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R. Purushothaman Vs. K.B. Vijayalakshmi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1791 of 1979
Judge
Reported inAIR1982Mad308
ActsTamil Nadu Buildings (Lease and Rent Control) Act, 1960 - Sections 23
AppellantR. Purushothaman
RespondentK.B. Vijayalakshmi
Appellant AdvocateM. Srinivasan and ;K. Srikumaran Nair, Advs.
Respondent AdvocateMohana S. Nair and ;P. Sukumar, Advs.
Excerpt:
.....cases to be assigned to particular appellate authority - conferment of jurisdiction rests on officers or authorities who exist on date of notification - subordinate judge had no relative appellate jurisdiction conferred under section 23 to take on file appeal and proceed to hear and determine it - revision allowed. - - srinivasan relied on this last paragraph in the government order to press home his contention that it clearly indicated that the learned subordinate judge, kuzhithurai, had no appellate powers under the act and that they had really reserved such a matter to be dealt with separately. 23 of the act as well as on the original notification of the state government dated 30-6-1973, under that section when the state government appointed the appellate authorities and defined..........was dismissed by the rent controller. the land lady appealed before the learned subordinate judge, kuzhithurai, on the said authority authority, having and determine her order of the renttacit assumption that was the appellate jurisdiction to hear appeal against the controller. in that appeal form, was raised the subordinate judge, kuzhithurai, questioning his jurisdiction to hear and determine the appeal of the landlady as an appellate authority duly constituted under the act. the appellate authority however without going into this aspect of jurisdiction, dealt with the appeal on merits, allowed it and set aside the order of the dismissal passed by the rent controller. that order has been brought before this court by the tenant in revision. mr. srinivasan, learned counsel for the.....
Judgment:
ORDER

1. This revision under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act), arises on a point of jurisdiction of the appellate authority in a matter which arises in Kanyakumari district, The petition for eviction was filed by a landlady before the Rent Controller, in respect of a building, situate in a place which can properly be described as now being with in the territorial jurisdiction of the Sub Court, Kuzhithurai. The petition was dismissed by the Rent Controller. The land lady appealed before the learned Subordinate Judge, Kuzhithurai, on the said authority authority, having and determine her order of the Renttacit assumption that was the appellate Jurisdiction to hear appeal against the Controller.

In that appeal form, was raised the Subordinate Judge, Kuzhithurai, questioning his jurisdiction to hear and determine the appeal of the landlady as an appellate authority duly constituted under the Act. The appellate authority however without going into this aspect of jurisdiction, dealt with the appeal on merits, allowed it and set aside the order of the dismissal passed by the Rent Controller. That order has been brought before this court by the tenant in revision. Mr. Srinivasan, learned counsel for the tenant raised in the forefront, an objection to the jurisdiction of the learned Subordinate Judge, Kuzhithurai, to act as the appellate authority in the appeal filed by the landlady against the order passed by the Rent Controller.

2. Learned counsel's argument is that Kuzhithurai Sub-Court was constituted by a notification in G. 0. Ms. No. 1031, Home (CTS-111) department, dated 7-4-1997, and the territorial jurisdiction of the. subordinate Judge, Kuzhithurai, extended over the area, which lies within the jurisdiction of the Kuzhithurai Munsiff. The Government, notification constituting the Sub Court, Kuzhithurai inter alia observed that 'orders empowering the Subordinate Judge, Kuzhithurai to try cases under the Tamil Nadu Buildings, Lease and Rent Control Act, will be issued separately.' At a stage in his argument, Mr. Srinivasan relied on this last paragraph in the Government Order to press home his contention that it clearly indicated that the learned Subordinate Judge, Kuzhithurai, had no appellate powers under the Act and that they had really reserved such a matter to be dealt with separately.

It is common ground between the parties, that on the date of the notification creating the Sub-Court, Kuzhithurai or immediately thereafter or at any time thereafter till the present day no notification has been issued by the State Government under See. 23 of-the Rent Control Act, under which the learned Subordinate Judge, Kuzhithurai, had been eonomic conferred with the powers of the appellate authority within the contemplation of S. 23 of the Act. While the Government notification created the Sub-Court, Kuzhithurai and define(i) its jurisdiction under the Civil Courts Act, the reservation contained therein about the conferring of jurisdiction on the learned Subordinate Judge, Kuzhithurai, under the Rent Control Act, cannot be given any significance, in terms of the exercise or non-exercise of the Government's powers under S. 23 of the Act. According to learned counsel's submission all that one could see in these proceedings of the Government was that when the learned Subordinate Judge was appointed to take charge of the newly created Sub-Court, Kuzhithurai, occasion was not at the same time listed by the State Government to invest him with, appellate jurisdiction under the Rent Control Act.

3. From what has been urged it would be a matter for consideration whether even under the existing dispensation the Subordinate Judge, Kuzhithurai could really be regarded as having appellate jurisdiction under the Act, Learned counsel on both sides, therefore, invited my attention to the existing notification issued by the State Government under S. 23 of the Act. That notification under S. 23 of the Act in regard to the constitution of appellate authority was made by the State Government in notification No II-I 3006 (e) of 1973 In this notification, powers of an appellate authority were conferred on specified authorities and officers. The conferment of powers was displayed in the form of a table. That table, in so far as Kanyakumari district was concerned was as follows -

The TableOfficers Area(1) (2)Au subordinate Judges Kanyakumadwithin the respective District.jurisdiction.

Learned counsel for the landlady submitted that it would be a proper consideration of the terms of this notification to hold that in respect of Kanyakumari district, all Subordinate Judges in that district were conferred with appellate powers in respect of their respective jurisdictions as Subordinate Judges. In this situation according to learned counsel, the one and only question in this revision would be: is the Subordinate Judge, Kuzhithurai one who would come within the description of the Subordinate Judges within their respective jurisdiction in Kanyakumari district. Learned counsel for the landlady said that the answer to this question must Plainly be in the affirmative He submitted accordingly that notwithstanding that there was no separate notification issued under S. 23 of the Act, subsequent to the creation of Kuzhithurai Sub-Court and notwithstanding that jurisdiction was not conferred specifically on the Subordinate Judge, Kudhithurai as the appellate authority under the Act, even on the strength of the original notification itself dated 30-6-1973, the said learned Subordinate Judge must be held to possess the requisite appellate jurisdiction.

4. Mr. Srinivasan, on the other hand, submitted for the tenant that this kind of consideration of the notification of 1973 is not tenable. He said that the notification has to be construed not in an isolated fashion, on the terms contained in therein, but in the context of and in association with the enabling power under S. 23 of the Act. He Pointed out that under S. 23 of the Act, the Government is empowered to confer the powers of appellate authorities for the purpose of the Act only on such offers and authorities as they think f1t and with reference to such areas or to such classes of cases as may be specified I in the order. These descriptive words relating to the power of the State Government to confer appellate jurisdiction really required that the State Government must have at the time it decides to confer such powers before it the authorities and officers concerned upon whom it may think fit to confer such appellate power.

In other words, the argument of Mr. Srinivasan was that in order that the State Government may properly exercise its power of appointment of appellate authorities by notification, the authorities or officers concerned must already pre-exist at the relevant moment on which the Government might confer such powers. Mr. Srinivasan conceded that the appellate jurisdiction may be conferred under S, 23 of the Act, on authorities and officers by description but he urged that it is essential that those described by reference to their officers or the positions of authority, must be in existence as on the date of the notification. He urged that the power couldn't be conferred by the State Government on or authorities that are yet to come into being.

This being the nature and scope of the Government's power of notifying appellate authority under the Act, the notification which the Government had already issued on 30-6-1973, in II No. 3006 (e) of 1973, must be construed only on the basis that it had been issued in the proper exercise of the State Governments' enabling power under S. 23 of the Act. On that construction according to learned counsel, the expression 'Subordinate Judges within their respective jurisdiction in Kanyakumari district can only have reference to such Subordinate Judges within Kanyakumari district as were in existence on the date of the notification. The subsequent creation of new Sub Courts or the appointment of new Subordinate Judges to man those courts could not be within the contemplation of this notification even factually let alone legally having regard to the language of S. 23 of the Act.

5. I have given thought to the respective contentions addressed to me on this question of law on a construction of both S. 23 of the Act and the notification of the Government. I must express my view that the parenthetical saving clause in the notification of the Government dated 7-4-1977 which created a new Sub Court in Kuzhithurai cannot be given any significance whatsoever and cannot be sought in aid for the construction of the earlier notification, much less the construction and application of S. 23 of the Act. However, I accept the validity of the argument addressed by Mr. Srinivasan on the interpretation to be placed on S. 23 of the Act as well as on the original notification of the State Government dated 30-6-1973, under that section when the State Government appointed the appellate authorities and defined their jurisdiction in terms of S. 23 of the Act.

I am satisfied that a proper construction of S. 23 of the Act compels the court to hold that before the State Government proceeds to confer appellate jurisdiction under S. 23, for the purpose of Act, it must decide as to who are the officers and who are the authorities upon whom such powers should be conferred and which are the areas over which the appellate jurisdiction should extend and also the class or classes of cases which may be assigned to a particular appellate authority. These are necessary ingredients in decision making under S. 23. The State Government should have as it were a panel of officers and authorities from out of whom the Government may pick and choose and confer the appellate jurisdiction under the Act on such of them as the Government thinks fit.

Necessarily therefore this process of conferment of appellate jurisdiction in terms of S. 23, requires as a pre-condition that the officers and authorities in question must as on that date, exist as authorities and officers. This at once excludes officers and authorities who are not in existence or who are only in contemplation. Although a notification conferring jurisdiction by the Government under S. 23 of the Act, when once it is properly done and notified - will have force thereafter, whether it is modified or altered, the very conferment of jurisdiction rests on the officers or authorities who exist as on the date of the notification and are therefore the objects of the conferment of the power. This consideration of S. 23 is also consistent with the realities of administration of justice,

It is in my judgment reasonable to understand the references to such officers and authorities as they think fit' occurring in S. 23 of the Act as a reference only to those officers and authorities who were actually in existence at the time of the notification conferring the power but another step in reasoning to construe the notification dated 30-61973 in II-1 No. 3006 (e) of 1973, as having a reference only to existing Subordinate Judges and within their respective jurisdictions in Kanyakumari District and other districts named in the notification. The result is that this notification would severely exclude all Subordinate Judges in the Kanyakumari district who were unknown quantities at the time when the notification was issued. On the basis of this determination of mine, I~ must hold that the learned Subordinate Judge, Kuzhithurai, who came into being only by virtue of the notification dated 21-3-1974 and upon whom no relative appellate jurisdiction was conferred under S. 23 of the Rent Control Act, had no jurisdiction to take on file the appeal, namely, H. R. A. No. 1 of 197& much less proceed to hear and determine it.

6. Now that I have held that the learned Subordinate Judge should not have acted as an appellate authority with reference to this appeal, all the proceedings before him in appeal as well as his final decision therein are declared to be nullities. The outcome of this determination is that the matter should be sent back first to the learned Subordinate Judge, Kuzhithurai to enable him to return the appeal to the appellate authority for proper presentation before an appellate authority having jurisdiction over the appeal.

7. In the result, the civil revision petition is allowed and the order of the learned Subordinate Judge is set aside. He is hereby directed to act in accordance with the terms of this Judgment. In view of the peculiar circumstances of the case, I direct each party to bear his costs.

8. Petition allowed.


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