all his remedies under the Police Act and the Regulations made thereunder, he filed a writ petition praying that the relevant file may be called for and the order of dismissal be set aside. The main point taken in the affidavit filed in support of the petition was that Mr. B. N. Bballa, the Superintendent of Police, who presided over the trial, also gave evidence in the proceeding at two stages and bad therefore become disqualified from continuing as a Judge and was also biased against the const able. The High Court allowed the petition and issued the writ prayed for. On appeal by the Government, the Supreme Court, after review of various decisions, observed at page 94:
"On the authorities referred to above it appears to us that there may conceivably be cases‑and the instant case is in point‑where the error, irregularity or illegality touching juris diction or procedure committed by an inferior Court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fairplay the superior Court, may, we think, quite property exercise its power to issue the prerogative writ of certiorari to correct the error of the Court or tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that".
The Supreme Court, however, by a majority judgment, allowed the appeal on the ground that the order of dismissal having been passed before the Constitution, the subsequent conferment of jurisdiction and powers on the High Court could have no retros pective operation on such rights and liabilities.
The Supreme Court, however, criticised the order of the Departmental Authorities on the following grounds:
"(1) That the illegality committed by the Departmental Authorities was "so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be‑ obliterated or cured on appeal or revision".
(2) That the proceeding before the Superintendent of Police was conducted in a manner contrary to the rules of natural justice and to all accepted rules of procedure.
(3) That the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background.
In the above case, the same person, namely, the Superinten dent of Police was both Judge and witness. It was therefore bound to offend the Court's sense of fairplay. The Supreme Court, while holding that the order was bad, observed:
"The superior Court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it. We say no more than that".
It is, therefore, clear that, in view of the "patent and loudly obtrusive infirmity or vice", the Supreme Court found it difficult to support the order of the Departmental Authority. This decision, therefore, cannot be regarded as an authority for the proposition that whenever the Court thinks that order of the subordinate. Court or tribunal is erroneous or unsound it should substitute its own views or discretion. We may here observe that, however wide the jurisdiction of the High Court may be to issue writ, it seems to us that it is not so wide or large as to enable the High Court to constitute itself into a Court of Appeal to examine for itself the correctness of all the impugned decisions.
The Rent Control Act is a self‑contained Code and hence in respect of the rights and liabilities created by such a Statute the manner of enforcement must be sought within that Statute. Section 29 of the Act provides for an appeal to the District Judge against the order of the House Rent Controller. The High Court is also entitled to exercise its revisional jurisdiction against the appellate order of the District Judge. No doubt, in this case, there was some defect in the procedure followed by the House Rent Controller, but the fact remains that he acted within his jurisdiction. Now the said defect could have been only corrected by a Court of Appeal or in revision. As the tenant filed the appeal beyond time, both the Courts were unable to grant him relief. Thus, both the Courts were competent to deal with the matter. Hence the matter having been finally decided, it will not be proper for us to reopen the proceeding.
Furthermore, the circumstances here are not like those in the case in The State of U. P. v. Mohammad Nooh so extraordinary as to justify our interference. We may also point out the fact that the decision of the Rent Controller as to the bona fide requirement of the house will not preclude the alleged tenant to agitate the said question during hearing of the suit in ejectment. The Rent Controller's decision merely removes the bar to the entertainment of the suit : see Debi Sankar Bhattacharjee v. Dr. Jogendra Bhusan Sanyal (52 C W N 602).
For the reasons stated above, we dismiss this application and discharge the Rule but in the circumstances of the case we make no order as to costs.
ASIR, J.‑I agree.
A. H. Application dismissed.