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2000 DIGILAW 244 (KER)

Mathew v. Rent Control Court

2000-04-24

A.R.LAKSHMANAN, D.SREEDEVI

body2000
Judgment :- Dr. AR. Lakshmanan, J. Heard Mr. Mathew Vadakkeparambil, party-in-person, N. Sukumaran for second respondent, Mr. Alexander Thomas, Government Pleader for fourth respondent and Mr. S. Parameswaran, Amicus Curiae. 2. This is a petition for Certificate for appeal to the Supreme Court under Art 132 & 133 of the Constitution of India and R.221 of the Kerala High Court Rules t the petitioner tenant, from the judgment dated 9.2.2000 of this Bench in O.P. 25855/9 According to the petitioner the impugned judgment raises many substantial question of law of general importance which needs to be resolved by the Supreme Court. Petitioner is a tenant under the second respondent. The petition was filed for fixation of fair rent by the tenant. In view of the ruling reported in Isaac Ninan. v. State of Kerala (1995 (2) KLT 848), the petition was dismissed by the Additional Munsiff as not maintainable. According to the petitioner, the decision of the Division Bench, referred to above, at best rendered invalid S.5 of the Act only as applied to that case and that S.5 is not rendered invalid as applied to other litigants who apply for determination of fair rent and that the said judgment had no occasion to consider the question of fairness as to the deductability from fair rent of repair charges incurred by the tenant in conjunction with the opportunity for the landlord for recovering cost of construction and profits under the aforesaid standard for determining fair rent. 3. The Division Bench in Isaac Ninan's case (supra) was considering the question of general public importance of Ss.5, 6 and 8 of the Act. The Bench, after considering various aspects of the matter and pros and cons of the relevant Section and also after referring to the rulings of the Supreme Court and the observations made therein, came to the conclusion that the impugned provisions do not stand the test of reasonableness and accordingly Ss.5, 6 and 8 of the Act relating to fair rent were declared as ultra vires the Constitution of India and are void. While considering the points raised by the petitioner/party-in-person this Bench held that once the law is declared as unconstitutional, no Court has jurisdiction to decide the case once again on the basis of the Sections which were struck down as ultra vires of the Constitution of India and are void. 4. While considering the points raised by the petitioner/party-in-person this Bench held that once the law is declared as unconstitutional, no Court has jurisdiction to decide the case once again on the basis of the Sections which were struck down as ultra vires of the Constitution of India and are void. 4. This judgment was further explained in the recent decision of a Division Bench comprising of P.A. Mohammed and M.R. Hariharan Nair, JJ. reported in Jain Enterprises v. Aegee Enterprises (2000 (1) KLT 20). It is to be noticed that the judgment reported in 1995 (2) KLT 848 (supra) was rendered on 2.11.1995. The Government of Kerala have not taken any steps to rectify the defects and anomalies pointed out by the Division Bench. State of Kerala, which was also a party to the above judgment, has also not filed any appeal against the judgment before the Supreme Court of India and has allowed the judgment to be final and conclusive in so far as the provisions relating to fair rent i.e., Ss.5, 6 and 8 of the Act. 5. Thus it is seen that the decision rendered by the Division Bench comprising of K.T. Thomas, ag. C.J. and K.S. Radhakrishnan, J. in 1995 (2) KLT 848 was followed by another Division Bench comprising of P.A. Mohammed and M.R. Hariharan Nair, JJ. reported in 2000 (1) KLT 20 (supra). Our Bench in the Writ Petition in respect of which the leave for Certificate of Fitness to appeal is sought for by the petitioner has referred to and followed those decisions, we did not differ from the views held by the earlier Division Benches, in which event the only course was to follow those decisions and that has been done by our Bench. When the application seeking issuance of Certificate of Appeal to the Supreme Court from our judgment dated 9.2.99 was made, learned Government Pleader submitted that the Certificate cannot be granted to the petitioner since the petitioner has not made any oral application before the Division Bench, immediately after the judgment is delivered and, therefore, any application filed at any later point of time is not maintainable. In support of his contention, learned Government Pleader relied on the judgment of this Court reported in Joseph Binoy v. Union of India (1991 (2) KLT 143), which in turn has referred to the judgment of the Karnataka High Court reported in Keshava S. Jamkhandi v. Ramachandra S. Jamkhandi (AIR 1981 Karnataka 97 (FB). The Division Bench comprising of Paripoornan & Thulasidas, JJ. in 1991 (2) KLT 143 (supra) held thus: "A bare perusal of Art.134A of the Constitution of India does not contemplate the filing of a written application at all. At the time of delivering the judgment, it is open to the Court, if it deems so to do, to grant a certificate on its own motion. If any party is aggrieved by the judgment, an oral application should be made by or on behalf of the party aggrieved, immediately after the judgment is delivered. If it is not so done, any application, filed at any later point of time, is not maintainable." The Full Bench in AIR 1981 (Karnataka) (supra) held thus: "As Art.134A provides for an oral application being made to the Court for grant of a certificate, making of a written application is impliedly barred. Art.134A was introduced in the Constitution with the object of avoiding delay. If it is held that making of a written application at any time after the judgment or order is pronounced is permissible, it will certainly defeat the very object of introduction of Art.134A. It is no doubt true that the Limitation Act, 1963 contains Art.132 prescribing sixty days as the period of limitation for making application for a certificate of fitness to appeal to the Supreme Court under Arts.132, 133 and 134 of the Constitution. That article has neither been deleted nor amended and brings about some incongruity. But then if there is a conflict between the enactment made by the Parliament and the Constitutional provision, it is the constitutional provision that has to prevail. Secondly, as the aggrieved party who did not make an oral application immediately, can move the Supreme Court for special leave, his rights will not be jeopardised, if he is not allowed to make written application. Secondly, as the aggrieved party who did not make an oral application immediately, can move the Supreme Court for special leave, his rights will not be jeopardised, if he is not allowed to make written application. A party, who has failed to make an oral application immediately after the passing or making of a judgment, decree, final order or sentence, cannot file a written application for a certificate for appeal to the Supreme Court at a subsequent stage." The Full Bench of Karnataka High Court has also placed reliance on few other decisions. Full Bench held that though there may be some incongruity in the non-deletion of the articles in the Limitation Act prescribing the period of limitation for making application for certificate of appeal, the Constitutional provisions will prevail if there is some conflict between the statutory provisions. The learned Government Pleader submitted that the relevant articles in the schedule of the Limitation Act is not only prescribing the limitation in respect of the application for Certificate of Appeal as per Arts.132 to 134 of the Constitution, but also under any other law for the time being in force. So also R.221 of the Kerala High Court Rules is not necessarily confined to the former category but will also include the latter category. Mr. Alexander Thomas, Government Pleader further submitted that though the words "immediately after the passing or making of such judgment " appearing in clause (b) of Art.134A, application", the words "determine, as soon as may be after such passing or making, the question" qualifies not only the "oral application" envisaged in Clause (b) but also the "suo motu" action envisaged in Clause (a). Since the "determination" itself has to be "as soon as may be", after the such passing or making of the judgment, necessarily the invocation of the suo mote action may also have to be immediately after or as soon as may be after the passing or making of the judgment. In this context, he invited our attention to the discussions in paragraphs 9, 10 and 11 of the Full Bench decision of the Karnataka High Court in AIR 1981 Karn. 97 (supra). He would also further submit that various High Courts have taken the view that written application long after the passing of the judgment, though, within the period of limitation, is not maintainable. 97 (supra). He would also further submit that various High Courts have taken the view that written application long after the passing of the judgment, though, within the period of limitation, is not maintainable. For this proposition, reliance was placed on Dhangir v. Jankidas (AIR 1990 Rajasthan 102), Dr. Had Singh Gourv. Pankaj Khare (AIR 1988 Madhya Pradesh 269). 6.Mr. S. Parameswaran, learned counsel appearing as Amicus Curiae submitted that there is a hitch in granting certificate of fitness as pointed out by Alexander Thomas, Government Pleader on the decision of K.S. Paripoornan & B.M. Thulasidas, JJ. reported in 1991(2) KLT 143 (supra). In the said decision it has been laid down that for granting certificate of fitness to appeal to the Supreme Court, an oral submission has to be made immediately on pronouncement of the impugned judgment, by the aggrieved party. If he fails to do it, he loses his right to get a certificate of fitness; he cannot file a written application seeking for the granting of a certificate of fitness according to their Lordships. Their Lordships were dealing with a case arising under the Income tax Act which was covered by a series of decisions. They, have also relied on a Full Bench decision of the Karnataka High Court, as referred to earlier. Learned counsel invited our attention to the observations of the Division Bench, which reads thus: "We are of the view that a bare perusal of Art.134A of the Constitution of India does not contemplate the filing of a written application at all. At the time of delivering the judgment, it is open to the Court, if it deems so to do, to grant a certificate on its own motion. If any party is aggrieved by the judgment, an oral application should be made by or on behalf of the party aggrieved, immediately after the judgment is delivered. If it is not so done, any application, filed at any later point of time, is not maintainable." 7. However, Mr. S. Parameswaran argued that this decision need not deter us from taking a different view on the following grounds. With great respect, Art.134A does not insist that if any party is aggrieved by the judgment etc., an oral application should be made by or on behalf of the party aggrieved, immediately after the judgment is delivered. However, Mr. S. Parameswaran argued that this decision need not deter us from taking a different view on the following grounds. With great respect, Art.134A does not insist that if any party is aggrieved by the judgment etc., an oral application should be made by or on behalf of the party aggrieved, immediately after the judgment is delivered. Art.134A only enables the aggrieved litigant to make an oral application immediately after the passing of the impugned judgment etc. The provision does not mandate that the oral application has to be made immediately after the passing or making of the judgment etc. If such an application is made, the High Court is mandated to determine as soon as may be after such passing or making, the question of granting a certificate contemplated by Art.132(1) etc. It does not, with respect, postulate or prescribe as held by the Division Bench in Joseph Binoy's case that if it is not so done, any application filed at any later point of time will not be maintainable. 7.The object and reasons for the Constitution 44th Amendment Act, 1978 which inserted Art.134A, referred to by their Lordships also do not indicate any intention to confine an application for certificate to an oral one. In Aswini Kumar Chose v. Arabinda Bose (AIR 1952 SC 369), Patanjali Sastri, C.J., speaking for the Bench, in paragraph 32 observed as follows: "As regards the propriety of the reference to the Statement of Objects and Reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce Bill in the House and what objects he sought to achieve. But those objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the House or Houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achievered have remained the same throughout till the bill emerges from the House as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by the members. We, therefore, consider that the Statement of objects and reasons appended to the Bill should be ruled out as an aid to the construction of the statute." As per Art.133(1) of the Constitution of India, an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies that: a) the case involves a substantial question of law of general importance; and b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. Similar provisions are incorporated in Arts.132 and 134, in cases involving question of law as to the interpretation of the Constitution in all criminal matters respectively. Before the incorporation of Art.134A of the Constitution as per the 44th Constitutional Amendment Act, 1978, there was no requirement for making an oral application by the party before the High Court immediately after the passing of the judgment/final order, etc. Accordingly Art.132 of Part I of the Third Division of Part X of the Schedule to Ss.2(g) and 3 of the Limitation Act, provided a period of limitation of 60 days for making application to the High Court for a certificate of fitness to appeal to the Supreme Court under Clause (1) of Arts.132, 133 or sub-clause (c) of Clause (1) of Art.134 of the Constitution or under any other law for the time being in force. Likewise, R.221 of the Kerala High Court Rules, 1971 provided for preferring a petition for certificate of appeal to the Supreme Court. A Division Bench of the Madras High Court in Muhammed Hussain v. Ganga Naicken alias Gangama Naicken (AIR 1963 Madras 222), considering the scope of Art.133(1) has held thus: "For a case to fall under Art.133(1)(c), the following requirements are necessary. The question of law involved must be one of great public importance. By this it is meant that the question must be capable of arising frequently in Courts and must involve many parties in litigation. The second test would be that the question involved affects the rights of parties substantially in the sense that apart from mere details regarding procedure in trials substantial property rights or other personal rights of citizens are involved. The second test would be that the question involved affects the rights of parties substantially in the sense that apart from mere details regarding procedure in trials substantial property rights or other personal rights of citizens are involved. But, merely because the question involved is held to be a question of great public importance a litigant is not entitled as of right to a certificate under Art.133(1)(c) unless he further satisfies that the case is a fit one for appeal to the Supreme Court. Underlying that concept of fitness is the State of law on the particular subject. A litigant is entitled to a certificate if, for example, he is able to satisfy that the law on the subject is not well-settled, or that there are differing views in the various High Courts which need reconciliation by a pronouncement by the Supreme Court." 8. Later, Art.134A of the Constitution was incorporated as per the 44th Constitutional Amendment Act, 1978 with effect from 1.8.1979, which reads as follows: "134A. Certificate for appeal to the Supreme Court.- Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) or article 132 or clause (1) of Art.133, or clause (1) of Art.134, (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Art.132, or clause (1) or Art.133 or. as the case may be, sub-clause (c) of clause (1) of Art.134, may be given in respect of that case." 10. It may be noticed that sub-clause (a ) of Art.134A opens itself to an interpretation that the Court suo mote can issue a certificate of fitness if it deems so to do. The punctuation marks in clauses (a) and (b) clearly spell out that no time limit is fixed for the suo mom action. Apart from that the words "as soon may be after such passing or making" also indicate that the Court need not pass an order granting or refusing the application immediately on the pronouncement of judgment. The punctuation marks in clauses (a) and (b) clearly spell out that no time limit is fixed for the suo mom action. Apart from that the words "as soon may be after such passing or making" also indicate that the Court need not pass an order granting or refusing the application immediately on the pronouncement of judgment. It may further be noticed that Art.134A refers to Arts.132(1),133(1) and 134(1), but say sin regard to Art.134 dealing with criminal matters that certificate may be granted in relation to Art.134(1)(c). Art.134(1)(c) contemplates a certificate that the case is a fit one for appeal to the Supreme Court. Clause (1) of Art.132 mentions about any judgment, decree or final order of the High Court whether in a civil, criminal or other proceedings, but provides that the certificate be given if the case involves a substantial question of law as to the interpretation of the Constitution. Clause (1) of Art.133 provides that an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court and says that the Certificate must be that the case involves a substantial question of law of general importance. It may be noticed that Art.133(1) mentions only about a civil proceeding and postulates that the certificate must be that the case involves a substantial question of general importance, whereas Art.132(1) provides that the certificate must be to the effect that the case involves a substantial question of law as to the interpretation of the Constitution. The difference in the wordings in the two provisions are noteworthy. A comprehensive coverage of civil, criminal and other proceedings is given in Art.132(1), while Art.133(1) confines to a civil proceeding. It can also been seen that Art.133(1)(a) contemplates that the case should involve a substantial question of law of general importance, under Art.132(1) the case should involve a substantial question of law as to the interpretation of the Constitution and it does not require that the question must be of general importance. Under Art.132 therefore, the requirement for a certificate is less rigorous. As regards criminal cases, the certificate only need say that's the case is a fit one for appeal to the Supreme Court, under Art.134(1)(c) of the Constitution of India. The substantive provision for appeal contained in Arts.132 to 134 stand intact and unaltered. Under Art.132 therefore, the requirement for a certificate is less rigorous. As regards criminal cases, the certificate only need say that's the case is a fit one for appeal to the Supreme Court, under Art.134(1)(c) of the Constitution of India. The substantive provision for appeal contained in Arts.132 to 134 stand intact and unaltered. In our opinion, it will be too hard on the litigant for the Court to insist that he has to submit an oral application eo instanti on pronouncement of the judgment impugned, failing which he will forfeit his right for filing an application for certificate of fitness to appeal. The wording of Art.136 of the Constitution commencing with the non-obtante clause grants a judicial discretion to the Supreme Court to grant leave to appeal from any judgment etc. passed or made by any Court etc. This is an additional provision coming to the rescue of an aggrieved litigant. 11. Art.132 of the Limitation Act, 1963 prescribes 60 days as a period of limitation for making an application for a certificate of fitness to appeal to the Supreme Court under Arts.132,133 and 134 of the Constitution. That Article has neither been deleted nor amended so far. This important aspect cannot be easily brushed aside on the ground of a conflict between the Limitation Act provisions and the Constitutional provisions as has been done by the Full Bench of the Karnataka High Court in AIR 1981 Karnataka 97 (supra). We have also to take into consideration the very important provisions of the Kerala High Court Rules which have been framed by virtue of the powers conferred by Art.225 of the Constitution of India, S.122 of the CPC and all other provisions enabling in this behalf, with the previous approval of the State Government and after previous publication. The petitioner, who is an Advocate, filed the petition under Art.221 of the Kerala High Court Rules which prescribes the procedural formalities to be complied with. The petitioner was not present in Court when the judgment was delivered by this Bench on 9.2.2000, even though the case was printed in the cause list for judgment. R.221, 222 and 223 of the Kerala High Court Rules reads as follows: "221. The petitioner was not present in Court when the judgment was delivered by this Bench on 9.2.2000, even though the case was printed in the cause list for judgment. R.221, 222 and 223 of the Kerala High Court Rules reads as follows: "221. Petition for Certificate for appeal.- A petition for a Certificate for appeal to the Supreme Court shall be accompanied by a certified copy and two typewritten or printed copies, duly paged, on plain paper, of the judgment or final order appealed against. 222. Posting of the petition for admission. the petition shall be posted for admission before the judge or judges whose decision is sought to be appealed against and in case any or all of such judges are not available, before such other judge or judges as the Chief Justice may direct. 223. Order on the petition.- The Court may, after hearing the petitioner, either dismiss the petition or order notice to the respondents". R.221 which is relevant postulates that the petition shall be accompanied by a certified copy or two typewritten or printed copies of the judgment or final order appealed against. It is a trite truism that certified copies of judgments will not be available or issued on the date of pronouncement of the judgment, unless specifically ordered to be issued. R.222 mandates the posting of the petition for admission before the concerned Bench. R.223 states that the Court may, after hearing the petitioner, either dismiss the petition or order notice to respondents. 12. The Division Bench in 1991(2) KLT 143 (supra) had no occasion to consider the above Rules. Unfortunately the above said rules have not been brought to the notice of the Hon'ble Judges of the Division Bench. The Division Bench did not consider the provisions of Art.132 of the Limitation Act, 1963 and Rr. 221 to 224 of the High Court Rules. The Limitation Act provides a period of 60 days for filing an application seeking certificate to appeal to the Supreme Court. This is a statutory provision conferring a prescribed period of time to the aggrieved litigant. This is an enabling provision. R.221 of the High Court Rules provides for the filing of a written application seeking certificate to appeal to the Supreme Court. This is a statutory provision conferring a prescribed period of time to the aggrieved litigant. This is an enabling provision. R.221 of the High Court Rules provides for the filing of a written application seeking certificate to appeal to the Supreme Court. As already noticed, certified copies of the judgment are not given or made available on the date of pronouncement of the judgment or even the next day. It naturally takes a few days/ months for issuance of certified copies. Moreover an oral application need, but cannot be, accompanied by certified copy of the judgment under attack or its true copies, according to rules. The logical corollary is that a written application is contemplated and provided for, R.222 visualizes the posting of the petition before the Bench, an act, of course, to be performed by the registry. R.225 provides for passing of final orders by the Bench after hearing the application. These provisions cumulatively establish the right of an aggrieved party to file a written application seeking certificate to appeal. 13. in our opinion, the judgment of the Division Bench reported in 1991(2) KLT 143 (supra) though decides the scope of Art.134A, had no occasion to consider the scope of Rr. 221 to 225 of the Kerala High Court Rules, which have been framed by virtue of the powers conferred by Art.225 of the Constitution of India. In our opinion, this Court is competent to grant leave to appeal by issuing a certificate of fitness on the basis of a written application now made by the party. We would however like to point out that in the present case the tenant/ petitioner has suo motu terminated the tenancy. Art.142(1) of the Constitution which empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in a case or matter pending before it. There are decisions laid down by this Court and other Courts to the effect that the tenant can be considered a statutory tenant even after the expiry of the lease period. In Smt. Chander Kali Bail v. Jagdish Singh Thakur (AIR 1977 SC 2262) Supreme Court held has follows: "A tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. Such a tenant is conveniently called a statutory tenant. In Smt. Chander Kali Bail v. Jagdish Singh Thakur (AIR 1977 SC 2262) Supreme Court held has follows: "A tenant even after the termination of his contractual tenancy does not become an unauthorised occupant of the accommodation but remains a tenant. Such a tenant is conveniently called a statutory tenant. Whether the expression aforesaid borrowed from the English Law is quite apposite or not, but, what is certain is that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the Act and on such termination his possession does not become wrongful, until and unless a decree for eviction is made. If he continues to be in possession even after the passing of the decree, he does so as a wrongful occupant of the accommodation". 14. As already noticed, the State of Kerala which was the respondent in Isaac Ninon's case, for reasons best known to it did not take up the matter in appeal to the Supreme Court. The decision of the Division Bench comprising of K.T. Thomas, ag. Q. and K.S. Radhakrishnan, J. was followed by us and another Division Bench. The provisions of the Kerala Act referred to supra are somewhat peculiar to the Kerala enactment and we have not been able to see any pari materia provisions in a couple of other Rent Control statutes passed in other States. As a matter of fact to get over this, the Division Bench judgment in 1995 (2) KLT 848 (supra) the aggrieved parties, whether they are tenants or landlords, now moved the Civil Court for fixation of fair rent. To what extent the Civil Court can fix a rent at variance with, or in departure from the contractual rent is again a debatable proposition. As the decision rendered by our Bench involves a substantial question of general importance deserving a certificate of fitness to appeal before the Supreme Court, we issue a Certificate to the petitioner in public interest as well. A right to appeal is a substantive right. The present petition seeking Certificate of fitness has been filed within the period of limitation, prescribed by the statute. Therefore, it cannot be brushed aside or even a threshold dismiss on the basis of the decision in 1991(2) KLT 143 (supra) which, as already noticed, is distinguishable on facts and law. 14. A right to appeal is a substantive right. The present petition seeking Certificate of fitness has been filed within the period of limitation, prescribed by the statute. Therefore, it cannot be brushed aside or even a threshold dismiss on the basis of the decision in 1991(2) KLT 143 (supra) which, as already noticed, is distinguishable on facts and law. 14. before parting with this, we wish to place on record our appreciation of the valuable assistance that we have derived from the exhaustive and learned arguments advanced before us by Mr. S. Parameswaran, Amicus Curiae and Mr. Alexander Thomas, Government Pleader appearing for the State of Kerala. We therefore issue a Certificate for appeal before the Supreme Court against our judgment dated 9.2.2000.