TMI Blog1979 (8) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... cation before the Rent Controller for summoning the ITO together with the returns filed by the petitioner, it seems, with the idea of proving from those returns that certain payments as rent for the suit house were shown by the petitioner in those returns. The petitioner filed an objection to the production of these documents and to the examination of the ITO contending that the returns, documents and statements made and filed by an assessee before the ITO were strictly confidential documents and they could not be made use of in a court unless permitted by the I.T. Act. It was contended that under s. 138 of the I.T. Act, 1961, the disclosure of information made to the ITO is prohibited, and such a disclosure can be made only in cases governed by s. 138 of the I.T. Act. The present case was not covered at all by s. 138 of the Act and, therefore, the non-applicant tenant, i.e., the present petitioner, was objecting to the production of the documents by the ITO. The rights granted by s. 138 of the I.T. Act had to be protected and respected by the court. The petitioner contends that this objection of the petitioner was orally rejected by the Rent Controller; he did not pass any written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Provincial Government may, by notification, direct, provide for regulating the letting and sub-letting of any accommodation or class of accommodation whether residential or non-residential, whether furnished or unfurnished, and whether with or without board, and in particular: (a) for controlling the rents for such accommodation either generally or when let to specified persons or classes of persons or in specified circumstances, (b) for preventing the eviction of tenants or sub-tenants from such accommodation in specified circumstances, (c) for requiring such accommodation to be let either generally, or to specified persons or classes of persons or in specified circumstances, and (d) for collecting any information or statistics with a view to regulating any of the aforesaid matters." It was under this provision that the Rent Control Order had been made. Mr. Madkholkar also drew my attention to another important provision of the Act, namely, s. 9, which is in the following terms: " 9. Power for securing compliance of orders.-Any authority under an Order made under section 2 may, if the said, Order so provides, take or cause to be taken, such steps and use, or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which he has reason to believe that a contravention of this Order has been committed." It was pointed out that the power is conferred under cl. 28(1), reproduced above, to take any steps necessary for the " effective exercise of such power ", on the Collector, and not on the Controller, and, therefore, the Controller cannot claim under cl. 28(1) to have the power to summon witnesses. It was pointed out that under several other enactments creating Tribunals for exercising powers under the particular enactment, there were specific provisions in the enactment conferring on the Tribunal so created, powers under the CPC or under some other procedural enactments, for specified purposes, including the summoning of witnesses and production of documents. In this respect, reference was made to ss. 102, 106A, 109(2) and 111(2) of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958, to s. 30 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, to s.. 15(2) of the Bombay Village Panchayats Act, 1959, to s. 27(2) of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1962, and to s. 21(7) of the Maharashtra Municipalities Act, 1965. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iring him to appear before him as a witness, and produce the returns submitted by the petitioner, was without jurisdiction, requiring this court to quash the same. Mr. Madkholkar contended that if the first contention discussed above was acceptable, the second contention would not really arise for consideration. Assuming that this court came to a conclusion that the Rent Controller did have an authority to issue summons to the ITO, requiring him to produce the requisite documents before the Rent Controller, then, Mr. Madkholkar contended, the provisions of s. 138 of the I.T. Act, 1961 (as amended by Act No. 5 of 1964) afforded a complete protection to the petitioner against disclosure of the information submitted by the petitioner in his income-tax returns. I would prefer to examine the second contention of Mr. Madkholkar first. It is true that under the provisions of s. 54 of the Indian I.T. Act, 1922, as also under s. 137 of the I.T. Act, 1961, as it stood, prior to the amendment thereof by Act No. 5 of 1964, there was such complete protection against a disclosure of information, available to the assessee. But s. 137 of the I.T. Act, 1961, was deleted by the amending Act No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the I.T. Act, 1961, is attracted by reason of any notification by the Central Govt. in the Official Gazette. Even if there be any such notification prohibiting a disclosure of information from the assessment return of the petitioner or prohibiting production of those returns, under s. 138(2) of the I.T. Act, 1961, the ITO could take the necessary objection when he appears as a witness before the Rent Controller. Clearly s. 138 reproduced above has no reference to the power of the court or any other authority to summon any income-tax authority, for producing certain documents before the summoning court or authority. Please see in this respect the observations of Dharmadhikari in H.N. Malak v. Aziz S. Yusuf [1974] 94 ITR 276 (Bom) with which respectfully concur. It is clear then, that s. 138 of the I.T. Act, 1961, does not afford any protection to the petitioner in the manner contended. That brings me to the first contention of Mr. Madkholkar that the Rent Controller has no jurisdiction to summon any witness for appearing before the Rent Controller as a witness or for production of documents and, therefore, naturally the Rent Controller had no power to issue summons to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rent in such a dispute, having due regard to certain circumstances enumerated in these clauses. Cl. 12 is in the following terms : " 12. Any dispute between the landlord and the tenant in regard to any increase of rent claimed under cls. 9, 10 and 11 shall be decided by the Controller. " Under cl. 13(2) a landlord who seeks to obtain permission under sub-cl (1) of cl. 13, i.e., for a determination of tenancy of his tenant by a notice, is required to apply in writing to the Controller in that behalf. Then cl. 13(3) provides that the Controller shall grant the requisite permission to the landlord to give the notice to the tenant to determine the tenancy, if " after hearing the parties " the Controller is satisfied about the existence of the circumstances enumerated in any of the nine items mentioned in cl. 13(3). Under the proviso below cl. 23(1) where the landlord has, in the intimation given under cl. 22 stated that he needs the house for his own occupation, " the Collector shall, if satisfied after due enquiry that the house is so needed, permit the, landlord to occupy the same " (emphasis supplied). This last provision refers to the powers and duties of the Collector and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at view the use of the word " notice " in cl. 18A and the absence of any provision for the issue of a summons, either to a party to the proceeding or to any third person, in the Rent Control Order have also to be noticed. Of course, the power " to hold an enquiry to decide a dispute and " to hear the parties " would necessarily imply the recording of evidence of the parties and of the witnesses which the rival parties may produce before the Rent Controller. This power would follow by necessary implication, since, it has been held: " The authorities under the Rent Control Act are quasi-judicial tribunals adjudicating upon civil rights of parties. " See Diwalibai Damjibhai Bhatti v. Jaikumar Gopaldas Jai AIR 1969 Bom 393, 394. In Sharad v. Collector, Akola [1963] Mah LJ Note No. 28 a Division Bench of this court observed that the proceedings contemplated under the Rent Control Order are not administrative proceedings, they are in the nature of quasi-judicial proceedings; therefore if any enquiry has to be held and decision given under any of its clauses, the authorities must follow the normal procedure that officers are expected to follow in quasi-judicial enquiries. That en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Gopaldas Jain, AIR 1969 Bom 393, 394 : " In my opinion, the Rent Control authorities have entirely missed to appreciate the principle on which this court held that an application dismissed in default was liable to be inquired into and registered if the Rent Control authority was satisfied that there was good cause for non-appearance. As pointed out by the Division Bench of this court by which I am bound the jurisdiction to dismiss an application for default of appearance or to Proceed ex parte against a Party who fails to enter appearance is implicit in the jurisdiction to entertain and adjudicate upon the claims made before it by the parties in proceedings under the Rent Control Order. The jurisdiction is not traceable to its inherent powers but is implicit in the Power to decide the case itself." (emphasis supplied) It would seem to me that the true limits of the application of the rule of interpretation quoted from Craies on Statute Law have been more properly stated by the Supreme Court in Sub-Divisional Officer, Sadar v. Shamboo Narain Singh, AIR 1970 SC 140, 142: " It is well recognised that where an Act confers a jurisdiction, it impliedly also grants the power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the, statute has in contemplation may be implied. See Craies on Statute Law, fifth edition, p. 105. 31. The question whether there was or was not an implied power to hold an enquiry in the circumstances of the case before us, in view of the provisions of section 4 of the Act read with rule 10A of the Central Excise Rules, was not examined by the Calcutta High Court because it erroneously shut out consideration of the meaning and applicability of r. 10A. The High Court's view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law, it must be performed in that mode or not at all. This rule flows from the maxim: 'Expressio unius est exclusio alterius'. But, as was pointed out by Wills J. in Colquhoun v. Brookes [1888] 21 QBD 52 (CA), at p. 62, this maxim 'is often a valuable servant, but a dangerous master...' The rule is subservient to the basic Principle that courts must endeavour to ascertain the legislative intent and Purpose, and then adopt a rule of construction which effectuates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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