INDRA SINGH Vs. SHIAVAX CAWASJI CAMBATA

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Desai, and the short facts leading up to this appeal are that the appellants are the tenants of the respondents, and on March 80, 1940, the respondents gave to the appellants notice to quit terminating on April 30,1946. On September 8,1946, the respondents obtained from the Rent Controller a certificate that these premises were required by them reasonably and bona fide for their own use. On September 18, 1946, the appellants preferred an appeal to the Collector from the decision of the Controller, and on October 9, 1946, the Collector gave a decision contrary to the view taken by the Controller and setting aside the certificate given by the Controller. On November 12, 1946, the respondents filed a petition for a writ of certiorari. Their grievance was that the Collector had decided without hearing them and his decision was contrary to the rules and principles of natural justice. Mr. Justice Bhagwati ordered the writ of certiorari to issue. There was an appeal from his decision to this Court, and on October 8, 1947, the Court of Appeal affirmed the decision of Mr. Justice Bhagwati. On October 20, 1947, the respondents filed the present suit for ejecting the appellants. Their case was that the tenants were not entitled to the protection of the Rent Restriction Act inasmuch as they had obtained a certificate from the Controller that they required the premises reasonably and bona fide for their own use. Mr. Justice Desai decreed the respondents suit and ordered that the appellants should hand over possession of the premises in suit on or before December 18, 1947. It is from this decision of Mr. Justice Desai that the appellants have come in appeal.

(2.) The main contention of the appellants is that there is still an appeal pending before the Collector with regard to the certificate issued by the Controller and till that appeal is disposed of it was not competent to Mr. Justice Desai to have decreed the plaintiffs suit. On the other hand, it is contended by Mr. Kolah that the effect of the order on the writ of certiorari was not only to quash the order made by the Collector, but also to put an end to the appeal which had been preferred. Now, it is necessary to see what the order made by Mr. Justice Bhagwati and by the Court of Appeal on the writ of certiorari was. In the decree that is drawn up dated January 29,1947, it is specifically stated that what is quashed is the order dated October 9, 1946, of the Collector. The decree does not in any way quash the proceedings before him or make any reference to those proceedings, and when the matter came in appeal the Appellate Court dismissed the appeal and affirmed the decree of Mr. Justice Bhagwati. It is clear, in our opinion, both from the judgment of Mr. Justice Bhagwati and the judgment delivered in the Court of Appeal that what was done on the petition for a writ of certiorari was to set aside the order of the Collector because he had given his decision contrary to the principles of natural justice. It was not a case where the Collector had acted without jurisdiction; on the contrary, he had to exercise the jurisdiction conferred upon him by the Act, and he heard the appeal. But he did not hear the appeal as he should have done, namely, conformably to the principles of natural justice, and, as a matter of fact, Mr. Justice Bhagwati in his judgment did state that he was quashing the order so that the Collector should deal with the appeal in accordance with the law or in accordance with the principles of natural justice. It was never suggested cither by the learned Judge hearing the petition for the writ of certiorari or by the Court of Appeal that the Collector should not dispose of the appeal or that by reason of their quashing the order the appeal automatically came to an end. It would indeed be a curious result that by the decision of Mr. Justice Bhagwati and the decision of the Court of Appeal the appellants should have been deprived of their statutory right of appeal to the Collector. The respondents whole grievance was that they were not heard at all by the Appellate Tribunal, but the appellants wanted to exercise their statutory right of appeal, and both the trial Court and the Court of Appeal while setting aside the order of the Collector intended that the Collector should hear the appeal on merits. Therefore, with respect we do not agree with the view taken by Mr. Justice Desai that on the order being made on the petition for the writ of certiorari there was no pending appeal before the Collector.

(3.) The other point urged is that even if there was a pending appeal, until there has been a decision given by the Collector the landlord is entitled on the strength of the certificate which he has obtained from the Controller to evict the tenant. We are unable to accept that view of the law. The statute provides a special appellate tribunal to which parties can go if dissatisfied with the decision of the Controller, and an appeal has to be preferred within fifteen days from the date on which the order of the Controller is communicated to the parties. Then Section 14 (2) provides that the Collector should call for the record of the Controller and after examining the record and after making such further inquiry as he thinks fit, either personally or through the Controller, should decide the appeal, and Sub-section (3) lays down that the decision of the Collector, and subject only to such decision, the order of the Controller shall, for the purposes of this part, be final. Therefore, the order of the Controller is made final, but subject to this important proviso that it is subject to the decision of the Collector. In our opinion that means that the finality of the order made by the Controller disappears as soon as an appeal is preferred to the Collector, and it is only the decision of the Collector that becomes final and operative. So long as there is no appeal, the order of the Controller is final; as soon as an appeal is preferred, the matter again becomes sub judice, and it is then the decision of the Collector which has the finality which is required under Section 14(3) of the Act. The Privy Council, in Annamalay V/s. Thornhill [1931] A.I.R.P.C. 263, have enunciated the same principle of law. It is true that their Lordships were considering the question of res judicata. But the principle enunciated has a wider application than merely to questions of res judicata.