Full Judgment Text
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PETITIONER:
KHEMCHAND DAYALJI & CO.
Vs.
RESPONDENT:
MOHAMMEDBHAI CHANDBHAI
DATE OF JUDGMENT:
24/03/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAMASWAMI, V.
GROVER, A.N.
CITATION:
1970 AIR 102 1970 SCR (1) 80
1969 SCC (1) 884
ACT:
Ahmedabad City Courts Act, 1961-Suits under Bombay Rents
Hotel A Lodging House Rates Control Act 57 of 1947 as
applied to the State of Gujarat exclusively triable by court
of Small Causes Ahmedabad-Rule 5 under Bombay Act making
procedure under Presidency Small Causes Courts Act 15 of
1882 applicable to such suits and proceedings-Ahmedabad
Small Causes Court whether empowered to issue distress
warrant for recovery of municipal taxes by its power under
s. 53 of Act 15 of 1882 Vires of Rule 5.
HEADNOTE:
Jurisdiction to try suits and proceedings between landlords
and tenants under the Bombay Rents, Hotel and Lodging House
Rates Control Act 57 of 1947 was by virtue of s. 28 of the
Act given to Small Cause Courts. Under s. 49 of the Act the
State Government was authorised to make rules for the
purpose of giving effect to the provisions of the Act and in
particular to make rules among other subjects, for the
procedure to be followed in trying or hearing suits and
proceedings including proceedings for execution of decrees
and distress warrants. For these purposes the Government of
Bombay under r. 5 framed by it provided that the procedure
under the Presidency Small Cause Courts Act, 1882 would be
followed. By the enactment of the Bombay Reorganization Act
11 of 1960 a separate State of Gujarat was constituted out
of the territory which formed the State of Bombay, and the
area within the city limits of Ahmedabad formed part of the
State of Gujarat. The Legislature of the State of Gujarat
enacted the Ahmedabad City Courts Act 19 of 1961 which by 17
extended the Presidency Small Cause Courts Act, 1882 (15 of
1882) as well as the Bombay Rents Hotel and Lodging House
Rates Control Act 57 of 1947 to the City of Ahmedabad with
suitable modifications and amendments. Jurisdiction to try
suits under the Bombay Act was by amendment of s. 28 thereof
given to the Court of Small Causes Ahmedabad.
The appellants were tenants of a house owned by the
respondent in Ahmedabad. Apart ’from the rent the
appellants had also agreed to pay municipal taxes and
electricity charges. In 1963 the appellants filed a suit in
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the Court of Small Causes Ahmedabad for an order inter alia
determining the standard rent of the premises in exercise of
the power under s. 11 of Bombay Act 57 of 1947. The said
court on an application filed by the appellants fixed the
contractual rent as the ’interim standard rent’ and directed
the appellants to pay rent and municipal taxes, which the
appellants accordingly deposited in Court. The Court
permitted the respondent to withdraw the rent so deposited
but not the municipal taxes. The respondent then obtained
an order for the issues of a distress warrant under s. 53 of
the Presidency Small Cause Court-, Act 15 of 1882 read with
r. 5 of the Rules framed under Bombay Act 57 of 1947 for
recovery of the amount due as municipal taxes. Distress was
levied and the order was confirmed. A revision application
in the High Court of Gujarat was rejected. In their appeal
against the High Court’s order the appellants urged : (i)
that r. 5 of the Rules ’framed under s. 49 of the Bombay Act
57 of 1947 was ultra vires the State Government; (ii) that
the Court of Small Causes Ahmedabad had no jurisdiction to
pass an order issuing a distress warrant in a proceeding
under Bombay Act 57 of 1947 especially
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when an application under s. 11 was pending; (iii) that the
municipal taxes and electricity charges did not constitute
rent which could be recovered by the issue of a distress
warrant.
HELD: (i) Rule 5 was framed under Bombay Act 57 of 1947
in exercise of the authority conferred by s. 49(2)(iii).
After the enactment of the Ahmedabad City Courts Act, 1961,
r. 5 as originally ’framed by the Government continued in
force by virtue of s. 87 of the Bombay Reorganization Act 11
of 1960, and applied to the Ahmedabad Small Causes Court.
When r. 5 was framed under Bombay Act 57 of 1947 it was not
ultra vires and it was not shown to have become ultra vires
after the enactment of the Ahmedabad City Courts Act in its
application to the City of Ahmedabad. [85 F-G]
(ii) The distress warrant issued by the Court of Small
Causes Ahmedabad against the appellant was within its
powers.
By the enactment of the Ahmedabad City Courts Act, 1961, the
proceedings before the Court of Small Causes at Ahmedabad
were governed by that Act and by virtue of the amendment
made in s. 28 of Bombay Act 57 of 1947 it became a court of
exclusive jurisdiction to try suits, proceedings, claims and
questions arising under that Act. Being a court governed by
the Presidency Small Causes Courts Act, the Ahmedabad Court
of Small Causes was competent to exercise, subject to the
Ahmedabad City Courts Act, all the powers which a Presidency
Small Cause Court could exercise. Power to issue a distress
warrant being expressly conferred by s. 53 of the Presidency
Small Cause Courts Act upon the Courts governed by it, the
Court of Small Causes Ahmedabad, was competent to exercise
that power. [85 D-E]
Section 28 does not make the Court of Small Causes trying
suit under the Bombay Act a special Court : it is a court
which is comptent to exercise all the powers conferred on it
under the statute which governs it. Its power to issue
distress warrant could therefore be exercised even in
respect of suits and proceedings which were exclusively
triable by it by virtue of the Bombay Act 57 of 1947. [85 H]
Pendency of an application for fixation of standard rent
does not suspend the court’s power to issue distress
warrant, for until standard rent is determined or an interim
order is made, rent at the contractual rate is payable and
process for recovery by distress warrant may always be
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adopted. In the present case the amount of municipal taxes
was due and it was payable by the appellants. Though
deposited in Court it could not be withdrawn by the
respondent. The municipal taxes were therefore ill arrears
and a distress warrant could be applied for under s. 53 of
the Presidency Small Cause Court by the respondent. It was
not necessary for the respondent to approach a higher court
against the erroneous order of the Small Cause Court
preventing him from recovering the amount of municipal
taxes. [86 B-G]
(iii) By the express terms of the tenancy the appellants
had undertaken to pay the municipal taxes and electricity
charges as part of the rent : it was not open to them to
contend that these taxes and charger were not rent
recoverable by the issue of a distress warrant. [83 H-84 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 808 of 1966.
Appeal by special leave from the judgment and order dated
September 3, 1965 of the Gujarat High Court in Civil
Revision Application No. 244 of 1965.
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Arun H. Mehta and I. N. Shroff, for the appellant.
S.T. Desai, P. C. Bhartari, J. B. Dadachanji and O. C.
Mathur, for the respondent.
The Judgment of the Court was delivered by
Shah, J. The respondent is the owner of- a house in the town
of Ahmedabad. The appellants are the tenants of that house
at a monthly rental of Rs. 2,171/-. Under the agreement of
lease the -appellants were to pay out of the agreed rent Rs.
810/- per month, and the balance was to be appropriated
towards a loan advanced by them to the respondent for
constructing the house. The appellants had also agreed to
pay municipal taxes and electricity charges.
The appellants filed suit No. 1308 of 1963 in the Court of
the Small Causes, Ahammadabad, for an order, inter alia,
determining the standard rent of the premises in exercise of
the power under s. 11 of the Bombay Rents, Hotel and Lodging
House Rates Control Act 57 of 1947. The Court of Small
Causes, Ahamadabad, on an application filed by the
appellants fixed the contractual rent as "interim standard
rent" and directed the appellants to pay the rent and
municipal taxes. Pursuant to this order, the appellants
deposited Rs. 2,403/- as rent and Rs. 8,921.25 due as
municipal taxes for the year 1964-65. An application by the
respondent to withdraw the amount deposited in Court was
resisted by the appellants. The Court permitted the
respondent to withdraw Rs. 2,403/- but not the municipal
taxes. The respondent then obtained an order for the issue
of a distress warrant under S. 53 of the Presidency Small
Cause Courts Act 15 of 1882 read with r. 5 of the Rules
framed under the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, for recovery of the amount due as
municipal taxes. Distress was levied, and the order was
confirmed. A revision application moved in the High Court
of Gujarat against that order was rejected.
In support of this appeal counsel for the appellants urges
that r. 5 of the Rules framed under S. 49 of the Bombay
Rents, Hotel and Lodging House Rates Control Act 57 of 1947,
is ultra vires the State Government; that the Court of Small
Causes Ahmedabad has in any event no jurisdiction to pass an
order issuing a distress warrant when trying a suit or
proceeding under Bombay Act 57 of 1947 especially when an
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application for determination of standard rent under s. 1 1
of the Act is pending; and that the municipal taxes and
electricity charges do not constitute rent which may be
recovered by the issue of a distress warrant.
By the express terms of the tenancy the appellants had
undertaken to pay the municipal taxes and electricity
charges as part of
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the rent it is not open to them to contend that they are not
rent recoverable by the issue of a distress warrant. The
last branch of the argument has, therefore, no force.
The relevant provisions of the Bombay Rents, Hotel and
Lodging House Rates Control Act 57 of 1947 and other
statutes which have a bearing may first be noticed. Bombay
Act 57 of 1947 was intended to control rents and to confer
protection against eviction upon tenants of premises in
certain urban -areas in the Province of Bombay. By s. 28 of
the Act certain courts were designated as courts of
exclusive jurisdiction to entertain and try suits and
proceedings between a landlord and tenant, relating to
recovery of rent or possession to which the provisions of
the Act applied, and also to decide claims or questions
arising under the Act. Section 28 as originally enacted and
later amended by Bombay Acts 58 of 1949 and 15 of 1952,
insofar as it is material reads :
"(1) Notwithstanding anything contained in
any law and notwithstanding that by reason of
the amount of the claim or for any other
reason, the suit or "proceeding would not, but
for this provision, be within its
jurisdiction,
(a) in Greater Bombay, the Court of Small
Causes, Bombay;
(aa) in any area for which, a Court of Small
Causes is established under the Provincial
Small Cause Courts, Act, 1887, such Court and
(b). . .
shall have jurisdiction to entertain and try
-any suit or proceeding between a landlord and
a tenant relating to the recovery of rent or
possession of any premises to which any of the
provisions of this Part apply and to decide
any application made under this Act and to
deal with any claim or question arising out of
this Act or any of its provisions and subject
to the provisions of subsection (2), no other
court shall have jurisdiction to entertain any
such suit, proceeding or application or to
deal with such claim or question.
Section 28 did not set up new Courts to try suits or
proceedings between landlords and tenants : it invested
existing courts with exclusive jurisdiction to try suits and
proceedings of the nature set out and claims or questions
arising under the Act. Section 31 of the Act provides,
inter alia, that the courts specified in s. 28 shall follow
the prescribed procedure in trying and hearing suits,
proceedings, applications and appeals and in executing
orders
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made by them. Section 49 authorises the State Government to
make rules for the purpose of giving effect to the
provisions of the Act and in particular to make rules, among
other subjects, for the procedure to be followed in trying
or hearing suits, proceedings (including proceedings for
execution of decrees and distress warrants), applications,
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appeals and execution of orders. Pursuant to the authority
conferred, rules were framed by the Government of Bombay and
r. 5 which deal with the procedure to be followed by the
Court of Small Causes, Bombay, for suits, proceedings,
appeals, etc. provided insofar as it is material :
"In such of the following suits -and
proceedings as are cognizable by the Court of
Small Causes, Bombay, on the date of the
coming into force of these Rules, namely
(2) proceedings under Chapter VII and VIII
of the Presidency Small Cause Courts Act,
1882, and
(3) proceedings for execution of any decree
or order passed in any such suit or
proceedings,
the Court of Small Causes, Bombay, shall
follow the practice and procedure provided for
the time being (a) in the said Act, except
Chapter VI thereof, and (b) in the rules made
under section 9 of the said Act."
By the enactment of the Bombay Reorganization Act 11 of 1960
a separate State of Gujarat was constituted out of the
territory which formed the State of Bombay, and the area
within the city limits of Ahmedabad formed part of the State
of Gujarat. By the Gujarat Adaptation of Laws (State and
Concurrent Subjects) Order, 1960, cl. (a) of sub-s. (1) of
S. 28 of Bombay Act 57 of 1947 as it was originally enacted
was deleted. The Legislature of the State of Gujarat
enacted the Ahmedabad City Courts Act 19 of 1961 which by s.
17 provided that the Presidency Small Cause Courts Act, 1882
(XV of 1882), shall extend to and come into force in the
City of Ahmedabad on and from the appointed day. By s. 18
it was provided :
"The Presidency Small Cause Courts Act, 1882
(XV) of 1882), and the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 (Bom.
LVII of 1947), shall in their application to
the City of Ahmedabad stand amended in the
manner and to the extent specified in the
Schedule."
By s. 19 it was provided :
"With effect on and from the appointed
day...... the Provincial Small Cause Courts
Act, 1887 (IX of
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1887), and all rules, notifications and orders
made thereunder shall cease to apply to, or be
in force, in the City of Ahmedabad,
By the Schedule certain amendments were made in the
Presidency Small Cause Courts Act, 1882, in its application
to the City of Ahmedabad By cl. 13 of the Schedule, s. 50
of the Presidency Small Cause Courts Act was to apply to
every place within the City of Ahmedabad. Certain
amendments were also made in s. 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947, and in sub-
s. (1) of s. 28, before cl. (aa) the following clause was
inserted :
"(a) in the City of Ahmedabad, the Court of Small Causes of
Ahmedabad,"
By the enactment of the Ahmedabad City Courts Act, 1961, the
proceedings before the Court of Small Causes at Ahmedabad
were governed by that Act and by virtue of the amendment
made in s. 28 of Bombay Act 57 of 1947 it became a Court of
exclusive jurisdiction to try suits, proceedings, claims and
questions arising under that Act. Being a Court governed by
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the Presidency Small Cause Courts Act, the Ahmedabad Court
of Small Causes was competent to exercise, subject to the
Ahmedabad City Courts Act, all the powers which a Presidency
Small Causes Court may exercise. Power to issue a distress
warrant being expressly conferred by s. 53 of the Presidency
Small Cause Courts Act upon the Courts governed by it, the
Court of Small Causes, Ahmedabad, was competent to exercise
that power.
Rule 5 was framed under the Bombay Act 57 of 1947 in
exercise of the authority conferred by s. 49 (2) (iii).
After the enactment of the Ahmedabad City Courts Act, 1961,
r. 5 as originally framed by the Government of Bombay
continued in force by virtue of s. 87 of the Bombay
Reorganization Act 11 of 1960, and applied to the Ahmedabad
Small Causes Court. When r. 5 was framed under Bombay Act
57 of 1947 it was not ultra vires, and it is not shown to
have become ultra vires after the enactment of the Ahmedabad
City Courts Act in its application to the City of Ahmedabad.
The argument that s. 28 sets up a new set of Courts, with
special powers and jurisdiction is without substance.
Section 28 merely confers upon the existing Courts exclusive
jurisdiction in respect of matters relating to possession of
premises and recovery of rent and to determine claims and
questions arising under that Act. On that account it does
not become a Special Court : it is a court which is
competent to exercise all the powers which are conferred
upon it by virtue of its constitution under the statute
which governs it. The Court of Small Causes at Ahmedabad
had,
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therefore, power to issue distress warrant and that power
could be exercised even in respect of suits and proceedings
which were exclusively triable by it by virtue of the Bombay
Act 57 of 1947.
We are also unable to hold that so long as an -application
for fixation of standard rent is pending, the Court’s
jurisdiction to issue a distress warrant remains suspended.
Until standard rent is determined, or an interim order is
made, rent -at the contractual rate is payable and process
for recovery by distress warrant may always be adopted.
Section II of Bombay Act 57 of 1947 confers upon the Court
power to fix standard rent and permitted increases in
certain cases. The Court is also competent to determine
interim standard rent, and direct payment pending final
determination of standard rent.
The appellants applied for fixation of standard rent and
invited the Court to pass -an order fixing interim standard
rent and the Court of Small Causes proceeded to pass the
order for payment of rent and municipal taxes. In the
present case there was an express order of the Court
requiring the appellants to deposit in Court Rs. 810/- per
month and also to deposit municipal taxes. The Court of
Small Causes ordered that the amount deposited by the
appellants towards municipal taxes shall not be paid over to
the landlord. The amount was on that account not available
to the respondent. The respondent was unable to pay the
taxes and the Municipality threatened to attach the
property. The amount of municipal taxes was due and it was
payable by the appellants. Though deposited in Court, it
could not be withdrawn by the respondent. The municipal
taxes were, therefore, in arrears and a distress warrant
could be applied for under s. 53 of the Presidency Small
Cause Courts Act by the respondent.
It was urged that the appellants had to pay the amount of
interim standard rent twice over : once when they deposited
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it in the Court and again when they satisfied the demand to
avoid execution of the distress warrant. The landlord
undoubtedly cannot obtain the amount twice over. But that
does not mean that when the tenant has not made the amount
available to the landlord the application for distress was
not maintainable.
The argument that the erroneous order passed by the Court of
Small Causes preventing the landlord from recovering the
amount of municipal taxes could have been got corrected by
approaching the superior courts and so long as that order
stood, no distress could be levied, ignores the fact that
the appellants had persuaded the Court of Small Causes to
pass that order. In our judgment, there was no bar to the
respondent maintaining the application for distress.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
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