Decided on June 29,1967



- (1.) The petitioner is a landlord of a building, of which the first respondent is the tenant. He filed an application before the Rent Controller, Alleppey for eviction of the building under the Kerala Buildings (Lease and Rent Control) Act, 1959 (hereinafter referred to as the 1959 Act) on the ground that the tenant had defaulted payment of rent and that the building was required for his bona fide occupation. The Rent Controller accepted the application, and ordered eviction. The first respondent filed an appeal in the Sub-Court of Alleppey from the decision of the Rent Controller. The appellate authority differed from the finding of the Rent Controller on both the points, allowed the appeal, and dismissed the petitioner's application. The petitioner filed a revision in the District Court of Alleppey from the decision of the appellate authority. S.11 (11)(i) of the 1959 Act provides that: "11 (11) Notwithstanding anything contained in sub-sections (1) to (10) no order for eviction or for putting the landlord in possession shall be passed, (i) against any tenant who is engaged in any employment notified by the Government as an essential service for the purpose of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, and the landlord requires the building for his own occupation;" The 1959 Act was replaced by the Kerala Buildings (Lease and Rent Control) Act, 1965, hereinafter referred to as the Kerala Act. The Kerala Act also contains the same provisions as S.11 (11) (i) of the 1959 Act. On 16-12 1961 the Government had issued a notification under S.11 (11)(i) of the 1939 Act; and it is admitted that the first respondent is a person who falls within the protection of the above provision by virtue of this notification. However, this protection was not claimed by the first respondent either before the Rent Controller or before the Appellate Authority. The claim was raised by him before the District Judge in revision; and he rightly entertained the same. Ext P-2 is the order of the District Judge, by which he dismissed the petitioner's application for revision. Regarding the claim, which the first respondent raised before the learned District Judge, Ext. P-2 states as follows: "After this revision petition was argued, the respondent tenant had filed a petition stating that he is a Government servant and that he cannot be evicted from the building. The learned counsel appearing for the revision petitioner fairly conceded that the respondent tenant has subsequently become a permanent Government Servant and so no evidence on this point was taken. It was also conceded that the respondent tenant cannot be evicted now since he is a Government Servant. So on this short ground the petition B. R. C. 4/63 has to be dismissed." In the light of the above, the learned District Judge did not consider the two points, which the appellate authority decided against the petitioner. This Original Petition has been filed to quash Ext. P-2; and the only ground urged before me is that the notification issued by the Government under S.11 (11) (i) of the 1959 Act has been cancelled by the Government by another notification dated 20 12 1965, and that Ext. P-2 cannot be sustained, as the first respondent, has ceased to be entitled to the aforesaid protection. It is conceded that after the issue of the notification dated 20 12 1965, the first respondent is not entitled to resist the application under S.11 (11)(i) of the 1959 Act or the Kerala Act of 1965. But it is submitted by the learned counsel for the first respondent that this court should not interfere with the decision of the District Judge, in so far as the said decision was right and in accordance with law at the time when it was decided, and that a subsequent change in the law is not a proper ground for interference under Art.226 and 227 of the Constitution. The very same question arose for decision before a Division Bench of the Nagpur High Court in Narayana Rao v. Mt. R. D. Swame ( AIR 1953 Nag. 271 ); and their Lordships said: "The proceeding which is pending before us is not in continuation of the application or the appeal because this proceeding is not in the nature of an appeal. In this jurisdiction what we have to ascertain is whether the inferior tribunal (here, the appellate authority) did apply the law which was in force when it decided the matter before it. If we find that it did apply the law, the matter would end there. If however, we find that it did not apply the law, we would interfere. But in deciding whether to interfere or not we would be guided by the law in force at the time of the appellate decision. The change which the law underwent after the decision of the appellate authority can have no relevance in determining whether the decision of the appellate authority was right or wrong." I respectfully follow the above decision. The result is that the petitioner cannot succeed on this short ground. This Original Petition is, therefore, dismissed. There will be no order as to costs.;

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