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1996 DIGILAW 165 (KER)

Gulam Gasool v. Joseph

1996-03-27

K.A.ABDUL GAFOOR

body1996
Judgment :- K.A. Abdul Gafoor, J. The issue involved in this Original Petition is whether a Land Tribunal has jurisdiction to entertain an application for arrears of rent in respect of a lease for commercial purpose, under section 26 of the Kerala Land Reforms Act, thereinafter referred to as 'the Act') 2. The petitioner is a tenant for commercial purpose under the 1st res-percent. Alleging that rent is in arrears, the 1st respondent filed an application under section 26 of the. Act and under Rule 16 of the Kerala Land Reforms (Tenancy) Rules, 1970. Exhibit PI is a copy of the application so filed before the Land Tribunal, alappuzha/.ha, the 2nd respondent. In column 1(c) thereof, the nature of the tenancy is mentioned as "lease for commercial purpose". The application was contested by the petitioner. According to him, the Land Tribunal has no jurisdiction to entertain Ext. P1. As the jurisdiction of the Land Tribunal to entertain Ext. P1 was agitated by file petitioner, it was decided by the Land Tribunal as a preliminary issue. By Ext. P3 order dated 22-12-1995 it was decided that the application is maintainable under section 26 of the Act and that further proceedings will be initiated as per the Rules. Exhibit P3 is challenged in this original petition. 3. Section 26 providing for recovery of arrears of rent and empowering Land Tribunal to determine the amount so payable appears in Chapter II of the Act. As per section 3 in Chapter II of the Act, it is provided as follows: "3. Exemptions:- (1) Nothing in ibis Chapter shall apply to -t (iii) leases of land or of buildings or of both specifically granted for industrial or commercial purposes." Admittedly, the lease in question is a lease for commercial purpose. Therefore, the counsel for the petitioner Sri. P.K.M. Hassan submits that the lease in question is exempted from the provisions in Chapter II, including recovery of arrears of rent through Land Tribunal as provided in section 26 of the Act. In such case, the Land Tribunal has no jurisdiction to entertain Ext.P1 application for arrears of rent in respect of admittedly a lease for com- metrical purpose. So, Ext. P3 is illegal. 4. In such case, the Land Tribunal has no jurisdiction to entertain Ext.P1 application for arrears of rent in respect of admittedly a lease for com- metrical purpose. So, Ext. P3 is illegal. 4. This is contested by the 1st respondent, relying on sub-section (4) of section 26 which reads as follows : "4 Not withstanding anything contained in any law for the time being in force, no court or other authority or officer other than the Land Tribunal shall have jurisdiction to entertain any claim for arrears of rent". Sri V.N. Swaminathan, appearing for the 1st respondent, submits that the rent is defined as whatever lawfully payable by a person permitted to have the use and occupation of any land to the person so permitting including 'inichavaram' but excluding customary dues. Therefore, the term "rent' appearing in section 26(4) includes the rent in respect of commercial lease. But, that itself is not sufficient in the light of exemption under section 3 as mentioned above which provides that nothing in Chapter II shall apply to lease for commercial purposes. Then it is immaterial whether the rent meant in sub-section (4) of section 26 includes the rent in respect of lease for commercial purposes. The counsel fustier submits that sub-section (4) contains a non-obstante clause like "Notwithstanding anything contained in any law" and 'any law' will include the Land Reforms Act as well. In the light of that non-obstante clause it has to he taken that exemption under section 3(1) (in) will not gel attracted to for the purpose of section 26(4). In other words, the Land Tribunal alone will have jurisdiction to entertain any claim for arrears of rent notwithstanding the exemption contained in section 3(1)(iii). This contention of the counsel is sought to be substantiated on the basis of the decision reported in Union of India and another v. G.M.Kokil and ollicrx ( A.I.R.1984 S.C.1022) to the effect that, "it is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or in some other enactment, that is to say, to avoid the operation and effect of all contrary provisions". There, the Supreme Court was deciding an issue with respect to section 70 of the Bombay Shops and Establishments Act, 1948 which says "the provisions of the Factories Act shall notwithstanding anything contained in that Act apply to all persons employed in and in connection with a factory". But here, there is an exemption clause at the beginning of Chapter If providing that nothing in this Chapter shall apply to a lease for commercial purpose. Therefore, there is total exclusion of lease for commercial purpose from the application of any of the provisions in Chapter II including S.26. Moreover, any law mentioned in sub-section (4) of section 26 is any law other than the Kerala Land Reforms Act. 5. In this regard, section 106 of the Act relating to lease for commercial purposes shall be examined. There, the non obstante clause reads as Not with standing. Any thing contained in this Act or any other law" (emphasis supplied). This is so in the case of section 106 A also. That means, wherever the legislature intended to give any of the provisions of the Act overriding effect over the other provisions in the Act and over any oilier law, it was specifically provided so. This Act' is not specifically mentioned in section 26(4) as in the case of section 106 or 106A. Therefore, (he non obstante clause in section 26(4) of the Act will not have the effect to override section 3. Whenever legislature intended to include the provisions of the Act also in the non obstante clause, it is specifically mentioned, expressing the intention of the legislature clearly, and unambiguously as done in section 106 or 106A of Inc. Act. Whenever such non obstante clause is relatable only to any law, that means it attracts only any law other than the Act. In that circumstances, the decision cited by the counsel for the 1st Respondent cannot have any application in interpreting the phrase' any law' appealing in sub-section (4) of section 26, to mean "anything contained in this Act and in any ..other law". When that is the true import of sub-section (4) of section 26, the Land Tribunal has no jurisdiction to entertain an application under section 26 of the Act, for recovery of rent in respect of lease for commercial purpose. When that is the true import of sub-section (4) of section 26, the Land Tribunal has no jurisdiction to entertain an application under section 26 of the Act, for recovery of rent in respect of lease for commercial purpose. Moreover, there is no non obstante clause in section 26(1) which permits a landlord to approach the Land Tribunal for recovery of arrears of rent. Thus on any count the exemption provided in section 3 of the Act has full application. 6. In the above circumstances, the Land Tribunal has no jurisdiction to entertain Ext. P1 application claiming arrears of rent in respect of a lease for commercial purpose and therefore Ext. P3 is liable to be quashed and accordingly it is quashed. Original Petition is thus allowed. No costs.