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Judgment
Rajagopala Ayyangar, J.—This is a petition for the issue of a writ of certiorari to call for the records, and quash the order of Government of
Madras in G.O. Ms. No. 362 Public (General C) Department, dated 14th February 1951, relating to the building No. 50, T.S.V. Koil Street,
Mylapore, Madras. The petitioners are the owners of the said building. In or about September 1939, this was leased to one Natesa Mudaliar the
second respondent in this petition, who was the manager of a higher grade elementary school. The rent originally fixed was Rs. 75 per month.
Later, it was increased to Rs. 110. An agreement of lease was executed in 1948, under which the tenant was entitled to remain in possession for a
period of three years from August 1948.
On the allegation that the second respondent had sub-let the premises to certain other institutions, the petitioners filed an application for eviction
under S. 7 (2) (6) (a) of the Madras Buildings Lease and Rent Control Act of 1949. The Rent Controller, by an order dated 2nd September
1950, ordered eviction, upholding the contention of the petitioners that there had been sub-letting by the tenant contrary to the provisions of the
Act. Against the said order of eviction, the tenant filed an appeal, H.R.A. No. 1079 of 1950 in the Court of Small Causes, Madras.
While the appeal was pending before the Small Causes Court, the second respondent approached the Government of Madras with an
application to exempt the aforesaid building from the operation of the Madras Buildings Lease and Rent Control Act of 1949. The Government
thereupon passed an older exempting the building from the operations of S. 7 (2) and S. 9 of the said Act. It is this order of the Government, dated
14th February 1951, under S. 13 of Madras Act XXV of 1949 that is challenged as illegal and ultra vires by the petitioners in the writ petition.
Meanwhile, the appeal before the Small Cause Court, Madras, was heard and judgment was reserved and delivered on 20th February 1951.
The learned Small Cause judge allowed the appeal of the second respondent and held that there was no proof that there was sub-letting. Against
this order of the Small Cause Judge allowing the appeal, the petitioners have filed C.R.P. No. 1513 of 1951, which has been directed to be posted
along with the writ petition for hearing.
If the contention urged on behalf of the petitioners by their learned Counsel is accepted, and the order of Government exempting the building
from the operation of S. 7 (2) was bad, the Small Cause Court would have jurisdiction to proceed on the merits with the appeal H.R.A. No. 1079
of 1950, and determine whether there has or has not been a sub-letting in violation of the Act. The learned Counsel argued before me that the
order of the appellate authority was incorrect, but I do not see any error in it, or in the reasoning by which it held the sub-letting not established.
There are no merits in this civil revision petition, which is dismissed with costs. In this view, the question whether the order of Government
exempting the building is ultra vires or not is purely academic. But, as the point has been argued, I think it proper that I should express my opinion
about this also.
The constitutionality of the power of Government to grant the exemption under S. 13 has been upheld by a Bench of this Court and
consequently the learned Counsel for the petitioners did not attempt to re-argue the question. A point, however, still remains to be decided as to
the pro. per meaning of the expression ""all or any of the provisions of the Act"" occurring in the last portion of S. 13. In the present case, the order
of the Government is, as stated before, exempting this building from the operation of S. 7 (2) and S. 9 of the Act. The learned Counsel for the
petitioners contends that the effect of the order of Government is that S. 7 (1) of the Act, which provides that ""a tenant shall not be evicted whether
in execution of a decree or otherwise except in accordance with the provisions of this section,'''' still remains applicable to this building. The result
of this is that, while the landlord is prevented by reason of S. 7 (2) not being applicable to the building from enforcing his rights under the Act, he is
prevented from exercising any rights outside the Act, under the General Law, as contained in the Transfer of Properly Act, by the provisions of S.
7 (1) still being applicable. In other words, the landlord is prevented from having recourse either to the special law enacted by Act XXV of 1949,
or the general law as contained in the Transfer of Property Act. On the basis of this, it is contended that the power of exemption from all or any of
the provisions of the Act does not include a power to bring into operation this anomalous state of affairs by making applicable truncated provisions
of the Act to a given case.
I consider the objection well-founded. The power to extend any of the provisions of the Act cannot enable Government to effect a partial
application of the Act to any given situation. The decision in MaMi and another v. Kallander Ammal 54 I.A. 23 = 6 Rang. 7 = 25 L.W. 679, is
instructive in this context. By S. 1 of the Transfer of Property Act, 1882 it was provided that the Local Government may, by notification, extend
the Act or any part of it to a particular area. The Local Government of Lower Burma notified in 1904 various sections of the Act including S. 123,
but not S. 129 to the Pegu District in lower Burma. S. 123 of the Transfer of Property Act enacts:
For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or of behalf of the
donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected, either by a registered instrument signed as aforesaid or by
delivery. Such delivery may be made in the same way as goods sold may be delivered.
The section does not make delivery as essential to complete a gift of immovable property. S. 129 of the Transfer of Property Act enacts :
Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of
Muhammadan law.
As S. 129 was not extended but S. 123 has been, the question was whether the rule of the Muhammadan law which requires delivery to be
effected in order to complete a gift was part of the law applicable to transfers by Muhammadans in Pegu District. The High Court at Rangoon held
that, by reason of the notifications Issued by the Government above mentioned, the rule requiring delivery as a condition for the validity of a gift
under the Muhammadan law was not applicable in Pegu. Their Lordships of the Privy Council dealing with this contention said this :
The power to extend any part of the Act to Burma did not authorise the Local Government to extend particular sections of the not so as to give
those sections a different operation from that which they had in the Act itself read as a whole and to abrogate in the area to which the extension
applied a rule of Mabomedan law till then in force there, as to which the legislature had expressly provided that it was to remain unaffected by the
Act.
The power of the Government to exempt from the operation of all or any of the provisions of the Act must be held to designate a power to so
exempt as not to give a truncated effect to the provisions which still continue to apply to the subject. In this view I cannot uphold the order of
Government dated 14th February 1931 as a proper exercise of the power vested in them by S. 13 of the Act XXV of 1949. As I have already
stated, any order in the writ petition is purely academic and, in the circumstances, with the expression of my opinion on the point raised, I direct no
orders are necessary in the writ petition, which is dismissed.