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1954 DIGILAW 106 (KER)

Avaroni Sippora v. Gopalan P. K.

1954-07-09

KOSHI, M.S.MENON

body1954
Judgment :- 1. These appeals are from the decision of Govinda Pillai, J. in O.P. No. 65 of 1951 (1951 KLT 337) quashing an order of the Government under the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950. A.S. 666 of 1953 is by the owner of the building concerned and A.S. 64 of 1954 by the Chief Secretary to the Government of Travancore Cochin. 2. The owner of the building filed the petition No. 57 of 1124, before the Rent Controller, Ernakulam, for the eviction of her tenant, the first respondent in both the appeals. The petition was partly allowed by the Rent Controller and both she and the tenant filed appeals before the District Magistrate, Trichur, who by a joint order dated 29.10.1950, held that there was no ground for eviction and dismissed the petition. The owner of the building then filed a revision petition before the Government of Travancore Cochin and by their proceedings dated 8.6.1951 the Government allowed the revision petition and directed the eviction of the tenant. The tenant subsequently moved this court by O.P.No. 65 of 1951 and succeeded as stated in paragraph 1 above. 3. According to the appellants in these two appeals the law applicable to the case is embodied in the Travancore Cochin Public Safety Measures Act, 1950, and the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, which has been issued under S.13 of the said enactment. In view of S. 21 of the Travancore Cochin Public Safety Measures Act, 1950: "Any order made or deemed to be made under this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or any instrument having effect by virtue of any other enactment" there can be no doubt that the contention is justified and has to be upheld. It was contended before us on behalf of the first respondent that "any order" in S. 21 will not take in "notified orders" and the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, being a notified order the section will be of no avail. The Act provides no warrant for this contention and sub-s. (2) of S.13 itself uses the word "order" when referring to the notified orders that can be issued under sub-s. (1) of that section. 4. The Act provides no warrant for this contention and sub-s. (2) of S.13 itself uses the word "order" when referring to the notified orders that can be issued under sub-s. (1) of that section. 4. Clause 16 of the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, provides: "(1) At any time within six months of the decision of the Appellate Authority, the Government may on the application of any aggrieved party, or on their own motion, revise any order made by the Appellate Authority on the ground: (a) that there was material irregularity in the procedure adopted by the authorities below, or (b) that the decision is vitiated by any mistake of fact or was due to any misrepresentation or fraud on the part of any of the parties, or (c) that the decision is otherwise unjust. (2) The cost of and incident to all proceedings before the Government under sub-clause (i) shall be in their discretion". and the only further question for determination is whether the clause is ultra vires the Travancore Cochin Public Safety Measures Act, 1950. 5. S.13 under which the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, was issued, S. 22 which provides for appeals and S.15 which permits a delegation of the powers of Government all occur in Chapter III of the Travancore Cochin Public Safety Measures Act, 1950. S. 22 reads: "An appeal shall lie to the Government from any decision made by an officer of the Government in exercise of the powers conferred on such officer by or under this Chapter and the decision of the Government thereon shall be final". and S.15 is in the following terms: "The Government may by order direct that any power which is conferred upon the Government under this Chapter shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by any officer or authority subordinate to Government." 6. and S.15 is in the following terms: "The Government may by order direct that any power which is conferred upon the Government under this Chapter shall in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by any officer or authority subordinate to Government." 6. Sub-clause (i) (a) of clause 15 of the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, provides: "Government may, by notification in the Government Gazette, confer on such officers and authorities as they think fit, the powers of appellate authorities for the purpose of this Order, in such areas or in classes of cases as may be specified therein"; sub-clause (i)(b): "Any person aggrieved by an order passed by the Controller may, within fifteen days from the date of such order, prefer an appeal in writing to the appellate authority having jurisdiction"; and sub-clause (5): "The decision of the appellate authority and subject to such decisions, an order of the Controller shall be final". 7. In exercise of the powers conferred by sub-clause (i)(a) of clause 15 of the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, the Government issued a Notification, No. E.L. 5-6549/50/PWC dated the 22nd September 1950, and empowered the District Magistrate, Trichur, to hear and dispose of appeals from the orders of the Rent Controllers in the Trichur District. Ss. 22 and 15 of the Travancore Cochin Public Safety Measures Act, 1950, clearly sustain the appointment of the District Magistrate as an Appellate Authority and there has been no dispute before us either about the validity of clause 15 or the Notification mentioned above. 8. The main controversy as stated in paragraph 4 above is whether the Government have the power to provide for the exercise of the revisional jurisdiction as has been done by clause 16 of the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950. S.15 of the Act specifically states that the Government may direct that its powers under the Chapter "shall in such circumstances and under such conditions, if any as may be specified in the direction be exercised or discharged by any officer or authority subordinate to the Government". S.15 of the Act specifically states that the Government may direct that its powers under the Chapter "shall in such circumstances and under such conditions, if any as may be specified in the direction be exercised or discharged by any officer or authority subordinate to the Government". In other words, the Government have the power to impose conditions as they deem fit and clause 16 as we read it, does no more than impose the condition that the decision of the Appellate Authority is liable to revision if: (a) there was material irregularity in the procedure adopted; or (b) the decision is vitiated by any mistake of fact or was due to any misrepresentation or fraud on the part of any of the parties; or (c) that the decision is otherwise unjust. Such a condition appears to be well within the power of the Government to impose and we must hold that clause 16 is intra vires of the Travancore Cochin Public Safety Measures Act, 1950. 9. Under Clause 9 of the Travancore Cochin Buildings (Lease and Rent Control) Order, 1950, eviction can be ordered if: "the tenant has committed such acts of waste as are likely to impair materially the value or utility of the building." and it was on this ground that the petition for eviction was based. According to the learned counsel for the first respondent the facts alleged and proved will not amount to acts of waste as are likely to impair materially the value or utility of the building and his client should succeed irrespective of a decision that clause 16 is intra vires of the Travancore Cochin Public Safety Measures Act, 1950. Such a contention has apparently not been pressed before the learned judge who heard O.P. No. 65 of 1951 at the original hearing or even after the remand by a Division Bench of this Court. The appellants object to our going into the question and in view of what is stated above their contention must prevail. 10. It follows that these appeals have to be allowed and we decide accordingly. The first respondent will pay the cost of the appellants here and in the original petition, the advocate's fee we fix being Rs. 100/- for the original petition and a like amount for each of the two appeals. Allowed.