petitions This Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the order dated 21.8.2003 made in R.C.A.No.6 of 1997 on the file of the Sub Court (Appellate Authority), Virudhunagar, reversing the order dated 19.2.1997 passed in R.C.O.P.No.13 of 1996 on the file of the District Munsif (Rent Controller), Virudhunagar.
This Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, against the order dated 21.8.2003 passed in R.C.A.No.5 of 1997 on the file of the Sub Court (Appellate Authority), Virudhunagar, reversing the order dated 19.2.1997 passed in R.C.O.P.No.14 of 1996 on the file of the District Munsif (Rent Controller), Virudhunagar.
!For Petitioner... Mr.M.S.Balasubramania Iyer ^For Respondent... Mr.M.Vallinayagam :COMMON ORDER These civil revision petitions are filed challenging the common order dated 21.8.2003 passed in R.C.A.Nos.5 and 6 of 1997 on the file of the learned Subordinate Judge (Appellate Authority), Virudhunagar.
2. Since both the revision petitions arise from the common order and the dispute in both the revision petitions are between the same parties, both the revision petitions are disposed of by this common order.
3. The revision petitioner is Landlady, who filed R.C.O.P.No.13 of 1996 before the Rent Controller (District Munsif Court), Virudhunagar, and prayed for ordering eviction of the tenant/respondent on the ground of wilful default in payment of rent from February, 1995. According to the petitioner, the non- residential building situated at Door No.67, Main Bazaar, Virudhunagar Town, was purchased by her and the respondent herein was already a tenant, orally agreed to pay monthly rent of Rs.1,000/- on the first day of every English Calendar month and the respondent has paid the rent till the end of January, 1995, and not paid the rent for the subsequent months from February, 1995, till the end of February, 1996, in spite of repeated demands and the said action of the respondent amounts to wilful default and therefore the respondent is liable to be evicted under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
4. The tenant/respondent herein filed R.C.O.P.No.14 of 1996 under Section 8(5) of the Act seeking permission to deposit the rent before the Rent Controller stating that the petitioner herein was not receiving the rent and therefore he may be permitted to deposit the rent in the Court.
5. The learned Rent Controller (District Munsif), Virudhunagar, by order dated 19.2.1997, allowed the eviction petition filed by the petitioner in R.C.O.P.No.13 of 1996 and dismissed the R.C.O.P.No.14 of 1996 filed by the tenant/respondent herein.
6. The tenant/respondent herein challenged both the orders by filing R.C.A.Nos.5 and 6 of 1997, which was allowed by the Rent Control Appellate Authority (Sub Judge), Virudhunagar, as against which, these revision petitions are filed.
7. The learned counsel for the Landlady/petitioner submitted that the rent fixed for the premises was Rs.1,000/- per month and in spite of the demand, the rent was not paid from February, 1995 for thirteen months and therefore there is wilful default.
8. The learned counsel for the Tenant/respondent on the other hand submitted that the rent fixed was only Rs.200/- per month and the rent of Rs.200/- being sent by the respondent to the Landlady through demand draft, the same was refused to be received and thereafter it was sent by money order, which was also refused to be received and for depositing the rent, he filed application under Section 8(5) of the Act.
9. There is a dispute with regard to the actual rent for the building which was rented out to the respondent by the petitioner. The appellate Court while allowing the appeal filed by the tenant with regard to the eviction has not given a clear finding with regard to the actual rent fixed/payable for the said premises and without ascertaining the actual rent for the building, it is not possible to find out whether there was wilful default in payment of rent by the tenant or not. Similar issue was considered by this Court in the decision reported in 1994 TLNJ 78 (Rajagopal v. Salma Beevi & Others), wherein it is held that if there is dispute with regard to the rent payable, the Rent Controller shall summarily decide the rent payable under Section 11(3) of the Act, which reads as follows:
"Section 11(3) Where there is any dispute as to the amount of rent to be paid or deposited under sub-section (1) the Controller or the Appellate Authority, as the case may be, shall, on application made to him either by the tenant or by the landlord, and after making such inquiry as he deems necessary, determine summarily the rent to be so paid or deposited."
10. The learned counsel for the Landlady/petitioner as well as the learned counsel for the Tenant/respondent submitted that the Rent Controller or the Appellate Authority has not given a finding with regard to the actual rent payable by the tenant for the building and therefore the matter may be remitted back to the Rent Control Appellate Authority to decide as to whether the actual rent of the building is Rs.1,000/- per month as claimed by the Landlady, or Rs.200/- as claimed by the Tenant. The learned counsels also submitted that all other issues can be left open to be decided by the Rent Control Appellate Authority and he may be directed to pass fresh orders in R.C.A.No.6 of 1997.
11. In view of the said submissions, the order passed in R.C.A.No.6 of 1997 dated 21.8.2003 is set aside and the same is remitted back to the Rent Control Appellate Authority viz., Subordinate Court, Virudhunagar, for fresh consideration and to pass fresh orders in accordance with law.
12. Insofar as R.C.A.No.5 of 1997 is concerned, the Rent Control Appellate Authority has reversed the finding given by the Rent Controller in R.C.O.P.No.14 of 1996. The respondent herein filed R.C.O.P.No.14 of 1996 contending that from the encumbrance certificate only he could found that the petitioner herein has purchased the property and after knowing the said fact rental arrears at the rate of Rs.200/- per month from March 1995 to January, 1996 was sent to the petitioner/landlady by demand draft along with registered letter on 13.2.1996 and the said demand draft was refused to be received. The subsequent money orders sent towards payment of rent was also refused to be received and therefore the petition was filed under Section 8(5) of the Act, to deposit the rent from the months March, 1995, which was dismissed by the Rent Controller and the said order was reversed by the Rent Control Appellate Authority.
13. The learned counsel for the petitioner Landlady submitted that in order to file a petition to deposit the Rent in the Court in terms of section 8(5) of the Act, a Tenant should satisfy the conditions contained in Sections 8(2) to 8(4) of the Act. The respondent without following the mandatory procedures as contemplated under sections 8(2) to 8(4), has filed the said application and the same is not maintainable. The learned counsel also submitted that when the statute prescribes certain thing to be done in a particular manner, the same shall be done in that manner alone and not in any other manner.
14. The learned counsel for the Tenant/Respondent submitted that the Tenant has not requested the Landlady in writing to furnish the Bank account to remit the amount and the demand draft having been refused for subsequent months, the rent was sent by money order, which was also refused. Therefore the tenant was forced to file the said application under section 8(5) of the Act.
15. I have considered the rival submissions. Section 8(2) to (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, reads as follows: "8(2) Where a landlord refuses to accept, or evades the receipt of, any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him, a bank into which the rent may be deposited by the tenant to the credit of the landlord:
Provided that such bank shall be one situated in the city, town or village in which the building is situated or if there is no such bank in such city, town or village, within five kilometres of the limits thereof. Explanation.- It shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this sub-section. (3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. (4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by Money Order, after deducting the money order commission.
(5) If the landlord refuses to receive the rent remitted by Money Order under sub-section (4), the tenant may deposit the rent before the Controller and continue to deposit with him any rent which may subsequently become due in respect of the building."
From the perusal of the above statutory provision it is evident that there must be refusal to accept the rent by the landlord, which is lawfully payable to him by a tenant, and if it is refused to be received, the tenant shall issue a notice in writing requesting the landlord to specify within ten days the bank in which the rent may be deposited by the tenant to the credit of the landlord and if the landlord specifies a bank, the tenant shall deposit the rent in bank and shall continue to deposit the rent and if the landlord does not specify the bank, the tenant shall send the rent to the landlord by money order after taking money order commission. If the landlord refuses to receive the rent sent by money order, then only the application under Section 8(5) of the Act to deposit the rent before the Rent Controller can be filed.
16. Admittedly in this case, the Tenant/respondent has not proved tendering of the rent, lawfully payable by him, to the Landlady. Straightaway the Tenant sent demand draft at the rate of Rs.200/- per month, which was returned. In the registered letter issued by the Tenant through his counsel on 13.2.1996, which is marked as Ex.B-3, the Tenant has not called upon the Landlady to specify the Bank for remitting the rent. The Landlady sent a reply through her counsel on 16.3.1996, which is marked as Ex.B-5, wherein it is stated that the demand draft for Rs.2,200/- was returned as the amount was lesser and there the Landlady's name was wrongly mentioned. It is also stated that the Tenant is in arrears of Rs.12,000/-. In the reply notice marked as Ex.B-9 it is stated that the Landlady refused to receive the money order sent towards rent for February, 1996, and the same was returned. In the reply letter, the Tenant called upon the Landlady to specify the Bank to deposit the further rent at the rate of Rs.200/- per month from February, 1996.
17. From the above documents it is evident that after sending money order only, the Tenant requested the Landlady to specify the bank, within ten days of notice in writing. Admittedly the Tenant has sent the money order without following the above procedure, which was also returned. Therefore the mandatory conditions contained in the above provisions viz., Sections 8(2) to 8(4) are not followed by the Tenant before filing the application under section 8(5) of the Act.
18. The question as to whether the petition filed under Section 8(5) of the Act is maintainable without following the above steps, came up for consideration before the Honourable Supreme Court and this Court.
(a) In E. Palanisamy v. Palanisamy, 2002 (4) CTC 572 : (2003) 1 SCC 123, the Hon'ble Supreme Court held as follows:
6. The counsel for the appellant did not dispute that the tenant had not fulfilled the conditions prescribed in Section 8 of the Act before making deposit of rent in court. Hence similar circumstances and while dealing with almost similar provisions contained in the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, this Court in Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243 held: (SCC p.249, para 8) "8. In the present case, the appellant is seeking to avail of the benefit of the legal fiction under Section 19-A(4) of the Act. It is settled law that a legal fiction is to be limited to the purpose for which it is created and should not be extended beyond that legitimate field. [See Bengal Immunity Co. Ltd. v. State of Bihar AIR 1955 SC 661 : 1955 (2) SCR 603 (SCR at p.646).] The appellant can avail of the benefit of Section 19-A(4) if the deposit of Rs.3600 made by him in the Court of Munsif (South), Udaipur, on 29-10-1982, by way of rent for the months of May 1982 to October 1982, can be treated as a payment under Section 19-A(3)(c) so as to enable the appellant to say that he was not in default in payment of rent. Under Section 19-A(3)(c) the tenant can deposit the rent in the court only if the conditions laid down in the said provision are satisfied. It is the admitted case of the appellant that these conditions are not satisfied in the present case. The deposit which was made by the respondent in court on 29-10-1982 cannot, therefore, be regarded as a deposit made in accordance with clause (c) of sub-section (3) of Section 19-A and the appellant cannot avail of the protection of sub-section (4) of Section 19-A and he must be held to have committed default in payment of rent for the months of May 1982 to October 1982. This means that the decree for eviction has been rightly passed against the appellant on account of default in payment of rent for the period of six months."
7. Again in M. Bhaskar v. Venkatarama Naidu (1996) 6 SCC 228, with reference to similar provisions contained in the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, this Court observed that when the landlord is evading payment of rent, the tenant has to follow the procedure prescribed under Section 8 of the Act i.e. to issue notice to the landlord to name the bank and if he does not name the bank, the tenant has to file application before the Rent Controller for permission to deposit rent. The tenant did not follow that procedure. Omission to avail of the prescribed procedure disentitles the tenant to plead that there was no wilful default on his part. The landlord was, therefore, entitled to seek eviction on the ground of wilful default in payment of rent on the part of the tenant.
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellant was that since the deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellant failed to satisfy the conditions contained in Section 8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straight away invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. sub-sections (2), (3) and (4) of Section 8. Therefore, we are of the considered view that the eviction order passed against the appellant with respect to the suit premises on the ground of default in payment of arrears of rent needs no interference. The impugned judgment of the High Court, therefore, does not call for interference. These appeals are dismissed. We are informed that the landlords have already taken possession of the suit premises, in pursuance of the High Court judgment."
(Emphasis Supplied)
(b) This Court in the decision reported in 2007 (2) CTC 472 (J.V.Bhoopalan v. Rajamanickammal) and in 2006 (3) LW 304 (S.Pandian v. A.G.Velayudham), dealt with Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and held that the tenant should meticulously follow the procedure enumerated under Section 8 of the Act.
19. Thus it is clear that the Tenant shall strictly follow the mandatory procedures contained in sub-sections (2) to (4) to Section 8 of the Act, before filing a petition under section 8(5) of the Act before the Rent Controller.
20. It is well settled in law that when a statute prescribes to do a particular thing in a particular manner, the same shall not be done in any other manner than prescribed under the law. The said proposition is well recognised as held by the Honourable Supreme Court in the following decisions:
(a) In the decision reported in AIR 1964 SC 358 (State of Uttar Pradesh v. Singhara Singh) in paragraphs 7 and 8 of the Judgment, it is held thus, "7. In Nazir Ahmed's case, 63 Ind App 372: (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch.D 426 to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under S.164 and, therefore, held that the magistrate could not give oral evidence of the confession made to him which he had purported to record under S.164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Ss.164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."
8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S.164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him."
(b) The said proposition is also reiterated in the decision reported in (1999) 3 SCC 422 (Babu Verghese v. Bar Council of Kerala). In paragraphs 31 and 32 of the Judgment, the Honourable Supreme Court held thus, "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor ((1875)1 Ch D 426) which was followed by Lord Roche in Nazir Ahmad v. King Emperor (AIR 1936 PC 253) who stated as under: "(W)here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. (AIR 1954 SC 322) and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC 358) and the rule laid down in Nazir Ahmed case (AIR 1936 PC 253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
(c) In Captain Sube Singh v. Lt.Governor of Delhi, AIR 2004 SC 3821 : (2004) 6 SCC 440, the Supreme Court, at paragraph 29, held as follows: "29. In Anjum M.H. Ghaswala a Constitution Bench of this Court reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. (See also in this connection Dhanajaya Reddy v. State of Karnataka.) The statute in question requires the authority to act in accordance with the rules for variation of the conditions attached to the permit. In our view, it is not permissible to the State Government to purport to alter these conditions by issuing a notification under Section 67(1)(d) read with sub-clause (i) thereof."
(d) In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368 : 2005 (1) CTC 223, at paragraph 26 (in SCC), the Supreme Court held as follows: "26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, non-compliance with the same must result in cancelling the concession made in favour of the grantee, the respondent herein."
(e) The Division Bench of this Court in 2009 (1) CTC 32 (Indian Network for People living with HIV/AIDS v. Union of India) and in 2002 (1) LW 672 (Rev.Dr.V.Devasahayam, Bishop in Madras CSI and another v. D.Sahayadoss and two others) also held to the same effect.
21. In view of violation of the said statutory provisions contained in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, by the tenant before filing the application under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the application filed by the Tenant to deposit the rent before the Rent Controller, is not maintainable and hence the learned Rent Controller rightly dismissed R.C.O.P.No.14 of 1996. The reversal of the said order by the Rent Control Appellate Authority in R.C.A.No.5 of 1997 is not sustainable and the same is liable to be set aside and accordingly set aside.
22. In the result, C.R.P.(NPD)No.475 of 2004 is allowed and the order passed in R.C.A.No.6 of 1997 dated 21.8.2003 is set aside and the matter is remitted back to the Rent Control Appellate Authority viz., Subordinate Court, Virudhunagar, for fresh consideration and to pass fresh orders in accordance with law.
C.R.P.(NPD)No.476 of 2004 is allowed. The order dated 21.8.2003 in R.C.A.No.5 of 1997 passed by the Rent Control Appellate Authority (Subordinate Court), Virudhunagar, is set aside and that of the Rent Control Authority (District Munsif Court), Virudhunagar, in R.C.O.P.No.14 of 1996 dated 19.2.1997 is confirmed. No costs.
vr To
1. The Sub Judge, Virudhunagar
2. The District Munsif, Virudhunagar