K R SANKAR Vs. M A BUVANAMBAL AMMAL

JUDGEMENT

(1.) THE second appeals and civil revisions petitions have been placed before us because they raise a common question as to the jurisdiction of the Additional district Munsif, Madurai, to perform the functions of a Controller under the Madras buildings (Lease and Rent Control) Act. 1960. The courts below have held that he has jurisdiction. The petitions arise from eviction orders passed by the Additional district Munsif, to whom, apparently, under the administrative directions of this court with reference to the file of the Principal District Munsif, the petitions for eviction had been transferred. The second appeals arise out of suits instituted by tenants to declare the invalidity of the eviction had been transferred. The second appeals arise out of suits instituted by tenants to declare the invalidity of the eviction orders which had become final under the provisions of the Act, on the ground of total want of jurisdiction in the Additional District Munsif.

(2.) THE view of the courts below, which is assailed before us, is that the Additional district Munsif, though he had no de jure powers as a Controller, inasmuch as he had factually functioned as a Controller, the validity of his orders should be upheld. In our opinion, it is not a correct view to take. Acts done under colour of office stand entirely on a different footing. Where an officer had been appointed to a post, but its validity is successfully challenged, the acts done by him under colour of the officer are not invalidated. The basis for this principle is that to hold to the contrary would unsettle titles or cause grave public mischief. Where, however, an officer has not been appointed to a particular post or he is not invested with certain powers, but nevertheless he functioned or exercised such powers, a different principle should apply.

(3.) SECTION 2 (3) of the Act defines a 'controller' as a person appointed to perform the functions of a Controller under the Act. Who is the appointing authority, the provisions does not expressly say. A point was made that when the High Court directed the Principal District Munsif to transfer some of the petitions for eviction for disposal by the Additional District Munsif, it meant that the latter was invested with the powers of a Controller. We have no hesitation in rejecting this contention. The High Court obviously has no power to act under Section 2 (3) in order to invest the Additional District Munsif with the powers of a Controller. The power vests in the Executive under the scheme of the Constitution, and the fact that the appointing authority is not mentioned in Section 2 (3) can make no difference. In any case, the High Court, in directing the Principal District Munsif to transfer the eviction petitions to the Additional District Munsif, did not invest and did not purport to invest the Additional District Munsif with the power to act as a controller. By G. O. Ms. 2329 Home dated 11-7-1961, the State Government, in exercise of its powers under Section 2 (3), appointed for Madurai Dist. , the District munsifs in their respective jurisdictions and if there were more than one District munsif in a place, the Principal District Munsif, as the person to perform the functions of the Controller. Our attention has been invited to Section 4-a of the civil Courts Act in support of a contention that where the court of the District munsif has been entrusted with powers under the provisions of that Act or any other Act, those powers could be exercised also by the Additional District Musnifs. The simple answer to this is that the Controller is not a court and the investiture of power under Section 2 (3) is persona designata, that is to say, the Principal or any other District Munsif named specifically, and not on the court, as such, of the district Munsif. When the investiture by the notification is specifically on the principal District Munsif, it cannot be said that because in other respects the additional District Munsif has the same powers as the District Munsif, the former could also function as a Controller.