Shabbir Hussain vs Government of Tamil Nadu and J. Foolchand and Co.

Nainar Sundaram, J.—Mr. P. Chandrasekaran, Government Advocate, appears for the first respondent. The prayer in the writ petition runs

as follows:--

For the reasons stated in the accompanying affidavit, the petitioner herein prays that this Hon''ble Court may be pleased to issue a writ of

declaration declaring Ss. 5 and 7 and 33 of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973,

as unconstitutional and ultra vires or any other appropriate writ so far as it affects the case of the petitioner and thus render justice.

Of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, hereinafter referred to as the Act, as amended by Tamil

Nadu Act 23 of 1973, challenged as unconstitutional in this writ petition. S. 5 says in what cases, change in fair rent fixed is admissible. S. 7 says

that the landlord should not claim or receive anything in excess of fair rent or agreed rent. S. 33 speaks about penalties for contravention of the

specified provisions.

Mr. K.P. Unnikrishnan, learned counsel for the petitioner, would submit that the above provisions are unreasonable, unfair and arbitrary in that

they inhibit variation of the fair rent once fixed, except under stated circumstances and hence they must be struck down as unconstitutional. There

are certain admitted facts which I must set down in this order and which facts if taken note of, dissuade me from entertaining this writ petition. The

petitioner is the landlord of the premises in question under the Act. The second respondent is a tenant within the meaning of the Act. In 1974 in

H.R.C. 2995 of 1974, the petitioner did move for fixation of fair rent against the second respondent. As against the contractual rate of rent of Rs.

625 per month, the Controller fixed the fair rent at Rs. 690 per month. The petitioner preferred an appeal H.R.A. 503 of 1977, while the second

respondent filed an appeal H.R.A. 497 of 1977. The appellate authority determined the fair rent at Rs. 620 per month. The order of the appellate

authority is dated 26.4.1978. According to the case of the petitioner, there was a fresh agreement with the second respondent on 23.2.1979,

under which tenancy for a limited period of 11 months was stipulated and agreed upon on a monthly rent of Rs. 825; and even after the expiry of

the stipulated period of 11 months, the second respondent did not deliver possession of the premises and this obliged the petitioner to seek for

eviction of the second respondent in R.C.O.P. 3382 of 1982, which was dismissed by the Controller and as against that order, the petitioner has

preferred R.C.A. 937 of 1985 and the same is pending before the concerned appellate authority.

It is not the claim of the petitioner that when all these proceedings, and in particular, the proceedings with regard to fixation of fair rent were

prosecuted under the provisions of the Act, he was not aware of the provisions now impeached by him, which, according to the petitioner, are

unreasonable, unfair and arbitrary, and operate as bar for his asking for variation of the fair rent fixed. Knowing fully well the implications of the

above provisions of Act, the petitioner consciously sought only the process under the Act for reliefs and obtained orders from the forums

constituted under the Act. Obviously, he is not satisfied with the results of the proceedings under the provisions of the Act. Now he wants to turn

round and impeach the provisions of the Act. That is not permissible. Having resorted to the provisions of the Act for redressal and reliefs, it is not

open to the petitioner to impeach the very provisions of the Act, which stood incorporated in the Act, from the inception, because he is not happy

over the resultant situation. The conduct of the petitioner certainly disentitles him from approaching this Court impeaching the concerned provisions

as he now seeks to do. That the conduct of a party is a relevant feature to be taken note of by this Court while exercising its highly prerogative writ

jurisdiction, is a well settled proposition. That proposition certainly comes in the way of the petitioner seeking the present declaration. In this view,

this writ petition is dismissed. No costs,