Research › Browse › Judgment

Kerala High Court · body

1964 DIGILAW 58 (KER)

Krishna Iyer v. Ramakrishna Iyer

1964-02-20

K.K.MATHEW

body1964
Judgment :- 1. This is an appeal by the decreeholder against an order in execution dismissing his application for recovery of possession of the decree schedule property. The decree was one for recovery of possession of a property with a building thereon on deposit of certain amount in court. The 1st defendant who opposed the application for execution contended that the building was not liable to be surrendered as it was situated in an area where the Kerala Buildings Lease and Rent Control Act, Act 16 of 1959 as amended by Act 29 of 1961, hereinafter referred to as the Act, was in force, and that the conditions necessary for recovery of possession were not satisfied in the case. 2. The execution court held that the defendant was not entitled to resist the application for delivery of possession for the reason that the area where the building is situated was not an area to which the Act applied, and therefore it allowed the application of the decreeholder. On appeal by the 1st defendant, the lower appellate court held that the area where the property is situated was one to which the Act applied, and therefore the decreeholder was not entitled to recover possession. 3. Originally the property which was sought to be recovered was within the area of the Chowghat Panchayat. The Act was extended to the Chowghat Panchayat by a notification of the Government. That notification is as follows: "In exercise of the powers conferred by sub-section (3) of S.1 of the Kerala Buildings (Lease and Rent Control) Act, 1959, (Act 16 of 1959) the Government of Kerala hereby apply all the provisions of the said Act to the Chowghat Panchayat in Trichur District with effect on and from 15th December 1961". The Guruvayoor Township came into existence as per Guruvayoor Township Act, Act 43 of 1961. That Act came not force on 26-1-1962, and, as a result of it the decree schedule property was removed from the Chowghat Panchayat and was included in the Guruvayoor Township. Sub-section (2) of S.1 of the Act states that the Act will apply to the areas mentioned in the schedule to the Act. That Act came not force on 26-1-1962, and, as a result of it the decree schedule property was removed from the Chowghat Panchayat and was included in the Guruvayoor Township. Sub-section (2) of S.1 of the Act states that the Act will apply to the areas mentioned in the schedule to the Act. S.1(3) provides that, "The Government may, by notification in the Gazette, apply all or any of the provisions of this Act to any other area in the State with effect from such date as may be specified in the notification and may by like notification, cancel or modify such notification, or withdraw the application of all or any of the provisions of this Act from any area to which this Act applies under sub-section (2)". S. 3 of the Panchayat Act (Act 32 of 1960) provides that, "The Government may by notification in the Gazette (a) declare any village or group of adjacent villages or portions thereof to be a Panchayat area for the purposes of this Act and specify the name and headquarters of the panchayat, or (b) exclude from a Panchayat area any village or portion thereof comprised in it; or (c) include in a Panchayat area any village or portion thereof; or (d) cancel a notification issued under Clause (a) or alter the name and headquarters of the Panchayat as notified under the said clause:". By the extension of the Act to the Chowghat Panchayat, I think, what the Government intended was that the Act would -be in force in the area included in that Panchayat at the time of the notification, notwithstanding the subsequent exclusion of a particular area from the jurisdiction of that Panchayat for the purpose of Panchayat administration. The subsequent inclusion or exclusion of any area in or from that Panchayat would not affect the applicability of the Act to the area so included or excluded. 4. The subsequent inclusion or exclusion of any area in or from that Panchayat would not affect the applicability of the Act to the area so included or excluded. 4. It was argued by counsel for the appellant that the intention behind the notification was that the Act should apply only to the area under the administration of the Chowghat Panchayat, and as the area where the decree schedule property is situated was removed from that Panchayat and included in the Guruvayoor Township at the time when the application for execution was filed in the case, the Act cannot have any operation in that area, for the reason that the area was not a part of the Chowghat Panchayat, to which alone the Act was extended. Reliance was placed in this connection on the ruling in Ranganatham v. Mariappa (AIR. 1942 Madras 334). There, the question was whether the provisions of the Madras City Tenants Protection Act, Act 3 of 1922 would apply to the Mambalam extension area which was not originally within the Madras city, but was included in it by a notification dated 18th January 1924 of the Local Government under S.3(9) of the Madras City Municipal Act, declaring that Mambalam extension area (since called Thyagarayanagar) to be part of the city of Madras. The ruling was expressly based on the provisions of S.3(5) of the Madras General Clauses Act which makes it clear that a declaration made under any Act relating to the Municipal affairs of the city will determine the meaning of the expression 'city of Madras' not merely for the purposes of that Act, but also for every Act made by the Governor of Fort St. George in Council after the commencement of the General Clauses Act. There is no definition of 'Panchayat' either in the Act or in the T.C. General Clauses Act. In these circumstances, I do not think that the case can afford much assistance to the appellant. 5. The decision of the Supreme Court in Bagalkot City Municipality v. Bagalkot Cement Co. (AIR. 1963 S.C. 771) does not also throw much light upon the question in controversy. In these circumstances, I do not think that the case can afford much assistance to the appellant. 5. The decision of the Supreme Court in Bagalkot City Municipality v. Bagalkot Cement Co. (AIR. 1963 S.C. 771) does not also throw much light upon the question in controversy. There the question turned entirely upon the) interpretation of S.20 of the Bombay General Clauses Act which states that "the expressions used in the by-laws are to have the same meaning as they have in the Act unless there is anything repugnant in the context." In that case a by-law was framed by the Municipality in the exercise of its powers under S.48 of the Bombay District Municipal Act which provided that the octroi limits of the Municipal district shall be the same as the Municipal District. The question was whether the expression 'Municipal District' in the by-law should be understood as referring to the Municipal District as existing when the by-law was framed. It was held that the context would prevent the definition in the Act being applied to interpret the by-law, and that if subsequent to the framing of the by-law the limits of the Municipal District are extended by Government notification under S.4 of the Municipal Act, the octroi limits fixed by the by-law would nevertheless remain the same as that of the original Municipal Dist., and that unless the bye-law was altered or amended it would not be competent to the Municipality to demand any octroi on the goods brought within the area because such area, even after its inclusion in the Municipal District, will be outside the octroi limits fixed by the by-law. The reason given for the decision was that for framing a valid by-law the previous publication of its draft to "persons likely to be affected thereby" was necessary, and that the absence of publication to "persons likely to be affected thereby" would render the by-law ineffective so far as those persons were concerned. The reason given for the decision was that for framing a valid by-law the previous publication of its draft to "persons likely to be affected thereby" was necessary, and that the absence of publication to "persons likely to be affected thereby" would render the by-law ineffective so far as those persons were concerned. The publication contemplated by S.48(2) of that Act was a publication to persons on whom the bylaw when made was likely to affect by its own terms and not to persons residing outside the Municipal District as constituted when the by-law was made or who were not ratepayers of the Municipality, The gist of the decision therefore is that since the by-laws were not published to persons residing at that time outside the Municipal limits, and since they were not persons affected by the publication, it would be unreasonable to bind those persons as they had no opportunity to object to the by-laws. That decision therefore can hardly have any application to the facts of this case. 6. In Biraj Mohini Dassi v. Gopeswar Mullick (ILR. 27 Calcutta 202) the question was about the applicability of the Bengal Tenancy Act to a particular piece of land, which was situated originally outside the 'town of Calcutta' and was therefore not exempted from the operation of the Bengal Tenancy Act. It was observed: "The term of 'town of Calcutta' is one well-recognised, and at the time of the passing of the Bengal Tenancy Act its boundaries were well known and well-defined, and that expression, as used in the Tenancy Act, can, in my opinion, only relate to the Town as it existed at the time of the passing of the Act. No doubt the area of the town has, for municipal purposes, been extended by the Act I have mentioned, and this land is within the extended boundary; but the area was extended for those purposes only and not for all purposes". It was therefore held that the Bengal Tenancy Act would not apply even-though at the time when the controversy arose the land was situated within the 'town of Calcutta'. It was therefore held that the Bengal Tenancy Act would not apply even-though at the time when the controversy arose the land was situated within the 'town of Calcutta'. Applying the reasoning of that case here, it has to be held that the Act applied to the area, within the jurisdiction of the Chowghat Panchayat at the time of the notification extending the Act to that Panchayat and that it will not cease to apply to the area merely because a portion from that area has been subsequently included in the Guruvayoor Township. It is admitted that the subsequent notification extending the Act to Guruvayoor Township has expressly excluded the area where the decree schedule property is situated from the operation of the Act. In Gangadin Behari v. Add. Deputy Commr., Nagpur (A.I.R.1955 N.U.C. 981), it was held that when under a notification the Provincial Government extended Chapter II of the Rent Control 0.1949 to the Municipalities in the Central Provinces and Berar, the extension applied only to the areas which were then included within the said Municipalities & that the subsequent inclusion of an area in a Municipality could not ipso facto have the effect of extending the operation of Chapter II to that area. 7. If, as a matter of fact, the Government intended that the Act should cease to operate in the particular area, it was open to it to have modified the notification under S.1[3]. In these circumstances, I think, the view taken by the lower appellate court was right and that the decreeholder has no right to get recovery of possession except in accordance with the provisions of the Act. 8. In the result, the appeal is dismissed. I make no order as to costs. Dismissed.