Skip to content


R.P. Ramakrishna Ayyar Vs. V. Sreedharanvarman Thampan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberO.P. No. 500 of 1961
Judge
Reported inAIR1964Ker127
ActsKerala Tenants and kudikidappukas Protection Act, 1963 - Sections 2; Malabar Tenancy Act, 1929 - Sections 16 and 17; Constitution of India - Article 227
AppellantR.P. Ramakrishna Ayyar
RespondentV. Sreedharanvarman Thampan
Appellant Advocate T.N. Subramania Iyer and; S. Subramonia Iyer, Advs.
Respondent Advocate T.S. Venkiteswara Iyer, Adv.
Cases ReferredState of Uttar Pradesh v. Dr. Vijay Anand Maharaj
Excerpt:
.....17 of malabar tenancy act, 1929 and article 227 of constitution of india - suit for fixation of fair rent under act of 1929 - petitioner not satisfied with decision of lower authority - writ petition filed - whether writ proceedings initiated are proceedings under act of 1929 - article 226 confers discretionary power on high court to make or issue appropriate order and writs for enforcements of rights conferred by part iii of constitution or for any other purpose - writ proceedings are not proceedings under principal act. - - p-1 as well as the order of the appellate authority, namely, ext. p-2. 2. the petitioner, who is the tenant of the holding in question, filed an application before the kent court, palghat at chittoor, under section 16of the malabar tenancy act for fixation..........objection is thatthis writ proceeding must be considered to be a proceeding 'for fixation of fairrent under the malabar tenancy act, 1929 (actxiv of 1930)' and such proceedings have to bestayed under section 2 of kerala act vii of 1963. 5. i had issued notice to the learned advocate-general and he has appeared before me in these proceedings. both the learned advocate-general and mr. t. n. subramania iyer learnedcounsel for the petitioner, have urged that this proceeding need not be stayed under section 2 of kerala act vii of 1963. according to them. section 2 has no application to writ petitions wherein the jurisdiction of this court is invoked under either article 226 or article 227 of the constitution. 6. before i go into the merits arising for consideration in the writ petition,.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this writ petition, under Article 227 of the Constitution, Mr. T. N. Subramonia Iyer, learned counsel for the petitioner-tenant,challenges the order of the Rent Court, Ext. P-1 as well as the order of the appellate authority, namely, Ext. P-2.

2. The petitioner, who is the tenant of the holding in question, filed an application before the Kent Court, Palghat at Chittoor, under Section 16of the Malabar Tenancy Act for fixation of fail rent. The Rent Court accepted in part the grievance of the petitioner and fixed the fair rent as mentioned in the order, Ext. P-1.

3. Not satisfied with the fixation of fair rent under Ext. P-1, the petitioner took up the matter in appeal before the appellate Authority, namely, the learned Subordinate Judge of Palghat, under Section 17 of the Malabar Tenancy Act asking for relief by way of further reduction of the fair rent fixed by the Rent Court. The petitioner's appeal was C. M. A. No. 47 of 1960. The contesting respondent here, the landlord, also filed an appeal, namely, C. M. A. No. 61 of 1960, before the appellate authority claiming to have an enhanced rent fixed by the appellate authority. Both the appeals were disposed of by a common judgment evidenced by Ext. P-2. Ultimately it is seen that the appellate authority appears to have accepted the grievance of the landlord and enhanced the fair rent fixed by the Rent Court under Ext. P-1 and in consequence the appeal filed by the land-lord was allowed in part and the appeal filed by the petitioner-tenant was dismissed. I will have to refer to the principles adopted by both the authorities in the matter of fixation of fair rent a little later when I consider the attack levelled as against these orders, by the learned counsel for the petitioner on merits.

4. When the writ petition was taken up forhearing Mr. T. S. Venkiteswara Iyer, learned counsel for the respondent, the landlord, has raiseda preliminary objection that the hearing of thiswrit petition will have to be stayed in view of theprovisions contained in Section 2 of the KeralaTenants and Kudikidappukars Protection Act,1963, Act VII of 1963. The sum and substanceof the preliminary objection is thatthis writ proceeding must be considered to be a proceeding 'for fixation of fairrent under the Malabar Tenancy Act, 1929 (ActXIV of 1930)' and such proceedings have to bestayed under Section 2 of Kerala Act VII of 1963.

5. I had issued notice to the learned Advocate-General and he has appeared before me in these proceedings. Both the learned Advocate-General and Mr. T. N. Subramania Iyer learnedcounsel for the petitioner, have urged that this proceeding need not be stayed under Section 2 of Kerala Act VII of 1963. According to them. Section 2 has no application to writ petitions wherein the jurisdiction of this Court is invoked under either Article 226 or Article 227 of the Constitution.

6. Before I go into the merits arising for consideration in the writ petition, it is desirable to deal with this preliminary objection raised by Mr. T. S. Venkiteswara Iyer, learned counsel for the contesting respondent.

7. Originally the Kerala Tenants and Kudikidappukars Protection Oridance, 1962, Ordinance VIII of 1962, was promulgated by the State Government and published in the State Gazette on 10th December, 1962. But the Ordinance has been replaced by the Kerala Tenant and Kudikidappukars Act, VII of 1903, which has been published in the State Gazette on 13-2-1963. Therefore, it is enough if I refer to the particular provisions of this statute itself, on the basis of which, according to Mr. T. S. Venkiteswara Iyer these proceedings will have to be stayed.

8. Section 2 of Kerala Act, VII of 1963, is as follows:

'2. Temporary stay of enforcement of rights privileges, etc., under certain enactments. -- During the period of operation of this Act, no suit or other proceedings --

(i) for the recognition or enforcement of any right, privilege, obligation, or liability acquired, accrued, or incurred under the Kerala Agrarian Relations Act, 1960 (Act IV of 1961), or the Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962 (Act XVIII of 1962), or the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1955 (Act XXIV of 1956); or

(ii) for the fixation of fair rent under the Malabar Tenancy Act, 1929 (Act XIV of 1930), shall be instituted in or before any Court, tribunal or other authority at the commencement of this Act shall be stayed.'

9. Though Clause (i) of Section 2 is not really necessary for our present purpose, anyhow, in order to appreciate the scheme of the said section, I have extracted Clause (i) also. The relevant part of Section 2 so far as it is material for the present purpose is the provision to the effect that during the period of operation of Act VII of 1963, no suit or other proceeding for the fixation of fair rent under the Malabar Tenancy Act, 1929, shall be instituted in or before any Court, tribunal or other authority and all suits and proceedings pending before any Court, tribunal or other authority at the commencement of this Act are to be stayed. The said provision consists of two parts, namely, (a) that during the operation of the Act no suit or other proceeding is to be instituted before any Court, tribunal or other authority. This deals with institution of suits or proceedings; and (b) all suits and proceedings which are pending before any Court, tribunal or other authority on the date of the commencement of the statute are to be stayed. This really deals with the stage subsequent to the institution of suit or proceeding and if those proceedings are pending at the material time, they have to be stayed for the duration of the Act.

10. This Court is not concerned now with thefirst part of the provision referred to above, namely, suit or other proceedings being instituted before any Court, tribunal or other authority for fixation of fair rent under the Malabar Tenancy Act. If at all. the provision that could be relied on and in fact which has been relied on by Mr. T. S. Venkiteswara Iyer, is the latter part of the provision to the effect that all suits and proceedings pending before any Court, tribunal or other authority at the commencement of this Act are to be stayed. The provision regarding suits also will not apply, because the proceedings now before (sic) are not suits.

11. According to Mr. T. S. Venkiteswara Iyer, learned counsel for the respondent, the proceedings, admittedly in this case were initiated under the provisions of the Malabar Tenancy Act for fixation of fair rent before the Rent Court. Appeals were taken again under the provisions of the Malabar Tenancy Act by both parties before the appellate authority functioning under the statute and in this Court the petitioner-tenant challenges the decision of the authorities functioning under the Malabar Tenancy Act. This Court will have to consider the grievance of the petitioner inaccordance with the provisions of the Malabar Tenancy Act, and, therefore, according to Mr. T. S. Venkiteswara Iyer, learned counsel, these proceedings will have to be stayed.

12. On the other hand, the stand taken bythe learned Advocate-General and Mr. T. N. Subramonia Iyer, is that the writ petition filed under Article 227 cannot certainly be considered to beeither a suit or other proceeding for the fixation of fair rent under the Malabar Tenancy Act, 1929. The grievance of the petitioner will have to beconsidered by this Court on the ground whether the decision of the Subordinate authorities has been given in violation of the provisions of the Malabar Tenancy Act. Even if the grievance of the petitioner is accepted the proper directions that could be given by this Court would be to ask the authority concerned to reconsider the matter under the Malabar Tenancy Act. Probably, that reconsideration may have to be kept pending during the period of operation of the statute.

13. Again, the learned Advocate-General urged that the jurisdiction exercised by this Court is one conferred by the Constitution under Article 227. It is not a proceeding under the Malabar Tenancy Act, and much less a proceeding for fixation of fair rent under the Malabar Tenancy Act, 1929.

14. In my view, the contentions of the learned Advocate-General and Mr. T. N. Subramonia Iyer will have to be accepted and the preliminary objection raised by Mr. T. S. Venkiteswara Iyer has to be overruled.

15. The Malabar Tenancy Act defines the Rent Court under Section 3 (26). Chapter II of the said Act deals with fair rent and how exactly the fair rent is to be computed. Section 15 gives jurisdiction to the State Government, by notification in the Gazette, to constitute a Rent Court for any particular area in the manner indicated therein and that Rent Court is for the purpose of performing the functions entrusted to sucha Court by the said Act. Again, Section 16 of the Malabar Tenancy Act provides that if a dispute arises as to the amount of fair rent payable in respect of any rent under the provisions of that Chapter, either the tenant, or the landlord after the expiry of three years from the commencement of the Malabar Tenancy (Amendment) Act, 1954, can apply to the Rent Court for the determination of the fair rent and it is also further provided that the fair rent is to be determined by the Rent Court on such application. I am referring to this provision in particular to show that the statute itself provides the authority whose jurisdiction is to be invoked by the parties concerned for the purpose of fixing fair rent when a dispute arises. Section 17 gives a right to a person aggrieved by an order passed by a Rent Court under Section 16 to appeal within the time prescribed, to the Subordinate Judge or the Principal Subordinate Judge, as the case may be, of the Subordinate Judge's Court having jurisdiction over the area in which the holding is situate. It is clearly stated that the said Subordinate Judge is hearing the appeal as a persona designata and that his decision shall be final.

Section 20 provides that a fair rent determined by the Rent Court is not liable to be revised on the application of a landlord before the expiry of 12 years from the date of the order of the Rent Court, but it also provides that the fair rent, if so determined, can be reduced for sufficient cause on an application filed by the tenant. These provisions clearly indicate the scheme of the Act, as to the forum where the jurisdiction vests for fixation of fair rent under the Malabar Tenancy Act.

16. Rules have been framed called the Malabar Tenancy (Determination of Fair Rent) Rules, 1954 providing in detail as to the various matters to be mentioned in an application filed for fixation of fair rent and other allied matters. In particular, Rule 10 clearly provides the various matters which are to be mentioned in an application to the Rent Court for fixation of fair rent under the Malabar Tenancy Act. They again give an indication that a proceeding for fixation of fair rent under the Malabar Tenancy Act, 1929, can only be correlated to such proceedings initiated under Section 16 of the Malabar Tenancy Act read with the relevant rules on the subject.

17. No doubt, Mr. T. S. Venkiteswara Iyer, learned counsel, urged, that in a writ petition under Article 227, it is now held that this Court cannot only demolish an order which is under, attack, but also give further directions to the tribunal concerned to dispose of the matter afresh. That is so. But the question is whether because of that, the proceedings now before me, can be considered to be 'a proceeding for fixation of fair rent' under the Malabar Tenancy Act, 1929. The particular decision referred to by M. T. S. Venkiteswara Iyer, learned counsel, is the decision of the Supreme Court reported in Hari Vishnu Ka-math v. Ahmad Isaque, : [1955]1SCR1104 , Mr. Justice Venkatarama Ayyar, explaining the scope of Article 227 observes as follows:

'We are also of opinion that the Election Tribunals are subject to the superintendence of theHigh Courts under Article 227 of the Constitution, and that that superintendence is both judicial and administrative. That was held by this Court in 'Waryam Singh v. Amarnath : [1954]1SCR565 , where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a 'certiorari' under Article 226, the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of 'certiorari' and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.'

I do not think these observations will assist Mr. T. S. Venkiteswara Iyer. I may also state that more or less similar observations have been made by the Supreme Court in Satyanarayan v. Mallikarjun, : [1960]1SCR890 Mr. Justice Das Gupta observed as follows:

'We have noticed that in the application to the High Court the respondent asked that Court to exercise its power of superintendence under Article 227 of the Constitution by the method of issuing a writ of certiorari or any other suitable writ. Article 227 corresponds to Section 107 of the Government of India Act, 1915. The scope of that Section has been discussed in many decisions of Indian High Courts. However wide it may be than the provisions of Section 115 of the Code of Civil Procedure, it is well established that the High Court cannot in exercise of its power under that section assume appellate powers to correct every mistake of law. Here there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure or any breach of any rule of natural justice. If anything it may merely be an erroneous decision which, the error not being apparent on the face of the record, cannot be corrected by the High Court in revision under Section 115 of the Code of Civil Procedure or under Article 227.'

These two decisions referred to above, if I may say so with respect, no doubt, clearly lay down the ambit of jurisdiction exercised by the High Court under Article 227 of the Constitution.

18. The Supreme Court had again occasion toreconsider the scope of Articles 226 and 227 inNagendra Nath v. Commr. of Hills Division, : [1958]1SCR1240 Mr. Justice Sinha, ashe then was, dealing in particular with Article227 observes as follows:

'A Constitution Bench of this Court examined the scope of Article 227 of the Constitution in : [1954]1SCR565 . This Court, in the course of its judgment, made the following observations at p. 571 (of SCR) : (at p. 217 of AIR):-

'This power of superitendence conferred by Article 227 is, as pointed out by Harries, C. J., an Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (SB), to be exercisedmost sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors'. It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence interference by the High Court, in these cases, either under Article 226 or 227 of the Constitution, was not justified.'

From the above extract it will be seen that the jurisdiction that is exercised by the High Court either under Article 226 or Article 227 is because of the jurisdiction conferred under these Articles on the High Court, under the Constitution.

10. In a recent judgment, namely. State of Uttar Pradesh v. Dr. Vijay Anand Maharaj, : [1962]45ITR414(SC) , the Supreme Court had occasion to consider whether a proceeding under Article 226 of the Constitution, can be considered to be 'a proceeding under the principal Act.' The 'Principal Act' in that decision was the U. P. Agricultural Income-tax Act, 1948.

20. Mr. Justice Subba Rao, if I may say so-with great respect, has very elaborately and exhaustively considered the nature of the jurisdiction exercised by the High Court under Article 226. No doubt, the Supreme Court in that case considered only Article 226 but in my view, those observations will apply also when the High Court exercises jurisdiction under Article 227, which again is a provision made in the Constitution itself.

21. In the decision before the Supreme Court the respondent before them had challenged in the Allahabad High Court certain orders passed by the Additional Collector of Banaras making an order of assessment under the U. P. Agricultural Income-tax Act, in of 1949. On 22nd November, 1955, a learned Judge of the Allahabad High Court allowed the writ petition of the party and quashed the order passed by the Additional Collector, Banaras. The State of U. P. allowed the matter to become final and did not challenge the said order. On 9th February, 1956, the State of U. P. promulgated an Ordinance, in the first instance, which was subsequently replaced by an Act, namely, the U. P. Act XIV of 1956. By virtue of Section 6 of the Ordinance, which became law as Section 11 of the Act, a right was conferred upon a party to the proceeding under the U. P. Agricultural Income-tax Act, 1948, wherein any assessment made by an Additional Collector or Additional Assistant Collector was set aside merely on the ground that the assessing authority had no jurisdiction to make the assessment, to make an application, within the period mentioned therein, for a review of the said proceedings in the light of the provisions of the Act. There was also a statutory injunction imposed by the said, section upon the Court to review the said order accordingly.

22. In view of these provisions the State of U. P. filed an application before the High Court of Allahabad on 14-3-1956, for reviewing its previous order dated 22-11-1955. The learned Judge of the Allahabad High Court dismissed the said application filed by the State Government and an appeal taken against that order of the learned Judge was also dismissed.

23. These proceedings were challenged before the Supreme Court. One of the points that was raised before the Supreme Court was that Section 11 of U. P. Act XIV of 1956 was comprehensive enough to take in an order made by the High Court under Article 226 of the Constitution quashing the order of assessment.

24. Section 11 of the said statute has been extracted by the Supreme Court at p. 420 (of ITR) : (at p. 949-50 of AIR) and it is as follows:

'Section 11. Review of Proceedings: Where before the commencement of this Act, any Court or authority had, in any proceedings under the Principal Act, set aside any assessment made by an Additional Collector or Additional Assistant Collector in charge of a sub-division merely on the ground that the assessing authority had no jurisdiction to make an assessment, any party to the proceedings may, at any time within ninety days from the date of commencement of this Act apply to the Court or authority for a review of the proceedings in the light of the provisions of this Act, and the Court or authority to which the application is made shall review the proceedings accordingly and make such order, if any, varying of revising the order previously made, as may be necessary to give effect to the provisions of the principal Act as amended by Sections 2 and 8 of this Act.'

Therefore, the question that arose before the Supreme Court was whether the writ proceeding previously initiated before the Allahabad High Court by the assessee 'was a proceeding under the principal Act', referred to in Section 11 extracted above. Mr. Justice Subba Rao after a consideration of the nature of the jurisdiction exercised by the High Court under Article 226 observes at p. 423 (of ITR) : (at p. 951 of AIR) as follows:

'Article 226 confers a power on a High Court to issue the writs, orders or directions mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. This is neither an appellate nor a revisional jurisdiction of the High Court. Though the power is not confined to the prerogative writs issued by the English Courts, it is modelled on the said writs mainly to enable the High Courts to keep the subordinate tribunals within bounds.'

Then again, at p. 424 (of ITR) : (at p. 951 of AIR), the learned Judge observes:

'It is, therefore, clear from the nature of the power conferred under Article 226 of the Constitution and decisions on the subject that the High Court in exercise of its power under Article 226 of the Constitution exercises original jurisdiction, though the said jurisdiction shall not beconfused with the ordinary civil jurisdiction of the High Court, The jurisdiction, though original in character as contrasted with its appellate and revisional jurisdictions, is exercisable throughout the territories in relation to which it exercises jurisdiction and may, for convenience, be described as extraordinary original jurisdiction. If that be so, it cannot be contended that a petition under Article 226 of the Constitution is a continuation of the proceedings under the Act.'

25. The learned Judge also refers to Article 245 of the Constitution regarding the competency of the legislature to make laws. It is the view of the learned Judge that the State legislature can make no law in derogation of the powers of the High Court under Article 226 of the Constitution and it is well settled that Article 226 confers a discretionary power on the High Courts to make or issue appropriate orders and writs for enforcement of rights conferred by Part III of the Constitution or for any other purpose.

26. In this view also, the learned Judge is of the opinion, that while Article 226 confers discretionary power on the High Court, the second part of Section 11 which was being considered by the learned Judge enjoins on the High Court to make an order in a particular way and they should not give such a construction to the said section as would bring it into conflict with Article 226 of the Constitution and which would have the effect of invalidating that to that extent.

27. In my view, the observations made by Mr. Justice Subba Rao, and referred to above apply with full force to the matter on hand, though the jurisdiction that is now invoked is under Article 227 of the Constitution. Powers conferred under Articles 226 and 227 are by virtue of those provisions contained in the Constitution.

28. Therefore, it cannot certainly be considered that the proceedings that are now before this Court are 'proceedings for fixation of fail rent under the Malabar Tenancy Act'. Therefore, this preliminary objection is overruled and I will now proceed to dispose of the writ petition on merits.

(The rest of the judgment is not material for reporting.)


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //