TMI Blog1946 (4) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... st the Rent Controller and her tenant for a writ of certiorari alleging that the order of the Rent Controller in fixing the standard rent was without jurisdiction. The petition was heard by Mr. Justice Kania and he took the view that as under the Rent Act an appeal was provided to the Collector, this was not a case for the issue of the writ of certiorari. It seems from the judgment of the learned Judge that he did not decide the petition on merits but contented himself with dismissing the petition on this short point. 2. Now the position with regard to the Rent Act (Bom. Act VII of 1944) is this. Section 4, which is the definition section, defines the standard rent to mean (a) the rent at which the premises were let on September 1, 1940, or (6) where they were not let on September 1, 1940, the rent at which they were last let before that date, or (c) where they are first let after September 1, 1940, the rent at which they are first let, or (d) in any of the cases specified in Section .1.3 the rent fixed by the Controller. When we turn to Section 13, it provides three cases where the Rent Controller may fix the standard rent: one is where any premises are first let after Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to which there is no answer in rejoinder that the contention of the tenant who really made the application to the Controller for fixing the standard rent was that the tenement let out to him was much smaller than the tenement which was let out to other tenants prior to September, 1940, and, therefore, his case was that the standard rent was really less or should be freed at a less amount than that which the tenant was paying to whom the premises were let prior to September 1, 1940. On the other hand the contention of the landlady seems to have been that the whole of the tenement was let out and improvements were effected in the tenement. These rival contentions were before the Controller, and on those rival contentions the Controller came to the conclusion that the proper standard rent was ₹ 270 per month. 5. It is contended by Mr. Setalvad that inasmuch as the basis of the standard rent as alleged by him was the letting out of the premises prior to September, 1940, the Controller had no jurisdiction to do so. In our opinion that contention is untenable because looking at the scheme of the Act Section 4 which defines standard rent fixes the standard rent in certain cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th great respect to the Privy Council, do not seem completely to bear out this statement of the law at least in the wide terms in which it was expressed. I shall presently briefly deal with the authorities; but our view is that considering all the decisions which have been cited at the bar, the true position seems to be that if there is another suitable remedy as, for instance, a right of appeal, then the Court would be very loath to issue the high prerogative writ of certiorari unless it is satisfied that the Court or the officer against whom the writ is sought has acted in a manner which is contrary to the fundamental principles of justice. 8. The latest case relied on by Mr. Setalvad is Rex v. Postmaster-General: Carmichael, Ex parte. [1828] 1 K. B. 281. There the applicant, who was a telegraphist, claimed compensation under the Workmen's Compensation Act on. the ground that she was suffering from telegraphists' cramp and her case was referred to the Chief Medical Officer of the Post Office and she asked for a writ of certiorari on the ground that the Chief Medical Officer had no jurisdiction to decide her case. The writ was issued and Mr. Justice Avory in his judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of appeal if there was a violation of the fundamental principles of justice. In that case a faculty was granted to a vicar and churchwardens to restore a screen in a church. In the course of the work of restoration damage not authorized by the faculty was done to a fresco. A parishioner interested in the fresco petitioned the Consistory Court for a faculty to repair the damage. The petition alleged that the damage was done by the vicar's order, but did not ask that he should pay the cost of reparation. Then a general citation was issued citing all the parishioners and inhabitants to show cause why a faculty should not be granted to allow of the repair, but no special citation was issued to the vicar. The vicar knew of the petition, but did not appear. In his absence the Judge of the Consistory Court granted the faculty asked and ordered him to pay the expense of reparation and the costs of the petition. Then a monition was issued ordering him to pay the sums under threat of sequestration; and on that, the vicar applied for prohibition. The facts are extremely eloquent and show that there was a gross abuse of the process of the Court and a violation of the fundamental prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such writs or orders where the want of jurisdiction or refusal or illegality complained of is based upon the breach of a fundamental principle of justice; and again in In re Ramjidas Mahaliram (1935) I.L.R. 62 Cal. 1011, 1035, Mr. Justice McNair stated the guiding principle to be that the writ will not issue, if there was a right of appeal, unless the want of jurisdiction complained of was based upon a breach of the fundamental principle of justice. With respect to the learned Judge below, we are unable to take the view that merely because there is a right of appeal the Court will not issue a writ of certiorari. We agree that ordinarily the Court will require the petitioner to have recourse to his ordinary remedies; but if the Court finds that there is a breach of a fundamental principle of justice, it would certainly not hesitate to issue this high prerogative writ of certiorari. In this particular ease there is no allegation that the Controller in making the order acted in any way which was contrary to the principles of fundamental justice and, therefore, even on this ground as the petitioner had the right of appeal, the learned Judge was right in holding that a writ of certiorar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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