Judgement

K. VEERASWAMI, C. J. :- The second appeals and civil revision 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 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 office 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 provision 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 Munsifs. 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.

4. Parameswaran Pillai Bhaskaran Pillai v. State Prosecutor, AIR 1951 Tra Co 45, G. Vasantha Pai v. Shri S. Ramachandra Iyer now holding the office of the Hon'ble the Chief Justice of Madras, 1967-2 Mad LJ 151 and Pulin Behary Das v. Emperor, (1912) 13 Crl LJ 609 (Cal) which are relied on in support of the view the courts below have taken, are all cases in which the validity of the acts of an officer was sustained on the ground that although he did not hold the office de jure, he had been appointed to the post and exercised factually the functions of the office and the acts done under colour of such office should not be allowed to be challenged as invalid or as those passed without jurisdiction. As we pointed out at the outset, the instant cases do not fall within that principle. Here, there was no appointment at all of the Additional District Munsif as a Controller. The Additional District Munsif in disposing of the petitions for eviction could not, therefore, be said to have acted

under the colour of any office to which he was appointed. We are, therefore, of the view that the orders passed

by the Additional District Munsif were totally without jurisdiction.

5. It is true that the Additional District Munsif will have, as a court, the same powers as the District Munsif. But by equation of the powers there can be no identification of the office they hold. There could only be one Principal District Munsif but any number of Additional District Munsifs in a given jurisdiction. And when powers under Section 2 (3) of the Act have been conferred only on the Principal District Munsif, it is impossible to say that ipso facto the Additional District Munsif too would possess those powers. This view receives support from the ratio of Harichand Agarwal v. Batala Engineering Co. Ltd., 1969-1 SCJ 872 : (AIR 1969 SC 483). The same view prevailed in In re, A Pleader. ILR (1940) Mad 433 : (AIR 1940 Mad 370) (SB) as well.

6. In the second appeals, another contention for the landlords is that when the eviction orders passed by the Additional District Munsif were taken up in revision before the District Judge, the parties compromised and agreed to a con sent order, by which time was granted to the tenant for vacating, and a tenant having had the advantage or the benefit of the time granted, he had made his election, and at no subsequent stage he

could be allowed to reprobate what he had approbated. It seems to us that this contention entirely overlooks that the eviction orders were totally without jurisdiction and were, therefore, ab initio void. The principle of election of which the doctrine of approbation and reprobation is an aspect, could only apply to orders passed with or without consent of parties by a court of competent jurisdiction. Where there is an initial total lack of jurisdiction, as in these cases, the orders passed will be ab initio void, and no validity could be attached to them by reason of

the consent of parties. The orders operate not by reason of the consent, but because they are orders passed by a competent court or authority, even though they may be passed on consent.

7. In one of the petitions, it is argued for the landlord that a Controller includes an appellate authority, and if an order has been passed by the latter, it should be taken that it has been passed by the Controller himself. The fallacy in this argument lies in the mixing up of the concept of powers with the office. It is true that when an appellate court deals with a matter, it has the same power with regard to it as the court of first instance, but that does not mean that the appellate court is identified with and has to be regarded for all purposes as the trial court.

8. The appeals and the petitions are allowed. The result will be the relative petitions for eviction should be disposed of by the proper authority in accordance with the law and in the light of this judgment. No costs. C. M. P. No. 10822 of 1970 is ordered.

Appeals and petitions allowed.