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Mrs. Elizabeth Antony Vs. K.J. George - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 324 of 1955 (E)
Judge
Reported inAIR1957Ker59
ActsTravancore Cochin Buildings (Lease and Rent) Control Order, 1950 - Sections 6; Constitution of India - Article 245; Travancore Cochin Public Safety Measures Act, 1950 - Sections 13
AppellantMrs. Elizabeth Antony
RespondentK.J. George
Appellant Advocate M. Madhavan Nair, Adv.
Respondent Advocate A.V. Moothedan, Adv.
DispositionAppeals dismissed
Excerpt:
- - 3. in the courts below the contention had been raised but unsuccessfully on behalf of the plaintiff that the buildings (lease and rent) control order, 1950, was as a whole ultra vires, and could not, therefore, be applied to the plaintiff's prejudice......commencement of the travancore building kent control order 1122 or the cochin buildings (lease and rent control) act xxiv of 1124, in respect of the use of the building after the commencement of the aforesaid act or order as the case may be, shall be refunded to the person by whom it was paid or, at the option of such person, otherwise adjusted'.and as the defendant must have paid considerably more than the plaint claim as excess over the fair rent since the commencement of the cochin act xxiv of 1124, the courts below disallowed relief to the plaintiff.3. in the courts below the contention had been raised but unsuccessfully on behalf of the plaintiff that the buildings (lease and rent) control order, 1950, was as a whole ultra vires, and could not, therefore, be applied to the.....
Judgment:

Varadaraja Iyengar, J.

1. This Second Appeal arises out of a suit for recovery of arrears of house rent as also money lent. It was filed originally in the Munsiffs Court at Alleppey as O. S, No. 668 of 1850 but transferred to the Cochin Munsiff's Court, because the house in question was situated and the defendant tenant resided, in Cochin. We arc concerned in this appeal only with the question of arrears of rent. These were disallowed to the plaintiff concurrently by both the courts and hence this seond appeal by the plaintiff.

2. The tenant-defendant came into occupation on 22-1-1122 and was regular in the payment of the agreed rent at the rate of Rs. 125per mensem till 22-5-1125 corresponding to 6-1-1950. He defaulted for 8 months thereafter and so the claim was made for the arrears. Subsequent to the institution of the suit, the tenant aPPlied for and obtained order dated 21-4-1952 under Section 4 of the Travancore-Cochin Buildings (Lease and Rent) Control Order, 1950, fixing the fair rent for the house at Rs. 61-1-8 pies. Section 6 (c) of the Order provided:

'Any sum paid in excess of the fair rent whether before or after the commencement of the Travancore Building Kent Control Order 1122 or the Cochin Buildings (Lease and Rent Control) Act XXIV of 1124, in respect of the use of the building after the commencement of the aforesaid Act or Order as the case may be, shall be refunded to the person by whom it was paid or, at the option of such person, otherwise adjusted'.

And as the defendant must have Paid considerably more than the plaint claim as excess over the fair rent since the commencement of the Cochin Act XXIV of 1124, the courts below disallowed relief to the plaintiff.

3. In the courts below the contention had been raised but unsuccessfully on behalf of the plaintiff that the Buildings (Lease and Rent) Control Order, 1950, was as a whole ultra vires, and could not, therefore, be applied to the plaintiff's prejudice. Before me, learned Counsel for the plaintiff questions only Section 6 clause (c) of the Control Order as ultra vires and to the extent it provides for a. refund or adjustment of rent paid before the date of the coming into force of the Control Order itself on 17-8-1950. The argument is that the 1950 Order was only a subordinate legislation by the Executive Government 'in exercise of powers conferred by Section 13 of the Public Safety Measures Act V of 1950 (T-C) and Section 13, according to learned Counsel, did not specifically reserve a power in the Executive Government to legislate with retrospective-effect. It is no doubt true that the delegate of legislative authority does not possess plenary power to give the subordinate delegated legislation retrospective operation unless and until that power is expressly conferred by the parent enactment. But it should not be forgotten that to ascertain the intention of the parent legislation, regard should be had to the general scope and purview of the enactment, to the remedy sought to be applied, to the former state of the law and to what was in the contemplation of the legislature. So, if there are words in the enactment which either expressly or by necessary intendment imply that the Statute should be given retrospective operation, the Courts will have no other alternative than to give such operation.

4. The Travancore-Cochin Public Safety Measures Act V of 1950 has this Preamble:

'Whereas it is necessary to consolidate and enact a uniform law throughout the State of Travancore-Cochin for ensuring public safety and the maintenance of public order and for maintaining supplies and services essential to the life of the community and for certain other matters.' and Section 13 says;

'13 (1) The Government, so far as It appears to them to be necessary or expedient for maintaining supples and services essential to the life of the community, may, by notified order provide for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without board, and in particular

(i) for controlling the rents for such accommodation (either generally or when let to specified persons or class of persons or in specified circumstances) :

(ii) for preventing the eviction of tenants and sub-tenants from such accommodation in specified circumstances.

(2) An order under Sub-section (1) may be made so as to have effect either generally or in any particular area.'

The early legislation in Cochin inter alia controlling the rents of buildings residential and non-residential viz., the Cochin Buildings (Lease and Rent Control) Proclamation IV of 1122 had provided in Section 6 (c) for this very aspect of refund or adjustment of any sum paid in excess of the fair rent 'whether before or after the commencement of the Proclamation.'

It is not difficult therefore to conceive that the object of Section 13 of the Public Safety Measures Act, when it left the legislation as regards control of rents 'generally' in Government's hands, was to empower the Government to provide for relief in case of unjust enrichments by landlords at the expense of tenants during the difficult times which had come within the purview of the Legislature, before the date of the Act. In my judgment, the Executive Government have not overstepped the limits of their authority under Section 13 of the Act in enacting the provisions for refund or adjustment under Section 6 Clause (c).

5. It is unnecessary in the light of my conclusion as above, to deal with the attractive argument of learned Counsel for the respondent based on Section 16 clause (a) of the Cochin Buildings (Lease and Bent Control) Proclamation IV of 1122:

'The expiration of this Proclamation shall not (a) render recoverable any sum which during the continuance thereof was irrecoverable or affect the right of a tenant to recover any sum which during the' continuance of this Proclamation was recoverable by him thereunder', and the admitted fact that the balance of rent payment in excess of the fair rent made during the currency of the Proclamation far exceeded the plaint, claim.

6. The second appeal fails in the result and It is therefore dismissed with costs.

7. The defendant's cross appeal is concernedwith the concurrent decrees passed in favour ofthe plaintiff on the claim for money lent. Buthaving heard learned Counsel on both sides, I findthat no ground has been made out for interferencewith the decrees of the courts below. The crossappeal is, therefore, dismissed with costs.


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