PRABHUDAS DAMODAR KOTECHA Vs. MANHARBALA JERAM DAMODAR

JUDGEMENT

(1.) HEARD at length. The petitioner has approached this Court in writ jurisdiction alleging that a substantial question of law as to the interpretation of the Constitution of India under Article 228 and to hold that section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter referred to as the "said Act") which was amended by Maharashtra Act No. XIX of 1976 to the extent it confers jurisdiction upon the Small Causes Court to entertain and try the suit relating to recovery of possession of building or part of it given on leave and licence as void. Consequent thereto the petitioner seeks that this Court hear the appeal and set aside the eviction decree dated 7-2-1997 passed in L. E. and C. Suit No. 430/583 of 1978 by Small Causes Court at Bombay.

(2.) THE eviction suit was filed in the year 1978 by the respondent Nos. 1 and 2 and one Jeram Damodar Kotecha for recovery of possession of flat No. 6, Ram Mahal, Dinsha Vaccha Road, Mumbai, under section 41 of the said Act. The suit was filed for declaration that the original defendants were guests of the Hindu undivided family of Jeram Damodar Kotecha and the original defendants were trespassers in respect of the said premises. This suit was decreed on 17-2-1997. Against this decree, the petitioner filed Appeal No. 319 of 1997 which was admitted on 14-7-1997. In this appeal, Application No. 1865 of 1998 was filed on 20th April 1998 that the issue of jurisdiction be tried as a preliminary issue. By order dated 14-10-1998, the said application was dismissed. The petitioner filed Writ Petition No. 2321 of 1998 which was rejected by this Court by order dated 8-12-1998. In the meantime, on 2-7-1998 the petitioner filed an application dated 30-6-1998 for amendment of Memo of Appeal by adding 50 more grounds. The petitioner again moved Application No. 5557 of 1998 dated 9-10-1998 for addition of 103 more grounds to the Memo of Appeal. Then the petitioner filed two more Application Nos. 41 of 1999 dated 7-1-1999 and 43 of 1999 dated 11-1-1999 for reference and preliminary issue of reference, respectively. Thereafter, the petitioner presented two applications dated 16-9-1999 and 20-9-1999 for amending Memo of Appeal and framing points for determination. Thereafter, Application No. 5010 of 1999 dated 4-10-1999 was filed on behalf of one Dilip K. Kotecha for joining him as the appellant No. 6 and other respondent Nos. 3 to 26. The petitioner then filed memo of review dated 13-10-1999 which was dismissed by the Appellate Bench of the Small Causes Court. Order for expedition of the appeal was passed on 2-7-1998 in view of the fact that the original plaintiff No. 1 was 79 years old. On 3-9-1998 the appeal was ordered to be heard on day-to-day basis, but the hearing was delayed on account of various applications by the petitioner. Ultimately, the petitioner sought adjournment on the ground that the writ petition has been filed.

(3.) THE learned advocate for the petitioner, after drawing our attention to the scope of section 113 of the C. P. C. and Article 228 of the Constitution of India, has submitted that section 41 of the said Act is void and consequently eviction suit under section 41 of the said Act could not be filed in Small Causes Court at Bombay as the said Court had no jurisdiction to pass eviction decree. According to the learned Advocate for the petitioner, Maharashtra Act No. XIX of 1976 neither falls under Entry 18 List II of Seventh Schedule to the Constitution nor under Entry 6 of List III of Seventh Schedule to the Constitution and, as such, Maharashtra Act No. XIX of 1976 could neither be enacted under Entry 18 List II or Entry 6 List III of Seventh Schedule. Therefore, according to the learned Advocate for the petitioner, the said Maharashtra Act No. XIX of 1976 is beyond the legislative competence and is void. It is also urged by the learned Advocate for the petitioner that the Governor had no jurisdiction to reserve for consideration the said Bill amending the provisions of Chapter VII of the said Act except for curing the repugnancy as provided under Article 254 (2) of the Constitution. It is the next submitted that in view of Article 200 of the Constitution, the Governor ought not to have reserved the bill for consideration of the President unless there was legislative mandate. As there was no such mandate, there was no valid assent and the Act was invalid. In support of his submission, reliance has been placed by him on the decisions in (Ganga Pratap v. Allahabad Bank Ltd.), A. I. R. 1958 S. C. 293, (Inamdars of Sulhnagar v. Govt. of Andhra Pradesh), A. I. R. 1961 Andhra Pradesh 523, (Indu Bhusan Bose v. Rama Sundari Devi and another), 1970 (1) S. C. R. 443, (Ranadeb v. Land Acquisition Judge), A. I. R. 1971 Calcutta 368 and (P. Textiles Ltd. v. A. P. S. Financial Corpn.), A. I. R. 1971 Andhra Pradesh 339.