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K. Sukumaran Nair Vs. S. Neelakantan Nair by Constituted Attorney P. Raman Nair - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported inAIR1976Mad329; (1976)2MLJ84
AppellantK. Sukumaran Nair;r. Sankaran Pillai;s. Parthasarathy;v. Sundaram;k.G. Damodaran and anr.
RespondentS. Neelakantan Nair by Constituted Attorney P. Raman Nair;n.K. Nagamani;alamelu Ammal;r. Jayaraman a
Cases ReferredKalyanasundaram v. Natarajan
Excerpt:
.....same subject. the full bench of our court in raval's case (1966)2mlj68 accepts this well-known application of the maxim as above: natarajan (1969)2mlj585 ,is not applicable and it is only the rule in the other division bench case as well as in the reval's case [1974]2scr629 ought to be the law which has been accepted to be the correct law by the supreme court......and co. v. k.g. ramachandran : [1974]2scr629 , dismissing an appeal from a judgment of the full bench of madras high court reported in raval and co. v. k.g. ramachandran : (1966)2mlj68 ), that the act 'has a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies.' in other words, the special procedure provided by the act displaces the requirements of the procedure jar eviction under the transfer of property act and by an ordinary civil suit. therefore we need not concern ourselves with the provisions of the transfer of property act.it is however brought to my notice that my learned brother, gokulakrishnan, j., in nagalingam v. ramaswami : (1976)1mlj149 , following once again the.....
Judgment:

T. Ramaprasada Rao, J.

1. The only question of law that has been argued in this batch of Civil Revision Petitions is whether a notice of termination of tenancy under Section 106, of the Transfer of Property Act is required before taking action under one or the other of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, i960. The facts which are common and which are not agitated before me need not be adverted to. But the question has arisen in all these cases whether a notice of termination of tenancy under the Transfer of Property Act is required at all before a petition could be presented to the statutory authority under the Buildings Act for obtaining relief under the various provisions of the Act.

2. There is abundance of case law on this subject and at one time they were perplexing and apparently contradictory as well. I shall now trace the various decided cases to find whether in the view of the Supreme Court as laid down by them and reiterated by them later the provisions of the Transfer of Property Act still would hold the field and should be looked into for purpose of observance of some of its prescriptions before an application under the Buildings Act could be filed. I may at once state that having regard to the declared law of the Supreme Court such an invocation of the provisions of the Transfer of Property Act including that prescription in Section 106 of it may not be necessary at all. The earliest ruling on the question is the decision of a Division Bench of our. Court in Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 . There the learned Judges said that no notice determining the tenancy under Section Io6 of the Transfer of Property Act (hereinafter for convenience called notice] was necessary before a landlord attempts to seek some relief under the special enactment, namely, the Tamil Nadu Buildings Act. This view was approved by another Division Bench of our Court in George Oakes Ltd. v. The Chief Judge, Small Cause Court, Madras (1952) 1 M.L.J. 317 but a controversy arose in 1966. In that case the subject matter was as to what ought to be the fair rent of the demised premises. But in view of the contentions of counsel therein a Full Bench was constituted and in Raval and Co. v. Ramachandran : (1966)2MLJ68 , the question whether a notice is required before action is taken under this Special Act, was considered alongside with the main dispute in that case which related to the fixation of fair rent. The Full Bench again approved the ratio in Krishanamoorthy v. Parthasarathy : (1949)1MLJ412 , and held that no such notice was necessary.

3. Whilst this was ruling the field, a decision of the Supreme Court reported in Maunjendra Dutt v. P.P. Roy Chowdhry : [1967]1SCR475 , made certain observations touching upon the matter in issue before me namely, whether a notice was necessary at all before taking action under the Rent Act. That was a case which arose under the Calcutta Thika tenancy Act, 1949. While considering the provisions of that Act in juxtaposition to the provisions of the Transfer of Property Act, the Supreme Court would not agree with the decision of our Court which held the field till 1966, the basis of which was the ruling in R. Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 . There is undoubtedly an observation in Maunjendra Dutt v. P.P. Roy Chowdhry : [1967]1SCR475 to the effect that the decision in R. Krishnamoorthy v. Parthasarathy (1952) 1 M.L.J. 317, cannot be said to be correctly laying down the principle in so far as the issuance of a notice under Section 106 of the Transfer of Property Act is concerned. Naturally, therefore, a Division Bench of our Court which decided cases under the Tamil Nadu Buildings (Lease and Rent Control) Act followed the above decision of the Supreme Court in Maunjendra Dutt v. P.P. Roy Chowdhry : [1967]1SCR475 and not Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 , and held that notice of termination of tenancy under the Transfer of Property Act was necessary before action could be taken.

4. Whilst this was the position, the decision of the Full Bench reported in Raval and Co. v. Ramachandran I.L.R. : (1966)2MLJ68 , hereinafter to be referred to as Raval's case : (1966)2MLJ68 came up in appeal before the Supreme Court in Raval and Co. v. K.G. Ramachandran : [1974]2SCR629 . The observations of Alagiriswami, J., who spoke for the majority of the Bench are very apposite and it would be convenient to excerpt them instead of summarising.

We are not called, upon in this case consider whether those two cases were correctly decided. But we must point out that the general observations therein should be confined to the facts of those cases.

5. The decision of the Madras High Court in R. Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 where it was held that Section 7 of the Madras Buildings (Lease and Rent Control) Act of 1946 had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act and that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit should not have been summarily dismissed on the grounds that it was contrary to the decisions of this Court in Abbasbhai v. Galamnabi : [1964]5SCR157 and Mangilal v. Sugan Chand : [1964]5SCR239 , and therefore was not a correct law, without examining the provisions of that Act.

6. Be that as it may, we are now concerned with the question of fixation of fair rent....

The Madras High Court reviewed all the decisions of this Court except the la test on e in Maunjendra Dutt's case : [1967]1SCR475 . We have already pointed out that the criticism made in that decision regarding Krishnamoorthy's case : (1949)1MLJ412 , was not justified. We are in agreement with the view of the Full Bench of the Madras High Court that the various decisions of this Court were based upon particular provisions of the Acts which were under consideration mainly the Bombay Act which is vitally different from the Madras Act. A close analysis of the Madras Act shows that it has a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies.

This view of the Supreme Court is again reiterated in P.J. Gupta and Co. v. K. Venkatesan, Merchant : [1975]2SCR401 . There Beg, J., speaking for the Bench said:

If is clear from the majority view of this Court in Raval and Co. v. K.G. Ramachandran : [1974]2SCR629 , dismissing an appeal from a judgment of the Full Bench of Madras High Court reported in Raval and Co. v. K.G. Ramachandran : (1966)2MLJ68 ), that the Act 'has a scheme of its own and it is intended to provide a complete code in respect of both contractual tenancies as well as what are popularly called statutory tenancies.' In other words, the special procedure provided by the Act displaces the requirements of the procedure jar eviction under the transfer of Property Act and by an ordinary civil suit. Therefore we need not concern ourselves with the provisions of the Transfer of Property Act.

It is however brought to my notice that my learned brother, Gokulakrishnan, J., in Nagalingam v. Ramaswami : (1976)1MLJ149 , following once again the ruling of our Court has said that it was necessary for the landlord to issue the usual statutory notice of determination of tenancy under Section 106 of the Transfer of Property Act. But it is unfortunate that the decisions of the Supreme Court referred to by me above were not brought to his notice.

7. The net analysis of the position appears to be this: At one time, till 1966, the law declared by our Courts were to the effect that no notice of determination of tenancy under Section 106 of the Transfer of Property Act was necessary before the special statutory benefits could be availed of by the landlord under the provisions of the Buildings Act. The notion is founded on the well-known principle that 'the special excludes the general'. When a subject matter is dealt with by a local Legislature as well as by the Parliament and if the local Legislature had the legislative power to enact a law on the subject under the relative entries in the VII Schedule to the Constitution of India, then that procedure which is special in scope and application should prevail over the general principles which might govern normal situations by reason of the impact of the Central Law on the same subject. The Full Bench of our Court in Raval's case : (1966)2MLJ68 accepts this well-known application of the maxim as above: But reference was made in a case decided by a Division Bench of this Court in Kalyanasudaram v. Natarajan : (1969)2MLJ585 , to a decision of the Supreme Court reported in Maunjendra Putt v. P.P. Roy Chowdhry (1967) 1 S.C.J. 503 : (1967) 1 M.L.J. 61, which in turn commented upon the applicability of the rule in Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 . The Supreme Court in Raval and Co. v. K.G. Ramachandran : [1974]2SCR629 , pointedly referred to the fact that such a summary disposal of the rule in Krishnamoorthy v. Parthasarathy : (1949)1MLJ412 , ought not to have been done. Alagiriswami, J.'s observations made in Raval and Co. v. K.G. Ramachandran : [1974]2SCR629 , have already been excerpted by me and the underlining in the passages is mine. Sufficient and significant accent is made on the self-sufficiency of the Madras Act. It is in that light the later decisions of the Supreme Court in Raval and Co. v. K.G. Ramachandran : [1974]2SCR629 , and P.J. Gupta and Co. v. Venkatesan Merchant : [1975]2SCR401 , have to be understood. They have laid particular emphasis upon the fact that the Tamil Nadu Buildings (Lease and Rent Control) Act is an Act by itself and it operates in its own field without any dependency upon any other enactment including the Transfer of Property Act. Such an emphatic pronouncement leads me to the conclusion that the rule in Kalyanasundaram v. Natarajan : (1969)2MLJ585 , is not applicable and it is only the rule in the other Division Bench case as well as in the Reval's case : [1974]2SCR629 ought to be the law which has been accepted to be the correct law by the Supreme Court.

8. As the Supreme Court has said that 'we need not concern ourselves with the provisions of the Transfer of Property Act' when we are confronted with the application of a special enactment. It follows that a notice of determination of tenancy under Section 106 of the Transfer of Property Act is not necessary and the Madras Act and the Act of Parliament are mutually independent and not dependent for a landlord proceeding under the Madras Act to invoke any of the relevant provisions of the Transfer of Property Act to enter into the portals of the statutory authorities functioning under the Madras Act for relief. In view of my above decision and as notice is not necessary, no other point survives. Civil Revision Petition No. 25 of 1975 fails and it is dismissed. No costs.

9. In G.R.P. No. 2332 of 1975 notice has been given and the lower Court has rightly held that the notice is valid and that the petition for eviction was maintainable. The Civil Revision petition is therefore dismissed. No costs. If there are no arrears of rent, the petitioner is granted three months time to vacate.

10. In C.R.P. No. 3868 of 1974, a notice of determination of tenancy was given. Its purport was questioned at some stage before the lower Court. But as in my view no such notice of termination of tenancy is required, the argument does not survive. No other question of jurisdiction arises in this petition. The Civil Revision Petition is therefore dismissed. The petitioner-tenant is given three months time from this date to vacate since he is continuing in a portion of the demised premises. No costs.

11. In C.R.P. No. 414 of 1975 the propriety of a notice of determination of tenancy was gone into. As in my view it is not necessary, the question need not be gone into again. The petitioner is the tenant. The Civil Revision Petition is dismissed as there is no other error of jurisdiction. The petitioner is granted four months time to vacate. No costs.

12. In C.R.P. No. 2795 of 1975 again the question is whether the notice of termination of tenancy was valid. But inasmuch as a notice is not necessary, no more investigation into it is called for. The petition itself was filed under Section 14(1)(b) of the Buildings Act. No error of jurisdiction arises. The Civil Revision Petition is dismissed. No costs.


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