Madras High Court
V. Natarajan vs Saliyur Mahajana Sangam, Rep. By ... on 9 July, 2004
Equivalent citations: 2004(4)CTC171, (2004)3MLJ682
ORDER K. Govindarajan, J.
1. The above revision petition is filed by the tenant questioning the order of eviction passed by the learned Rent Control Appellate Authority-cum-Sub Judge, Chidambaram, in the judgment dated 14.11.2003 in R.C.A. No. 11/2002, confirming the eviction order passed by the learned Rent Controller-cum-District Munsif, Chidambaram, in the order dated 31.7.2002 passed in R.C.O.P. No. 3/1994.
2. It is not in dispute that the respondent-sangam is the landlord and the petitioner is the tenant. The respondent/landlord filed the petition for eviction of the petitioner-tenant from the premises in question, under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called 'the Act'. The same was contested by the petitioner/tenant stating that the respondent/landlord is a religious and charitable institution and the Rent Control Court cannot entertain the eviction petition and so the petitioner/landlord before the learned Rent Controller has to file a civil suit to evict the petitioner/tenant.
3. The learned Rent Controller found that the respondent/landlord is not a charitable endowment and so it cannot be said that the eviction petition under the provisions of the Act is not maintainable. Considering the merits of the case, learned Rent Controller ordered eviction of the petitioner/tenant. The petitioner/tenant preferred appeal in R.C.A.No. 11/2002 on the file of the Rent Control appellate authority. Though the learned appellate authority made observations saying that taking into consideration the object of the respondent-sangam/landlord, it has to be taken as a public trust, by relying on the evidence adduced on behalf of the respondent/landlord, but has come to the conclusion that the respondent-sangam/landlord cannot take such a stand that it is a public trust and thereby dismissed the appeal, confirming the order of eviction passed by the learned Rent Controller. Aggrieved against the same, the petitioner/tenant has preferred the above revision petition.
4. Learned counsel appearing for the petitioner/tenant only submitted that the learned rent controller has no jurisdiction to deal with the eviction petition, as the respondent-landlord is a public charitable trust as found by the learned Rent Controller and so the order of eviction is passed without any jurisdiction. The said submission was made on the basis of G.O.Ms. No. 2000, Home Department, dated 16.8.1976 under which the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 were exempted. According to the learned counsel, in view of such exemption, the learned Rent Controller has no jurisdiction and only the Civil Court has to deal with the matter.
5. Learned counsel for the respondent/landlord submitted that such exemption is given only for the benefit of the landlords. But for such exemption the landlord has to approach only the Rent Control Court for eviction of a tenant. In support of his submission, learned counsel relied on the decision of the Apex Court in Lachoo Mal v. Radhye Shyam, . Learned counsel further relied on the decision in Chennichi alias Parilkkal v. Srinivasan Chettiar, 1970 (1) M.L.J. 234 and submitted that the High Court while exercising revisional power will not take a technical view even with respect to the jurisdiction. On that basis, learned counsel further submitted that the petitioner/tenant is not in a position to canvass anything against the finding of the authorities below, and on merits, this Court may not interfere with the orders passed by the authorities below merely on technical ground.
6. In the present case, as stated already, the relationship of land lord and tenant between the petitioner and respondent is not in dispute. The question that has to be decided in this case is whether the learned Rent Controller is having jurisdiction to entertain the eviction petition and even if any such error is committed by the learned Rent Controller in entertaining such petition, whether this Court can interfere with the said order of eviction passed by the learned Rent Controller while exercising revisional jurisdiction.
7. In view of the factual finding given even by the learned appellate authority that the respondent/landlord is a public trust on the basis of the evidence given on behalf of the respondent/landlord, the case has to be dealt with only on the basis of the said fact. As stated already, public trusts are exempted under the Government Order dated 16.8.1976 passed in G.O.Ms. No. 2000, Home Department, from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. That means for getting eviction, they need not approach the Rent Control Court but they can approach the Civil Court. As rightly submitted by the learned counsel for the respondent/landlord, the said Government Order exempting the provisions to the public trust was issued only for the benefit of the landlords. Learned counsel for the respondent/landlord also submitted that though such a benefit is conferred on the landlord, it is for the landlord to waive that benefit and approach the original authority ignoring the exemption. He relied on the decision of the Apex Court in (supra) in which it is held as follows :-
"5. According to the preamble on the cessation of the applicability of sub-rule 81 of the Defence of India Rules after September 30, 1946 it was considered expedient owing to the shortage of accommodation in the State of Uttar Pradesh to provide for the continuance during a limited period of powers to control the letting and the rent of accommodation and to prevent the eviction of tenants therefrom. Section 3 imposed restrictions on eviction. No suit could be filed in any Civil Court against the tenant for his eviction from any accommodation except on one or more of the grounds mentioned in Sub-section (1) of that Section without the permission of the District Magistrate or of the Commissioner to whom a revision lay against the order of the District Magistrate. Section 5 contained provisions relating to control of rent. The other provisions of the Act need not be noticed. It has never been disputed that the Act was enacted for affording protection to the tenants against eviction except in the manner provided by the Act. It was also mean to regulate the letting of accommodation, fixing of rent, etc., the provisions relating to which were all intended to confer benefits on the tenants against unreasonable and capricious demands of the landlords. At the same time it appears that the legislature was conscious of the fact that the Act might retard and slacken the pace of construction of new buildings because the landlords would naturally be reluctant to invest money in properties the letting of which would be governed by the stringent provisions of the Act. It was for that purpose that the saving provisiosn in Section 1-A seems to have been inserted. The essential question that has to be resolved is whether Section 1-A was merely in the nature of an exemption in favour of the landlords with regard to the buildings constructed after January 1, 1951 and conferred a benefit on them which they could give up or waive by the agreement or contractual arrangement and whether the consideration or object of such an agreement would not be lawful within the meaning of Section 23 of the Indian Contract Act.
6. The general principle is that every one 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 way pubic right or public policy. Thus the maxim which sanctions the non-observance of the statutory provision is cuilibet licet renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 & 376), If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation as a matter of public policy. In Halsbury's Laws of England, Volume 8, Third Edition, it is stated in paragraph 248 at page 143:
"As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void".
In the footnote it is pointed out that there are many statutory provisions expressed to apply "notwithstanding any agreement to the contrary", and also a stipulation by which a lessee is deprived of his right to apply for relief against forfeiture for breach of covenant (Law of Property Act, 1925). Section 23 of the Indian Contract Act provides :
"The consideration or object of an agreement is lawful, unless - it is forbidden by law or is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
It has never been the case of the respondent that the consideration or object of the agreement which was entered into in June 1963 was forbidden by law. Reliance has been placed mainly on the next part of the section, namely, that it is of such a nature that it would defeat the provision of any law and in the present case it would be Section 1-A of the Act.
7. .............
8. We are unable to hold that the performance of the agreement, which was entered into between the parties in the present case, would involve an illegal or unlawful act. In our judgment Section 1-A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of Section 23 of the Contract Act."
8. From the above said decision of the Apex Court, it is clear that if a particular owner is not willing to avail benefit of exemption, there is no bar created by a notification in the way of his waiving up or abandoning the said exemption. But, in the present case, no pleading is available to show that the respondent/landlord has filed the petition waiving these benefits given under the said Government Order. So, I am not inclined to deal with the matter on the basis of the said decision of the Apex Court.
9. In the decision of this court reported in 1970 (1) M.L.J. 234 (supra), similar issue was raised. When eviction petition was filed, a defence was raised stating that the Rent Controller has no jurisdiction. In spite of that defence, the Rent Controller allowed the petition on the ground that on the earlier occasion, the tenant took a stand that Civil Court had no jurisdiction. In the present case, it is admitted that on the earlier occasion both the petitioner/tenant and the respondent/landlord approached the Rent Controller by invoking the provisions of the Act. This fact is not disputed. In the above said decision of this Court, the learned Judge held as follows :
"The exercise of the revisional powers of the High Court under Section 115, Civil Procedure Code, is purely discretionary. The High Court will not take a technical view and necessarily interfere in every case, where an order is wrong and even improper, if such interference will produce hardship or injustice. The revisional jurisdiction of the Court is intended to secure and subserve and ends of justice and not to deny or defect it. If interference in a particular case will result in hardship or injustice to a party, the High Court will be justified in refusing to interfere in the exercise of its revsional jurisdiction. In this particular case, I have already referred to the fact that, when the respondent moved the Civil Court, the petitioner took up the stand that the Civil Court had no jurisdiction and, when subsequently, the respondent moved the Rent Controller, the petitioner took up a reverse stand, though it may be justified on the position of law as it stood then, that the Rent Controller had no jurisdiction and only the Civil Court had jurisdiction. In view of this, interference with the order of the Lower Court in this case will render the respondent without any remedy to obtain possession of the land in question, notwithstanding the fact that the petitioner has committed default in the payment of rent and the bona fide requirements of the respondent has been admitted. Even if the respondent filed another suit, the petitioner may contend that the same is barred by res judicata in view of the previous proceedings instituted in the Civil Court, and may prolong the proceedings. Hence, in my opinion this is not a proper case in which the High Court should interfere with the order of the lower Court".
10. The above said observation of the learned judge of this Court made in the above said decision squarely applies to the present case. Though the respondent/landlord earlier filed eviction petition before the learned Rent Controller for eviction of the petitioner/tenant, no such defence was raised by the petitioner/tenant stating that the proceeding under the Rent Control Act does not lie and so, in the present case, the eviction order was passed concurrently. When there is no dispute about the relationship of landlord and tenant between the respondent and the petitioner and also as to the findings of the authorities below on merits, if the findings of the authorities below are interfered with only on the said technical view, it will cause prejudice to the respondent/landlord. Taking into consideration the above said decisions, though learned counsel for the petitioner/tenant is correct in saying that the learned Rent Controller has no jurisdiction to entertain the eviction petition, I am not inclined to interfere with the same.
11. For all the reasons stated above, this revision petition is dismissed. No costs. C.M.P. No. 7949/2004 is also dismissed.