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(Madhava Iyer) Venkitasubramonia Iyer Vs. Catholic Bank of India Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberO.P. No. 59 of 1956 (T)
Judge
Reported inAIR1957Ker109
ActsConstitution of India - Article 226; Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950; Evidence Act, 1872 - Sections 114; Code of Civil Procedure (CPC) , 1908; Transfer of Property Act, 1882 - Sections 58 and 105
Appellant(Madhava Iyer) Venkitasubramonia Iyer
RespondentCatholic Bank of India Ltd. and ors.
Appellant Advocate G. Viswanatha Iyer, Adv.;Govt. Pleader
Respondent Advocate T.K. Narayana Pillai and; T. Koshi, Advs. for Respondents Nos. 1 and 2
DispositionPetition allowed
Cases ReferredSiyarajan v. Official Receiver
Excerpt:
civil - jurisdiction - clause 16 of travancore-cochin buildings (lease and rent control) order, 1950 - government order reversing fixation of standard rent challenged - impugned order issued on ground that agreement in question pertaining to lease and not rent agreement - evidence prove that respondent possessed building as tenant - impugned order without jurisdiction and set aside. - - 110 per mensem by an order dated 27-6-1953. an appeal by it under clause 15 of the order having failed, the 1st respondent bank filed a petition before the government under clause 16, and by their order dated 4-1-1956 the government allowed the petition and, setting aside the orders of the controller and the appellate authority, dismissed the petitioner's application for fixation of fair rent. the..........in b. r. c. 51/50 and the order of the district collector in b. r. c. appeal 25/54 upholding the rentcontroller's order, are not maintainable in law. therefore, they are set aside and the petition before the rent controller for fixation of fair rent stands dismissed. no order as to costs.'9. i must confess to some difficulty in understanding what exactly is meant by saying that a transaction is a lease and not a rent arrangement or that a lease cannot come within the purview of the rent control order. i should have thought that the first requisite for the application of the lease and rent control order is, as its very name shows, that there should be a lease and consequently a landlord and a tenant. nor am i able to appreciate why, if a transaction was in the nature of a mortgage and.....
Judgment:

Raman Nayar, J.

1. This petition is for a writ of certiorari to quash an order passed by the 3rd Respondent -- Government under Clause 16 of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, (hereinafter referred to as the Rent Control Order), an Order made under Section 13 of the Travancore-Cochin Public Safety Measures Act, V of 1950.

2. Before stating the facts it might be as well to consider a preliminary objection taken on behalf of the 1st Respondent to this petition, the Catholic Bank of India, Changanacherry, The order complained against was passed on 4-1-1956. The- present petition was filed on 28-5-1956, and it is argued on the strength of the Full Bench decisions reported in Mahadeva Iyer v. State, 1954 Ker LT 427: (AIR 1954 Trav-C 469) (A), and Swaraj Motors Ltd. v. Municipal Council, Alwaye, 1954 Ker LT 443: (AIR 1954 Trav-C 468) (B), that the petition is liable to be dismissed on the ground of unreasonable delay.

It was suggested in these decisions that a reasonable time to file a petition of this nature would be 3 months, the time allowed for a civil revision petition. This 3 months' period expired in the present case on 4-4-1956 when the Court was on vacation and the petition was actually filed on the reopening day. In the circumstances if cannot be said that there has been unreasonable delay, and the preliminary objection is therefore overruled.

3. The facts are these: The petitioner holds art otti over the property in question, a piece of land 14 cents in extent forming S. Nos. 1255-A and B and 1256 of the Vanchiyoor Pakuthy in Trivandrum City and the buildings bearing door Nos. 980-A to D and 981 standing thereon. In 1945 the 1st Respondent Bank bought the mortgagor's right in this property and thereafter, on 14-7-1945 entered into a registered lease-deed with the petitioner by which it took a lease of the property for three years on an annual rent of Rs. 732 payable in two half-yearly instalments. On the 1st October 1950 the petitioner made an application under Clause 4 of the Rent Control Orderfor fixing a fair rent for the property, and the Controller fixed the rent at Rs. 110 per mensem by an order dated 27-6-1953.

An appeal by it under Clause 15 of the Order having failed, the 1st Respondent Bank filed a petition before the Government under Clause 16, and by their order dated 4-1-1956 the Government allowed the petition and, setting aside the orders of the Controller and the appellate authority, dismissed the petitioner's application for fixation of fair rent. It is against this order of Government that the present petition is directed.

4. The first objection taken on behalf of the petitioner is that the Government had no jurisdiction to interfere in revision and that Clause 16 of the Rent Control Order which purports to confer the jurisdiction as also Clause 15 which provides for an appeal are valid. I think that, for more reasons than one, this objection is not to be countenanced. In the first place it was not taken at the hearing of the revision petition by the Government; the petitioner submitted to their jurisdiction and took the chance of obtaining an order in his favour; and it follows from the decisions reported in Gangadhar Motor Transport Society v. State of Bombay, AIR 1954 Bom 202 (C) and John v. State, 1955 Ker LT 568 (D), that the petitioner cannot be heard to raise the objection here.

5. That Clauses 15 and 16 of the Rent Control Order are valid is concluded by authority -- see the Division Bench ruling reported in Sippora v. Gopalan, 1954 Ker LT 706 (E), where it was held that Sections 15 and 22 of the Public Safety Measures Act read together enabled the Government to confer the right of appeal on any authority reserving a right of revision for themselves. Left to my own resources, uninformed by this decision, I might have been tempted to find that power not in Sections 15 and 22 but in Section 13 under which the Rent Control Order is expressed to be made.

For, it seems to me that the power to make an order providing for regulating the letting of accommodation necessarily implies the power to provide for the adjudication (inclusive of appeal and revision from an original decision) of, the conflicting claims arising from such regulation just as the power to provide for adjudication, inclusive of appeals and revisions, in respect of any matter falling within a legislative entry as, for example, income-tax is to be found in that entry itself.

Although the wording of Section 22 of the Public Safety Measures Act is wide enough to take in a power conferred on an officer by an order made under Section 13, it seems to me that the real purpose of Section 22 is to provide for an appeal from the decision of an officer in exercise of powers conferred by the Act itself, (for example by Section 8) as also from the decision of an officer in exercise of powers delegated to him by the Government under Section 15, in other words of powers conferred under the Act. It is however unnecessary to discuss the matter further in view of the fact that I am bound by the decision referred to earlier, and am, if I may say so with all due respect, unreservedly in agreement with the conclusion therein that Clauses 15 and 16 of the Rent Control Order are valid.

8. It is nevertheless argued that the decision erred by reason of its failing to note that the preamble to the Rent Control Order refers only to Section 13 of the Public Safety Measures Act and not to Sections 15and 22, and that it purports to have been made underthe former section alone. In this view it is suggested that I should refer the present case to a Division Bench. I do not think that the argument is tenable. The intention to provide for an appeal and a revision is clear from the provisions made in the Rent Control Order in that behalf, and if the Government had the power to make provision for these matters under Sections 15 and 22 of the Public Safety Measures Act, they must be presumed to have exercised that power notwithstanding that these sections are not expressly mentioned in the preamble to the Order. The failure, to mention Sections 15 and 22 does not mean that the powers conferred by those sections were not exercised, any more than, the failure to mention any provision at all would have led to the conclusion that no power at all was exercised and have thus invalidated the entire Order. Whatever a preamble to a statutory order or notification might say, the presumption is that it is made in exercise of all the powers conferred by the statute in question.

7. The next objection taken is that the order assailed is vitiated by an error of law apparent on the face of the record, and this objection must, I think, prevail. That the order in question is a quasi-judicial order subject to correction by a writ of certiorari is not disputed, and that an error of law apparent on the face of the record would be a sufficient ground for interference has been laid down in a number of cases of which it is necessary to refer only to the Supreme Court decision in Hari Vishnu v. Alimad Ishaque, (S) AIR 1955 SC 233 (F). What exactly is the record in such a case and in what circumstances certiorari will lie to quash the decision, have been laid down in R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw, 1952-1 All ER 122 (G), a decision followed in the Supreme Court case just cited. In the words of Denning, L. J.:

'The record must contain at least the document which initiates the proceedings, the pleadings if any, and the adjudication, but not the evidence, nor the reasons,' unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.'

The observation at p. 414 (of Ker LT): (at p. 543 of AIR) of the report in the Supreme Court decision in Mar Basselios Catholicos v. Mar Poulose Athanasius, 1954 Ker LT 385: (AIR 1954 SC 526) (H), that the phrase, 'the record' within the meaning of Order 47, Rule (1) of the Code of Civil Procedure is not to be construed in the restricted sense in which Denning, L. J., construed it in the case referred to does not mean-that the phrase is to be construed in a wider sense-in a case of certiorari for, the very ground on which/ the dictum of Denning, L. J., is distinguished is that it was made with reference to a case of certiorari.

8. The question then is whether there is in this case an error of law apparent on the face of the record. I think there is. The impugned order shows that the contention raised by the 1st Respondent bank before the Government was that the transaction in question, namely, the lease-deed dated 30-11-1120, was a lease and not a rent arrangement and therefore did not come under the purview of the Rent Control Order. The Government accepted this contention. They said:

''Both the lower tribunals (Rent Controller and the District Collector) have not considered all thesalient features of the transaction and the intention of the parties to come to a conclusion about the nature of the transaction; whether it is a rent arrangement or a lease arrangement.'

and after referring to certain facts proceeded to observe,

'All these facts go to show that this transactionis more in the nature of a mortgage and lease-back than that of a rent arrangement with landlord-tenant relationship contemplated by the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950.'

Then they go on to say that assuming as was argued, that the whole compound was covered with buildings, that was not conclusive evidence to show that the intention was a rent arrangement in view of the overwhelming circumstantial evidence to the contrary. The concluding portion of their order runs as follows:

'On a careful consideration of all the facts and circumstances of this case, Government have no hesitation to hold that the transaction in question partakes the nature of a lease-hold arrangement and that the parties are not having the landlord-tenant relationship as contemplated under the Travancore-Cochin Buildings (Lease and Bent Control) Order, 1950. Government hold that the order of the Rent Controller in fixing the fair rent of the buildings in question in B. R. C. 51/50 and the order of the District Collector in B. R. C. Appeal 25/54 upholding the RentController's order, are not maintainable in law. Therefore, they are set aside and the petition before the Rent Controller for fixation of fair rent stands dismissed. No order as to costs.'

9. I must confess to some difficulty in understanding what exactly is meant by saying that a transaction is a lease and not a rent arrangement or that a lease cannot come within the purview of the Rent Control Order. I should have thought that the first requisite for the application of the Lease and Rent Control Order is, as its very name shows, that there should be a lease and consequently a landlord and a tenant. Nor am I able to appreciate why, if a transaction was in the nature of a mortgage and leaseback (in this particular case the lease, which was years after the mortgage, cannot be properly described as a lease-back) it cannot create the relationship of landlord and tenant or why it should not come within the purview of the Rent Control Order so long as the lease is of a building as defined in Clause 2 (1) of the Order.

If I may presume to speculate as to what really the Government would have meant I think that they probably had in mind two things. First that, as was contended by the 1st Respondent bank before the Controller, the transaction in question although styled as a lease was really intended to convert the otti into a simple mortgage so that the possession of the bank was as owner of the properly and not as a tenant under the lease-deed. This contention is obiviously untenable, and it is hardly necessary to cite authority for the purpose of showing that by a mere intention, unexpressed in any document, the parties to an otti cannot convert it into a simple mortgage. The circumstance that the rent was arrived at by calculating interest on the mortgage money lends no support to this contention, and I have never heard it said that if a mortgagor takes a usufructuarily mortgaged property on lease his possession is not in hiscapacity as a tenant of the mortgagee but in his capacity as owner.

10. The second thing that Government might have meant was that the lease in question was of the land and not of the buildings as such, that the buildings must be regarded as only appurtenant to the land and not vice-versa, and that therefore the subject-matter of the lease does not fall within the definition of a building in Clause 2 (1) of the Rent Control. Order. The 1st Respondent bank has tried to sustain the order of the Government by giving it this meaning which I might observe is nowhere indicated in the order but is a mere surmise. In paragraph 9 of its counter-affidavit the bank states:

'Thus it can be seen that the lease deed in question on the basis of which the application for the fixation of fair rent was made by the petitioner relates to the lease of the land included in Survey Nos. 1255-A and B and 1256 as distinguished from any rental arrangements relating to buildings standing on such lands. It has been held that if there is a leasing out of a garden land together with buildings or huts standing thereon, the transaction cannot be said to amount to letting out of the buildings or huts separately for residential or non-residential purposes.'

11. This, as I have already remarked, is to give a reason in support of the order of Government which Government themselves have not given, at least not in words capable of being so understood. Such reasons as the Government have given are, as I have shown, wrong in law and therefore their decision is liable to correction by a writ of certiorari,

12. Since the pleadings also form part of the record for the purpose of determining whether an error is an error apparent on the face of the record, it is permissible to look into the application made by the present petitioner before the Controller and the written statement filed by the 1st Respondent bank in answer to it. The petition before the Controller states in more places than one that the 1st Respondent bank is a tenant of the buildings.

Nowhere is this controverted in the very long written statement, running to eight pages, filed by the bank. The bulk of that statement is devoted to the untenable contention that, by the transaction of lease the otti became converted into a simple mortgage and that therefore the bank's position was as an owner and not as a tenant and to equally untenable contentions, now abandoned, of res judicata and estoppel. Nowhere is it stated that the lease was not in respect of the buildings. On the other hand the prayer in paragraph 19 that, if it is deemed necessary to fix the fair rent of the buildings the Controller may be pleased to consider the facts and circumstances stated thereafter, amounts to an admission that the lease was of the buildings.

In the face of the pleadings there is thus no scope for holding that the lease appurtained to the land of which the buildings were only appurtenances and not the other way about. All this apart, from the stand point of ordinary common sense, it does not need much argument to show that a lease of property comprising 14 cents of land with buildings thereon bearing as many as six separate door numbers, situate in an urban area and reserving an annual rent of Rs. 732, must be primarily a lease of the buildings and not of the land as such.

13. MJ. Koshi on behalf of the 1st Respondent bank has taken me through the lease-deed in question and through an affidavit filed by his client before the Controller after the hearing of the application, by him, but before orders were pronounced. I do not think that these can form part of the record in a case like the present haying regard to the observations of Denning L. J. which have already been quoted. But I might observe that there is nothing in the lease-deed that leads to a conclusion contrary to that I have reached.

The mere fact that the lease calls itself a pattern and refers to the rent payable as pattom and not as vadaka is no ground for holding that the lease was of the land rather than of the buildings. The schedule to the document shows that what was leased was the land with the buildings standing thereon. And as for the affidavit filed before the Controller it at best amounts only to an argument by which, in order to take advantage of the decision in Siyarajan v. Official Receiver, Quilon District Court, 1953 Ker LT 110 : (AIR 1953 Trav-Co. 205) (I), the 1st Respondent bank strove to make out, contrary to the pleadings, that the lease as such was of the land and not of the buildings.

14. I allow the petition and quash the order made by the Government. The petitioner will be entitled to get his costs from the 1st Respondent bank. Advocate's fee Rs. 150/- (Rs. One hundred and fifty).


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