Prayer: C.R.P (NPD) No. 1181 of 2011: Civil Revision Petition filed against the Common judgment and decree dated 20.10.2009 made in R.C.A No. 40 of 2009 on the file of the Subordinate Judge (Rent Control Appellate Authority), Tambaram.
C.R.P (NPD) No. 1182 of 2011: Civil Revision Petition filed against the Common judgment and decree dated 20.10.2009 made in R.C.A No. 41 of 2009 on the file of the Subordinate Judge (Rent Control Appellate Authority), Tambaram.
JUDGMENT
1. The Civil Revision Petition in C.R.P (NPD). No. 1181 of 2011 has been preferred challenging the Common judgment and decree, dated 20.10.2009 made in R.C.A No. 40 of 2009 on the file of the Rent Control Appellate Authority/Subordinate Judge, Tambaram, confirming the order and decretal order, dated 24.4.2009 made in R.C.O.P No. 56 of 2001 on the file of the Rent Controller/District Munsif Court, Alandur.
2. The Civil Revision Petition in C.R.P (NPD). No. 1182 of 2011 has been preferred challenging the common judgment and decree dated 20.10.2009 made in R.C.A No. 41 of 2009 on the file of the Rent Control Appellate Authority/Subordinate Judge, Tambaram, confirming the order and decretal order, dated 24.4.2009 made in M.P No. 336 of 2008 in R.C.O.P No. 56 of 2001 on the file of the Rent Controller/District Munsif Court, Alandur.
3. It is seen that the Miscellaneous Petition in M.P No. 336 of 2008 was filed by the Respondent herein under Section 11(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act in R.C.O.P No. 56 of 2001 before the learned Rent Controller to direct the Petitioner herein to pay the arrears of rent for the period from December 2001 to October 2008 for 83 months at the rate of Rs. 225/- per month amounting to Rs. 18,675/-.
4. As per the order, dated 2.4.2009, the learned Rent Controller allowed the Petition, directing the Petitioner herein to deposit a sum of Rs. 19,575/- towards arrears of rent for the period from December 2001 to February 2009 and also for the subsequent period at the rate of Rs. 225/- per month on or before 23.4.2009 It was also made clear by the learned Rent Controller that the non-compliance of the order would result in stoppage of further proceedings and lead to eviction of the Petitioner/Tenant. As per the order dated 24.3.2009, eviction was ordered under Section 10(2)(i)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It is not in dispute that the Petitioner herein has not preferred an Appeal within 30 days and the Revision within another 30 days.
5. According to the learned Counsel appearing for the Respondent, the Revision has been preferred after 67 days and therefore, the Revision itself would not be maintainable in view of Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and further, the Petitioner has filed these Petitions under Article 227 of Constitution of India, hence, the Petitions are not legally maintainable. The Revision in C.R.P (NPD). No. 1182 of 2011 relating to the judgment and decree passed in R.C.A No. 41 of 2009 on the file of the Rent Control Appellate Authority Subordinate Judge, Tambaram relating to R.C.O.P No. 56 of 2001. The C.R.P (NPD). No. 1181 of 2011 relates to R.C.A No. 40 of 2009 on the file of the Appellate Authority relating to the very same R.C.O.P No. 56 of 2001 of the said Court for a different period.
6. According to the learned Counsel appearing for the Respondent, there was wilful default in payment of rent committed by the Revision Petitioner/Tenant and therefore, eviction was ordered by the Courts below. Since the earlier Petition filed by the Revision Petitioner challenging the eviction could not be maintainable, the subsequent Revision preferred by the Petitioner/Tenant is also not maintainable, in view of the wilful default concurrently found by the Courts below.
7. Per contra, the learned Counsel appearing for the Petitioner/Tenant submitted that even if the Revision Petition in C.R.P No. 1181 of 2011 is held to be not maintainable, in view of the fact that the same was filed after the period of limitation, the other C.R.P No. 1182 of 2011 would maintainable.
8. Learned Counsel appearing for the Petitioner submitted that the Revision has been preferred under Article 226 of the Constitution of India, in view of the fact that the Revision could not be preferred under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, after the expiry of 60 days. The learned Counsel further submitted that the Revision Petition has to be allowed and in support of his contention, the learned Counsel for the Petitioner relied on the decision of the Hon'ble Supreme Court in M.P State Agro Industries Development Corporation Limited v. Jahan Khan, (2007) 10 SCC 88, wherein, the Hon'ble Supreme Court has laid down the ratio and the scope of Articles 226 & 227 of the Constitution of India, even in case of alternative remedy available to the Petitioner. Learned Counsel for the Petitioner argued that an alternative remedy does not operate as a bar to exercise the jurisdiction of a Writ Court, relating to cases of judicial review in nature (1) seeking enforcement of a fundamental right (ii) where there is failure of natural justice, and (iii) where the impugned order or proceeding is wholly without jurisdiction or the ultra vires of an Act is challenged.
9. In appropriate cases, in spite of availability of an alternative remedy, Writ Court may still exercise its discretionary jurisdiction of judicial review in three contingencies, namely, (i) where the Writ Petitioner seeks enforcement of any of the fundamental right; (ii) where there is failure of Principles of Natural Justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the ultra vires of an Act is under challenge. In this regard, it has been made clear by the Hon'ble Apex Court that in the circumstances stated above, alternate remedy available does not operate as bar, to meet the ends of justice and file Writ Petition.
10. Learned Counsel for the Revision Petitioner submitted that the analogy for filing Writ Petition is applicable for maintaining Revision Petition under Article 227 of the Constitution of India. There is no dispute with regard to the applicability to the analogy with reference to the alternate remedy available in preferring Revision.
11. However, Mr. G. Govindarajan, learned Counsel for the Respondent submitted that the aforesaid decision cited by the learned Counsel for the Petitioner is not applicable to the facts and circumstances of the present case, as neither there is any enforcement of fundamental right involved in the Revision preferred by the Petitioner herein, nor there is any violation of Principles of Natural Justice. It cannot be disputed that reasonable opportunity was given to the Petitioner by the Court below, before passing the impugned order and similarly, there is no violation of fundamental right involved in this Revision, hence, the Petitioner is not entitled to maintain the Revision under Article 227 of the Constitution ignoring Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act and also in order to over come the delay caused by the Petitioner.
12. Learned Counsel for the Respondent further contended that it cannot be said that the impugned order was passed by the Court below without jurisdiction or failure in exercising its jurisdiction, so vested with the Court and therefore, the decision cited by the learned Counsel for the Petitioner is not applicable to the facts and circumstances of the case. In support of his contention, learned Counsel for the Respondent relied on the decision in United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110, wherein the Hon'ble Apex Court has held as follows:
“54. In Modern Industries v. SAIL, the Court held that where the remedy was available under the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, the High Court was not justified in entertaining a Petition under Article 226 of the Constitution.
55. It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of Banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”
13. In furtherance of Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 it was held that the aggrieved party could seek only an efficacious alternative remedy and cannot resort to file Writ Petition, invoking Article 226 of the Constitution. In the said judgment, the Apex Court has ruled that though a provision under an Act cannot expressly oust the jurisdiction of this Court conferred under Articles 226 & 227 of the Constitution of India, nevertheless, when there is efficacious alternate remedy available, judicial prudence demands that the Court shall refrain from exercising jurisdiction under the said constitutional provisions, unless otherwise to meet the ends of justice.
14. In Indari Ammal, Tuticorin District v. Andappan, Tuticorin District, 2006 (1) MLJ 17, this Court has held that on a combined reading of Sections 23 & 25 of the Act would make it clear that as against an order passed by the Rent Controller, only Appeal has to be filed before the Appellate Authority and the order passed by Rent Controller cannot be challenged by invoking Article 227 of the Constitution of India. If each and every order of the Rent Controller is to be challenged invoking Article 227 of the Constitution of India, Sections 23 & 25 of the Act would be rendered nugatory. In view of the efficacious alternative remedy available, it was held that the Revision under Article 227 of the Constitution was not maintainable.
15. In S. Rajini v. Idol Of Arulmigu Panchavaneswaraswamy Koil Devasthanam, rep. by Its Executive Officer, 1998 (2) CTC 567, this Court (AGJ) in paragraph 6 has held as follows:
“The provisions contained under Article 227 of the Constitution of India is not meant to override the provisions under specific enactment and destroy the rights of the parties acquired under valid decree. Accepting such a claim would amount to allowing the process of law subterfuged.”
16. It has been made clear by the Hon'ble Apex Court in Surinder Singh v. Central Government, (1986) 4 SCC 667, as follows:
“Normally whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it. In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order. It is therefore improper to quash an order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.”
17. In Annapoorni v. Janai, 1995 (1) LW 141, this Court has invoked ‘suo moto’ the power under Article 227 of the Constitution of India to set aside the judgment and decree of the lower Court, in view of the fact that the decree suffers from error of law apparent on the face of record. As per the decision, it is seen that the Plaintiff therein had filed a Suit for declaration of her title to the property on the ground that the suit property was purchased from and out of her own earnings and the Plaintiff was admittedly a Class I heir under the Hindu Succession Act and that was resisted by the Defendant therein, challenging the status of the Plaintiff as wife of the deceased. The Suit was decreed ex parte and the Defendant filed an Application to set aside the ex parte decree, that was allowed. Again, when the Suit was posted for trial, the Defendant remained absent and was set ex parte and again, the Suit was decreed ex parte. A third party filed a Suit against the Plaintiff and the Defendant for declaration of his title to the suit property and for recovery of possession. The said Suit was dismissed long after the disposal of the earlier Suit. The Plaintiff took execution proceedings for delivery of possession, pursuant to the decree obtained by her, that was resisted by the Defendant. When the Civil Revision Petition was being heard, a new argument was raised saying that even the Defendant who is the mother of the husband of the Plaintiff is also Class I heir and therefore, the decree declaring the Plaintiff having exclusive title could not be sustained, since the mother of the deceased was also a class I legal heir. In view of the undisputed fact, after perusing the records, Hon'ble Mr. Justice M. Srinivasan, as he then was, held that the Defendant is also entitled to one half share of the property as a Class I heir and declared her right of one half of the share in the suit property and directed to pass a final decree on that basis. It is well settled that the Court can exercise suo moto power conferred under Article 227, based on the undisputed fact, only to meet the ends of justice, since law is only a servant and Justice is the ultimate Master, as per the wisdom of jurisprudence.
18. In the instant case, it has been made clear that the Rent Control Original Petition in R.C.O.P No. 56 of 2001 was filed under Section 10(2)(i) (ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960, on the ground of wilful default in payment of rent to the Landlord. In M.P No. 336 of 2008 in R.C.O.P No. 56 of 2001, dated 2.4.2009, the Petitioner herein was directed to pay rent for the period of 9 years and one month to the tune of Rs. 24,525/- within one month from the date of decree i.e 20.10.2008 It was made clear that the non-compliance of the conditional order would result in stoppage of the rent control proceeding and the Landlord would be at liberty to take appropriate steps for evicting the tenant summarily, as per the Rent Control Act. The Revision Petitioner/Tenant had failed to comply with the order, hence, the Petition filed by the Respondent/Landlord was allowed.
19. The eviction order passed by the learned Rent Controller was confirmed by the learned Rent Control Appellate Authority, however, the Petitioner herein has not preferred any Revision Petition within 60 days as per Section 25 of the Rent Control Act for the reasons best known to him.
20. It is not in dispute that it has been made clear by the Hon'ble Apex Court that efficacious alternate remedy does not operate as a bar to exercise the jurisdiction of Writ Court and Judicial review is a basic structure of the Constitution. Availability of an alternate remedy cannot be a bar in a case of enforcement of a fundamental right and where there is failure in following Principles of Natural Justice and the impugned order has been passed wholly without jurisdiction or against law. It has been made crystal clear that the extra ordinary power is vested with this Court, to maintain Revision Petitions under Article 227 of the Constitution of India, only to meet the ends of justice and not for bye-passing any law.
20. In the instant case, it is an admitted fact that the Petitioner herein is not enforcing his fundamental right in the Revision Petition. Similarly, there is no violation of Principle of Natural Justice by the impugned order, as the Petitioner herein was a party to the proceeding and was contesting the matter and he had the right to prefer Revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act within time. The Rent Controller as well as the Rent Control Appellate Authority have exercised their jurisdiction as per law and therefore, it cannot be said that the impugned order was passed without jurisdiction by the Courts below, hence, the impugned order cannot be construed as illegal. It is also not in dispute that neither the Court below nor the Respondent is responsible for causing the delay in filing the Revision Petition under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, after the expiry of the time limit, stipulated in the Act. Hence, the Petitioner can not file the Revision Petition under Article 227 of the Constitution of India, on the ground of his own default and the delay caused by him. Hence, the Revision Petition in CRP. No. 1181 of 2011 is not maintainable and the same is liable to be dismissed.
21. The other Civil Revision Petition in C.R.P (NPD). No. 1182 of 2011 has been filed under Section 25 (1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the order of eviction of the Tenant on the ground of wilful default committed for the subsequent period and therefore, the Petitioner cannot take different stand and a new defence for the default stating that the subsequent Revision is maintainable, in view of the concurrent finding that there was huge arrears of rent. It is seen that the default in payment of rent has been established clearly. As the said C.R.P relating to a subsequent period for arrears of rent, despite the fact that the earlier default in payment has been established by a concurrent finding of the Courts below, the plea of the Revision Petitioner/Tenant has no legs to stand in the Revision relating to the subsequent period. In the above said circumstances, the Revision Petition for the subsequent period is also liable to be dismissed as not legally sustainable.
22. In the result, both Civil Revision Petitions are dismissed without costs. Consequently, connected Miscellaneous Petition is also dismissed.
23. The Petitioner/Tenant is directed to vacate the premises in question within a period of one month from the date of receipt of a copy of this order.