Sengalaneer Pillaiar Temple Represented by Its Trustee Ambalavanan Chettiar Vs. Manickam Chettiar - Court Judgment

Balasubrahmanyan, J.

1. This civil revision petition comes before us on a reference by Mohan, J., who heard, it, in the first instance, without finally deciding it. The revision petition raises an important and controversial question of law as to the effect of a notification issued on 12th August 1974 by the Tamil Nadu Government, under which buildings owned by Hindu, Christian and Muslim Religious Trusts and Charitable Institutions were exempted from all the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. In the instant case, eviction proceedings instituted under the Act against the tenant of a building owned by a Hindu Religious institution were pending before the Rent Controller on the date when the exemption was notified. The controversy between the parties was whether, on the issuance of the Government's notification, the eviction petition then pending before the Rent Controller abated or whether he had jurisdiction to proceed with the inquiry and dispose of the eniction petition on merits. Mohan, J., on hearing arguments was inclined, prima facie, to take the view that with the issue of the notification by the Government, the jurisdiction of the Rent Controller even in the pending proceedings was taken away. The learned Judge, however, noticed that a contrary view had been expressed earlier by Gokulakrishnan, J. in another case, C.R. P.No. 3336 of 1975 disposed of on 9th July 1976. In the circumstances, the learned Judge referred the civil revision petition for being heard by a Division Bench. This is how the matter has come before us.

2. Before proceeding to enter upon the question in controversy, we may briefly set out the background facts. Sengalaneer Pillayar Temple, Koranad, Mayuram owns a few shop buildings, lying to the west of the temple. One of such shop buildings was let out by the temple to one Manickam Chettiar, originally on a rent of Rs. 15 per month and later at Rs. 30 per month. In 1971, the tenant fell in arrears of payment of the rent By that time, the temple also bona fide required additional accommodation for housing its office and madapalli. The temple, accordingly, gave notice to the tenant for vacating the building. The tenant, however, refused to do so, claiming that he had constructed the superstructure of the shop on his own. Thereupon, the temple represented by its trustee, filed a petition RCOP No. 24 of 1973 before the Court of the Rent Controller (Principal District Munsif), Mayuram, for eviction of the tenant under section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, on the ground that the tenant had committed wilful default in the payment of rent as well as on the ground that the temple required the building bona fide for its own occupation. Another ground raised in the eviction petition wag that the tenant had wilfully denied the title of the temple to the superstructure. The eviction petition was filed sometime in February 1973. The tenant entered appearance before the Rent Controller and resisted the petition on various grounds. The Rent Controller, after enquiry, passed an order of eviction on 7th October, 1974. In the meantime, on 12th August, 1974, the Government of Tamil Nadu, had issued a notification under section 29 of the Act exempting all buildings owned by Hindu, Christian and Muslim religious trusts and charitable institutions from all the provisions of the Act. While so, against the order of eviction passed by the Rent Controller, as aforesaid, the tenant appealed to the appellate authority, namely, the Subordinate Judge, Mayuram, in C.M.A. No. 1 of 1975 under section 23 of the Act. In the memorandum of appeal the tenant challenged the order of eviction on merits, raising various grounds of law and fact. At the hearing of the appeal, however, the tenant put forward the contention that in view of the notification by the Government dated 12th August, 1974 exempting all buildings owned by Hindu religions trusts from the provisions of the Act, which applied to the building of Sengalaneer Pillayar Temple as well, the Rent Controller had no jurisdiction whatever to pass an order of eviction at the time he did, namely, on 7th October, 1974. The learned Subordinate Judge took up for consideration the iasue of jurisdiction in the forefront and held that on the issuance of the Government notification exempting the buildings owned by Hindu religious trusts and institutions, the Rent Controller ceased to have jurisdiction in the case before him, and he could not thereafter proceed with the inquiry, much less to pass an order evicting the tenant from the temple building. He rejected the contention, advanced before him on behalf of the trustee of the temple, that the notification by the Government would not apply to eviction proceedings then pending before the Rent Controller. The learned Subordinate Judge relied, for support, on a decision of Paul, J. in Ambiga Ammal v. Selvarja Mudaliar : (1975)2MLJ51 . Having thus held that the Rent Controller had no jurisdiction to pass an order of eviction in the instant case, the learned Subordinate Judge nevertheless took the view that he himself as an appellate authority would have no jurisdiction to pass any order in the appeal, considering that, under the terms of the Government's notification, the building in question was exempted from all the provisions of the Act, inclusive of section 23 under which alone he could exercise appellate jurisdiction. In this view of the matter, he dismissed the appeal, without entering into its merits, observing, at the same time, that the tenant would be entitled to put forth appropriate defences, if and when the temple attempted to execute the order of eviction.

3. Against the decision of the appellate authority the tenant filed a revision petition before this Court in C.R.P. No. 548 of 1976 under section 2 of the Act. Meanwhile, the temple filed E.P. No. 314 of 1975 for delivery of the property. On 11th December, 1975 delivery was actually effected. Thereupon, the tenant filed two applications before the Rent Controller: (i) E.A. No. 202 of 1976 purporting to be filed under sections 47 and 151 of the Code of Civil Procedure, for an order declaring that the eviction order passed by the Rent Controller on 7th October, 1974 in RCOP No. 24 of 1973 was a nullity; and (ii) E.A. No. 203 of 1976 purporting to be filed under section 144 of the Code of Civil Procedure, for a consequential order, directing the temple to redeliver the property to the tenant. The Rent Controller heard the two E. As together, and on 16th July, 1976 he passed a common order declaring that the eviction order dated 7th October, 1974 in RCOP No. 24 of 1973 was a nullity and directing the temple to redeliver the building to the tenant by 13th August, 1976. It is against this common order of the Rent Controller, dated 16th July, 1976 in E.A. Nos. 202 and 203 of 1976, that the temple bas come up for revision before this Court in this civil revision petition. Incidentally, it may be mentioned, the earlier C.R.P. No. 548 of 1976 filed by the tenant against the order of eviction was withdrawn by him and dismissed on 22nd July, 1976.

4. Mr. Chandramouli, learned Counsel for the petitioner temple, contended before us (i) that the Rent Controller was not competent to hold that the previous order of eviction was a nullity and (ii) that the Rent Controller had no jurisdiction under the Act to order re-delivery. Mr. V.K.T. Chari, appearing for the tenant, submitted, on the other hand, that the Rent Controllor was competent under the Act, to order re-delivery of the building when once he was satisfied that the order of eviction, in execution of which the temple had obtained delivery, was a nullity.

5. It, however, seems to us that the technicalities with which these questions bristle might be avoided by examining the basic issue which arises in this case, namely, whether the Government's notification of exemption dated 12th August, 1974 under section 29 of the Act had operative effect so as to put an end to the jurisdiction of the Rent Controller to proceed to dispose of the eviction petition pending before him, at the time, or whether the eviction order passed by him subsequent thereto was within jurisdiction. On this aspect, Mr. Chandramouli submitted that the notification in question would not affect the eviction petition filed earlier and pending before the Rent Controller on the date of the notification. This contention bears examination both on the terms of the notification and on the terms of section 29 under which it was issued.

6. The text of the notification issued by the Government of Tamil Nadu is as under:

(G.O.Ms.No. 1998, Home, dated 12th August, 1974). In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, i960 (Tamil Nadu Act XVIII of 1960) the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious trusts and charitable institutions from all provisions of the said Act.

7. The language of the notification is plain enough. In the first place, the exemption, Inter alia applies to all the buildings owned by Hindu religious trusts and charitable institutions, without exception. In the second place, all buildings to which the notification applies are exempt from all the provisions of the Act, without exception.

8. Section 29 of the Act, under which the above exemption was notified by the Government, is found enacted by the Legislature in the following terms:

Exemptions; Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act.

9. Addressing himself to the nature of the power of exemption conferred on the State Government, under section 29, Mr. Chandramouli urged that, in its nature, it was an executive power. By way of contrast, he pointed to another exemption provision in the Act, namely, Section 30 under which the category of buildings which are the subject of exemption as well as the scope of their exemptions are both to be found in the very terms of the section. Learned counsel proceeded to submit that the Government's exemption power under section 29 being purely executive in character it cannot be exercised so as to have effect from a date anterior to the precise point of time of its exercise. In support of these contentions, he relied strongly on a decision of the Supreme Court in Income-tax Officer. Alleppey v. M.C. Ponnoose : [1970]75ITR174(SC) . The question which arose in that case concerned the effect of a notification by the Government of Kerala authorizing Tahsildars in State Government service to exercise the powers of a Tax Recovery Officer under the Income-tax Act, 1961. The notification in question was on 20th August, 1963. But it expressly provided that 'this notification shall be deemed to have come into force on the 1st day of April, 1962'. The notification was issued by the State Government in purported exercise of its powers under section 2 (44) (ii) of the Income-tax Act, 1961. The relevant provision reads as under:

Tax Recovery Officer means... (ii) any such officer empowered to effect recovery of arrears of land revenue or other public demand under any law relating to land revenue or other public demand for the time being in force in the State as may be authorized by the State Government, by general of special notification in the Official Gazette, to exercise the powers of a Tax Recovery Officer.

The question before the Supreme Court was whether the State Government could invest the Tahsildar with the powers of a Tax Recovery Officer under Section 2 (44) (ii) of the Income-tax Act, 1961 with effect from a date anterior to the date of the notification, that is to say, retro-actively or retrospectively. While dealing with this question, the Supreme Court cleared the ground for discussion by first observing that it was open to a sovereign Legislature to enact laws which have retrospective operation. The Court observed, next, that where any rule or regulation is made by any rule-making authority to whom such powers have been delegated by the Legislature, it may or may not be possible for that authority to make rules so as to give retrospective operation, and the question will depend on the language employed in the statutory provision, which may, in express terms or by necessary implication, empower the authority concerned to make a rule or regulation with retrospective effect. Having stated the position thus with reference to (i) retrospective legislation enacted by the Legislature and (ii) retrospective rule-making by subordinate rule-moking authorities, the Supreme Court proceeded to examine what the position would be in regard to executive acts, which the Legislature authorised the executive to perform. The Court observed that in such cases it would be all the more necessary to consider the scope of the power which the Legislature conferred on the executive with a view to find out whether it could be exercised by the executive retrospectively. Turning to the case on hand, the Supreme Court held that while section 2 (44) (ii) of the Income-Tax Act empowered the State Government to authorise Tahsildars to act as Tax Recovery Officers, the exercise of such power by the State Government was more of an executive, than a legislative act. In the opinion of the Supreme Court, the State Government's notification investing the Tahsildars with authority to exercise the powers of a Tax Recovery Officer could by no means be regarded as a statutory rule or regulation or bye-law. Proceeding, the Court held that since the State Government's power itself, under the statute, was an executive power, it could not, under the notification, authorize the Tahsildar to exercise the powers of a Tax Recovery Officer with effect from a date prior to the date of the notification.

10. Basing himself on the principle of the decision of the Supreme Court, Mr. Chandramouli submitted that there was nothing in the language of section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 to show that the power conferred by the legislature on the State Government to exempt buildings from the provisions of the Act, included a power to exempt them with retrospective effect. Learned counsel further stressed that, in any case, the language of the Government's notification dated 12th August, 1974, from which alone the scope of the exemption was to be spelled, was plain and it showed that the notification was to apply only prospectively. He seemed to rely particularly on the words, 'The Governor of Tamil Nadu hereby exempts all the buildings...etc.'

11. We agree with the construction placed by the learned Counsel both on the words of section 29 of the Act and on the language of the notification dated 12th August, 1974. The very concept of exemption, in our opinion, must exclude any idea of retro-active application. 'To exempt' means 'to free from control,' It follows that the act of freeing anything from pre -control must necessarily begin to operate only from here and now. We hold that it is in this sense that the Legislature had invested the State Government with the power to grant exemption under section 29 of the Act. It is to be noted that the section requires an overt act on the part of the executive to render the provisions of the Act inapplicable to the buildings covered by the notification. On the plain language of section 29, we think we must hold that the power to exempt is exercisable only so as to have effect from the moment of its exercise. There-are no words in the section to indicate that the exemption could be notified by the Government with retrospective effect.

12. We also accept the contention of Mr. Chandramouli that the nature of the power conferred under section 29 is purely executive in character. In Globe Theatres v. State of Madras I.L.R. : AIR1954Mad690 . a Division Bench of this Court considered the constitutional validity of a similar power of exemption conferred on the State Government by an identical provision in section 13 of the Madras Buildings (Lease and Rent Control) Act, 1949. The entire discussion proceeded in that case on the footing that the Government's power under the section to exempt any building or class of buildings from the provisions of the Act was purely an executive discretion. The contention before the Bench was that the discretion as conferred by the statute, was arbitrary. The Bench, however, expressed the view that in the context of the scheme of the Act and its various provisions the discretion to exempt was a guided and controlled discretion. Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, is in the same terms and must be held as conferring on the State Government an executive discretion in the matter of exemption. This is also further illustrated by the next suceeding section, Section 30 in which, by contrast, the exemption to certain classes of buildings is exigible under the very terms of that statutory provision, without more.

13. Two results flow from the position that the Government's power under section 29 is purely an executive power. In the first place, the power, in its very nature, is exercisable only prospectively, and if a notification is in terms issued with retrospective operation, the notification, to that extent, would be ultra vires section 29. In the second place, any notification issued under section 29, if its language in neutral, must be construed only as operating prospectively, for only by such a construction can the notification be held to be intra vires the enabling provisions of section 29. In this sense, we regard the decision of the Supreme Court in Income-tax Officer, Alleppey v. M.C. Ponnoose : [1970]75ITR174(SC) . as an a fortiori case There the Court was concerned actually with a notification by the executive which, in terms, was stated to have retrospective operation, but, the Court, on a construction of the enabling provisions of the statute, held that the notification, to the extent that it was expressed to operate retrospectively, was ultra vires, as being in excess of the power conferred on the executive by the statute. In the present case, as we have already noticed, the notification of the State Government dated 12th August, 1974 is not expressed to take effect on any earlier date. On the contrary, as we remarked earlier, the language was 'the Government hereby exempts' etc. It follows that the plain language of the notification cannot be read so as to give it retrospective effect, since to do so would be to impute to the Government a power to grant exemption with retrospective force, which, as we have earlier held, the Government does not possess, on a true construction of section 29.

14. On the facts of this case, there could hardly be any dispute as to the position that obtained on the date of the notification, namely, 12th August, 1974. The tenant had wilfully defaulted in the payment of rent to the temple, even in 1973. Besides, the building was required bona fide for the temple's occupation. On these causes of action, the temple filed the eviction petition in February, 1973. The Rent Controller thus had jurisdiction to entertain, hear and determine the eviction petition. This being so, it is not known how the landlord could lose its right, to evict the tenant merely because, during the pendency of the proceedings, the Government had notified the buildings owned by the Hindu religious trusts from the provisions of the Act as from 12th August, 1974. Much less is it possible to accept the thesis that, by its own force and effect, the notification dated 12th August, 1974, ousted the Rent Controller's jurisdiction in the pending proceedings or that somehow the petition abated. We have no hesitation, therefore, in holding that the order of eviction passed by the Rent Controller in this case on 7th October, 1974 in R.C.O.P. No 24 of 1973 was passed in the legitimate exercise of his jurisdiction under the Act, which, in our view, continued to subsist notwithstading the issue of the notification by this State Government dated 12th August, 1974. It follows that the contrary view expreseed by the Subordinate Judge in C.M.A. No. 1 of 1975 in the appeal against the order in R.C.O.P. No. 24 of 1973 as well as the orders of the Rent Controller in E.A. Nos. 202 and 203 of 1976 are erroneous and cannot be supported.

15. It now remains for us to notice a few of the decisions of learned single Judges of this Court, which were brought to our notice. Paul, J., in Ambiga Ammal v. Selvaraja Mudaliar : (1975)2MLJ51 . had occasion to deal with the effect of the notification dated 12th August, 1974 in regard to a pending revision petition before this Court under section 25 of the Act. It would appear from the report of this case that the eviction petition in question had been filed before the Rent Controller in 1970 by the trustee of Sri Pandurangaswami Bajanai Koil for eviction of a tenant in occupation of the building belonging to the temple on the ground inter alia, that the tenant was using the building for a purpose other than the one for which it was let out to Mm. . The Rent Controller recorded a finding that the tenant was using the premises for an unauthorised purpose. Nevertheless, he dismissed the petition on the ground that no valid notice terminating the tenancy was given by the temple. On appeal, the appellate authority agreed with the Rent Controller, by its order dated 3rd March, 1973. The temple authorities then filed the revision petition before this Court under section 25 of the Act. At the time of hearing of the revision petition before Paul, J., preliminary objection was raised on behalf of the tenant to the effect that pending the revision petition, the building became the subject of exemption from all the provisions of the Act including section 25 under the Government's notification dated 12th August, 1974, and hence the revision did not lie. Paul, J., accepted this contention, and dimissed the civil revision petition. On behalf of the temple authorities it was argued before the learned Judge that the notification would not apply retrospectively so as to affect the revision petition pending before this Court. The learned Judge, however, expressed the opinion that in view of the fact that the Government, by its notification, removed all buildings belonging to religious trusts from all the provisions of the Act, this Courts jurisdiction to pass any order in revision under section 25 in regard to the premises in question had come to an end. In the course of his judgment, the learned Judge observed;

16. 'This is a case, where under the statute itself, power was given to the Government to exempt any premises from the operation of all or any of the provisions of the Act'. This passage shows that the learned Judge apparently thought that since power was given to the executive to exempt any premises from the operation of the Act, the order of exemption, when actually exercised, must be construed to have retrospective operation for no other reason than that the notification was issued by the executive in exercise of such power. This is only another way of saying that . the very exercise of power is a justification for construing it retrospectively. Earlier in our judgment we have referred to the principle enunciated by the Supreme Court in its decision in Invometax Officer Alleppey v. M.C. Ponnoose : [1970]75ITR174(SC) . That decision, we may repeat, is authority for the position that whatever might be the principle applicable to retrospective legislation and retrospective rule making, the exercise of executive power, as such, cannot be carried out with retrospective effect unless the enabling statute expressely and specifically conferred such a power. Obviously, the decision of the Supreme Court was not cited before Paul, J. A later case with results that are obvious from the judgment is reported in G. Sebastia v. R. C. Diocese, Madurai : (1976)1MLJ435 . The landlord in this case was the Roman Catholic Diocese, Madurai. It applied to the Rent Controller for evicting its tenants from certain buildings with a view to obtain possession for the purposes of demolition and reconstruction of the buildings for certain ecclesiastical purposes. The eviction petitions were filed before the Rent Controller in February, 1971. On appeal, the appellate authority confirmed the order of the Rent Controller by order dated 3rd April, 1975. Against that decision the tenants moved this Court in revision. Before Gokulakrishnan, J., who heard the revision petition, it was contended, for the first time, that in view of the notification of the Government dated 12th August, 1974, exempting buildings belonging to Christian religious trusts and institutions from the operation of the Act, the order of eviction could not be confirmed by the appellate authority as had been done in the case. It was urged that at the time when the notification was issued on 12th August, 1974, the appeals were pending before the appellate authority and they came to be disposed of only subsequently on 3rd April, 1975. This contention was, however, repelled by the learned Judge, who held that section 25 of the Act 'has not empowered the Government to pass any G.O. giving retrospective effect for such exemption'. The attention of Gokulakrishnan, J., was drawn to the judgment of Paul, J., but he felt bound to apply the principle enunciated by the Supreme Court in Income-tax Officer, Alleppey v. Ponnoose : [1970]75ITR174(SC) . We are in agreement with the conclusion of Gokulakrishnan, J.

17. Another decision of the same learned Judge was brought to our notice--an unreported judgment dated 9th July, 1976 in G.R.P.No. 3336 of 1975, wherein following his earlier decision, the learned Judge held that 'G.O.Ms.No. 1998, Home, dated 12th August, 1974 will not affect the Rent Control proceedings started by the petitioner much earlier than the coming into force of the asid Government Order'.

18. In his referring judgment in this Civil Revision Petition, Mohan, J., had expressed a prima facie disagreement with the above view of Gokulakrishnan, J. Mohan, J. seemed inclined to agree with the contention that with the issue of the Government notification on 12th August. 1974, the jurisdiction of the Rent Controller even in pending proceedings was taken away and that any order passed by the Rent Controller thereafter would be a nullity. For the reasons which we have already, elaborated we must hold that an order passed by the Rent Controller in a pending proceeding subsequent to the issue of the notification would by no means be a nullity, but would be an order within jurisdiction.

19. Yet another judgment of a learned single Judge brought to our notice on the subject is that of Ramanujan, J., in Semiappan v. Sriramji Rao Trust by its Managing Trustee and Executive Officer, Konniamman Devasthanam (1976)T.L.N.J. 126. In that judgment the learned Judge, inter alia took up for consideration the true construction of the Government notification dated 12th August, 1974. He observed 'the notification itself does not, in its own terms, make its operation retrospective so as to nullify the earlier order of eviction passed'. We agree with this observation as to the precise scope and effect of the notification for exemption. The brief report of the judgment of the learned Judge in this journal shows that the effect of the Government notification was also discussed with reference to the provisions of section 6 of the General Clauses Act, 1897. We however, think that neither this section nor the corresponding section 8 of the Madras General Clauses Act, 1891, has any relevance to the present discussion. In the first place, the concerned provisions of the General Clauses Acts deal with the effect of repeal of an Act by another Act of the Legislature. There are cases in the books which show that Courts have applied the principles laid down in section 6 of the General Clauses Act even to omissions or amendments of individual sections in an Act. Possibly, the same principles can be applied to the omission or amendment of statutory rules also. But it seems to us that section 6 of the General Clauses Act cannot be applied, in the same way for ascertaining the effect produced on a statute and its provisions by a notification issued by the Government in exercise of relevant powers conferred on it under the very terms of that statute. As pointed out by the Supreme Court in Income-tax Officer Alleppey v. M.C. Ponnoose (1970) 1 I.T.J. 190 : A.T.R. 1970 S.C. 385. the power exercisable by the Government under the statute in such cases would seem to be more in the nature of an executive act than a legislative one. We do not think, therefore, that section 6 of the General Clauses Act can be sought in aid for ascertaining the scope and effect of a notification issued by the State Government in exercise of its power under section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

20. Our attention was drawn by Mr. Chandramouli finally to a decision of a Bench of this Court consisting of Ramanujam and v. Ratnaswami, JJ, a brief report of which appears in M/s. Killick Nixon Ltd v. V.R. Narayaua Rao (1974) 1 M.L.J. , The report shows that the case before the Division Bench was concerned with the effect of an amendment introduced in section 30 of the Madras Buildings (Lease and Rent Control) Act, 1960, by the Amendment Act XXIII of 1973. While discussing the applicability and the effect of the amendment on certain pending legal proceedings the learned Judges observed that if the Legislature had intended the amendment to be retrospective so as to affect the pending proceedings, the Legislature would have made a specific provision for abatement of those proceedings. To illustrate their reasoning, the learned Judges referred to the procedure adopted by the Legislature in an earlier Amending Act II of 1962, which amended certain provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The learned Judges pointed out that in that Amendment Act a specific provision was enacted which declared that pending proceedings abated as on the date of the amendment. This judgment, in our opinion, is not strictly in point inasmuch as it was concerned with the effect of amendment of particular section in a legislative Act. We have earlier observed that the omission or amendment of a statutory provision is the work of the Legislature itself, whereas in the present case we are concerned with the effect of a Government notification, which is merely an executive act, on the provisions of the statute. The difference between the two cannot be overlooked. In this view, it is unnecessary for us to examine the correctness of the principles laid down in this decision by the Division Bench from the point of view of the case before us.

21. In the view we have taken of the validity of the order of eviction in this case, the subsequent order passed by the Rent Controller in E.A.No. 202 of 1976, holding the earlier eviction order to be a nullity is clearly untenable and has to be set aside. It is needless to say that the consequential order of the Rent Controller in E.A. No. 203 of 1.976 directing redelivery of the property is also contrary to law. In the event, it is unnecessary for us to decide the other question raised as to whether, at the material time, the Rent Controller, as executing Court, had power to order restitution.

22. The Civil Revision Petition is allowed with costs, and the order passed by the Rent Controller in E.A. Nos. 202 and 203 of 1976 is set aside.