M. Periasamy v. C. S. Govindasamy — 1987 DIGILAW 364 (MAD)

ORDER K.M. Natajaran, J. 1. This revision is directed against the order passed by the appellate authority refusing to implead the revision petitioner who is an allottee. C.M.P. Nos. 14238 and 14239 of 1987 were filed by the persons to whom the building in question was subsequently allotted, for impleading them as parties in the revision. 2. The facts which are necessary for the disposal of the revision-petition are briefly as follows: The revision petitioner was allotted the petition mentioned premises by the Accommodation Controller, Madras. Fair Rent for the building was originally fixed by the Rent Controller at Rs. 350 per mensem on the application filed by the first respondent landlord. When the matter was taken to the High Court, Madras in C.R.P. No. 1280 of 1979, it was set aside and the same was remanded back to the Rent Controller for fresh disposal. Thereafter after due enquiry, the Rent Controller re-fixed the fair rent at Rs. 633 per mensem. The Accommodation Controller preferred the appeal. The revision-petitioner who is the allottee sought to implead himself in the appeal as a party on the ground that it is he who has to ultimately pay the rent that may be fixed and if the fair rent is beyond the scope of the Tamil Nadu Buildings (Lease and Rent Control) Act, the allottee will have to vacate the building and seek accommodation elsewhere. 3. The said application is resisted by the first respondent - landlord who contended that the petitioner is only a licensee and not a tenant and that he is neither a necessary nor proper party to the proceedings. The Government alone is the statutory tenant. At the time of filing of the petition, he was not the allottee and one P.G. Kesavalu, Assistant Director of Medical Services and later, Selvaraj, an I.A.S. Officer were allotted the said premises. They were in occupation of the premises as allottees and only subsequently, the present revision-petitioner, was the allottee. If the petition is allowed to implead the revision- petitioner, then the above allottees also will have to be impleaded as they are liable to pay arrears of rent and that there is no end to the proceedings. The fixation of fair rent is done with regard to the formula and the rules provided in the Act and not with reference to the allottee. Hence, he prayed for dismissal of the petition. The fixation of fair rent is done with regard to the formula and the rules provided in the Act and not with reference to the allottee. Hence, he prayed for dismissal of the petition. The appellate authority upheld the contention of the first respondent and dismissed the petition. Hence the revision. During the pendency of the revision, the subsequent allottees filed the two C.M.P. Nos. 14238 and 14239 of 1987 to implead them as parties in the C.R.P. 4. The only question that arises for consideration is whether the allottee is entitled to be impleaded as a party to the proceedings. It is not in dispute that in view of Section 3(5) and (6) of the Act, the Government is the statutory tenant in respect of buildings which were obtained on requisition by the Accommodation Controller and allotted to the officers concerned. Section 3(5) read as follows: If the building is required for any of the purposes, or for occupation by any of the officers specified in Sub-section (3), the landlord shall deliver possession of the building and the fixtures and fittings in or on the buildings, in good tenable repairs and conditions, to the authorised officer, or to the allottee named by the authorised officer, as the case may be, and the Government shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the authorised officer received notice under Sub-section (1) or Sub-section (2), the terms of the tenancy being such as may be agreed upon between the landlord and the tenant and in default of an agreement, as may be determined by the Controller: Provided also that the rent payable shall be the fair rent, if any, fixed for the building under the provisions of this Act; and if no fair rent has been so fixed, such reasonable rent as the authorised officer may determine, in such manner as may be prescribed; Provided also that the reasonable "rent fixed by the authorised officer under the foregoing proviso shall be subject to such fair rent as may be fixed by the Controller. It has been held in various decisions of this Court that the allottee is only a licensee and the Government is the statutory tenant. It has been held in various decisions of this Court that the allottee is only a licensee and the Government is the statutory tenant. In Shaik Mohamed v. State of Madras , Srinivasan, J., while interpreting Section 3(9)(a)(ii) of the Madras Buildings (Lease and Rent Control) Act (15 of 1946), held that the Government servant, who has been allotted, is only a licensee, relying on the earlier decisions of the Supreme Court in Associated Hotels of India v. R.N. Kapoor, and Cobb v. Lane (1952)1 AU.E.R. 1199. In Vinod Mothilal v. State of Tamil Nadu represented by The Collector, Coimbatore and Anr. 1982 T.L.N.J. 372, Balasubrahmanyan, J., held that in a suit for recovery of arrears of rent from the Government by the landlord, the State Government alone, which is the statutory tenant, can be the proper and necessary party for rent and no other person. It is further held that the allottees of the Government are neither necessary nor proper parties to the suit and as such is not bad for non-joinder of the allottees as parties. The learned Judge arrived at the said conclusion on the ground that it is only the State Government which becomes the statutory tenant and the allottees who occupy the building under allotment by the Accommodation Controller have no jural relationship with the landlord of the premises. Mohan, J. also held in C.R.P. No. 2681 of 1981, dated 18-12-1981, in respect of a similar application filed before him by the appellant in other matter: Both the courts below are right in holding that an allottee from the Government is not a necessary party to fixation of fair rent proceedings. Mohan, J. also held in C.R.P. No. 2681 of 1981, dated 18-12-1981, in respect of a similar application filed before him by the appellant in other matter: Both the courts below are right in holding that an allottee from the Government is not a necessary party to fixation of fair rent proceedings. There are two reasons to uphold this order: (1) It is well settled in Law that when a building is requisitioned under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973 (hereinafter referred to as the Act), the allotted from the Government is only a licensee and if he is a licensee, there is no scope of invoking any of the provisions of the Act and the relationship of landlord and tenant is purely between the owner of the house and the Government, and (2) The Act in question is a special Act causing in road to the general law as made applicable under the Transfer of Property Act and therefore, where the Rent Controllers are persona designata, not "being a civil court, the Code of Civil Procedure will have no application. The civil revision petition fails and is dismissed. The appellate authority followed the above ruling and dismissed the application. 5. The learned Counsel for the revision-petitioner, Mr. S. Srinivasan, contended that he is not disputing the proposition of law that the Government is the statutory tenant and the allottee is only a licensee. But it was contended by him that since the allottee is the person who ultimately has to pay the fair rent fixed by the rent control authorities, he is entitled to be impleaded as the person affected by the order of the court. Further, the principle of natural justice imposes a duty on the concerned authority to hear the party who is affected by the order, even though the enactment does not provide for the hearing and that the above decisions, which are referred to by the other side and which were relied on by the appellate authority, are not applicable to the facts of this case in view of the above principles enunciated by their Lordships of the Supreme Court. The earliest decision relied on by the learned Counsel for the revision petitioner is Udit Narain Singh v. Board of Revenue (1964)1 S.C.J. 151 : (1963)1 S.C.R. 678 : A.I.R. 1963 S.C. 766, wherein it was held: The law as to who are necessary and proper parties to a proceeding is well settled. A necessary party is one without whom no order can be made effectively; a proper patty is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision, on the question involved in the proceeding. That was a case where in a petition for a writ of certiorari made to the High Court, only the Tribunal whose order was sought to be quashed was made a party but the persons who were parties before the lower tribunal and in whose favour the impugned order was passed were not joined as parties. In the circumstance, it was held that the petition was incompetent and had been rightly rejected by the High Court. That decision is not helpful to the case of the revision-petitioner, The decision in K. Babulal and Bros. v. H.C. Patel (1968)1 S.C.J. 768, is for the proposition pleaded by the revision petitioner. It was held: The Act (Bombay Sales Tax Act V of 1946) is also silent as to the machinery and procedure to be followed in determining the question as to whether there has been a contravention of Section 12- A(1) and (2), and if so, to what extent. Even if there is any dispute either as to the factum of collection or as to the amount collected, "Such a case also comes within the scope of Section 12-A(4). The forfeiture provided for in Section 12-A(4) prima facie infringes Article 19(1) (f). In a reasonable interpretation of the impugned provision, it has to be held that the power under Section 12-A(4) is unguided, uncanalised and uncontrolled. It is an arbitrary also. That decision also does not help the case of the revision petitioner as in the instant case a procedure has been laid down for fixation of fair rent under Section 4 of the Act between the landlord and the tenant with reference to the building and according to the formula laid down therein, fair rent is fixed. It cannot be said that no machinery is provided for fixation of fair rent. It cannot be said that no machinery is provided for fixation of fair rent. The allottee is only a licensee and the Government is the statutory tenant. If he wants to instruct the Government, which allotted the premises, it is open to him to do so. But he cannot claim that he should be impleaded as a party to the proceedings. Further, it cannot be said that no machinery is provided for fixation of fair rent. The learned Counsel for the revision-petitioner relied on the decision reported in Mohinder Singh v. Chief Election Commissioner, for the proposition that even though the statute is silent about the opportunity to be given to the candidate, an opportunity should be given in view of the rule of natural justice. It should be observed that the above decision is not applicable to the case on hand. That was a case of election and it was held: Having regard to statutory setting and comprehensive jurisdiction of the Election Court, we are satisfied that it is within its powers to direct a re-poll of particular polling to be conducted by the specialised agency under Election Commission and report the results and ballots to the court. It was also held: The silence of a statute has no exclusionary effect except where it follows from necessary implication. As already observed, in the instant case, the Government is the statutory tenant and the relationship of landlord and tenant is between the house owner and the Government. The houses were allotted to various officers like the revision-petitioner and by virtue of the statute, they are liable to pay fair rent fixed by the Controller. There is no privity of contract between the allottee and the owner of the building and the owner of the building and the allottee is only a licensee. As per the statute, the State Government which is the statutory tenant is entitled to safeguard right of allottees. As rightly contended by the respondent, there is nothing to show any collusion between the Government and the owner of the building. Further, there will be a number of allottees. In the instant case also, it is seen that at the time of the filing of the petition, the revision- petitioner was not a tenant. As rightly contended by the respondent, there is nothing to show any collusion between the Government and the owner of the building. Further, there will be a number of allottees. In the instant case also, it is seen that at the time of the filing of the petition, the revision- petitioner was not a tenant. After the filing of the petition, he was the third allottee and subsequent to the filing of the revision, two other allottees were allotted this premises. Hence, it cannot be said that the revision-petitioner and the other allottees are entitled to be brought on record as persons who are affected by the order. As rightly contended by the learned Counsel for the respondent, fair rent is fixed only in accordance with the formula and the rules framed in respect of fixation of fair rent for building and not in respect of allottees. The learned Counsel for the revision-petitioner drew my attention to the decision of this Court reported in Swaminathan v. State of Tamil Nadu 98 L.W. 346 : (1985)1 M.L.J. 318 , wherein it was held that in view of the addition of Section 3-A(3), which has been newly inserted by way of Amendment Act 23 of 1973, any person who is aggrieved by the authorised officer under Sub-section (2) regarding release of the building to the land owner may appeal to the Government and pass such order as deemed fit. In view of the said provision, the allottee of the building requisitioned by the Government is held to be the person aggrieved. But, that decision does not help the case of the revision-petitioner as there is no corresponding provision so far as fixation of fair rent is concerned. On the other hand, it has been specifically provided that the rent payable by the allottee shall be the fair rent fixed for the building under the provisions of the Act and in case there is no fair rent, such reasonable rent fixed by the authorised officer. The learned Counsel relied on the decision in Sayeedur Rehman v. State of Bihar and Ors. (1973)1 S.C.W.R. 328, for the proposition that affording adequate opportunity of hearing and presenting the case is fundamentally a just decision by any authority which decides a controversial issue affecting the rights of rival contestants. The learned Counsel relied on the decision in Sayeedur Rehman v. State of Bihar and Ors. (1973)1 S.C.W.R. 328, for the proposition that affording adequate opportunity of hearing and presenting the case is fundamentally a just decision by any authority which decides a controversial issue affecting the rights of rival contestants. In the instant case, the petitioner is not a rival contestant and the question of giving opportunity and violating the rules of natural justice do not arise. In the above quoted case, the order passed in favour of a teacher setting aside the order of dismissal and directing reinstatement with full salary etc. was reviewed by the President of the Board of the Secondary Education and modified the order without notice to or hearing the teacher and in the circumstances it was held that the omission to give notice is violative of the rules of natural justice. For the reasons already set out, I am of the opinion that in view of the decision taken by Mohan, J., in C.R.P. No. 2681 of 1981, which only affirms the earlier view taken in Vinod Mothilal v. State of Tamil Nadu represented by the Collector, Coimbatore and Anr. 1982 T.L.N.J. 372, and Shaik Mohamed v. State of Madras, the petitioner, is neither necessary nor proper party to the proceedings and he cannot insist that he should be impleaded as a party to the proceedings is correct. Further, the contention of the petitioner that if the fair rent fixed is beyond the scope of the petition, he will have to vacate the building and seek accommodation elsewhere is also not tenable in view of the latest Supreme Court decision in Rattan Arya v. State of Tamil Nadu, where in the said provision has been struck down. 6. Hence, I am of the view that the order passed by the Court below dismissing the petition does not suffer from any infirmity or illegality whatsoever so as to warrant interference in revision. In view of the findings in the revision, the two petitions C.M.P. Nos. 14238 and 14239 of 1987 filed in the revision by the subsequent allottees are also liable to be dismissed. 7. In the result, the revision petition and both the miscellaneous petitions fail and stand dismissed. However, in the circumstances of the case, there will no order as to costs.