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Judgment
Srinivasan, J.—This revision petition arises in somewhat curious circumstances and the State of Madras has taken a position which is
exceedingly surprising. The petitioner is the landlord and it is common ground that the non-residential building in question was taken on rent by the
State of Madras for the purpose of enabling the village munsif of the town of Madurai to hold his court therein. The monthly rent is only Rs. 7. In
1962, the petitioner came to court with an allegation of wilful default in the payment of rent for as long a period as 28 months upto 31st March
1962. The petition was dismissed by the Rent Controller, and as appeal therefrom is said to be still pending disposal. Thereafter, the first
respondent paid the arrears of rent after a considerable delay and it was received by the landlord without prejudice to the petition for eviction
which he had already filed. It was admitted in the petition filed by the landlord leading to the present revision petition that the rents for the
subsequent months were being paid by postal money order upto the end of February 1963. For the succeeding five months, the rents due from 1st
March 1963 upto 31st July 1963 were not paid. It was claimed by the landlord that the conduct of the first respondent disclosed wilful default in
the payment of rent, the wilfulness being made more patent by the very existence of prior proceedings between the parties. The petitioner further
alleged that a portion of the promises had been sublet to the third respondent for conducting a betel-nut shop and this subletting was without the
consent or authorisation of the landlord, the petitioner. These were the grounds advanced in seeking the eviction of the tenant. In the counter
affidavit filed on behalf of the first respondent by the Additional Personal Assistant to the Collector, Madurai, the averment of the petitioner that the
rent was payable before the end of each English calendar month was not admitted and the petitioner was put to strict proof thereof. The fact that
an earlier eviction petition R.C.O. 405 of 1962 was filed on the ground of wilful default of payment of rent was admitted. It was however alleged
that the present petition has been filed with an ulterior motive to ""harass"" this respondent. The averment of the petitioner that the arrears of rent
covered by R.C.O.P. 405 of 1962 were later paid or that the rents were being wilfully withheld from 1st March 1963 was denied. But it was
conceded in paragraph 4 of the counter affidavit thus:
Usually only is the month of March every year proposals for the sanction for the payment of the rent will be submitted. There was some delay in
getting sanction for the payment of rent. Subsequently, the rent due upto date had been paid to the petitioner. In the circumstances, there is no
wilful payment of rent. There may be delay in the payment of rent, but this will not amount to wilful default in the payment of rent demanding
eviction.
Lastly the allegation that any portion of the premises was sublet was denied.
Upon these contentions, the parties went to trial. The Rent Controller by his order dated 21st August 1964 found the allegation of subletting
against the petitioner. Examining the evidence adduced by either side, he came to the conclusion that neither the averments in the counter affidavit
nor the evidence relevant thereto established the circumstances in which there was admitted failure of payment in the months of March to May. He
observed:--
The averments in para 4 of the counter are vague. They do not allege from whom and in what month the necessary sanction for the payment of rent
has to be obtained and when it was obtained. The Tahsildar or the Clerk has not gone into the witness box to prove the allegations in the counter.
R.W. 1 states in cross examination that he has no personal knowledge as to how the payments of rents were made by the first respondent. R.W. 1
evidence is only hear say...For these reasons, I am unable to justify the delay in the payment of rent for the petition mentioned building committed
by the first respondent. Hence I find that the first respondent has committed wilful default in the payment of rent.
He accordingly directed eviction.
The State took the matter in appeal and the appellate authority reversed the decision of the trial court. In the Memorandum of appeal, it was
alleged that there was no wilful default and in the absence of mala fides on the part of the appellant State, the Rent Controller ought not to have
held that there was wilful default. The appellate authority proceeded to say:--
From the evidence it is seen that once in a financial year sanction should be obtained for the reasonableness of the rent as the tenant is the
Government and rent could be paid only after such sanction is obtained. There is so much of departmental delay which has to be necessarily
avoided. But where private buildings were rented out to Government, there is some inevitable delay, in the payment of rent and it would be
desirable that the delay should be reduced to the minimum lost the landlord should suffer. The learned counsel for the respondent urged that the
Government was not in a better position than an ordinary tenant and if the rent is not paid on due dates it must be deemed to be wilful default.
There is no intention on the part of the Government not to pay rent to the landlord. The conduct of the Government shows that after sanction was
obtained the entire arrears of rent was paid and subsequent rent has also been paid. The tenant is in possession of the mandapam for the last 40
years and there had been very little wilful default in the payment of rent.
Though these observations undoubtedly show that the appellate authority thought that a certain latitude had to be shown towards the tenant
when the tenant is the Government, he proceeded further to observe:--
In this respect Government Institutions stand on a different footing from ordinary tenants and there is absolutely no intention not to pay rent to the
landlord. Though the actual payment is subject to red tapism, it should be cut to the minimum...
He further noticed that the theory put forward by the respondent Government that the landlord used to receive the rent only once in a year was
not established. But he held:--
It is not every default that can be construed as wilful default. It all depends upon totality of circumstances Wilful default implies a state of mind, a
supine indifference or a conscious violation of the terms of the tenancy. In the case on hand, it cannot be said that there was supine indifference on
the part of the tenant appellant.
Finally he held that there was no default, though there was avoidable delay in the payment of rent, one of the reasons which he repeatedly
stressed being that the tenant (Government) ''had no intention not to pay rent to the landlord''.
On the matter being taken in revision before the learned District Judge of Madurai, he disposed of the contention very briefly. He noticed the
evidence of R.W. 1, the village Munsif, who was second respondent and who was the sole witness on behalf of the State, that there used to be
delay every year in the payment of rent from March to May, because the respondent has to obtain the sanction from the Audit department. R.W. 1
had however no personal knowledge of the circumstances. He had not seen the records relating to the payment of rent and does not know who
sanctions the payment. He also referred to the evidence of the petitioner himself that the respondent used to pay rents sometimes before the due
date and sometimes later and use to commit default every year for April and May, the reasons for which he does not know. Upon this the learned
District Judge held:
The conclusion is legitimate that as suggested by R.W. 1, the delay was due to obtaining of administrative sanction. If so, the default cannot be
called to be wilful.
The petitioner having thus failed before the court of the District judge, now moves this court by way of revision.
The short question that calls for examination is whether in the light of the admitted facts, the default in the payment of rent can be characterised
as wilful.
At the outset, Sri Bhaktavatsalm. appearing for the respondent, the State of Madras, put forward the plea that by virtue of a notification issued
by the Government of Madras, under S. 13 of the Madras Buildings (Lease and rent Control) Act, 1946, all buildings in which the Government are
tenants stand exempted from the provisions of S. 7, Sub-S. 2. This was not ground taken either in the counter affidavit or in the course of the
protracted proceedings before any of the courts below and it certainly came as a surprise to me that if there was any validity in this submission it
should not have been taken advantage of earlier. On an examination of the prevision of S. 7 of the Act, even at first blush, it appeared to me that
the notification now brought to my notice led to somewhat extraordinary results. Under S. 7(t) of the Act, the tenant shall not be evicted whether in
execution of a decree or otherwise except in accordance with the further provisions of that section, and sub-sec. 2 provides that the landlord who
seeks to evict his tenant shall apply to the Rent Controller has been given the exclusive jurisdiction with regard to matters in which eviction is
sought. On a reading of the sub-sec. (1) and (2) of S. 7 and looking at the notification produced before me, the result appears to be this. In cases
of buildings in which the Government is the tenant, the operation of S. 7 and Sub-S. 3 stands excluded by reasons of the notification. That would
accordingly mean that the landlord cannot in a case where the Government is his tenant approach the Rent Controller for the purpose of eviction. If
he is denied resort to the Rent Controller, for the purpose of eviction. If he is denied resort to the Rent Controller normally one would expect that
his right to resort to the ordinary civil court of competent jurisdiction would atleast survive to him. But Sec. (7) 1 is express and it provides that a
tenant shall not be evicted for whatever reason except in accordance with the further provisions of See. 7. This section accordingly excludes the
jurisdiction of the ordinary civil court and in matters of eviction only the court of the Rent Controller can be resorted to. But the notification made
under S. 13 denies that relief is cases of building in which the Government are the tenants. It would thus appear that a landlord who is unfortunate
enough to have let his premises to the Government is denied ail remedy to get recovery of possession of his premises, whatever may be the
conduct of the tenant and whatever other circumstances may exist would fully justify eviction of a tenant who is not the Government.
It thus appearing that a landlord who has let out his premises to the Government is denied all remedy whether before the ordinary civil court or
before the statutory body, the Rent Controller, the validity of the notice itself came into question. If a special enactment provides a hierarchy of
courts or tribunals ether than the ordinary civil court for the determination of any particular class of dispute, it is true that the jurisdiction of the
ordinary civil court is ousted. But while ousting the jurisdiction of the ordinary civil courts, and providing for the setting up of special Tribunals
having exclusive jurisdiction over each matters, if by virtue of the power under S. 13 of the Act, Government goes further and takes out of the
scope of the said Tribunal cases which in the light of the exclusion of the ordinary civil court should normally go before Special Tribunal, the
landlord is left without any remedy whatsoever. The question then is whether the notification which results in destroying the rights of the landlord in
this manner can be sustained. Sri Bhaktavatsalam very fairly brought to my notice that a similar notification issued under S. 13 of the Madras
Buildings (Lease and Rent Control) Act 1949, exempting buildings taken on lease by the Central Government from the provisions of S. 7(2) of the
Act, While at the same time leaving the operation of S. 7(1) (sic) which resulted in reducing the landlord to a helpless state, was held to be illegal
and invalid in the The Union of India (UOI) Vs. V.M.P. Swami, . Panchapakesa Aiyar, J. in holding so followed an earlier decision of Rajagopala
Aiyengar. J in Govindaraja Mudaliar v. State of Madras (1955) 1 M.L.J. 492. Vol. 82-36 and observed that the landlord''s remedy under the
Transfer of Property Act, would be barred by the Government Order as the exemption is not also under S. 7(1); that there is power given to the
Government to debar a person from taking advantage of the previsions of the Transfer of Property Act by such a truncated exemption and so
when this Government Order took away the remedy of the landlord under the Transfer of Property Act in addition to barring his remedy under the
Rent Control Act, it was doing an illegal thing. In view of this decision, Mr. Bhaktavatsalam did not press his argument that the notification which I
have referred to earlier protected the Government from exemption.
I shall new proceed to examine the facts and to consider whether the circumstances would or would not justify the conclusion that the default is
wilful.
Both the appellate authority and the revisional authority seem to have taken the view that so long as it is not the intention of the tenant not to
pay the rent, the delay in the payment will not be wilful. I am really at a loss to appreciate this view. More than once, the appellate authority stated
that ""there is no intention on the part of the Government not to pay the rent to the landlord"". The Additional District Judge while finding that even
according to the Government''s case there used to be delay every year in the payment of rent from March to May, held that the delay was due to
obtaining administrative sanction and that therefore the default was not wilful, notwithstanding that the default occurred year after year. Before we
can adequately deal with this aspect, the evidence of the only witness on behalf of the State must be referred to R.W. 1 is himself the second
respondent and is the Village Munsif who is holding court in the premises. In chief examination, he merely stated that it is false to say that there is
default in the payment of rent. In cross-examination, he admits that he did not enter into any tenancy agreement and he did not pay rent for the
building, but stated that the petitioner landlord used to pass a voucher to the first respondent, the State of Madras, and collect the rent once a year,
an ascertain which was rightly discredited, for it was the very ease of the first respondent. The State of Madras, that the rents were being sent by
money order, every month, prior to the petition. It uses undoubtedly a monthly tenancy, as established by the M.O. coupons, R.W. 1 further states
that there used to be delay in the payment of rants from March to May in a year at the first respondent had to obtain sanction from the Audit
department. The first respondent is the State of Madras and how and in what manner sanctioned had to be obtained and for what purpose and
why there should be delay in obtaining sanction were all matters which were clearly not at all within the knowledge of this witness. In cross-
examination, he mad several statements about the rental agreement, bow the petitioner used to collect the rent from the Collector''s Office and
other matters, but he conceded that he had not seen any records and he does not know any details with regard to those matters. The evidence of
this witness in so far as it is sought to be relied upon for showing that the default was otherwise than wilful is to my mind utterly useless. There is no
doubt that the learned Rent Controller was right in saying that no person in authority who could explain the relevant circumstances, which would
react upon the wilful or non wilful nature of the default in the payment of rent has at all been examined.
The fact thus remains that year after year during certain months and presumably from March to May, there has been default in the payment of
rent. It is also abundantly clear that the petitioner, the landlord, has objected to this delay, for a few months prior to the filing of the present petition,
be had filed another petition for eviction in which he Lad asserted that there was delay in the payment of rent for a much longer period Is it open to
the State of Madras to claim that it is entitled to commit default during certain months of the year, for that is virtually the what the pleadings amount
to? It is true that the appropriate action with regard to securing sanction for the payment of rent or the preparation of bills have to be undertaken
by the Subordinate Officers of the Government. But can the Government say that the persistent negligence of its subordinates in failing to take
action in due time is ""inevitable"" and that the landlord cannot be heard to complain? This is not a case where there should normally be any difficulty
in obtaining the sanction in advance, for the rent is a petty sum of Rs. 7 per month, and probably far lower than what the landlord would be able to
get for the premises in the open market, for the simple reason that the Government appears to have been the tenant of this building for the last 40
years without any enhancement of rent. There is no doubt whatsoever that the Government being an impersonal body cannot be said to have any
attitude of mind which will disclose a wilful default. We can only go by the actions which the Government through its various officers performed. If
the Government apart from its being a Government has no right larger than a private tenant, the vague plea of administrative delay must be largely
discounted. In the case of a private tenant, say a merchant, can he be heard to plead that because of his business preoccupation, he failed to pay
the rent in time, not merely occasionally or so, but persistently from period to period during certain parts of the year? If such a plea cannot be
accepted at the hands of a private tenant, even if we grant a measure of latitude to the Government as tenant, the plea put forward in the form in
which it is in the present case, namely, that there was delay in obtaining sanction, that there will always be such delay during certain parts of the
year which the landlord must accept as a necessary feature of the tenancy cannot be accepted. The only answer to this line of argument is that
sanction should have been obtained earlier in order to conform to the duty of the tenant to pay rent to the landlord before the prescribed date. In
effect, whet the Government pleads is the negligence of its own officers and the inefficiency of its administrative machinery in seeking to deny the
right which in similar circumstances, the landlord would have against a private tenant. It is true that ''wilful default'' may connote a deliberate attitude
of mind. But I can see no reason why persistent default of a similar nature year after year, whether it, arises from indifference or negligence, cannot
be termed ''wilful default''. In my opinion, the Government should be the very last person to treat its lawful obligations lightly and if the law requires
that the tenant should pay the rent before a particular date in every month, I for one can see no reason for holding that the Government by reason
of its being a Government should altogether he exempt from this legal obligation. It seems to me taking all the circumstances of the case together,
the fact that an earlier eviction petition on similar grounds we brought by the petitioner and he had been complaining of this delay and the admission
that there is delay in the payments of rent in the months from March to May every year and the admitted failure of the Government to take any
steps to avoid this delay, must connote wilfulness, though the wilfulness is really perhaps on the part of subordinate officers of the Government. I
am of the view that the reasoning of the appellate and the revisional authorities below is entirely faulty and that the learned Rent Controller took the
right view in not being obsessed by the fact that because the tenant is the Government, a measure of latitude, which amounts virtually to a
destruction of the right of the landlord, should be granted by it. The petition therefore succeeds. The order of the Rent Controller is restored. The
petitioner will have his costs throughout. The respondents will vacate the premises within one month from today and deliver vacant possession of
the premises to the petitioner.