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Kadari Satyanarayana Vs. Gulslapudi Narasimhamurthy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 914 of 1969
Judge
Reported inAIR1971AP341
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 2(4), 10 and 10(3); Transfer of Property Act, 1882 - Sections 111
AppellantKadari Satyanarayana
RespondentGulslapudi Narasimhamurthy
Appellant AdvocateM. Surysanarayana Murthy, Adv.
Respondent AdvocateK. Raghava Rao, Adv.
Excerpt:
.....10 (3) of andhra pradesh buildings (lease, rent and eviction) control act, 1960 and section 111 of transfer of property act, 1882 - tenant sought to be evicted on ground of bonafide requirement - premises were required by some members of joint family to commence business - premises belonged to joint family as whole so joint family must be regarded as landlord - need of some members of joint family to set up business fell within purview of bonafide requirement under section 10 (3) (3) - landlord did not occupy any other non-residential building - andhra act is self contained code with special machinery of rent control tribunals - chapter v of transfer of property act not applicable to cases coming under andhra act - order of eviction can be passed even though landlord has not given notice..........code with a special machinery of rent control tribunals' and that the provisions of the transfer of property act are pros tanto excluded. it is also held by the learned judges that the cases, which are governed by the special legislation are subject exclusively to the provisions of the local act and the provisions of the transfer of property act are inapplicable. the learned judges pointed out that the local act is a consolidating and amending analogous and that unlike certain other analogous enactment in force in sother states, the andhra pradesh act does not provide for the continued and concurrent operation of the provisions of the transfer of property act. on these premises, the division bench came to the conclusions that chapter v of the transfer of property act is not.....
Judgment:
ORDER

1. A tenant against whom an order for eviction has been made under Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act 1960, is the petitioner in this revision petition. On his behalf three contentions are urged by Mr. M. Suryanarayana Murty.

2. The first contention urged by the learned counsel is that the notification made by the Government under Section 2 Clause (4) of the Act is invalid and is contrary to the terms of the statutory provision. It is submitted that the Rent Controller does not derive anys authority pursuant to the notification which is ultra vires. Clause (4) of Section 2 defines the word 'controller' in these terms:

'Controller' means any person not below the rank of a Tahsildar appointed by the Government to perform the functions of a Controller under this Act'.

3. It is not contended that a District Munsif is below the rank of a Tahsildar ; nor is it submitted that the notification was not duly made and published. The contention surged by these counsel is that it is only a 'person' that can be appointed to perform the functions of a Controller. but in the instant case, it is a Court that is vested with the functions of a Controller. In my opinion, three is no substance in this contention. The language of the notification in quite clear; it states, inter alia. that the Governor of Andhra Pradesh 'appoints the following persons to perform the functions of a Controller in their respective jurisdictions'. Then follows an enumeration of the persons who are to function as Controllers. It is apparent that it is certain persons who are to function as Controllers. It is apparent that it is certain persons although described by their official designations, that are appointed as Controllers and there is not basis for the arguments of the learned counsel that certain Courts have been invested eo nominee with functions as Controllers. It is true that persons, who were presiding over Courts are empower to function as Controllers. But the fact that they happen to preside over certain Courts does not constitute a flaw when the appointment is of certain persons.

4. It is submitted that the Act contemplates that they are to function as persons designated. but the effect of the appointment is to enable the newly appointed Controllers to function as Courts and not as persons designated. This argument is misconceived. The question whether the appointed persons are to function as Courts or persons designated, is entirely immaterial or besides the point. The tests o be applied is, whether the appointment is not in conformity with the provisions of Clause (4) of Section 2. the Statute des not specify or make it a requirement of a valid notification that there should not functions that there should be a directions that the persons appointed should not function as Courts. Alls that clause (4) requires is that persons not below the rank of a Tahsildar should be appointed to function as Controllers. s this requirement is clearly satisfied. Clause (4) of Section 2 is silent as to the manner in which the persons so appointed are to function.

5. Learned counsel for the petitioner cited the decision in Mangu Venkatiah, In re, (1962) 1 Andh WR 296 and also referred to an earlier decision in Bathula Krishna Brahman v. Daram Chenchi Reddi, : AIR1959AP129 . A passage from the earlier decision is extracted at page 299 ins the later report. The counsel laid emphasis ons the observations, which read as follows:

'But if additional duties are entrusted to him as the presiding officer of that Court. he discharges them as a Court attracting all the incidence of such jurisdictions such as appeal. revision etc., attached to it. When new functions are assigned to him, his jurisdiction as presiding officer is enlarged quite dissimilar to the situation where the officer is constituted as special authority and does not act in the discharge of these functions as the presiding officer'.

On the strength of these observations, learned counsel submits that the notification in question appointing the 1st Asst. Judge and the 2nd Asst. Judge at Hyderabad and Secunderabad respectively and also the Munsiff-Magistrates or District Munsifs ins the mofusil, is in essence an entrustment of the function s to the presiding officers of Courts and constitutes an enlargement of the jurisdiction of certain Courts. this, counsel contends, runs contrary to the requirement of Clause (4) of Section 2. I am not inclined to accept this contention. All that the Act requires is that the appointment should be of persons not below the rank of a Tahsildar. There is no deviation from this requirement of the statute; and the question whether the appointment of certain persons is tantamount to the extension of the jurisdiction of certain Courts, is wholly extraneous to the exercise of power under the sub-section. The notification is, therefore, valid and the order of the Controller cannot be said to be ultra vires on the ground that the Controller was not duly appointed.

6. Another ground urged by the learned counsel is that the ground urged for eviction, nameless the requirement of the landlord for personal occupation, is not made out. The averments on which the landlord sought eviction are that his two grown-u sons had discontinued their studies and that it was, therefore, necessary to find avenues for their business activities. The landlord submitted that he had to make a choice of one of the two alternatives and they are either to expand his business or to commence a fresh business. Whatever be the alternative adopted by him, the need for the occupation of the building becomes imperative and, therefore, eviction of the petitioner was sought. The facts of the case leave no room for doubt that the petitioner and his sons constitute a joint family and that the premises in question belong to the joint family.

The question issues whether the provisions of clause (3) of sub-section (3) of Section 10 have been correctly applied. Under this provision, if the landlord is not occupying a non-residential building which is his own, or to the possession of which he is entitled, he may apply for evictions for the purpose of a business which he is carrying on or for the purpose of a business which, in the opinion of the Controller, the landlord bona fide proposes to commence. As indicated by me already, though the lease was granted by the father, the building belongs to the joint family and it is the family that must be regarded as the landlord. The need of some members of the joint family for the purpose of expansion of an existing business or the commencement of a new business, is clearly within the purview of the clause (3) of sub-section (3). I do not think there is any ground for interference with the finding of the Courts below that the bona fide requirement of the landlord for personal occupation exists and justifies the claim for eviction of the tenant.

7. The third contention urged by the learned counsel for the petitioner bears on a recent decision of a Division Bench of this Court in Uligappa v. S. Mohan Rao, (1969) 1 Andh PLJ 351. Ins that case, Ekbote and Venkateswara Rao, JJ., held that the Andhra Pradesh Act 15 of 1960 and the rules framed thereunder constitute 'a self-contained Code with a special machinery of rent control tribunals' and that the provisions of the Transfer of Property Act are pros tanto excluded. It is also held by the learned Judges that the cases, which are governed by the special legislation are subject exclusively to the provisions of the local Act and the provisions of the Transfer of Property Act are inapplicable. The learned Judges pointed out that the local Act is a consolidating and amending analogous and that unlike certain other analogous enactment in force in sother States, the Andhra Pradesh Act does not provide for the continued and concurrent operation of the provisions of the Transfer of Property Act. On these premises, the Division Bench came to the conclusions that Chapter V of the Transfer of Property Act is not applicable to cases coming under the State Act, which prevails over Chapter V of the Transfer of Property Act. It was, therefore held that an order of eviction can be passed though the landlord has not given notice determining the tenancy under Section 111 read with Section 106 of the Transfer of Property Act.

8. The submission of the learned counsel is that, notwithstanding the decision of the Division bench, the rule laid down by the Supreme Court in Manujendra Dutt v. P. P. Roy Chowdhary. : [1967]1SCR475 as also two other decisions of the Supreme Court, constitute binding precedents. The two decisions relied ons by the Counsel are Abhasbhai v. Gulamnabi : [1964]5SCR157 and Mangilal v. Sugan Chand, : [1964]5SCR239 . These decisions were considered at length by the Division Bench. It is unnecessary for me to recapitulate what Ekbote, J., has stated about the effect of these decisions is his judgment delivered on behalf of the Division Bench. It is sufficient to mention that they were held to be distinguishable in regard to essential features.

In : [1964]5SCR157 the Supreme Court had to construe the effect of Sections 12 and 13 of the Bombay Rent Act. After quoting Section 12 (2) of the Bombay Act, Ekbote, J., pointed out that the provision ins that Act was to the effect that no suit for recovery of possession was to be instituted until the expiration of one month next after notice in writing has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act. The language of Section 12 (2), is not in part material with the provisions of the Andhra Pradesh Act.

Ekbote, J., also considered the basis of the decision in : [1964]5SCR239 Supra. In that case, Section 4 of the Madhya Pradesh Act had to be construed. That section provided, inter alia, that it was enacted in additions to the provisions of the Transfer of Property Act and that before a tenant can be evicted by a landlord, he must comply both with the provisions of Section 106 of the Transfer of Property Act and those of Section 4 of the local Act. The Division Bench, therefore, held that neither of the pronouncements in question was , material in determining whether the provisions of the Transfer of Property Act are operative ins regard to cases governed by Section 10 of the Andhra Pradesh Act.

The Division Bench also pointed out that the observations made by the Supreme Court in, : [1967]1SCR475 supra leave unaffected the position arising under the Andhra Pradesh Act. In view f the decision of the Division Bench which is binding on me. I am unable to accept the contention of the learned Counsel for the petitioner. I have. therefore, no hesitation in rejecting his submission that unless notice as contemplated by the Transfer of Property Act is givens the power of eviction under Section 10 of the A. P. Act is not exercisable.

9. The main contention of the learned Counsel is that the provisions of the Transfer of Property Act as to notice are not displaced by the provisions of Section 10. As stated by me already, this contention formed the subject-matter of an exhaustive pronouncement by the Division Bench. I would only like to point out one aspect which was not adverted to therein. Under Section 11 of the Andhra Pradesh Act, when an application for eviction is made, the tenant is not entitled to contest the application except on deposit of the arrears of rent that accrued due. An obligation is also imposed on the tenant of paying or depositing the rent during the pendency of the application. If there I a breach in respect of these obligations, the proceedings can be stopped and he tenant might be directed to put the landlord in possession of the property.

Supposing in a case the court makes an order directing the landlord to be put in possessions because of the default of the tenant to deposit rent ins the manner specified by Section 11, can the tenant in such a case contend that the contractual tenancy is still subsisting because no notice under the Transfer of Property Act has been given and, therefore, he cannot be directed to put the landlord in possession? It is obvious that the tenant cannot shave recourse to the provisions of the Transfer of Property Act to nullify or counteract the operation of Section 11 of the Local Act. This is only sons of the several illustrations that can be thought of for testing the view whether the contractual tenancy co-exists with the statutory tenancy envisaged under Section 10. I do not propose to embark on an elaborate examination of the question de novo. because the Division Bench has considered several aspects of the question in an exhaustive manner.

10. It only remains to point out that where a statute comes into force, the effect of which is to absolve the contracting parties from the cardinal and basic liabilities arising under the contract, it can no longer be said to be subsisting. If the statute that has got an overriding effect on the contract, preserves the contractual liabilities also or makes provision for the concurrent operation of the contractual and the statutory liabilities or duties, a different result might follow. But, the Andhra Pradesh Act produces a result which inevitably supersedes the contract between the parties in all its essential or basic elements. I am, therefore, of opinion that the ratio of the decisions of the Supreme Court ins : [1964]5SCR157 (supra) and : [1964]5SCR239 (supra) is inapplicable to cases governed by the Andhra Pradesh Act. In the cases dealt with by the Supreme Court, the Legislature clearly contemplated the co-existence of the statutory sand the contractual liabilities and rights. The position arising under the Andhra Pradesh Act is altogether different.

11. It is necessary to bear in mind that contracts of lease may shave been entered into after the special enactment has come into force. If there is no specific term of the lease agreed upon, is it not an implied term that the parties made the statutory provision as to duration or forfeiture of lease, the basis of their agreement? this presumption is all the more compelling in cases where the parties are not free to contract themselves out of the statutory provision. It would follow, in cases of this description i.e., where the contract must be deemed to have the implied term as to duration and termination of the lease, that the statutory tenancy has never come into being. Where the effect of the statute is to prohibit the formation of a contract inconsistent with its provisions, it is impossible to conceive of a 'contractual tenancy' in the sense in which the expression is understood in the case decided by the Supreme Court. As pointed out already. the decisions in : [1964]5SCR157 (supra) and : [1964]5SCR239 (supra) were in relation to statutory provisions which required the parties to conform to the provisions of the Transfer of Property Act.

12. Let me examine the position on the hypothesis that the doctrine of implied term cannot be applied to a lease although the arrangement was entered into after the commencement of the restrictive rent legislation. Has not the performance of the contract. In respect of termination of the lease and other matters covered by the statute, become naturally impossible? The statute alters or displaces the fundamental basis of the contract. It is clear that the interruption or disruptive impact of the statute on the contract is not of an interim character, likely to cease so as to leave the rest of the period stipulated free for the revival of the rights and duties of the parties. The essential feature of the case is that the power of performance in the manner specified in the contract is not suspended for a short period, so as to leave unimpaired the substratum of the contract. The situation, on the contrary, is one where 'the bottom falls out of the contract'. The running obligations can be performed only as ordained by the statute. the contract is dissolved and its bottom falls out because the performance of the essential terms of the contract cannot be enforced and this unenforceability is not of a short or predictable duration.

13. I do not find any reason for suggesting a fresh examination of the question decided by the Division Bench. Following the decision, I hold that the landlord is entitled to apply for eviction under Section 10 although he has not given a notice to quit in the manner prescribed by the Transfer of Property Act. the revision petition is, therefore, make no order as to costs.

14. Petition dismissed.


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