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2005 DIGILAW 399 (KER)

A. R. Ayyappan Pillai v. Mohana Chandran Pillai

2005-06-22

K.T.SANKARAN, P.R.RAMAN

body2005
Judgment :- Raman, J. Petitioner is the landlord and the respondents are the tenants of building No.767 situated in the Thrikkadavoor Village of Kollam District. Petitioner initiated eviction proceedings against the respondents by filing R.C.P.No.16/1999 on the file of the Rent Control Court, Kollam. The R.C.P. was dismissed by the Rent Control Authority. The Appellate Authority reversed the order of the Rent Control Court and ordered eviction. It was confirmed in revision by this Court in C.R.P.No.2111/2002, a copy of the same is produced as Ext.P2 in the present petition. Thereafter the tenants filed Special Leave Petition before the Apex Court. When the matter was pending before the Apex Court a settlement was reached between the parties and the Apex Court by its order dated 7-1-2002, a copy of which is produced as Ext.P3 in this petition disposed of the S.L.P. in terms of the settlement dated 29-10-2004 except that the date mentioned in para 3 of the settlement will reads as 31-3-2005 in place of 31-1-2005. The memorandum of settlement which was marked as Annexure A3 on the file of the Supreme Court is produced as Ext.P3 in the present writ petition. As per clause 1 of memorandum of settlement, it is agreed by the respondents herein that they will surrender 4 feet portion of Door No.767 on the southern side so that there will be passage to the petitioner’s building on the eastern side, of a width of 14 feet north sought measured from the northern wall of Door No.765. It is also agreed that the demolition of the surrendered area will be carried out by a Commissioner appointed by the Rent Control Court and that the new wall on the southern side of Door No.767 is to be constructed under the supervision of the said Commissioner. Pursuant thereto the petitioner herein sought to execute the order. It is a common case of the parties that 4 feet portion of Door No.767 on the southern side was surrendered by the respondents herein and the wall was also reconstructed by the Commissioner. It was then found that width of the passage is only 12.25 feet as per the report of the Commissioner and according to the petitioner it is only 11.9 feet. It was then found that width of the passage is only 12.25 feet as per the report of the Commissioner and according to the petitioner it is only 11.9 feet. At any rate even after surrender of 4 feet by the respondents herein the width of the passage could not be obtained to the extent of 14 feet. Petitioner in such circumstances filed an application before the Munsiff Court, Kollam praying that the Commissioner be directed by the Court to take possession of sufficient space to provide 14 feet pathway as passage to the building of the decree holder. The respondents objected the same and by Ext.P5 order dated 17th March, 2005 which is impugned in this writ petition, the Principal Munsiff, Kollam dismissed the application. Aggrieved thereby the petitioner has preferred this writ petition seeking appropriate relief under Art. 227 of the Constitution of India. 2. The Court below found in Ext.P5 order that if the tenant is now directed to surrender more portion, that will be in violation of the compromise. It is also found that there is no terms in the agreement that the tenant will surrender sufficient portion so as to form passage of 14 feet width. Taking the view that the Munsiff Court is not empowered to direct the tenant to surrender more portion for the passage to obtain a width of 14 feet the petition was dismissed. 3. Heard Adv. Sri. Bechu Kurian Thomas, the learned counsel for the revision petitioner and also the Adv. Sri. B. Vinod, the learned counsel appearing for the respondent. 4. It was contended before us by the learned counsel for the respondent that the petitioner has got an alternative remedy under Sec. 14 of the Kerala Building (Lease and Rent Control) Act, 1965 by way of revision, to the same Forum to which ordinarily an appeal would lie against the order of the Munsiff Court. Hence the writ petition is not maintainable. Learned counsel for the petitioner, Sri. Bechu Kurian Thomas on the other hand contended that proviso to Sec.14 is not a substantive provision conferring any right of revision; it merely provides the forum; and in the absence of any guidelines prescribing the manner of exercise of such power the provision is unworkable. It is also contended that the proviso generally carves out an exception from the main provision and does not create a substantive right. It is also contended that the proviso generally carves out an exception from the main provision and does not create a substantive right. We shall now refer to Sec.14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 which reads as follows: Every order made under section 11 (or section 12) or section 13 or section 19 or section 33 and every order passed on appeal under section 18 or on revision under section 20 shall, after the expiry of the time allowed therein, be executed by the Munsiff or if there are more than one Munsiff, by the Principal munsiff having original jurisdiction over the area in which the building is situated as if it were a decree passed by him: Provided that an order passed in execution under this section shall not be subject to an appeal but shall be subject to revision by the court to which appeals ordinarily lie against the decision of the said Munsiff. 5. From the language of the proviso it is clear that it is not exempting something from the main provision. While the main section provides for execution of the orders passed under the Act whereas the proviso confers a right of revision from such orders. It is true that normally the ‘proviso’ carves out an exception. But this is only true of a real proviso. The inserting of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a Section worded as a proviso may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. It has been held by the Supreme Court in State of Orissa vs. Debaki Debi (AIR 1964 SC 1413) that the period of limitation contained in the proviso to sub section 6 of Section 12 of the Orissa Sales Tax Act 1947 was an independent legislative provision. Same view was taken of the proviso (b) to Section 4(3) (i) of Indian Income Tax Act 1922 (See I.T. Commissioner Vs. P. Krishna Warriar (AIR 1965 SC 59). In Commissioner of Stamp Duties v. Atwill and Others (1973 (1) All England Report 579) the Privy Council read the proviso to Section 102(2) (a) of the Stamp Duties Act of New South Wales as a substantive provision. P. Krishna Warriar (AIR 1965 SC 59). In Commissioner of Stamp Duties v. Atwill and Others (1973 (1) All England Report 579) the Privy Council read the proviso to Section 102(2) (a) of the Stamp Duties Act of New South Wales as a substantive provision. Thus we have to go by the plain language used in the section to understand as to what is the effect and purpose of enactment. On the plaint language of the proviso we are satisfied that the proviso not only makes it clear that no appeal would lie from an order passed under Sec. 14 but it confers right of revision to the party aggrieved by an order under Sec. 14 to the same Forum to which appeal would ordinarily lie against the decision of the said Munsiff. In the decision reported in Khalid vs. Pathmmakutty Umma (1980 KLT 460) this Court has considered the scope of the proviso to Section 14 of the Kerala Buildings (Lease and Rent Control) Act, 1965. A revision was filed under Sec. 115 of the C.P.C. before this Court against an order passed by the Munsiff under Sec.14 of the Rent Control Act. After referring to the relevant provisions contained in Sec. 14 of the said Act and also under Order XXI Rule 2(1) CPC this Court held as follows: “As The Principal Munsiff is to execute the order for eviction as if it were a decree, he as execution court can record adjustment out of court of the order. The order will be one passed under S.14 of the Act. The order is an order passed in execution. The powers to be exercised by the Munsiff under the section are only that of an execution court. So, the proviso to S.14 of the Act will take in such an order passed by the Munsiff. In that case, the revision lies to the district Court and not to the High Court. So, these revisions filed before this Court are not maintainable. 6. It is true that there is no provision under the Kerala Buildings (Lease and Rent Control) Act providing for the manner in which and the grounds on which such revision could be filed and disposed of. But a provision in the same statute namely, section 20 of the Kerala Buildings (Lease and Rent Control) Act provides for revision against the order passed by the appellate authority. But a provision in the same statute namely, section 20 of the Kerala Buildings (Lease and Rent Control) Act provides for revision against the order passed by the appellate authority. Under Sec.20 the revisional authority can call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings, and may pass such order in reference thereto. 7. Thus the Legislature while enacting Section 14 of the Rent Control Act is fully aware of the power of revision contained under Sec. 20 and also the power of the revisional authority as provided for under such section. In the absence of anything contained in the Statute and in the absence of anything otherwise provided, it is to be implied that a revisional authority under proviso to Sec.14 of the Act would exercise the power of revision so as to satisfy itself as to the legality, regularity or propriety of the order sought to be reversed. In this view of the matter we hold that the petitioner has got a right of revision as provided for under the proviso to Section 14 to the same Forum to which an appeal would ordinarily lie against the decision of the Munsiff and if such a revision is filed, the revisional authority for the purpose of satisfying itself as to the legality, regularity or propriety would exercise such powers and would pass appropriate orders. It is now settled by a catena of decisions that existence of alternative remedy cannot be a bar for the exercise of Constitutional remedies under Articles 226 and 227 of the Constitutional Constitution of India. At the same time by way of self imposed restriction if there is an effective alternative remedy this court will not be inclined to exercise such extra ordinary jurisdiction rather relegate the parties to the alternate remedies provided under the Statute. Petitioner is having an alternate remedy. We therefore decline to interfere with the order passed in exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India. Subject to the above observations the writ petition is dismissed. In the view we have taken we are not expressing any opinion on the merits of the contentions raised by the parties. We therefore decline to interfere with the order passed in exercise of the extra ordinary jurisdiction under Article 227 of the Constitution of India. Subject to the above observations the writ petition is dismissed. In the view we have taken we are not expressing any opinion on the merits of the contentions raised by the parties. In the absence of any provision regarding time limit within which revision is to be filed such revisions are to be normally filed within a reasonable time. In case the revision is filed by the petitioner within a period of two months from today, the revisional authority shall consider the same on merits and dispose of it in accordance with law.