AI Structured Summary
Not yet generated for this judgment
Judgment
Hon''ble Mr. S. Obul Reddy, Chief Justice
In these writ petitions, the vires of Section 11 (1) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act is questioned on the ground that the provisions of the said section are violative of the fundamental rights guaranteed to a citizen under Article 14 and 19 (1) (f) of the Constitution. The petitioners are all tenants. It would suffice for the purpose of disposal of these writ petitions, if we refer to the facts stated in Writ Petition No. 4380 of 1974. The petitioner therein is a tenant under the landlord, third respondent, and he resisted an application filed by the third respondent u/s 10 (2) (i) of the Act for his eviction from the building occupied by him alleging that the petitioner had defaulted payment of rents from 1-8-1963 to the end of April, 1974. An eviction order was passed by the Rent Controller on the ground that it has been established that the petitioner had committed wilful default for the period mentioned by the third respondent. The petitioner carried that order in appeal to the Court of the Chief Judge, Small Causes Court, Hyderabad, and the appeal is still pending.
The writ petitions are filed challenging the provisions of section 11 (1) on two grounds :
(1) that the condition imposed that the tenant shall not be entitled to contest the application or to prefer an appeal against an order made by the Controller on the application unless he had paid to the landlord or deposited with the controller or the appellate authority, as the case may be, all arrears of rent upto date, takes away the statutory right of appeal given to the tenant u/s 20 ; and
(2) that all arrears of rent due could only be arrears of rent which are not time--barred, therefore it is not open to the Rent Controller or the appellate authority to make it obligatory on the part of the tenant in order to contest the application before the Controller or to prefer an appeal that he should deposit all arrears of rent due including time--barred rents in respect of the building.
It is not in dispute that the tenant in this case fell into arrears and had not paid the rents agreed upon by him for ten years. What Mr. Ugle and Mr. Narasaiah, learned counsel appearing for the petitioners contend is that in the absence of any provision in Section 20, making it premptory on the part of the tenant to deposit rent as stated in Sec. 11 (1), the substantive right of appeal conferred upon a tenant u/s 20 cannot be taken away ; in other words, it is their case that it is an unreasonable restriction on their statutory right to prefer an appeal u/s 20. Section 11 (1) and 20 (1) may therefore be read.
Section 11. Payment of deposit of rent during the pendency of proceedings for eviction :--
1) No tenant against whom an application for eviction has been made by landlord u/s 10, shall be entitled to contest the application before the Controller under that section, or to prefer any appeal u/s 20 against any order made by the Controller on the application, unless he has paid to the landlord, or deposits with the Controller or the appellate authority, as the case may be, all arrears of rent due respect of the building up to the date of payment or deposit and continues to pay or deposit any rent which may subsequently become due in respect of the building until the termination of the proceedings before the Controller or the appellate authority, as the case may be.
Section 20:- Appeal:-
1) Any person aggrieved by an order passed by the Controller may, within thirty days, from the date of such order, prefer an appeal in writing to the Chief Judge, Small Causes Court in the cities of Hyderabad and Secunderabad and else where to the Subordinate Judge, or if there are more than one Subordinate Judge to the Principal Subordinate Judge having original jurisdiction over the area aforesaid. In computing the said period of thirty days, the time taken to obtain a certified copy of the order appealed against shall be excluded.
It should be borne in mind that Section 11 specifically deals with payment of deposit of rent by a tenant during the pendency of eviction proceedings. Section 20 confers a right of appeal on any person aggrieved by an order passed by the Controller to be exercised within the period of limitation specified thereon. That is to say, a landlord aggrieved by an order passed by the Controller is also, given a right of appeal u/s 20. The question of calling upon a landlord to deposit money does not arise as it is be that filed an eviction petition seeking eviction of a tenant on the ground of the tenant falling into arrears. Sub-section (1) of section 10 lays down that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of section 10 or sections 12 and 13. Section 10 (2) (i) provides that a landlord will be entitled to evicts his tenant by making an application to the Controller if the tenant bad not paid or tendered the rent due by him in respect of the building within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable It is this provision that was invoked by the third respondent in this case for eviction of the petitioner. Section 11 makes it obligatory on the part of a tenant to pay arrears of rent if he chooses to contest the application before the Controller or if he chooses to prefer an appeal u/s 20. Payment of arrears of rent is a condition precedent for exercising the right to contest an application filed for eviction or to prefer an appeal against an order of eviction. In other words, the right to contest the application or right to prefer an appeal is made subject to the condition imposed u/s 11 (1). The learned counsel sought to rely upon a Division Bench decision of this Court to which one of us (S. Obul Reddi, J.) was a party in K. Balakrishnaiah Vs. Commercial Tax Officer and Others, to contend that insistence on payment of arrears of rent takes away his right of appeal. The facts of the case there are different. What was found by this Court as discriminatory was the further classification of the appeals preferred to the Tribunal from the orders of the Deputy Commissioner of Commercial Taxes and the appeals preferred from the orders of the Appellate Assistant Commissioner of Commercial Taxes. It was therefore observed by this Court:
But there is a further classification of these appeals for the purpose of section 21 (6) as the condition relating to production of satisfactory proof of payment of tax is not attracted in the case of appeals from orders passed or proceeding recorded by the appellate authority u/s 19 if stay of collection of tax, granted by the Deputy Commissioner under sub-section (2-C) of section 19, is in operation whereas compliance with the requirements to section 21 rules insisted upon in cases where there is no such ''stay'' It is difficult to understand the rational behind this further classification of appeals belonging to the same category viz., those by dealers objecting to an order passed or proceeding recorded by the prescribed authority on appeal u/s 19. There are no guide lines in the Act for regulating the exercise of the discretion vested in the Deputy Commissioner u/s 19 (2-B) or 19 (2-C) and spirit he should arbitrarily refuse to grant stay or to direct that the stay already granted shall be operative till the disposal of the appeal by the Tribunal, a dealer who is unable to find the where with all for paying the tax as determined in an appeal u/s 19 would be left without a remedy even if he has a strong case for appeal before the Tribunal. The right of appeal to the Tribunal is altogether denied, if not destroyed, in cases where the appellate authority, without ordering stay of collection of tax for some season or other, happened to enhance the assessment or penality in exercise of its powers u/s 19 (3) (a) as neither sub-section (2-B) nor sub-section (2-C) of section 19 provide for stay of collection of tax being ordered by the Deputy Commissioner in such cases.
It is on the ground of further classification of appeals that section 21 (6) of the Andhra Pradesh General Sales Tax Act was held to be beyond the legislative competence of the State. It was never said by this Court in that case that the legislature is not empowered to impose a condition, namely that a dealer shall not be entitled to file an appeal unless he paid sales tax. Insistence upon payment of arrears of rent due from a tenant before he could contest the application before the Controller or prefer an appeal is not ultra vires the power of the legislature. We also see on discrimination for the reason that the landlord who prefers an appeal u/s 20 stands on a different footing. That there is reference in section 30 regarding payment of arrears of rent due by a tenant will not entitle him to prefer an appeal without complying with the conditions laid down in Section 11. It is not necessary when Sec. 11 itself provides for payment of arrears of rent by a tenant that section 20 should again provide that a tenant shall not be entitled to prefer an appeal unless he deposits arrears of rent due or found to be payable by the Rent Controller. In our opinion, it will be redundent to incorporate the same clause in section 20.
The next point urged by the learned counsel is that the phraseology all arrears of rent due, would mean only such rents as are lawfully or legally payable by a tenant in respect of a building and not time-barred rents. We are unable to agree with the learned counsel that the provisions of the limitation Act are attracted and that a landlord will not be entitled to ask for payment of arrears of more than three years'' rent. It should be remembered that the Rent Control Act is a self-contained Act prescribing the procedure for filing an application for eviction, and the procedure for filing appeals and the period of limitation for filing appeals are also prescribed. No period of limitation is prescribed for filing an eviction petition by a landlord, nor is there anything in section II to indicate or suggest that a landlord will not be entitled to ask for deposit or payment of arrears of rent due to him beyond a period of three years. Mr. Ugle, however, sought to place reliance upon Art. 137 of the Limitation Act, which prescribes a period of three years limitation from the date when the right to apply accrues.
The Supreme Court had occasion to consider the application of the provisions of the Limitation Act in Town Municipal, Council, Athani Vs. The Presiding Officer, Labour Courts, Hubli and Others etc., That was a case where the learned Judges were considering the question whether the Labour Court was not competent to entertain applications which are time-barred, u/s 33C (2) of the Industrial Disputes Act in view of Article 137 of the Schedule to the Limitation Act. The learned Judges repelling that argument held that Article 137 does not apply to applications u/s 33C (2) of the Industrial Disputes Act and no limitation is prescribed for such applications. In so holding, they relied upon two earlier decisions of the Supreme Court in Sha Mulchand and Co. Ltd. (In Liquidation) Vs. Jawahar Mills Ltd., and Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, . In the former case, dealing with the application of Article 181 of the old Limitation Act, S.R. Das, J, (as be then was) observed :
That Article has, in along series of decisions of most, if not all, of the High Courts, been held, to govern only applications under the Code of Civil of Procedure It may be that there may be divergence of opinion even within the same High Court but the preponderating view undoubtedly is that the Article applies only to applications under the Code.
In the Bombay case Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, Gajendragadkar, J. (as he then was), dealing with an objection raised on the ground of Limitation to an application filed u/s 33C (2) of the Industrial Disputes Act observed :
Where the legislature has made no provision for limitation, it would not be open to the Courts to introduce any such limitation on ground of fairness or justice. The words of section 33C (2) are plain and unambiguous, and it would be the duty of the Labour Court to give effect to the said provision without any considerations of limitation No doubt, such belated claims made on a large scale may cause considerable inconvenience to the employer, but that is a consideration which the legislature may take into account, and if the legislature feels that fair play and justice require that some limitation should be prescribed, it may proceed to do so. In the absence of any provision, however, the Labour Court cannot import any such consideration in dealing with the applications made u/s 33C (2).
The same view was reiterated by the Supreme Court again in Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, Sikri J. (as he then was) clearly stated :
In view of sections 4 and 5 of the Limitation Act, it would be clear that scheme of the Act is that it only deals with application to courts and the Labour Court is not a court within the Limitation Act. Therefore, an application under sec. 33C (2) cannot be held to be barred under Article 137 in so far as the claim was period beyond three years.
In view of the fact that no limitation is prescribed by the legislature for the recovery of all arrears of rent due in respect of the building, we are unable to agree with the learned counsel for the petitioner that Article 137 of the Limitation Act or any other provision of that Act can be called in aid by them to contend that arrears of rent beyond a period of three years cannot be legally recovered from the tenants. A Full Bench of the Punjab High Court in Rullia Ram v. Fateh Singh AIR 1962 Punj 256 (F.B.) considered a similar provision in the East Punjab Urban Rent Restriction Act and opined :
A tenant who is sought to be ejected because he is in arrears of rent can avoid ejectment under Sec. 13 (2) (i), proviso, tendering all the arrears of rent whether they are within or outside the period of limitation, and interest at six percent per annum on such arrears together with the costs of the application assessed by the Controller..............................
The object of the Proviso is not that the landlord is to be deprived of the rent. The object is to give an opportunity to the tenant to stay in the premises irrespective of his default if the tenant on the first hearing pays the rent due or to use the language of the proviso tenders the arrears of rent.
We are therefore of the view that the bar of limitation does not operate against the landlord recovering all arrears of rent due in respect of the building. The writ petitions therefore fail and are accordingly dismissed. No costs Advocate''s fee Rs. 100/- in each.