A SHYAM SUNDER Vs. BUILDING MOSQUE WAKF

JUDGEMENT

(1.) This revision Petition, at the instance of the defendant, arises out of an order declining to consider issue No. 1 at the first instance. The plaintiff filed a suit for ejecting the defendant from the suit property! on the ground that the tenant committed nuisance. One of the pleas of the defendant is that the Court has no jurisdiction to try the suit as the ejectment found upon commission of nuisance can be agitated before the Rent Controller under the Rent Control Act and G.O. Ms. No. 575/II, dated 12-5-1961 exempting the buildings belonging to the Muslim religious and charitable institutions from the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act cannot be availed of. The Court below held that the Rent Control Act is not applicable in view of the exemption and therefore the question of considering issue No. 1 at the first instance does not arise. Aggrieved by this order, this revision petition is filed.

(2.) The learned counsel for the petitioner contends that the adjudication of the default stated to have been committed by the tenant can be canvassed before the forum constituted under the Rent Control Act and for the said relief the suit is not maintainable notwithstanding the G. 0. exempting the buildings of the plaintiff from the operation of Rent Control Act. The learned counsel for the respondent contends that in view of the G.O. the question of invoking the provisions of Rent Control Act does not arise.

(3.) The learned counsel for the petitioner relied upon a decision of this Court reported in Susheela Bai v. Chandulal T. Parikh (1) 1975 ALT 133. This decision arose out of the writ petition to quash the proceedings in G.O. Ms. 933 of 1971, dated 16th pctober, 1971 exempting a building bearing No. 155 on the Rashtrapathi Road, Secunderabad from the provisions of Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act on the assumption that the Rent Control Act cannot be availed of as the building is non-residential. In the context of considering this aspect, the Division Bench of this Court comprising Sambasiva Rao and Raghuvir, JJ, held as follows :- "We do not think that section 26, despite the non-obstante clause is intended by the Legislature to confer unbridled power on the Government to exempt any building or class of buildings from all or any of the provisions of the Act. The very purpose of the Act is to regulate the leasing of buildings, the control of rent thereof and the prevention of unreasonable, eviction qf tenants therefrom.. Certainly, a provision of such enactment cannot be permitted to be utilised for defeating these purposes. In other words, if a statute has provided for securing a relief in a particular manner, that cannot be given a go-by and recourse cannot be taken to the power of exemption, thereby defeating the provisions of the statute and the purposes for which the Act has been made." In Dr (Miss) J V Raj v Dr P Siva Reddy (2) 1966 (1) A L T 79 subsequent to the order of the appellate Court reversing the order of eviction passed by the primary authority the exemption under Sec 26 of the Act was given by the Government at the instance of the landlord. While considering the contention that the Government by granting exemption over ruled the decision of this Court, Jaganmohan Reddy, J, held that the Government has unfettered power to grant exemption and it cannot be considered as over ruling the decision. The decision in Abdul Subhan Sahib & Sons v State of Madras (3) 1959 (2) M L J 387 turns upon the exercise of power of exemption on the facts and circumstances of that case.