IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19/04/2006
CORAM
THE HON'BLE MR. JUSTICE S.K. KRISHNAN
C.R.P.(NPD) No.2972 of 2001
1.Raghavan
2.Thirumalai
3.Parthasarathy
4.Ramarao
5.Lakshmi ..Petitioners
-Vs-
The Metropolitan
Water Supply
& Sewerage Board, Chennai
through its Managing Director
No.1, Pumping Station Road
Chintadripet, Chennai. ..Respondent
Civil Revision Petition filed under Section 25 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended against the
fair and decreetal orders dated 29.3.2001 passed in R.C. A.No.12 of 1995 on
the file of the Subordinate Judge, Poonamallee confirming the fair and
decreetal orders dated 17.10.1994 made in R. C.O.P.150 of 1995 by the Rent
Controller, Poonamallee.
!For Petitioners : Mr.V. Raghavachari
for Mr.A.M.Krishnamoorthy
^For Respondent : Mr.K.N.Pandian.
:ORDER
Aggrieved by the order of the Subordinate Judge, Poonamallee
passed in R.C.A.No.12 of 1995, dated 29.3.2001 confirming the order of the
Rent Controller, Poonamallee passed in R.C.O.P.No.150 of 1985, dated
17.10.1994, the petitioners have come forward with this revision petition.
2. The petitioners are the legal representatives of one
Sivalingam, who was the tenant under the Madras Metropolitan Water Supply and
Sewerage Board, Madras, which filed a petition in R.C.O.P.No.150 of 1
985 under Section 10(2)(i) of the Rent Control Act for evicting the
respondent/tenant from the premises.
3. Initially, the said Sivalingam was a tenant under the
Corporation of Madras for the monthly rent of Rs.20/- and after the formation
of the respondent Board in the year 1978, the said premises was taken over by
the Board. Since the said Sivalingam has committed default in paying the rent
Rs.20/- per month from 1.8.1978 to 1.9 .198 4 amounting to Rs.1440/-, a notice
was sent to the tenant asking him to vacate from the premises. Since the said
notice was returned with an endorsement that no such person was available in
the said address, the respondent has filed the petition in R.C.O.P. No.150 of
1985 on the file of the District Munsif Court, Poonamallee. Subsequently,
since the said Sivalingam died, his legal representatives, who are the
revision petitioners herein, were impleaded.
4. Denying the averments made in the petition, the respondent
filed a counter stating that there is no relationship of landlord and tenant
between the petitioners and the respondent. The petitioners/ tenants occupy
the premises on the basis of their own right. The rent control act is not
applicable to the suit premises as the premises is not situated within the
municipal limit. Moreover, it is not a notified village. The rent controller
has no territorial jurisdiction to hear the case. Hence, the petition is
liable to be dismissed.
5. Based on the ground of wilful default committed by the
petitioners in paying the rent, eviction was ordered by the Rent Controller
and the same was confirmed by the appellate authority. Hence, the present
revision by the petitioners.
6. The only point to be decided in this revision is whether
the respondent can invoke the provisions of rent control act for evicting the
petitioners or not.
7. Heard both sides.
8. The learned counsel appearing for the petitioners
vehemently contended on the following main points.
a. The Property does not belong to Corporation of Madras.
b. There is no jural relationship between the petitioners and
the respondent.
c. The provisions of Rent Control Act are inapplicable.
d. The Rent Controller had no territorial jurisdiction over
the property which is situated in Rajamangalam which is not in the limits of
Municipal Town.
e. The disputed piece of land is vested with the Government
which collects charges from the petitioners.
9. Based on the above points, the main and only contention of
the learned counsel appearing for the petitioner is that the in the case on
hand as the landlord is the Government, the respondent cannot invoke the
provisions of the Rent Control Act, when proviso to Section 10 of the Rent
Control Act is very clear that a tenant, whose landlord is the Government
cannot be evicted under the provisions of the Rent Control Act and therefore,
neither the respondent nor the Courts below have no jurisdiction to evict the
petitioners from the premises of the Government and in such circumstances, the
orders impugned in this revision are liable to be set aside.
10. At this juncture, it is pertinent to see Section 10 of
the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960:
“Sub Section 1 to Section 10 : Eviction of Tenants:
(1) A tenant shall not be evicted whether in execution of a
decree or otherwise except in accordance with the provisions of this Section
or Sections 14 to 16.
Provided that nothing contained in the said Sections shall
apply to a tenant whose landlord is the Government.
Provided further that where the tenant denies the title of the
landlord or claims right of permanent tenancy, the Controller shall decide
whether the denial or claim is bona fide and if he records a finding to that
effect, the landlord shall be entitled to sue for eviction of the tenant in
Civil Court and the Court may pass a decree for eviction on any of the grounds
mentioned in the said sections, notwithstanding that the Court finds that such
denial does not involve forfeiture of the lease or that the claim is
unfounded.”
11. From the above provision, it is clear that where the
landlord is the Government, which cannot invoke the provisions of the Rent
Control Act to evict the tenant.
12. In the light of the above, the question to be decided is
whether the landlord is the Government and the respondent is the State within
the meaning of the Article 12 of the Constitution of India or not.
13. In this regard, the learned counsel would submit that the
respondent Board performs the functions of the State, namely, providing of
water and drainage facilities to the public, which is evident from the
Government order issued in the year 1979, which clearly recites that all the
works of the P.W.D and the Corporation of Madras with regard to water supply
and drainage facilities have been transferred to the respondent Board.
14. Further, it is pointed out that the board was created
under a statute and certain powers and duties were conferred on the Board.
Moreover, the members of the Board are the Secretary to Government, who is
vested with the power of provision of water facilities, Finance secretary and
Member Secretary CMDA and Commissioner of Corporation of Madras.
15. It is also pointed out that like Tamil Nadu State
Electricity Board, the respondent/board is also a State within the meaning
under Article 12 of the Constitution of India.
16. In this regard, the learned counsel relied on the
following decision.
a. In ABDUL AHAD LOAND AND OTHERS VS. MANAGER GOVT. WOOLLEN
MILL AND OTHERS (AIR 1979 JAMMU & KASHMIR 57), the Full Bench of the Jammu and
Kashmir High Court has held as follows:
“The Board is an authority invested by statute with certain
power of State. It has the power of promoting co-ordinated development,
generation, supply and distribution of electricity and for that purpose to
make, alter, amend and carry out schemes under Chapter V. of the Electricity
(Supply) Act, 1948……. to make rules and regulations for carrying out the
purposes of the Act, and to issue directions under certain provisions of the
Act and to enforce compliance with these directions. The Board is also
invested by the statue with extensive powers of control over Electricity
Undertakings. The powers to make rules and regulations and to administer the
Act is in substance the sovereign power of the State delegated to the Board.
The Board is, in my judgment, ‘ other authority’ within the meaning of Article
12 of the Constitution.” IN Sukhdev Singh’s case (AIR 1975 SC 1331) (supra) it
was opined (at p. 1342):
” The expression ‘other authorities’ in Article 12 is wide
enough to include within it every authority created by a statute and
functioning within the territory of India, or under the control of the
Government of India. The expression ‘other authorities’ will include all
constitutional or statutory authorities on whom powers are conferred by law.”
17. Therefore, it is contended that that the respondent Board
is not an individual body and it cannot invoke the provisions of the Rent
Control Act for evicting the petitioners from the premises.
18. Contrary to the arguments advanced by the learned counsel
appearing for the petitioners, the learned counsel appearing for the
respondent Board would submit that the board is an independent statutory body
created under the statute.
19. For deciding the question whether the respondent Board is
the State within the meaning of the Article 12 of the Constitution of India,
the argument of the respondent counsel cannot be accepted, whereas the
argument advanced by the learned counsel for the petitioners can be accepted
as his argument is in conformity with the ratio laid down by the Full Bench of
the Jammu and Kashmi High Court, which elaborately dealt with the question of
“Other authorities” within the meaning of the Article 12 of the Constitution
of India and the same is very relevant to the case on hand.
20. It is not disputed by both the sides that the premises in
dispute belongs to the Government and no individual claims any title or
ownership of that premises.
21. From the above, it is clear that the respondent Board is
” Other authority’ within the meaning of the Article 12 of the Constitution of
India and the premises in dispute belongs to the respondent Board. In such
circumstances, the first proviso to Section 10 of the Rent Control Act clearly
prohibits the respondent Board from invoking the provisions of the Rent
Control Act.
22. One another contention raised by the learned counsel
appearing for the respondent Board is that since the Government by
Notification dated 24.11.1976 exempts under Section 29 of the Rent Control Act
only the buildings owned by all Government undertakings including Government
Companies registered under the Indian Companies Act, 1956 and by all the
Co-operative Societies from all the provisions of the said Act, but not the
buildings owned by the Government and therefore, as the said notification, the
respondent Board can invoke the provisions of the said Act.
23. Per contra, the learned counsel appearing for the
petitioners would submit that as per first proviso to Section 10 the
Government cannot invoke the provisions of the Rent Control Act against a
tenant in the building owned by the Government and also when the notification
was issued by the Government under Section 29 of the Act exempting the
buildings owned by all Government undertakings including Government Companies
and Co-operative Societies from the all the provisions of the Rent Control
Act, the respondent Board, in toto, has no authority or jurisdiction to evict
the petitioners from the premises.
24. Section 29 of the Act reads as follows:
“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.”
25. No doubt, in exercise of the powers conferred under
Section 29
of the Act, the Government, by notification, exempted the buildings owned by
all the Government undertakings and Government Companies and Co-operative
Societies from all the provisions of the said Act.
26. As rightly pointed out by the learned counsel appearing
for the petitioners that as per proviso to Section 10 and Section 29, the
respondent Board cannot invoke the provisions of the said Act. However, as
already decided above that the building is owned by the Government and the
respondent Board is the ‘other authority’ within the meaning of the Article 12
of the Constitution of India, the respondent Board is barred from invoking the
provisions of the said Act. In this view of the matter, the contention of the
learned counsel for the respondent Board cannot be accepted.
27. Further, it is vehemently contended by the learned
counsel for the Board that when the petitioners admitted that they are tenants
under the respondent Board and the jurisdiction of the Courts below, now they
cannot raise the plea of jurisdiction of the respondent Board as they are
estopped from raising such new plea.
28. Further, it is submitted that admitting the jural
relationship as landlord and tenant, the petitioners have paid rent to the
Board and are enjoying the premises for the past 21 years and without paying
any rent for the above said period, the petitioners now cannot say that they
are not tenant under the Board nor the Board has no jurisdiction to initiate
proceedings under the said Act.
24. In support of his contention, the learned counsel
appearing for the respondent/Board relied on a following decision.
25. In OM SAKTHI RENERGIES LIMITED, REPRESENTED BY ITS
MANAGING DIRECTOR MR.M. JAYATHIRTH VS. MEGATECH CONTROL LIMITED, REPRESENTED
BY ITS MANAGING DIRECTOR MR.N.RAMKHUMAR, CHENNAI AND ANOTHER ((2006)1 M.L.J.
657), a Division Bench of this Court has held that if a party does not press
the objection to the jurisdiction and allows trial to go on in the usual
course on merits, he would be bound by his own conduct, and he should be
deemed, in such circumstances, to have waived his objection as to
jurisdiction.
26. On the contrary, the learned counsel appearing for the
petitioners would vehemently contend that though the petitioners have not
raised the jurisdiction plea before the Courts below, it is not proper and
correct to say that at the stage of revision such plea cannot be raised.
27. It is an admitted fact that the petitioners have not
raised jurisdiction plea at the initial stage, i.e. before the Courts below.
However, the decision relied on by the learned counsel for the Board is not
squarely applicable to the case on hand for the reason that wherein the
jurisdiction plea was with regard to place of suing, whereas in this case, the
respondent Board, being ‘other authority’ has no jurisdiction to initiate
eviction proceedings against the petitioners, who are in the building owned by
the Government, in any Court or place.
28. Therefore, when the illegal act was enacted by the
respondent Board either by inadvertently or otherwise, it is not proper and
correct to expect that the petitioners should not raise such legal plea at the
stage of revision as such plea was not raised at the initial stage. When we
are governed by rule of law, there is no place for any kind of illegal act by
anybody. If we permit an illegal act on the ground that that act was allowed
initially and therefore, it cannot be set right at any stage, then such
contention would question the very existence of the Act itself. Whatever be
the illegal act by whoever might be, when such illegal act comes to be known,
that should be set it right in accordance with law.
29. In the light of the above discussion, this Court is of
the view that the respondent Board being other authority within the meaning of
under the Article 12 of the Constitution of India cannot invoke the provisions
of the Tamil Nadu Buildings (Lease & Rent)Control Act, 1 960 against the
petitioners for eviction from the building owned by the Government as per
first proviso to Section 10 of the said Act.
For the reasons stated above, the revision is to be allowed
setting aside the orders of the Rent Controller and the appellate authority as
illegal. Accordingly, the revision is allowed setting aside the orders
impugned in this revision. No costs.
To
1.The District Munsif, Poonamallee
2.The Subordinate Judge, Poonamallee.
3.The Section Officer, V.R.Section, High Court, Madras.
