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Dr. K.C. Nambiar Vs. State of Madras by Its Chief Secretary and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. Nos. 9491 of 1950 and 11818 of 1951
Judge
Reported inAIR1953Mad351; (1953)IMLJ49
ActsConstitution of India - Articles 14, 19 and 226; High Court Rules (Madras) - Rule 3; Madras Buildings (Lease and Rent) Control Act, 1949 - Sections 13
AppellantDr. K.C. Nambiar
RespondentState of Madras by Its Chief Secretary and ors.
Appellant AdvocateM.K. Nambiar and C.F. Louis, Advs.
Respondent AdvocateV.P. Sarathi, Adv. for ;Government Pleader, ;Subramaniam and ;Rajagopal, Advs.
DispositionApplication dismissed
Cases ReferredState of Madras v. V. G. Row
Excerpt:
.....curiam'.(13) learned counsel relying upon this passage argued that i should refuse to follow the bench decision on the ground that the opinion expressed is inconsistent with the observations made by the supreme court in connection with a difficult matter. the fact that a judge thinks that some argument has been overlooked in a judgment binding on him is no reason for refusing to follow it'.i am not therefore prepared on the english authorities cited and on the arguments advanced, to depart from the well-recognised practice and the salutary conventions established in this court. the question whether the provisions of the act provide reasonable safeguards against the abuse of the power given, to the executive authority to administer the law is not relevant for the true interpretation of..........under article 14 of the constitution of india. but this question was covered by authority of a bench decision which is binding on me. rajamannar c. j. and venkatarama aiyar j. held in 'w. p. no. 132 of 1951 (mad)', that the government in exempting a house have not violated any of the fundamental rights of the petitioner therein. the learned judges said: 'we are unable to see what fundamental right of the petitioner has been violated. admittedly, the petitioner has no fundamental right to remain in possession of the building for all time. whatever rights he now urges in his support are rights conferred by the very act, and the government has purported to pass the order only under one of the sections of the same act. article 14 of the constitution cannot be invoked in support of the.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a writ of certiorari to call for the records and quash the order of the Government of Madras dated 9-9-1950. The petitioner is a doctor. Premises No. 2/157 Pursawalkam High Road is owned by three brothers, P. Sourirajulu Naidu, Rangarajulu Naidu and Dhanarajulu Naidu. On 10-10-1938 the petitioner took the said house on, lease for the purpose of running a nursing home, since .that time he has been running a nursing home under the name and style of 'Nambiar's hospital'. On 6-2-1945 Sourirajulu Naidu, since dead, filed an application before the Rent Controller, H. R. C. No. 3939 of 1945 for evicting the petitioner on the ground that he made a default in the payment of rent. But that was dismissed on 13-12-1945. In October 1946, he filed another application, H. R. C. No. 5244 of 1946, seeking to evict him on the ground that the petitioner was in arrears of rent and that he wanted the premises for his personal use. On 5-7-1947 the House Rent Controller dismissed the application. An appeal filed against that order to the Court of Small Causes, Madras, was dismissed. The landlords filed C. M. P. No. 4139 of 1948 for issuing a writ of certiorari to quash the order of the Small Cause Judge, but that was dismissed by a Divisional Bench of this court on 6-10-1948.

Rangarajulu Naidu filed another application, H. R. C. No. 4788 of 1949, for evicting the petitioner, alleging that he required the upstairs for his own occupation. The House Rent Controller ordered that application. The petitioner preferred an appeal against that order to the Court of Small Causes at Madras, which held that the building was a non-residential one and that a second petition on the same facts was barred under Section 10 of the Madras Buildings (Lease and Rent Control) Act, 1949 (hereafter called the Act). That order was made on 10-4-1950. Thereafter the landlords approached the Government with a request to exempt their building from the operation of the provisions of the Act. The Government by their order dated 9-9-1950 exempted the building under Section 13 of the Act. The aforesaid petition was filed for getting the said order quashed. The Government filed a counter affidavit supporting their order, but when the application came up for final disposal, the learned counsel appearing for the Government represented that the Government did not propose to support the order but leave it to the landlords to support the same if they thought fit to do so. The landlords filed an application, C. M. p. No. 11818 to add them as party-respondents.

This application was strongly opposed by the learned counsel for the petitioner. He contended that the writ nisi was issued against the Government and when they did not oppose it, the writ should be made absolute and the landlords had no locus standi to intervene in the proceedings. He further argued that in a writ of certiorari the tribunal whose order is sought to be quashed is the only necessary party and therefore the landlords need not be made parties to the petition. I cannot agree. If this contention be accepted, the High Court would be issuing writs against the interests of parties without hearing them even though they are anxious to be represented in Court. That procedure would be against all principles of natural justice. No authority has been cited to me which compels me to hold that a party affected has no right to be hoard in a writ of certiorari. It is one thing to say that in a writ of certiorari the tribunal whose order is sought to be quashed is a necessary party. But it is altogether a different thing to assert that the party affected should not be heard. If the tribunal is a necessary party, the party affected is proper party. Further to meet this situation, Title 6 of the rules to regulate proceedings under Article 226 of the Constitution has been framed which enables the court to give a hearing to the' parties affected. The said rule reads:

'At the hearing of the petition, any person who . desires to be heard in opposition to the petition and appears to the court to be a proper person to be heard shall be heard, notwithstanding that he has not been served with notice, and subject to such conditions as to costs as the court may deem fit to impose.'

The landlords are certainly proper parties to be heard, the order of the Government is in their favour and they are interested to support it.

2. Nor can the petitioner rely upon the alleged concession made by the Government Pleader. The learned Government Pleader did not concede that the order made by the Government was bad and was, therefore, liable to be quashed. But what he stated was that he was asked not to support the order but leave it to the landlords to do so. For the aforesaid reasons I hold that the landlords are entitled to be made parties. I allow C. M. No. 11818 of 1951 and make them party respondents.

3-5. Learned Counsel for the landlords contended that the order of the Government in question was not a judicial act and therefore not liable to be quashed in a writ of certiorari. Arguments therefore were addressed on the question whether the order of the Government exempting the building under Section 13 of the Act is a judicial act or an administrative act Section 13 says:

'Notwithstanding anything contained in this Act; the provincial Government may, by notification in the Port St. George Gazette, exempt any building or class of buildings from all or any of the provisions of this Act.'

The power conferred on the Government under this section is very wide and does not depend upon any prescribed objective consideration They are not bound to give reasons. Neither the section nor the rules framed under the Act prescribe a judicial procedure for exercising the power conferred on the Government under the section. It is in the discretion of the Government to exempt a building or not. A comparative study of the provisions of S. 13 with that of other sections of the Act indicates that the Government is not expected to follow a judicial procedure in exempting a building from the operation of the Act, for wherever the legislature intended that judicial procedure should be followed, they said so, either expressly or by necessary implication. Sections 4, 5, 5-A and 6 relating to the fixing of fair rent and S. 7 for eviction of a tenant prescribe a judicial procedure for making the orders thereunder. I cannot therefore hold that the act of the Government in exempting the building from the operation of the Act is a judicial act.

6. The connotation of the words 'judicial act' has been well-settled. The leading case on the subject is --'Rex v. Electricity Commissioners', (1924) 1 K. E. 171. Atkin L. J. (as he then was) laid down the following test:

'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to judicially, act in excess of their legal author they are subject to the controlling Jurisdiction of the King's Bench Division exercised in the writs.'

7. This passage was accepted as laying dow the correct law on the subject and was followed in innumerable decisions. Siesser L. J. in -the King v. London County Council, (1931) 2 B. 215 separated the four conditions laid dow by Atkin L. J. and expressed the view that the existence of each was necessary to determine the nature of the act in question. The Supreme Court of India accepted the analysis of Slesser L. J. in --'the Province of Bombay v. Khushaldas S. Advani', : [1950]1SCR621 . Therefore, one of the necessary conditions, the existence whereof clothe an act with a judicial character, is the tribunal concerned shall have the duty fact judicially. Elaborating this aspect, Kama J. made the following observations at page 226:

' It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well-recognised principles of approach are required to be followed. In my opinion the conditions laid down by Slesser L. J. in his judgment correctly bring out the distinction between a judicial or quasi-judicial decision on the one hand and a ministerial decision on the other.'

8. Can it therefore be said that in the instant case the Act or the rules made thereunder indicate that the Government should follow the well-recognised principles of judicial approach in exercising the power under Section 13 of the Act? I do not find any indications to that effect. Indeed, as I have already stated, an unqualified power of remption was conferred on the Government, to be exercised by them in their discretion. I therefore hold that the order of the Government exempting the house in question is not a judicial Act.

9. Even so, it was argued that the order in question affected the fundamental right of the petitioner under Article 14 of the Constitution of India. But this question was covered by authority of a Bench decision which is binding on me. Rajamannar C. J. and Venkatarama Aiyar J. held in 'W. P. NO. 132 of 1951 (Mad)', that the Government in exempting a house have not violated any of the fundamental rights of the petitioner therein. The learned Judges said: 'We are unable to see what fundamental right of the petitioner has been violated. Admittedly, the petitioner has no fundamental right to remain in possession of the building for all time. Whatever rights he now urges in his support are rights conferred by the very Act, and the Government has purported to pass the order only under one of the sections of the same Act. Article 14 of the Constitution cannot be invoked in support of the petitioner. There is no violation of the principle of equality before the law. Logically the contention of the petitioner must lead to the position that either every building must be exempted, or no building should be exempted, -- an absurd conclusion.'

10. The learned Judges therefore stated in clear and unambiguous terms that no fundamental rights of the petitioner in that case were violated by the order made under Section 13 of the Act. I should have thought that this judgment being that of a Bench was binding on me and no further arguments should be addressed. But elaborate arguments were advanced in support of the contention that In the circumstances of the case I am not bound by the Bench decision. More in respect to the arguments advanced than to clear any doubt that exists, I shall proceed to deal with the point raised.

11. Salmond on Jurisprudence states that the following classes of decisions are recognised by English law as absolutely authoritative:

(i) Every court is absolutely bound by the decisions of all courts superior to Itself. A court of first instance cannot question a decision of the court of appeal, nor can the court of appeal refuse to follow the judgments of the House of Lords.

(ii) The House of Lords is absolutely bound by its own decisions. A decision of this House once given upon a point of law is conclusive upon this House afterwards, and it is impossible to raise that question again as if it was res Integra and could be reargued, and so the House to be asked to reverse its own decision.

(iii) The court of appeal is, it would seem, absolutely bound by Us own decisions and by those of older courts of co-ordinate authority, for example, the court of Exchequer Chamber.

'In all other cases save these three, it would seem that the authority of precedents is merely conditional. It is to be noticed, however, that the force of a decision depends not merely on the court by which it is given but also on the court in which it is cited. Its authority may be absolute in one court, and merely conditional in another. A decision of the Court of appeal is absolutely binding on a court of first instance, but is only conditionally binding upon the House of Lords'.

12. This passage, if I may say so, accurately represents the procedure followed in British Courts. I do not see how the rules stated above help the petitioner's case. The first principle laid down directly applies to the present case. The Divisional Bench decided the case as an appellate tribunal. Bitting as a court of first instance I am bound by that judgment. Nor does the decision in -- 'Young v. Bristol Aeroplane Co. Ltd', (1944) 2 A11. E. R. 293 lays down any new principle. Lord Greene M. R. after considering the case law on the subject summarised the law as follows:

'On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise : (i) the court is entitled and bound to decide which of two conflicting decisions of its own it will follow, (ii) the court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords, (iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per in curiam'.

(13) Learned Counsel relying upon this passage argued that I should refuse to follow the Bench decision on the ground that the opinion expressed is inconsistent with the observations made by the Supreme Court in connection with a difficult matter. The passage cited applied only to courts of co-ordinate jurisdiction but not to a case of a decision of a Bench in exercise of appellate jurisdiction in its application to a case before a single Judge disposing of it as a court of first instance. These rules may be applied to decisions of two different Benches of this High Court made in exercise of their appellate jurisdiction. The practice obtaining in our court has been incorporated by Leach C. J. in -- 'Seshamma v. Narasimharao, I. L. R. (1940) Mad. 454 the learned Chief Justice observed:

'While a Judge of the High Court sitting alone is not bound on a question of law by the decision of another Judge sitting alone, this principle goes no further. The Division Bench is the final court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England where there is the Court of appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of judicial comity ...... if Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Pull Bench, for which the rules of this court provide. If this course is not adopted, the courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate courts administering justice, there are the additional factors of the loss of money and the waste of judicial time'.

This judgment, If I may say so with respect, lays down the salutary rules of practice to be followed. In -- 'Manilal v. Venkatachalapathi', I. L. R. (1944) Mad. 95, Leach C. J. again made the following observations at page 97:

'A Judge has, of course, always the right of expressing his own opinion and indicating that he is not in agreement with an authority binding on him, but he is nevertheless in duty bound to follow it, as the Pull Bench of this court which decided -- 'Seshamma v. Narasimharao', I. L. R. (1940) Mad. 454 had occasion to point. The fact that a Judge thinks that some argument has been overlooked in a judgment binding on him is no reason for refusing to follow it'.

I am not therefore prepared on the English authorities cited and on the arguments advanced, to depart from the well-recognised practice and the salutary conventions established in this court. If I did, I would be introducing only confusion and uncertainty and put the subordinate judiciary in a very unenviable position. I would therefore unreservedly follow the procedure obtaining in our court which is supported by principle and found satisfactory in practice. A single Judge is bound by a decision of a Divisional Bench exercising appellate jurisdiction. If there is a conflict of Bench decisions, he should refer the case to a Bench of two Judges who may refer it to a Pull Bench. A single Judge cannot differ from a Divisional Bench unless a Pull Bench or the Supreme Court overruled that decision specifically or laid down a different law on the same point. But he cannot ignore a Bench decision, as I am asked to do, on the ground that some observations of Supreme Court made in a different context might indicate a different line of reasoning. A Divisional Bench must ordinarily respect another Divisional Bench of co-ordinate jurisdiction; but if it differs, the case should be referred to a Pull Bench. This procedure would avoid unnecessary conflict and confusion that otherwise would prevail. I therefore follow the Bench decision and hold that no fundamental rights of the petitioner were violated in this case.

13a. But it was contended that the Bench decision should be confined only to the point decided and that the 'earned Judges did not purport to decide whether Section 13 or the order made thereunder affected the fundamental right of the petitioner under Article 19(1)(f) of the Constitution of India. But in my view this argument also is not open to the petitioner in view of the Bench decision. In the second paragraph of the judgment, the learned Judges dealt generally with the question whether any fundamental right of the petitioner has been violated & they held that the petitioner has no fundamental right to remain in possession for all time and the rights he claimed wereonly rights conferred under the Act. In the thirdparagraph they dealt specifically with the rightclaimed under Article 14 of the Constitution. It istherefore not correct to state that the learnedJudges did not deal with the petitioner's right.under Article 19 of the Constitution.

14. As the arguments were, advanced at some length, I shall also express my view on the subject. It was contended that under the Act the petitioner has acquired a right to hold the property till he is dispossessed in accordance with the provisions of the Act and that Section 13 conferring an arbitrary power on the Government is not a reasonable restriction on the exercise of his right in the interests of the general public. The relevant provisions of the Constitution read: ' Article 19(1): All citizens shall have the right (f) to acquire, hold and dispose of property; (5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said Sub-clauses either in the interest of the general public or for the protection of the interests of any scheduled tribe'. In -- 'Dr. N.B. Khare v. State of Delhi', : [1950]1SCR519 , the provisions of Clause (5) have been construed by the Supreme Court. Kania C. J, observed at page 213 as follows:

'In my opinion, clause (5) must be given its full meaning. The question which the court has to consider is whether the restrictions put by the Impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safeguards against the abuse of the power given, to the executive authority to administer the law is not relevant for the true interpretation of the clause ...... The law providing reasonable restrictions on the exercise of the right conferred by Article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the court the question of reasonableness of the procedural part of the law'.

In -- 'State of Madras v. V. G. Row', 1952 SCJ 253. Patanjali Sastri C. J. accepted the law laid' down in Dr. Khare's case and elaborated the same in the following manner;

'This court has occasion in Dr. Khare's case to define the scope of the judicial review under clause (5) of Article 19 where the phrase 'imposing reasonable restrictions on the exercise of the right' also occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive & the procedural aspects of the impugned restrictive law should be examined from the point of view of reasonableness; that la to say, the court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness,'' wherever prescribed, should be applied to each individual statute impugned, and no abstract' standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been Infringed, the underlying purpose of the restrictions imposed, the extent and urgency' of the evil, sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.'

15. Applying these principles, can it be said that Section 13 of the Act imposes unreasonable restrictions on the right of the petitioner to use the premises as a lessee. The contention was that Section 13 is an unreasonable restriction on the petitioner's right to hold a property. So stated, the argument appears plausible but ignores the nature of the right, the circumstances under which it was created-and the underlying purpose of the restriction imposed. Before the Act became law, the landlords and tenants were governed by the contract and the provisions of the Transfer of Property Act. If it was a monthly tenancy, the tenant could be asked to quit after notice for the prescribed period was given. But the Act evolved a scheme imposing restrictions on the landlord. While the main object of the Act was to prevent the arbitrary eviction of the tenants, it took good care to see that interests of the landlords were protected within reasonable limits. A statutory tenant, the creation of the Act, with certain rights and restrictions cannot accept the rights and complain of the restrictions. No question of unreasonable restriction on his part would arise as the statute itself created that right subject to restrictions. He acquired the right not to be evicted except under certain circumstances and one of those circumstances is when the Government exempts a particular building from all or particular provisions of the Act. His right to the user of the properties therefore is not an absolute one, but is circumscribed by the provisions of the Act itself. In this view I cannot hold that Section 13 imposes any unreasonable restriction on the petitioner's right to use the property leased to him.

16. It was then contended that the Government exercising their power under Section 13 of the Act acted with mala fides, namely, to circumvent the order of the Civil court dismissing the application of the landlords to evict the petitioner. There is an essential distinction between the scope of the enquiry before the Tribunals constituted by the Act and the ambit of the power of the Government under Section 13 of the Act. The Tribunals are concerned only with the question whether the landlord has made out his case for eviction under the provisions of the Act; but under Section 13 the Government may in their discretion exempt a particular building from the operation of the Act. In exempting the building, their power is not limited by the provisions of the Act. It is therefore incumbent upon the petitioner to establish that the Government have exempted the building with the sole object of circumventing the orders of court.

17. Prom the aforesaid facts, it will be seen that the application for eviction of the petitioner was finally dismissed by the Small Cause Court on 10-4-1950. But it appears from the records placed before me that one D. Subramanian filed appln. No. 4455 of 1949 before the House Rent Controller for eviction of his tenant, the second respondent, on the ground that he wanted the premises for his own occupation. In that application there was an order of eviction. But presumably on an application made by the second respondent to the Government bringing to their notice that his petition for eviction of his tenant was dismissed, whereas the application filed by Subramaniam for evicting him was ordered, the Government Issued a notification exempting the house of Subramanian from the operation of Sections 7(3) and 9 of the Act. Subramanian in his turn filed an application to the Government bringing to their notice his difficulties. Respondent 2 approached Govt. for exempting his house from the operation of the Act. Having regard to the situation created, namely, that the two owners of the houses could not live in their own houses, the Government thought that a case had been made out for allowing the owners to have their houses in preference to the tenants. Oh 9-9-1950, by the same Notification, the G. O. exempting Subramanian's house from the operation of Sections 7(3) and 9 was revoked and the 2nd respondent's house was exempted from the provisions of the Act After going through the entire records, I am not satisfied that the petitioner has made out that the Government exempted the 2nd respondent's house to circumvent the orders of civil courts. It is more likely that they exercised their undoubted powers with the 'bona fide' intention of protecting the interests of the landlords who had no other houses to live in. I cannot therefore hold that the Government was actuated by 'mala fides' in issuing the order. In the result the application is dismissed with costs. Respondents 2 to 6. Advocate's fee Rs. 100.


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