- (1.)THE revision petitioner challenges the appellate order passed by the II Addl. District Judge, Thiruvananthapuram in C. M. A. 16/2000 preferred by her against the order of the Estate Officer, Union Bank of India, Thiruvananthapuram dated 21-1-2000 calling upon the revision petitioner to vacate the premises in question on or before 10-3-2000 under the provisions of the Public Premises Eviction of Unauthorised Occupants Act, 1971 - Central Act 40/1971 (hereinafter referred to as the 'public Premises Act' for short.)
(2.)THE admitted facts leading to the order passed by the Estate Officer can be summarized as follows: one Sri. Vasudeva Kurup who was the father of the revision petitioner was the tenant in respect of a shop room bearing building No. T. C. No. 26/112 in the heart of Thiruvananthapuram City. O. P. B. R. C. No. 245/1970 was filed by the then landlord of the building against the said Vasudeva Kurup for eviction of the premises on the ground of sub lease falling under Section 11 (iv) (i) of the Kerala Bulidings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the "rent Control Act" ). On 27-1-1975 the Rent Control court ordered eviction on the ground of sub-lease and granted two months' time to Vasudeva Kurup to vacate the shop. Vasudeva Kurup filed an appeal as B. R. C. A. 26/1975 before the Rent Control Authority, Thiruvananthapuram. During the pendency of the said appeal, the premises in question was purchased by the first respondent, Union Bank of India which got itself impleaded in the appeal as the 8th respondent therein. Pending the appeal the matter was compromised and on 24-6-1975 and compromise petition was filed whereunder the Bank agreed to give a shop room admeasuring 500 square feet in the re-constructed building to Vasudeva Kurup. Some time in the year 1979 Vasudeva Kurup was put in possession of a room admeasuring 500 sq. feet in the re-constructed building. Subsequently, Vasudeva Kurup died and revision petitioner who is the daughter of Vasudeva Kurup inherited him as his legal heir. On 25-8-1998 a notification was issued by the Government of India under the Public premises Act appointing the Regional Manager of the Union Bank of India, M. G. Road, Thiruvananthanpuram as the Estate Officer. On 1-6-1998 a lawyer notice was issued by the Bank to the Revision Petitioner calling upon the petitioner to surrender vacant possession of the premises on or before 15-7-1998. On 16-6-1998 the Revision Petitioner sent a reply notice opposing the demand. Subsequently on 10-7-1999 the Estate Officer issued a statutory notice to the Revision Petitioner under Sec. 4 of the Public Premises Act terminating the tenancy and asking her to show cause on or before 16-9-1999 as to why an order of eviction should not be passed against her. On 19-7-1999 the revision petition sent a reply to the Estate Officer contending inter alia that she was not liable to be evicted under the Public premises Act. On 21-11-1999, she filed a further objection before the Estate Officer raising inter alia a contention that the Estate Officer has no jurisdiction to initiate proceedings to vacate the revision petitioner from the premises as she was not an "unauthorized occupant" within the meaning of the public Premises Act. She also filed a writ petition before this court as O. P. No. 30713/1999 raising the above contention. As per the judgment dated 7-12-1999 in O. P. 30713/99 this court declined to interfere in the matter holding that it was open to the revision petitioner to raise her objections before the Estate Officer who was directed to pass a speaking order. Thereafter on 21-1-2000, the Estate Officer passed a speaking order holding inter alia that the revision petitioner was a unauthorized occupant and liable to be evicted under the provisions of the Public Premises Act and that she does not enjoy the status of a tenant liable to be evicted only in accordance with the Rent Control Act. Aggrieved by the order of the Estate officer, the Revision Petition filed C. M. A. 16/2000 before the District Court (Appellate Authority), Thiruvananthapuram. As per the impugned judgment dated 23-6-2005 the District Court dismissed the statutory appeal filed by the revision petitioner. The order of the Estate Officer and the judgment of the Appellate Authority are assailed in this Writ Petition. It is significant to note that the revision petitioner did not urge a contention before the District Judge that she was a tenant who was liable to be evicted only under the provisions of the Rent Control Act and that she could not be evicted under the Public premises Act. The petitioner claims to have filed a review petition on 13-7-2005 before the district Judge raising the said contention. This court is not concerned about the plea taken in the said review petition which is not before this court. The order of the Estate Officer and the Judgment of the Appellate Authority are assailed in this writ petition.
(3.)I heard Advocate Sri. B. Krishan Mani for the petitioner and Advocate Sri. A. V. Thomas for the contesting respondents. Assailing the appellate order of the District Judge and the order of the Estate Officer, advocates Sri. B. Krishna Mani, the learned counsel for the revision petitioner made the following submissions before me" -Even if the revision petitioner's contention that she is tenant entitled to be evicted only in accordance with the Rent Control Act is not seen urged before the District Court which the appellate authority under the Public Premises Act, it is a right available to a tenant which cannot be waived. Notwithstanding the omission to consider the said contention by the lower appellate authority, the petitioner is entitled to urge the said contention before this court. This is a case in which the father of the revision petitioner was admittedly a tenant entitled to the protection under the Rent Control Act. In pursuance of the compromise entered into on 24-6-1975 the first respondent bank had agreed to give a shop room admeasuring 500 sq. ft. in the building to be re-constructed by the Bank and pursuant to the said compromise the petitioner's father Vasudeva Kurup was put in possession of the shop room in the year 1979. So, Vasudeva Kurup continued to be a tenant entitled to the benefits and protection under the Rent Control Act and he was liable to be evicted only in accordance with the provisions of the Rent Control Act which is a special law which had received assent of the President of India and would prevail over any other law including the Public Premises Act. As was held in the decision of the Supreme Court reported in AIR 1978 SC 22 Nai Bahu Vs. Lala Ramnarayan and others even if there is a compromise decree passed for possession the landlord can have actual eviction only if any of the grounds under the Rent Control act have been made out and no consent or compromise can give jurisdiction to the Rent Control court to pass a decree otherwise than in accordance with the provisions of the Rent Control Act. In the aforesaid decision, the apex court has held that even the executing court can examine whether the statutory grounds for eviction had been made out. In a subsequent decision reported in AIR 1974 SC 471 Nagindas Ramdas Vs. Dalpatram Ichharam it has been held that there can be no eviction passed de hors the provisions of the Rent Control Act and the parties by entering into an agreement cannot contract out of the statute which is a social welfare legislation. Since both the Rent Control Act as well as the Public Premises Act deal with eviction they occupy the same filed and in the event of any repugnancy the Rent Control Act will prevail over the Public Premises Act since the former legislation had received the assent of the president of Indian and it has therefore precedence over the latter Act by the force of Art. 254 (2) of the Constitution of India. Hence the Estate Officer had no jurisdiction to proceed against the Revision Petitioner under the Public Premises Act. The orders passed by the Estate Officer as well as the appellate authority cannot be sustained in law.