R PURUSHOTHAMAN Vs. K B VIJAYALAKSHMI

JUDGEMENT

(1.) THIS revision under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Rent Control Act), arises on a point of jurisdiction of the appellate authority in a matter which arises in Kanyakumari district. The petition for eviction was filed by a landlady before the Rent Controller, in respect of a building, situate in a place which can properly be described as now being within the territorial jurisdiction of the Sub -Court, Kuzhithurai. The petition was dismissed by the Rent Controller. The landlady appealed before the learned Subordinate Judge, Kuzhithurai, on the tacit assumption that the said authority was the appellate authority, having jurisdiction to hear and determine her appeal against the order of the Rent Controller. In that appeal an objection, in some form, was raised by the tenant before the Subordinate Judge, Kuzhithurai, questioning his jurisdiction to hear and determine the appeal of the landlady as an appellate authority duly constituted under the Act. The appellate authority however without going into this aspect of jurisdiction, dealt with the appeal on merits, allowed it and set aside the order of the dismissal passed by the Rent Controller. That order has been brought before this court by the tenant in revision. Mr. Srinivasan, learned counsel for the tenant raised in the forefront, an objection to the jurisdiction of the learned Subordinate Judge, Kuzhithurai, to act as the appellate authority in the appeal filed by the landlady against the order passed by the Rent Controller.

(2.) LEARNED counsel's argument is that Kuzhithurai Sub -Court was constituted by a notification in G.O.Ms. No.1031, Home (CTS -III) department, dated 7 -4 -1977, and the territorial jurisdiction of the subordinate Judge, Kuzhithurai, extended over the area, which lies within the jurisdiction of the Kuzhithurai Munsiff. The Government notification constituting the Sub Court, Kuzhithurai inter alia observed that "orders empowering the Subordinate Judge, Kuzhithurai to try cases under the Tamil Nadu Buildings, Lease and Rent Control Act, will be issued separately." At a stage in his argument, Mr. Srinivasan relied on this last paragraph in the Government Order to press home his contention that it clearly indicated that the learned Subordinate Judge, Kuzhithurai, had no appellate powers under the Act and that they had really reserved such a matter to be dealt with separately. It is common ground between the parties, that on the date of the notification creating the Sub -Court, Kuzhithurai or immediately thereafter or at any time thereafter till the present day no notification has been issued by the State Government under Sec.23 of the Rent Control Act, under which the learned Subordinate Judge, Kuzhithurai, had been eo nomine conferred with the powers of the appellate authority within the contemplation of S.23 of the Act. While the Government notification created the Sub -Court, Kuzhithurai and defined its jurisdiction under the Civil Courts Act, the reservation contained therein about the conferring of jurisdiction on the learned Subordinate Judge, Kuzhithurai, under the Rent Control Act, cannot be given any significance, in terms of the exercise or non -exercise of the Government's powers under S.23 of the Act. According to learned counsel's submission all that one could see in these proceedings of the Government was that when the learned Subordinate Judge was appointed to take charge of the newly created Sub -Court, Kuzhithurai, occasion was not at the same time utilised by the State Government to invest him with appellate jurisdiction under the Rent Control Act.

(3.) MR . Srinivasan, on the other hand, submitted for the tenant that this kind of consideration of the notification of 1973 is not tenable. He said that the notification has to be construed not in an isolated fashion, on the terms contained in therein, but in the context of and in association with the enabling power under S.23 of the Act. He pointed out that under S.23 of the Act, the Government is empowered to confer the powers of appellate authorities for the purpose of the Act only on such officers and authorities as they think fit and with reference to such areas or to such classes of cases as may be specified in the order. These descriptive words relating to the power of the State Government to confer appellate jurisdiction really required that the State Government must have at the time it decides to confer such powers before it the authorities and officers concerned upon whom it may think fit to confer such appellate power. In other words, the argument of Mr. Srinivasan was that in order that the State Government may properly exercise its power of appointment of appellate authorities by notification, the authorities or officers concerned must already pre -exist at the relevant moment on whom the Government might confer such powers. Mr. Srinivasan conceded that the appellate jurisdiction may be conferred under S.23 of the Act, on authorities and officers by description but he urged that it is essential that those described by reference to their officers or the positions of authority, must be in existence as on the date of the notification. He urged that the power cannot be conferred by the State Government on or authorities who are yet to come into being. This being the nature and scope of the Government's power of notifying appellate authority under the Act, the notification which the Government had already issued on 30 -6 -1973, in II No.3006(e) of 1973, must be construed only on the basis that it had been issued in the proper exercise of the State Governments' enabling power under S.23 of the Act. On that construction according to learned counsel, the expression 'Subordinate Judges within their respective jurisdiction' in Kanyakumari district can only have reference to such Subordinate Judges within Kanyakumari district as were in existence on the date of the notification. The subsequent creation of new Sub Courts or the appointment of new Subordinate Judges to man those courts could not be within the contemplation of this notification even factually let alone legally having regard to the language of S.23 of the Act.