Case: Sri La Sri Siva Shanmugha Arumugha Meijnana Sivachariar, Tirupapuliyur by Power of Attorney Agent, Somasundara Iyer Vs S. Subramanian and Anr.. High Court of Madras (India)
| Judges | S. Swamikkannu, J. |
| Issue | Tenancy |
| Citation | 1984 (1) MLJ 106 |
| Judgement Date | November 11, 1981 |
| Court | High Court of Madras (India) |
Judgment:
S. Swamikkannu, J.
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This Second Appeal involves a very interesting point of law and that is whether a Government Order, passed under a special enactment, is retrospective or prospective in operation. It is well-established that unless a Government Order specifically incorporates as a condition that it is retrospective in operation, it cannot be construed that it has got a retrospective operation. But it is submitted by Mr. R.S. Venkatachari, learned Counsel for the respondents, that the decisions of this Court as well as the Supreme Court would show that a Government Order has to be construed as retrospective in operation because "Law" in Article 13 of the Constitution of India, is defined by the Supreme Court in the decision viz, Shankari Prasad v. Union of India 1951 SCJ. 775: (1951) 2 MLJ 683: 64 L.W. 1005: 1952 SCR. 89: AIR 1951 SC 458, as including rules, regulations, notifications and Government Orders and, as such, when a Government Order is passed by a relevant department of the Government, it must be construed as nothing but a delegated legislative act that had been done by executive effect, In the instant case, two Government Orders are relevant, which were passed by the Home Department of the Government of Tamil Nadu- The earlier Government Order viz., G.O. Ms. No. 1998, Home, dated 12th August, 1974 is to the effect that it exempts from the operation of the provisions of the Act which includes public as well as private trusts. But so far as the subsequent Government Order under consideration viz, G.O. Ms. No. 2000, Home, dated 16th August, 1976 is concerned, it is specifically provided in it that it is only the public trusts that are exempted from the operation of the provisions of the special enactment viv, the Tamil Nadu Buildings (Lease and Rent Control) Act. The lower Appellate Court has taken a view that the subsequent Government Order has got a retrospective effect and as such though in the instant case the suit has been filed prior to the date of the subsequent Government Order, yet the effect of the Government Order has to be conferred on the persons claiming the benefit of the subsequent Government Order.
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On the other hand, Mr. N. Sivamani, learned Counsel for the appellant, vehemently contends that the Government Order that has come into existence subsequently has been passed by the Home Department with the specific prescription of limitation to the benefit under the said Government Order so far as public trusts are concerned and the said benefit cannot be construed as one which can be extended to private trusts. In other words, the distinction between the private and public trusts has been contemplated only because of the coming into existence of the subsequent Government Order of the Home Department of the Tamil Nadu Government.
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It is relevant in this connection to note that during the time of the II World War and the difficult periods which British India had to undergo, orders were being passed by the relevant departments of the Government, prescribing the benefits which the tenants will enjoy and that the very object of those orders was to relieve the tenants from oppression on the part of the landlord with respect to residential buildings. These orders came to remain permanently on the statute book by the coming into existence of the first enactment of the year 1949 and the subsequent enactments. As a matter of fact, this branch viz, matters relating to the Rent Control Act, have become a permanent feature in the entire jurisprudence of our country. Now let me briefly state the facts of the instant case in order to appreciate the above contentions raised on behalf of either side relating to the prospective and retrospective operation of the Government Order.
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O.S. No. 110 of 1975 was filed for a decree against the defendants for possession and direction to the defendants to put the plaintiff in possession and also for a direction to the defendants to pay to the plaintiff Rs. 20 towards arrears of rent and for future mesne profits under Order 20, Rule 12 of the Code of Civil Procedure. The plaintiff has alleged that it is the landlord of the building described in the plaint as door No. 90.A, Sannadhi Street, Tirupapuliyur, Cuddalore, and the said building was rented to the first-defendant on a monthly rent of Rs. 5. The further allegations in the plaint are that the first-defendant has sub-let the building to the second-defendant without the knowledge and consent of the plaintiff, that plaintiff had started a Tamil College and wanted the first-defendant to vacate the building, that the first defendant agreed to vacate the building on 30th June, 1973 itself, that the first-defendant was fully aware of the necessity of the building to run the college and that on the strength of the promise and assurance of the first defendant the plaintiff started the college expecting him to vacate the building The first defendant colluded with the second defendant. The plaintiff with great inconvenience is running the college in its premises where there is no sufficient space. The plaintiff issued a notice to the defendants to vacate the building on 20th July, 1974, on the ground that the first defendant has sub-let the building and for personal use for running the Tamil College. The first defendant evaded to receive the notice and the second defendant received the notice and gave a reply with a false allegation. The defendants are liable to be evicted is the submission incorporated in the plaint by the plaintiff. It is further alleged that the first defendant has committed default in the payment of rent and is in arrears of rent from 1st October, 1974 to 1st February, 1975. The arrears of rent came to Rs. 20. The plaintiff filed R. C. O. P. No. 52 of 1974 against the defendants for eviction. The plaintiff-institution, according to it, is a religious, charitable and educational one and hence exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence the suit was filed.
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In the written-statement filed on behalf of the first defendant it is inter alia contended that it is false to say that the first defendant took the properties on rent on a monthly rent of Rs 5 and it is only Rs. 3 per month. The first defendant has been a tenant for the past seven years and has been paying the rent regularly. The first defendant has not sub-let any portion to the second defendant. The plaintiff has not started any Tamil College. The Tamil College has been started by a Committee and they only can represent the college. The first defendant further contended in his written-statement that the alleged requirement of the premises in question for the Tamil College is not bona fide. The plaintiff is letting out the Mutt for marriage and for that purpose only the first defendant is sought to be evicted. The first defendant further contended that for the present no college is functioning. It is also contended by the first defendant in his written-statement that he has improved the property by spending nearly Rs. 1,500. He will be put to serious hardship if he is asked to vacate, the premises is the submission made by the first defendant in his written-statement. He is prepared to pay any reasonable rent. There is no valid notice to quit. It is false to say that the first defendant is in arrears of rent. The second defendant is an unnecessary party to the suit. The first defendant denies all other allegations that are not specifically admitted in his written-statement. The written statement filed by the first defendant has been adopted by the second-defendant. As a matter of fact in Exhibit A-4 the reply notice sent on behalf of second defendant on 4th July, 1974, it is inter alia contended that he is not a sub-tenant under the first defendant, that he is not in occupation of the property, that he is running a tea-stall in which the first-defendant is also a partner, that in order to have consultation for the business he used to go to the house of the first defendant and apart from it he has nothing to do with the suit-premises. In the additional written-statement that was filed before the Trial Court, it was inter alia contended by the first defendant that the Trial Court had no jurisdiction to try the suit, that by the Government Order passed recently the Tamil Nadu Buildings (Lease and Rent Control) Act, has been made applicable to private trusts and that the plaintiff is admittedly a private trust and hence the Rent Controller will have no jurisdiction to entertain the suit.
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On the above pleadings, the following issues were framed for trial:
(1) Whether the defendant is liable to be evicted?
(2) Whether there is no valid notice to quit?
(3) Whether the monthly rent is Rs. 5 or or Rs. 3?
(4) Whether the first-defendant has sub-let the suit property to second defendant?
(5) To what relief, if any, is the plaintiff entitled?
(6) Additional issue: Is the suit not maintainable in view of the recent Government Order referred to in the additional written-statement?
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On behalf of the plaintiff, the power agent of Sri la Sri. Siva Shanmugha Arumugha Gnaniar Mutt, Tirupapuliyur, has examined himself as P. W. 1. Exhibits A-1 to A-12 were filed on behalf of the plaintiff. The first defendant had himself examined as D.W. 1 and on behalf of defendants Exhibits B-1 to B-8 were filed before the Trial Court. Under issues Nos. 1 to 4 the Trial Court found that the evidence of D. W. 1 and Exhibits D-1 to D-4 clearly establish that the monthly rent payable is Rs. 3 and as such the monthly rent is only Rs. 3 and not Rs. 5. The Trial Court also found that on a perusal of Exhibit A-1, copy of notice, dated 20th of July, 1974, issued by the counsel for the plaintiff to the defendants, it is seen that it is in conformity with the provisions under Section 106 of the Transfer of Property Act and as such the Trial Court held that it was a valid notice to quit. It was further...
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