JUDGMENT
M.L. Jain, J.
(1) The respondent Dr. (Mrs.) Sant Kaur Grewal filed an eviction petition under section 14(1)(e) read with section 25B of the Delhi Rent Control Act, 1958 (herein the Act) against the appellant Mjs. Mehra-Mehra. The petition was allowed by the Controller Shri J. D. Kapoor on 31st March, 1980. A revision in the High Court was dismissed on 8th December, 1981. While the landlady moved an execution application on 10-12-1981, the ..petitioner preferred special leave petition to the Supreme Court. The Supreme Court dismissed the petition on 12-3-1982, but stayed execution up to 30-8-1982 provided the tenant filed an undertaking to vacate by the said date and to continue to pay the arrears of future compensation month by month. No such undertaking was filed. Instead, on 16-4-1982 the appellant filed an objection under order 21 Rule 22 read with sections 47 and 151 Civil Procedure Code before Smt. Kanwal Inder who had by now succeeded Shri J. D. Kapoor as Controller. The objection was that the appointment of Shar Kapoor and Smt. Inder were bad in law and consequently, the order of recovery of possession made by Shri Kapoor was a nullity. Besides, the present Controller not being a successor court was not entitled to entertain the execution application. The learned Controller by her order of 18-1-1983 dismissed the objections. The Rent Control Tribunal by its order dated 4-2-1983 dismissed an appeal against her order. Hence, this second appeal.
(2) I have heard the counsel, Shri Venu Gopal appearing for the respondent contended that the question raised by the appellant could not be raised at this stage because the executing court cannot go behind the decree. By virtue of section 42 of the Act. the order of eviction is executable as a decree of a civil court and for this purpose the Controller has all the powers of a civil court. Section 47 Civil Procedure Code provides that the executing court can determine questions relating only to the execution discharge or satisfaction of the decree. The appellant, therefore, cannot raise any question which does not relate to the execution or discharge or satisfaction of the order of eviction, while the question raised here is with regard to the validity of the decree which question should have been raised in the eviction proceedings and not in the execution proceedings. The learned counsel for the appellant on the other hand, argue that a question whether a decree is a nullity can be raised at any stage.
(3) In Ledgard and another v. Bull, (1886) L.R. 13 I.A. 134(1), the Privy Council held that consent or waiver can not cure inherent lack of jurisdiction. Following Ledgard (supra) in Seth Hiralal Patni v. Sri Kali Nath, , it was observed that the validity of the decree could be challenged in execution proceedings on the ground that the court which had passed the decree was lacking in inherent jurisdiction in respect of the subject matter or over the parties to it. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. and can be waived. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, it was observed that an objection as to the validity of a decree may be raised in an execution proceeding if it appears on the face of the record, but where the question as to the jurisdiction of the court to pass the decree does not appear on the face of the record and where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceedings. Same was the view taken in Sunderdass v. Ram Parkash, There are yet several decisions of the Supreme Court in which an eviction order based upon compromise was successfully challenged in execution as without jurisdiction because there was no indication to show that the conditions requisite for eviction were in fact satisfied. The last of such decisions is K. K. Chari v. R. K. Seshadri, . Section 21 of the Cpc provides that an objection to territorial or pecuniary jurisdiction will not be heard lineless raised at the earliest opportunity and has resulted in failure of justice. Yet, it makes no such provision in regard to inherent lack of jurisdiction. No doubt, one is not bound to obey a nullity and there arc no degrees of nullity. But what the courts have laid down is that an order or decree cannot be challenged in execution proceedings unless the authority making the order or decree lacked the inherent jurisdiction. If this were not insisted upon, there will be no finality to litigation. That is why section 43 of the Act provided that every order made by the Controller or an order passed on appeal under the Act shall be final and shall not be called in question in any original suit, application or execution procecdings. South Asia Industries (P) Ltd. v. S. B. Sarup Singh and others, , explained that section 43 imposes a total bar. No restrictive meaning can be given to this section because the Act is a self-contained one and provides an exhaustive code. That should have put an end to the arguments of the tenant appellant. But an ouster clause does not bar judicial review, vide Khudi Ram Das v. State of West Bengal, AIR- 1975 Sc 555(7} at 558, and In re-Special Courts Bill . As held in R. J. Singh Ahiuwalia v. The State of Delhi, ,a jurisdictional point goes to the root of the case and can be raised at any stage. It is contended that the Controllers lacked inherent jurisdiction because the Lt. Governor who appointed them had no authority to do so. It is further contended that it can be demonstrated by an examination of the relevant notifications and calls for no investigation into facts as much. I, therefore, reject the initial objection of Shri Venn Gopal.
(4) Let us then proceed to examine whether the Administrator had the requisite authority to appoint the Controllers, Section 35 of the Act provides as follows :
“The Central Government, may by notification in the official gazette, appoint as many Controllers as it thinks fit, and define the local limits within which, or the hotels and lodging houses in respect of which each Controller shall exercise the powers conferred, and perform the duties imposed, on the Controller by or under this Act.”
According to clause (8) of section 2 of the General Clauses Act, 1897, ‘Central Government’ means the President and includes in relation to the administration of a Union Territory, the Administrator thereof acting within the scope of the authority given to him under Article 239 of the Constitution. Article 239 of the Constitution is :
“Save as otherwise provided by , Parliament, by law, every Union Territory shall be administered by the President acting, to such extent as he thinks fit, through an Administrator to be appointed by him with such designation as he may specify”.
in respect of a Union Territory, functions of Government both Central and State vest in the President and while discharging the functions of both such Governments he is authorised to act through an Administrator wholly or partly, conditionally or unconditionally as he considers fit in relation to anv matter. At the time of appointment of Shri Kapoor, Shri D. R. Kohli was the Administrator appointed by the Home Ministry Notification dated 12-4-1977 with the designation of a Lt. Governor, and at the time of the appointment of Smt. Kanwal Inder, Shri Jagmohan was the Administrator appointed by a similar notification with effect from 17-2-1980. These appointments are general and do not seem to impose any limits on the extent of their powers. Yet in all legislations extending to the Union Territory of Delhi, Central Government is not equal to the Administrator, firstly, because the definition in section 2(8) of the General Clauses Act is an inclusive one, secondly, because it has to be read subject to the context, and thirdly, because the Administrator in order to act for the President can only do so within the scope of the authority given to him Hence, the need for conferment of authority on him under Article 239 and consequently the notification of the Home Ministry of 29th July, 1975 which empowered the Administrator to exercise the powers under section 35 of the Act subject to the control by the President. The Administrator has been appointing Controllers by virtue of this conferment. Is then this notification bad in law? It is urged that it is so because, (1) the Parliament while giving the powers to the Central Government to appoint Controllers under section 35 of the Act, purported to provide by law made within the opening condition in Article 239 that none other than the President himself shall exercise those powers and, therefore, the powers could not be exercised through the agency of the Administrator, (2) the Central Government itself is a delegate of the Parliament and cannot further delegate the powers unless the Parliament authorised any such further sub-delegation, and (3) the notification was issued in violation of the Government of India (Allocation of Business) Rules, 1961, made under Article 77(3) of the Cunstitution.
(5) I do not find anything in the Act to show that it ever contemplated even by implication that the powers under section 35 could be exercised only by the President and could not be passed on to the Administrator in so tar as the Union Territory is concerned, in particular when the law to be administered deals exclusively with the Union Territory. Power to appoint incumbents of the offices created by statute or otherwise is an executive or administrative act. Such functions cannot be delegated unless the law permits. There is no doubt that the power to transfer the function of appointment of Controllers is not conferred by the Act. Nevertheless, that power can be exercised under the Constitution under Article 239 which permits such delegation. The source of power to delegate is to be found not in the Act but in the Constitution. It is an exercise of the constitutional power. As a matter of fact, it is not delegation as such but it is the President acting through the Administrator. While doing so, the President has retained the ultimate control in himself as the notification itself so specifically provides.
(6) This notification is assailed on the ground also that it amounts to sub-delegation which is not permitted by the Act. The Central Government under section 35 acts as a delegate of the Parliament and it cannot further delegate its powers to any one. I have already partly answered the question. The maxim ‘delegatus non potest delegare’ deals with the extent to which a statutory authority may permit another to exercise a discretion entrusted by the statute itself. It means conferment of an authority to do things which otherwise that Administrative authority would have to do for itself. If, however, the administrative authority named, in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree there is in the eye of law, no delegation at all and the maxim ‘delegatus non potest delegare does nut apply : Fowler (John) and Co. (Ledds) v. Duncan. 1941 Ch. 450(10), and Union of India and another v. P. K. Roy, . The presidential notification of 29-7-1975 is fully protected, by the law laid down by the Supreme Court.
(7) The next contention of the appellant is that the said notification was bad because it was issued by the Ministry of Home Affairs, while the subject has been allocated under the Allocation of Business Rules to the Ministry of Works and Housing. I have had an occasion to examine this aspect when I was a Judge of the Special Court in case No. 1179(12), State Mrs. Indira Gandhi & others. I reached certain conclusions which I consider to be valid. I said in my order dated 15-1-1980 :.
“According to Article 73 of the Constitution, the executive power of the Union extends broadly to – (1) matters enumerated in List I of the 7th Schedule to the Constitution; (2) matters enumerated in Lists Ii & Iii if the Constitution or a Central Law so permits and not otherwise : and (3) matters relating to any treaty or agreement. Such executive power, according to Article 53, vests in the President. The President can exercise this power so vesting in him either directly or through officers subordinate to him in accordance with the Constitution, that is, only in accordance with the aid and advice of the Council of Ministers headed by the Prime Minister. But neither the Council of Ministers nor an individual Minister can attend to every business. The Constitution, therefore, makes two kinds of provisions, one relating to the form and other relating to the substance of the executive work of the Government: Constitutional Law of India by Seervai. Vol. Iii, para 18.52 at 1081. Under clause (3) of Article 77. the President is required to make rules (1) for the more convenient transaction of the business of the Government of India, and (2) for the allocation among Ministers of the said business. The business allocated to a Minister can be transacted further by a civil servant if designated by the rules or standing orders. This is not a matter of form but of substance. All the executive actions are, however required to be expressed in the name of the President and to be authenticated in such manner as may be specified by rules made in this behalf by the President and the authority of any order or instrument so authenticated, cannot be called in question on the ground that it is not an order made by the President. That is so because the Ministers and other subordinate officers are not delegates but part of the institution of the President and the Central Government functions on his behalf and in his name. Thus, if the act is (a) of a person to whom the business has been allocated under the Business Rules; (b) transacted in accordance with the rules and (c) has been authenticated in the manner specified in the Rules, then it acquires an immunity and an irrebuttable presumption is raised that the order or instrument is made or executed by the President. But if there is non-compliance of the aforesaid requirements, then no such presumption can arise. This constitutional position will explain the importance of the allocation by the President of the executive business among the various Ministers and departments. That is why in R. J. Singh Ahluwalia v. The State of Delhi, , conviction was quashed because the sanction for prosecution which should have been under the Allocation Rules issued by the Home Ministry was issued instead by another Ministry though the employee belonged to the latter. This decision makes it clear that no Minister can exercise functions allocated to any other Minister and such exercise shall not be beyond challenge even though the order or the instrument has been authenticated in the specified manner. Seervai in his Constitution Law of India. Vol. It, para 18.54 at p. 1084, has again emphasised that apart from the formal expression of executive acts or decisions, it is necessary to provide for those executive acts or decisions as a matter of substance and the President and the Governors are required to frame rules of business allocating business with respect to various Ministers. Shamsh.er Singh v. State of Punjab and another, , has held that the decision by any Minister or officer under Rules of Business made in Article 77, C1. (3), Is the decision of the President (emphasis mine). In other words, the immunity is available only if the order is made by a duly constituted authority and is further expressed and authenticated in the specified manner. In order to find out whether immunity can be claimed or not. the court will have the jurisdiction to examine if any of the conditions remains to be satisfied. In M/s. Bijoya Lakshmi Cotton Mills Ltd. v. State of West Bengal and others, , the Supreme Court said
What the .authentication makes conclusive, under Article 166(2) (477(2), is that the order has been made by the Governor. But-the further question as to whether, in making the order, the Governor (President) has acted in accordance with law, remains open to adjudication”. (brickets mine). In R. v. Sibnath Banerji , the Privy Council had upheld that an inquiry can be made as to whether an order purporting to be made and duly made by and in the name of the Governor ( President) was .in fact made under the powers conferred by law or in excess of those powers, (see Seervai Volume Ii page 1083).
INDattatraya Moreshwar pangarkar v. The State of Bombay and others, 1952 Scr 612, the Supreme Court said that clause (1) is directory and not imperative in its character, State of Rajasthan and another v. Srilal Jain. . does further show that the requirements of d. (2) are also directory. But then, what does that signify ? It means that any defect of form prescribed in els. (1) and (2) would not necessarily vitiate or make the order illegal or a nullity but it will preclude the presumption of validity from being raised and it will throw a burden on the Government to show that the order having been in fact made by a proper authority would not be bad in law. Mr. Sanghi was unable to cite any authority to show that the provisions of clause (3) were only directory in character. I consider that the allocation of business among the Ministers is mandatory in character, because it will otherwise violate the previsions of Article 53(1) for the reason that the executive power in that event cannot be said. to have been exercised ‘in accordance with the Constitution The further argument of Mr. Sanghi that it is no concern of third parties how the business of the Government of India is allocated and transacted merits little consideration. The accused are not third parties but are vitally concerned whether the present proceedings against them have been directed in accordance with the provisions of the Constitution or not.
The next argument of the prosecution that even if the subject relating to Special Courts and various executive functions under the Act were not allocated to any Minister or any other subordinate officer, the Home Ministry or the Ministry of Law, Justice and Company Affairs could exercise those powers as the case may be and under the principle of collective responsibility, such an act shall be deemed to be an act of the Council of Ministers. Collective responsibility as said in A. Sanjeevi Naidu etc. v. State of Madras and another. , is a political responsibility. turn all that passes in the Cabinet, every member of it is absolutely and iretilavably responsible. But it does not mean that the decision of a Minister with regard to a matter not allocated to him shall be deemed to be an act of the Cabinet.
(8) There is, thus, no ‘doubt that if a notification is issued by the Ministry to which the subject is not allocated, then the notification will not be in accordance with the Constitution. In Fonseca (P) Ltd. and others v. L.C. Gupta and others, . it was clearly laid down that under the Allocation of Birsiness Rules it would be the Minister or the officer empowered thereby who alone could exercise those powers in the name of the President. What we have, therefore, to examine is the two relevant entries in the second schedule to the Government of India (Allocation of Business) Rules, 1961, one under entry No. 12 under the Ministry of Home Affairs which relates to appointment of Lieutenant Governor and the other entry No. 22 under the Ministry of Works and Housing which relates to the administration of the Act and eviction in Delhi. Tn M/s. Indian Tourism Development Corporation New Delhi v. Delhi Administration, Delhi and others, 1982 Lab., I.C. 1309 (14) para 13, it was said that a distinction has been drawn by the President between the administration of various Acts and other activities. Whenever the administration of any Act was to be allocated to a specified Ministry, it is so expressed. Relying upon these observations, it was urged that since the administration of the Act is allocated to the Ministry of Works & Housing, it cannot be administered by any other Ministry and if so done it will be an unauthorized exercise of business. Yes, the Works & Housing (Ministry) no doubt is concerned with the legislative and executive functions with respect to the Act, but the Works’ Housing Ministry cannot appointed a Lieutenant Governor nor can it define the extent of the administration to be done through the Lt. Governor. The extent of the authority of the Lt. Governor is nothing but the area and the ambit of his appointment. Therefore, even though the subject matter directly falls under the Ministry of Works & Housing, yet in so far as it relates to the conferment of authority under Article 239 of the Constitution, the subject appropriately belongs to the Ministry of Home Affairs. The most that can be said in favor of the appellants is that either of the two Ministries, could issue the impugned notifications, vide State of Rajasthan v. Dr. A. K. Datta, . Incase of overlapping of subjects, the best judge will be the Government, yet it seems to me that out of the two concerned Ministries, the notification has appropriately been issued by the Ministry of Home Affairs. Rather, if the notification were issued by the Ministry of Works & Housing it would have been inappropriate if not entirely illegal as in that case it will be exercising the powers of the appointment of a Lt. Governor under Article 239. It will be inapposite to contend that the powers will be conferred on the Lt. Governor by each Ministry concerned in relation to the subject matter or the various enactments to be administered by it in relation to the Union Territories. That apart Shri Venn Gopal has rightly contended that unless the Union of,India js not a party to these proceedings, it is not possible to say that the Ministry of Works and Housing did not approve of the conferment of the powers purported to have been done under section 35 of the Act, even if it be not apparent on the face of the record. It is a matter calling for proper investigation and cannot be agitated at the stage of execution”
(9) All the challenges to the notification of 29-7-1975, therefore, fail and I further find that the appointment of the Controllers does not suffer from any defect.
(10) I notice one more argument in the grounds of appeal which was not pressed before me. It was stated that Smt. Kanwal Inder cannot continue the proceedings because (1) the Act does not provide as section 8 of the Industrial Disputes Act does, that the succeeding Controller can continue the proceedings, ( 2) she is not a successor of Shri J. D. Kapoor, and (3) she is not a court which passed the decree within section 37 CPC. These are arguments without any substance. The office of the Controller is created by the statute. It exists apart from the person for the time being constituting it and though not a legal person it has a perpetual succession and its existence does not depend upon its incumbent. I, therefore, dismiss the appeal. No costs.