Madras High Court
Jewel Complex, A Registered ... vs Karnataka Co-Operative Handloom ... on 8 July, 1997
Equivalent citations: (1997)2MLJ477, 1998 A I H C 258, (1997) 3 MAD LW 350 (1997) 2 MAD LJ 477, (1997) 2 MAD LJ 477
ORDER S.S. Subramani, J.
1. Both these revisions are against the same judgment of the Rent Control Appellate Authority, Coimbatore. C.R.P. No. 3299 of 1991 is filed under Section 25 of the Rent Control Act, and the other Revision, namely, C.R.P. No. 489 of 1992 is filed under Article 227 of the Constitution of India.
2. The material facts may be summarised as follows:
Revision petitioner is the landlord of the building. There was an earlier proceeding between the same parties for immediate demolition and reconstruction of the building which was then in existence. Even at the time when the present respondent was a tenant of the then building, he was occupying an area of 736 sq. ft. eviction petition filed by the revision petitioner was allowed, and the respondent herein filed a Rent Control Appeal before the appellate authority. The appellate authority also confirmed the order, and a revision taken to this Court also met with the same fate. Later, the respondent herein filed a Special Leave Petition before the Supreme Court wherein the matter was settled. As per the terms of compromise, a consent order was passed on 25.2.1983 by the Supreme Court to the following effect:
(1) The respondent and other tenants will handover possession of the portions occupied by them within three months. (2) The petitioner shall, after demolition of the present structure, put up a new building on the same site within eighteen months from the date he is put in possession. (3) Identical are in the front portion of the first floor of the newly constructed building should be leased to the respondent i.e., 736 sq. ft. (4) The Rent Controller shall fix the rent for the premises notwithstanding the fact that in relation to a new building, he has no jurisdiction to fix the rent. Pursuant to the compromise, the petitioner demolished the old building and put up a new construction and the premises was named as Jewel Complex. Immediately after completion of construction, respondent informed the petitioner expressing their desire to occupy the portion earmarked for them in the new building. The petitioner offered the portion at Rs. 6 per sq. ft. and requested the respondent to occupy it after executing a lease deed. The respondent herein offered to pay a paltry sum of Rs. 1 (one rupee) per sq. ft. for the building. Since there was no meeting point regarding the rate of rent, but since they agreed before the Supreme Court to let out the building to the respondent, the respondent - Handloom Federation was allowed to occupy the building without prejudice to the petitioner's right to get proper rent fixed in accordance with the orders of the Supreme Court of India. In the application filed by the petitioner (landlord), it was further said that the building is situated in Raja Street, Coimbatore, which is a busy market place, and proper rent of the building has to be calculated at the rate of Rs. 8 or Rs. 9 per sq. ft. After narrating the importance of the locality, the landlord wanted the rent to be fixed at Rs. 4,500 per mensem.
3. In this connection, it may be noted that the application was filed not under Section 4 of the Rent Control Act, but the application was filed with the following cause title 'Application for fixation of proper rent filed as per common order dated 25.2.1983 as modified by the order dated 2,9.1983 passed by the Supreme Court of India in S.L.P. Nos. 14761 of 1982 and 553 of 1983.
4. The extract which I made earlier in the compromise is dated 25.2.1983. But it is seen that the petitioner herein wanted clarification of the Order passed on 25.2.1983. As stated earlier as per Clause 5 of the compromise order, 'The Rent Controller, Coimbatore, shall fix the rent of the premises notwithstanding the fact that in respect of new buildings he has no jurisdiction to fix the rent'. There was some dispute as to the interpretation of the word 'rent' The confusion came in view of the fact that being a new building, under the Rent Control Act, the Rent Controller has no jurisdiction for fixation of fair rent. On a clarification sought for, the Supreme Court, on 2.9.1983, passed the following order:
We modify the order dated February 25, 1983 by directing that the Rent Controller will fix the proper rent of the premises.
[Italics supplied]
5. A counter-statement was filed by the respondent herein that the application can be construed only as an application for fixation of fair rent, and since the Rent Controller has been authorised to fix the same, he has to act in accordance with the Rent Control Act and the rent fixed has to be taken as fair rent. In fact, a contention was also taken before the Rent Controller, Coimbatore that the application which is not under Section 4 of the Tamil Nadu Rent Control Act is not maintainable and the petitioner herein must be directed to amend the petition or file a fresh application under Section 4 of that Act. On merits also, they wanted the rent to be fixed at Rs. 1 per sq.ft.
6. The Rent Controller, as directed by the Supreme Court, took oral and documentary evidence. On the side of the petitioner (landlord), Exs. A-1 to A-28 were marked, and, on the side of the respondent Exs. R-1 to R-4 were marked. Oral evidence was also let in, and the Rent Controller fixed the proper rent [Italics] at Rs. 3,670 per mensem.
7. Respondent (tenant) was aggrieved by the order of the Rent Controller. He filed R.C.A. No. 89 of 1989, on the file of Appellate Authority, Coimbatore.
8. An objection was raised by the petitioner (landlord) that the Authority has no jurisdiction to hear the appeal, since the Rent Controller has not fixed the rent under the Rent Control Act, but has fixed the proper rent in view of the direction by the Supreme Court. It was further contended before the Appellate Authority that since it is a new building exempted from the purview of the Rent Control Act, the Rent Control Court has no jurisdiction to fix the fair rent. It was further contended that since the Supreme Court has directed the Rent Controller to fix the proper rent, the authority of the Rent Controller is only on the basis of the consent given by the parties and, therefore, the Rent Controller was acting as an Arbitrator, and not as Rent Controller under the Rent Control Act. Being an Arbitrator appointed by consent of parties, even though he has take the guidelines from the Rent Control Act, the order passed by him can be treated only as an Award passed by an Arbitrator and not as a decision rendered under the Rent Control Act. Further, it was contended that the Supreme Court has directed the fixation of proper rent and not fair rent. Since the authority decided only the proper rent, no appeal lies to the appellate authority. The sum and substance of the contention is that no appeal can lie before the appellate authority since the order is not that of a Rent Controller under the Rent Control Act.
9. The said argument was not accepted by the appellate authority on the ground that the Supreme Court has directed the Rent Controller to fix the rent and the Rent Controller should have take note of the provisions of Section 4 of the Rent Control Act. It is the very same Rent Controller who has got the jurisdiction to decide the fair rent and, therefore, the appeal is maintainable. After so holding that the appeal lies, the appellate authority set aside the order and remanded the matter to the Rent Controller with certain directions. It is that order which is challenged in this revision under Article 227 of the Constitution of India as well as under Section 25 of the Rent Control Act.
10. Learned Senior Counsel for the revision petitioner submitted that he is mainly pursuing his revision under Article 227 of the Constitution since, according to him, the jurisdiction of the Appellate Authority is the main matter in issue. According to learned Senior Counsel, the decision of the appellate authority is a nullity since he has no jurisdiction to decide the matter. Learned Senior Counsel repeated the arguments that were advanced before the appellate authority. He further stressed that this Court has to give importance to certain salient features, i.e., being a new building on the date when the application was filed, the Rent Control Court has no jurisdiction and the jurisdiction was conferred only by the Supreme Court to fix the proper rent and not fair rent. Since there is no Government Notification authorising the Rent Controller to decide this issue in respect of the new building, even if the authority is given by the Supreme Court, he cannot function as Rent Controller under the Act. If he is not a Rent Controller functioning under the Rent Control Act, naturally, no appeal also will lie before the appellate authority.
11. The said argument is seriously opposed by learned Counsel for the respondent herein on the ground that the Rent Controller is not a persona designata and since all the provisions of the Rent Control Act are also applied, he functions only as a Rent Controller. He further contended that there is no difference in the words between 'proper rent' and 'fair rent', and whenever the Rent Controller functions under the Act, the rent fixed by him can only be taken as a fair rent under Section 4 of the Act and, therefore, appeal lies. It was further contended that when both the parties have agreed before the Supreme Court that the Rent Controller, Coimbatore, will decide the rent, that will confer jurisdiction on him to decide the case under the Rent Control Act and, therefore, appeal filed by him was perfectly maintainable.
12. The only question that has to be considered in this case is, whether the order dated 24.7.1989 in R.C.O.P. No. 203 of 1985 is an order passed by the Rent Controller under the Rent Control Act or whether he acted as an Arbitrator, as contended by learned Senior Counsel for the petitioner herein.
13. Under Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, certain buildings have been exempted from the purview of the Act. Clause (1) of that Section reads thus:
Nothing contained in this Act shall apply to-
(i) any building for a period of five years from the date on which the construction is completed and notified to the Local Authority concerned.
It is not disputed that the building in question comes within the exemption. In fact, the Supreme Court has also take note of the same. That is why, in Clause 5 of the Compromise order, the Supreme Court has said:
The Rent Controller, Coimbatore, shall fix the rent of the premises notwithstanding the fact that in respect of new buildings, he has no jurisdiction to fix the rent.
[Italics supplied] As I said earlier, there was some confusion and the same was sought to be clarified and the Supreme Court further said : "The Rent Controller will fix the proper rent of the premises". From these wordings, it is clear that it is in pursuance of consent given by parties and approved by the Supreme Court, the Rent Controller was asked to fix the proper rent of the building, in spite of the fact that the Rent Controller, Coimbatore, had no jurisdiction to fix the rent. If the building is exempted from the purview of the Act, naturally, an application under Section 4 of the Act cannot be maintained. Again, 'Rent Controller' has been defined in Section 2(3) of the Act thus:
"Controller" means any person appointed by the Government, by Notification, to exercise the powers of a Controller under this Act, for such area as may be specified in the Notification.
[Italics supplied] It follows that the person who is appointed as the Controller has to exercise powers under the Act. He must be appointed by the Government. If the building is exempted, there is no scope for exercising the powers under the Act. There is also no scope for appointment by the Government. When we read Section 4 of the act, that also makes it clear that it must be fixed by the Controller appointed under that Act in respect of a building to which the Act applies. If read along with the same, the clarification given by the Supreme Court directing the Rent Controller to fix the proper rent also gains importance. It is not a case where the Supreme Court was not aware about the lack of jurisdiction of the Rent Controller. When the matter was sought to be clarified, their Lordships did not use the word 'fair rent' but they have said that the Rent Controller shall fix the proper rent. It means that the Supreme Court has authorised or directed the authorised or directed the authority to decide the matter or resolve the dispute. It is the consent given by the parties and the direction given by the Supreme Court that confer jurisdiction on the Rent Controller, Coimbatore to resolve the dispute. But for the consent or direction the Act would not have any application. If that be so, the only conclusion that could be arrived at is, that the authority who decides the proper rent cannot be treated as the Rent Controller under the Rent Control Act, but only as a person authorised by the Supreme Court to resolve the dispute on the basis of agreement. It follows that he acts as an arbitrator only.
14. In A.R. Antulay v. R.S. Nayak , their Lordships of the Supreme Court were considering a question as to their jurisdiction exercised suo motu, directing the withdrawal of a case from the Court of a Special Judge to the file of High Court of Bombay, for speedier trial. While considering the same majority of the Supreme Court held thus:
...The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no court whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal....
In paragraph 91, in a concurring judgment, their Lordships further held thus:
It is the settled position in law that jurisdiction of Courts comes solely from the law of the land and cannot be exercised otherwise. So far as the position in this country is concerned, conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature After giving certain examples of various provisions of the Constitution and other enactments in the same paragraph, their Lordships further went on and said thus:
...Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature. Jurisdiction is thus the authority or power of the court to deal with the matter and make an order carrying binding force in the facts.
[Italics supplied] Their Lordships also referred to the decision in Carlile v. National Oil and Development Co. where 'jurisdiction' has been defined thus:
Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential : (1) A court created by law, organised and sitting; (2) authority given to it by law to hear and determine cases of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him, (5) authority over the thing adjudicated upon its being located within the court's territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision.
In another concurring judgment by Justice Oza, in para 110, it is further reiterated thus:
It is clear from the opinions of learned brothers Justice Mukharji and Justice Misra that the jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law and it is this error which is sought to be corrected. Although it is unfortunate that it is being corrected after long lapse of time, I agree with the opinion prepared by Justice Mukharji and also the additional opinion prepared by Justice Misra.
Their Lordships further went on and said that the Act of Court shall not injure any suitors and courts can correct their mistakes. The earlier order of transfer was set aside by the Supreme Court on the ground that it had no jurisdiction even though it was the superior court, and they agreed that jurisdiction of a court can be conferred only by a law of the land or by Statute. If this principle is applied, it has to be concluded that the Authority who decided the case is not a Rent Controller under the Act. If he were a Rent Controller, he would have been authorised by the Government as per Notification. That cannot happen in this case, since the building is exempted from the purview of the Act. It is conferment of a special jurisdiction by the Supreme Court to be the Authority on the basis of an agreement between the parties. He can be treated only as an Arbitrator.
15. The decision in Antulay's case was followed in Chiranjilal Shrilal Goenka (deceased) through L.Rs. v. Jasjit Singh and Ors. J.T. (1993) 2 S.C. 341. In that case, one Goenka was involved in several suits. When he died, a probate application was filed before court. There were also other applications for impleading legal heirs in Various suits pending at that time. The Supreme Court passed the following Order on 1.11.1991:
By consent of parties Justice V.S. Dehpande, retired Chief Justice of the Bombay, High Court is appointed as arbitrator to settle the dispute as to who would be the legal heirs to the estate or late Chiranjilal Shrilal Goenka.
The question that came for consideration was whether the Arbitrator so appointed by the Supreme Court was competent to decide the probate proceedings. The Supreme Court, after taking note of pronouncements of various High Courts, came to the conclusion that to grant a probate, the exclusive jurisdiction is only on the Probate Court under the Indian Succession Act, and the direction given by that court (Supreme Court) will not empower the Arbitrator to issue a probate. In the last portion of paragraph 17 of the judgment, their Lordships said thus:
...The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong. Thus, this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by Statute and this Court cannot confer jurisdiction on an authority on a tribunal....
In paragraph 18, their Lordships further went and said thus:
It is settled law that a decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a corum non judice. A decree passed by such a court a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at a stage of execution or in collateral proceedings....
In that case, their Lordships followed an earlier decision of the Supreme Court in Bahadur Singh and Anr. v. Muni Subrat Dass and Anr. . That was a case in which an eviction petition was filed under, the Rent Control Act on the ground that the tenant was causing nuisance. Instead of the Rent Controller deciding the same, the matter was referred to an Arbitrator, and an Award was passed directing the tenant to run the workshop upto a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord. The question was, what is the effect of that order. It was held that the award of the Arbitrator was a nullity, since it was not passed by a Rent Controller under the Delhi and Ajmer Rent Control Act and, there-fort, not executable.
16. In Goenka's case (1993) 3 S.C.C. 34 also, an argument was taken that it was with open eyes, the Supreme Court appointed the retired Chief Justice of the Bombay High Court as Arbitrator to decide all issues including the right to decide on the probate application. A further argument was put forward that when the parties to all the suits pending in different courts were the same and an Arbitrator was also appointed, a direction given by the Supreme Court and the decision of the Arbitrator will be binding on all parties. The said contention was repelled by the Supreme Court on the ground that consent given by the parties will not confer jurisdiction and Probate Court alone will have exclusive jurisdiction to decide probate proceedings.
17. The decision reported in Sankar v. Buvanmabal Ammal , will also be of some assistance in this case. In that case, during the pendency of various petitions before the Rent Control Court (District Munsif), this Court directed the Additional District Munsif to dispose of the same. A question was raised, whether the Additional District Munsif acts as a Rent Controller under the Rent Control Act and whether a direction of this Court will amount to an appointment under the act as a Rent Controller. This Court held that the High Court has no power in order to invest the power to a Rent 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. In the earlier portion of the judgment, their Lordships further held thus:
...Whether 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 the the contrary would unsettled 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.
Learned Senior Counsel for petitioner also relied on the decision reported in Tarapore & Co. v. State of Madhya Pradesh J.T. (1994) 1 S.C. 162. There, the question was, whether the appellant/Contractor was bound to reimburse certain amounts which the Contractor was bound to pay as fairwages and not as minimum wages. Learned Counsel relied on the above decision for the purpose of contending that in this case, the Supreme Court has directed the authority to fix the proper rent and not fair rent. In that case, their Lordships said that if it is a case of minimum wages, the Contractor is only discharging the amount which he is liable to pay under the Statute and, therefore, the Government is not liable to reimburse the same. But it is a case of air wages, which is different from minimum wages, and to that extent, the Government is bound to reimburse. I feel, the said contention is also well-founded, and if that be so, it cannot be said that what the authority has decided is not the fair rent under the Act, but proper rent as directed to be fixed by the Supreme Court. Probably for fixing the proper rent, the Rent Controller might have taken guidelines under the Rent Control Act also. But in this case, the finding of the Authority is that the authority who decided the proper rent has not taken into consideration Section 4 of the Rent Control Act and therefore, the matter is remanded. According to me, the authority who decided the case was not bound by the provisions of Section 4 of the Rent Control Act, since he is not functioning under that Act. He also cannot take into consideration the provisions of Section 4 of the Rent Control Act in view of the exemption.
18. Learned Counsel for the respondent relied on the decision reported in Lachoo Mal v. Radhey Shyam and also the decision reported in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker . In the first decision, the question that came for consideration was, whether the landlord is entitled to waive the benefit under the U.R (Temporary) Control of Rent and Eviction Act, 1947. Their Lordships said that 'everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.' There, the question was, whether the agreement offended the provisions of Section 23 of the Indian Contract Act and therefore, against public policy. That decision has nothing to do with the exercise of jurisdiction by a Court or Tribunal. The second decision cited, which arose from the Kerala Buildings (Lease and Rent Control) Act, was with reference to the applicability of Section 5 of the Limitation Act. The Kerala High Court has held that the Appellate Authority constituted under the Kerala Buildings (Lease and Rent Control) Act is a persona designata and has no power to condone delay in filing an appeal. It was held by the Kerala High Court that the appellate authority is not a Court and, therefore, the provisions of the Indian Limitation Act will not apply. The said decision of the Kerala High Court was declared to be not good law in the decision reported in Omukri Gopalan v. Chepllat Pathanurayil Aboobacker , wherein their Lordships relied on Section 29 of the Limitation Act for the said purpose. That decision also has nothing to do with the question that has arisen for consideration in this case.
19. In view of my findings aforementioned, I hold that the Order dated 24.7.1989 is not an Order of the Rent Controller under the Tamil Nadu Buildings (Lease and Rent Control) Act. But it is only an adjudication by an Authority on the basis of the direction given by the Supreme Court, and what he has fixed is not fair rent but only proper rent. In view of the said conclusion, the appeal preferred by the respondent herein before the appellate authority is not maintainable. The judgment dated 21.8.1991 made by the appellate authority (Sub Judge, Coimbatore) is one without jurisdiction and, therefore, the same is set aside. Consequently, C.R.P. No. 489 of 1992 is allowed.
20. C.R.P. No. 3299 of 1991 : Since I have allowed C.R.P. No. 489 of 1992, nothing survives m C.R.P. No. 3299 of 1991 and the same is dismissed as unnecessary. No costs in both the C.R.Ps.