KUMARASWAMY REDDIAR Vs. NOORDEEN & OTHERS

JUDGEMENT

(1.) THIS is a petition under Arts. 226 and 227 of the Constitution for a writ of certiorari to quash the order passed by the 3rd respondent, the District Judge of Quilon under clause 16 of Travancore -Cochin Buildings (Lease and Rent Control) Order, hereinafter referred to as Rent Control Order. The petitioner is the proprietor of Lakshmi Talkies, Quilon situated in Survey Nos. 8069 and 8070 in Quilon Pakuthy. The owners of the building are respondents 1 and 2 to this petition. They leased the said building to one P.K. Subbiah Pillai of Trivandrum on a monthly rent of Rs. 500/ - for a period of 5 years from 1 - -4 - -1127 (M.E.). Subbiah Pillai, it is stated, assigned his leasehold right to the petitioner with the knowledge and consent of respondents J and 2 and the petitioner says that he is now running the cinema. The petitioner filed B.R.C. No. 54 of 1955 under Section 4 of the Rent Control Order for fixing the fair rent of the building. The Rent Controller by his proceedings dated 28 - -7 - -1956 fixed the fair rent at Rs. 475/ - per mensem. Ext.P. 1 is the order. Against the said order both the petitioner and respondents 1 and 2 filed appeals before the Collector who was the appellate authority. He disposed of the appeals by his order Ext.P. 2 dated 17 - -12 - -1956 fixing the fair rent at Rs. 500/ -a month. Against the order of the appellate authority respondents 1 and 2 and the petitioner filed revision petitions Nos. 5 and 6 of 1957 before the Government. By virtue of the amendment to clause 16 of the Rent Control order and the notification thereunder the revision petitions were heard by the District Judge of Quilon and the learned District Judge by a common order Ext.P. 3 dated 9 - -12 - -1957 held that the petition to fix the fair rent was not maintainable on the ground that the petitioner was not a tenant within the meaning of the Act. The petitioner now seeks to quash the order of the District Judge, Quilon, Ext.P. 3 dated 9 -12 - -1957. The grounds taken up by the petitioner are that the District Judge has no jurisdiction to exercise any powers of revision by virtue of amendment to clause 16 of the Rent Control Order and that the notification amending rule 16(1) of the Rent Control Order delegating the power of revision, said to vest in the Government, to any officer, specially authorised by the Government, is illegal and ultra vires the provisions contained in Sections 15 and 22 of the Public Safety Measures Act, V of 1950 under which the Control Order has been promulgated; that the revision petitions were pending before the Government, when clause 16 of the Rent Control Order was amended, and so the revision petitions ought to have been disposed of only by the Government and cannot be transferred to the District Judge. It is also contended that the District Judge has erred in holding that the petitioner was not a tenant within the meaning of Rule 2(4) of the Rent Control Order.

(2.) RESPONDENTS 1 and,(sic) in their counter, besides denying the various contentions raised in the petitioner's affidavit, have taken a preliminary objection that the question of the lack of jurisdiction should have been raised by the petitioner before the tribunal itself and the petitioner, having submitted to the jurisdiction of the District Judge and having argued the case on the merits and taken a chance of getting a decision in his favour and having failed, is now precluded and estopped from questioning the jurisdiction of the District Judge and claiming the extraordinary remedy provided under Arts. 226 and 227 of the Constitution of having the order quashed. According to them the notifications amending clause 16(1) of the Rent Control Order are not illegal or ultra vires the provisions of the Travancore -Cochin Public Safety Measures Act, V of 1950.

(3.) RELIANCE was placed on the decision in Garikapati Veeraya v N. Subbiah Choudhry & others ( : A.I.R. 1957 S.C. 540). The Supreme Court held that: