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Gnanaprakasan and anr. Vs. Mahboob Bi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1962)1MLJ254
AppellantGnanaprakasan and anr.
RespondentMahboob Bi and ors.
Cases ReferredSatyanarayana v. Venkatarattamma
Excerpt:
- - there is the further condition that if the tenant failed to make the payments as directed, the application of the tenant could be dismissed with a consequent order of the repayment to him of the part of the purchase price paid, by him. the contention that was raised then was that because the original application for eviction as well as the appeal preferred against that order were disposed, of long before the amendment came into force, the application for a writ of certiorari could not be regarded as a proceeding instituted under that act......is that after the court passes an order directing the payment of instalments of the price of the land as fixed, the matter does not automatically come to an end. on the payment of the price so fixed, the court has to pass an order directing the conveyance by the landlord to the tenant of the extent of the land for which the price was fixed, and the court has also by the same order to make arrangements for placing the one party or the other in possession of the land. there is the further condition that if the tenant failed to make the payments as directed, the application of the tenant could be dismissed with a consequent order of the repayment to him of the part of the purchase price paid, by him. it is obvious therefore that the mere circumstance that the court has made an order.....
Judgment:

Srinivasan, J.

1. These Revision Petitions arise out of proceedings under the Madras City Tenants' Protection Act under the following circumstances. In suits in ejectment filed by the landlord, the tenants applied under Section 9 of the above Act, and prayed for an order of Court to direct the landlord to sell the land for a price to be fixed by the Court. The Court accordingly appointed a Commissioner, who has valued the land and directed the payment of the price in instalments. Under the Act as it stood at the relevant time, there was no provision for an appeal against an order of the Court fixing the price. The landlord-respondent thereupon filed these Revision Petitions principally questioning the valuation fixed by the Court. While these Revision Petitions were pending before this Court, the Madras City Tenants' Protection Act was amended by Act (XIII of 1960), whereby certain important amendments were carried out in certain Sections of the Act. Section 9-A was introduced providing for an appeal from an order passed by a Court under Section 9 of the Act. Section 9 itself was amended in the following particulars. While under the provision as it stood formerly the Court had to fix the price according to the lowest market value prevalent within seven years preceding the date of order, the amendment, made a variation in this regard. It directed that the Court shall fix the price of the minimum extent of land decided as aforesaid or of the extent of land specified in the application under Clause (a) whichever is less. While previously the entire extent of the land of which the tenant was in occupation was to be sold to him by an order under Section 9, the amendment provided that the Court could direct the sale of either the whole or part of the land specified in the application. The Court was thus called upon to decide the minimum extent of the land necessary for the convenient enjoyment of the tenant. Notwithstanding that the tenant was in occupation of a larger extent of land, if the Court found that a smaller extent would be sufficient for the convenient enjoyment of the tenant, the Court could order the sale by the landlord to the tenant of only such smaller extent. With regard to the price also, while the Act previously directed that the minimum of the price during the previous seven years was to be taken, the amended Act stipulated that the price shall be the average market value of the three years immediately preceding the date of the order. The principal contention of the landlord in the present case is accordingly that under the conditions now set down by the amended Act, the Court has to decide two matters : firstly, determine the minimum extent of land which the tenant could be granted a sale of, and secondly, fix the price of that land in accordance with the new formula contained in the Act. On the date when these petitions were filed, the new Act had not come into force and the Revision Petitions accordingly confined themselves to questioning the correctness of the order of the lower Court in fixing the price. The grounds taken in the petitions related to the evidence on record which it was claimed had not been properly considered by the lower Court in arriving at the value to be fixed according to the Act as it stood. But, by the time these petitions came on for hearing, the Act had been amended and the arguments before me have proceeded on the basis that since these eviction petitions are pending, the Court should now proceed in accordance with the principles laid down in the new Act. The tenants object to the application of the new Act contending that the new Act cannot be regarded as retrospective in respect of the matters which are now sought to be canvassed and that certain valuable rights which were created in the tenants under the old Act are by the interpretation placed upon the provisions of the Act by the landlord sought to be taken away; and it is contended that the new Act should not be regarded as retrospective for that reason.

2. I shall now proceed to examine these contentions. The first contention on behalf of the tenants is that the proceedings before the lower Court cannot be deemed to be pending, since an order directing the payment of the value of the land has been made and it only remained for the landlord to execute the sale-deed in compliance with the directions of the Court. It may however be mentioned that in some of these petitions some more instalments of the value of the land still remain to be paid, while in one of the petitions, that the entire amount has been paid but final orders in the matters have not been passed. Under Section 9 of the Act, the procedure set down is that after the Court passes an order directing the payment of instalments of the price of the land as fixed, the matter does not automatically come to an end. On the payment of the price so fixed, the Court has to pass an order directing the conveyance by the landlord to the tenant of the extent of the land for which the price was fixed, and the Court has also by the same order to make arrangements for placing the one party or the other in possession of the land. There is the further condition that if the tenant failed to make the payments as directed, the application of the tenant could be dismissed with a consequent order of the repayment to him of the part of the purchase price paid, by him. It is obvious therefore that the mere circumstance that the Court has made an order fixing the price of the land and directed its payment by the tenant does not put an end to the petition. The question however is whether in the absence of any provision in the Act for carrying the matter in Appeal or in Revision, it could still be regarded as a pending proceedings and. by reason of that pendency, the Amending Act could be made applicable to those proceedings.

3. It seems to me that this contention of the tenants that the proceedings arc not pending cannot possibly be accepted. Though the point is not directly dealt with, the decision in Syed Oomer Sahsb v. Gopal (1925) 47 M.L.J. 350 : I.L.R. Mad 47 , affords some guidance. That was a case where a decree in ejectment had been passed against the tenant but had not been executed at the date of the commencement of the Madras City Tenants' Protection Act. This Act came into force after the date of the order in ejectment. Nevertheless, the Full Bench held that notwithstanding that the order in ejectment had been passed, the case would still come within the scope of the expression 'a tenant against whom a suit in ejectment had been instituted within the meaning of Section 9 of the Act,' and that, therefore, the tenant became entitled to apply under Section 9 of the Act for an order directing the landlord to sell the land to him. It is clear therefore that till the order in ejectment was actually executed the proceedings could be regarded as pending.

4. On behalf of the petitioner-landlord, reliance has also been placed upon Satyanarayana v. Venkatarattamma : AIR1951Mad1044 . In that case, the question arose whether an appeal preferred to the Appellate Tribunal under the Madras Buildings (Lease and Rent Control) Act must be deemed to be pending so long as the application to quash the proceedings was pending in the High Court. An application for a writ of certiorari for setting aside the order of the Subordinate Judge, the Appellate Authority under the Act, had been filed in the High Court. The order in eviction was based on the ground of default. But the Act had been amended providing that a default should be wilful before an order in eviction could be based thereon. The contention that was raised then was that because the original application for eviction as well as the Appeal preferred against that order were disposed, of long before the amendment came into force, the application for a writ of certiorari could not be regarded as a proceeding instituted under that Act. The learned Judges found considerable force in this argument. While conceding that the Act provided for an appeal but did not provide for any further proceeding by way of revision or certiorari under the Act, they nevertheless went on to hold that the moment a proceeding was instituted in the High Court, it should necessarily follow that the decision in Appeal was again set at large as it lost the finality the moment the High Court issued the rule nisi and on this ground they held that the proceedings were pending and that the amended Act would apply.

5. Though in the Madras City Tenants' Protection Act, there is no express provision granting a right to an aggrieved party to move this Court by way of Revision, nothing has been stated before me to support the contentions that the Revision Petitions before this Court are incompetent. If therefore a Revision Petition could be validly entertained by this Court, the principle laid down in the above decision Satyanarayana v. Venkatarattamma : AIR1951Mad1044 , applies, and even apart from other considerations, viz., that no final order had been passed by the lower Court in the proceeding before it, it should necessarily follow that the proceeding is still pending.

6. It has next been contended that the Act cannot be deemed to be retrospective in its operation. The argument in this regard is that under the Act as it stood the tenant had two valuable rights, firstly he could make an application demanding that the landlord should sell the land he was in possession of to him, and secondly the price was to be computed at the lowest figure during the preceding seven years. In both of these aspects, the amending Act made changes. While confirming the right of the tenant to protection in the sense that the land he was in occupation of was to be sold to him, the new Act limited that right to the actual extent that was necessary for the convenient enjoyment of the tenant, and secondly in respect of the price the amendment fixed the price to be that of the average of the preceding three years. It is accordingly seen that under the amending Act, the tenant could not ask for a sale of the entire holding to him over and above what was necessary for his convenient enjoyment, and, secondly, the price that he had to pay was also fixed at a somewhat higher figure than what the unamended provision fixed it at. It is contended on behalf of the tenants that these valuable rights which were conferred upon them by the old Act would be affected adversely by the amending Act and for that reason, it is urged that retrospective operation cannot be given to the new provisions. The question is whether this view is correct.

7. I may first of all emphasise that this amending Act is not one which repealed an existing Act and replaced it with another. Unless there is an express provision to the contrary, the presumption is that an amendment of a provision in an existing Act is deemed to have been part of the Act since the date of the passing of the Original Act. It is true that this is subject to the general principle regarding retrospective operation of any provision. But so long as the Legislature was competent to enact such a provision, there is no reason why it should be regarded that the amendment came into force only from the date on which it was effected. In evaluating the argument that certain valuable rights were conferred upon the tenant under the old Act, it seems to me that the policy of the Act must necessarily be examined. What right was it that was conferred on the tenant? In a proceeding in eviction of the tenant, the tenant was given a right to ask for a sale of the land to him and the Court could under certain circumstances and on certain conditions, make an order in his favour. Since the policy underlying the Act was only the protection of the tenant from eviction, the right that was conferred upon him was only to that limited extent and if the Act as amended defined that right only in relation to such extent of land that would be necessary for his convenient enjoyment, it is difficult to see what valuable right of the tenant was taken away by the amendment It is true that under the unamended Act, the tenant could ask for a sale of the entire extent of land that he was in possession of and notwithstanding that hardship might be caused to the landlord, the old Act made it possible for the tenant to secure the sale of the entire extent to him. It is common knowledge that during the recent years the value of immoveable properties have appreciated to a great extent and there would appear to be no reason why the tenant should be given a considerable extent of land at the expense of the landlord and at a considerably lower price than the prevailing price, if what all the Act intended to do was to protect the tenant from eviction. The restriction of the right of the tenant to secure a conveyance of only such portion of the holding as would be necessary for his convenient eniovment does not to my mind affect the right that was created in the tenant that right being only a protection against the eviction. It was not and could not have been the intention of the Legislature to enrich the tenant at the expense of the landlord over and above what was required for carrying out the policy of the Act. If the amendment is to be deemed to be only prospective, it would in effect be a measure of expropriation of the landlord's interest in the land at least in that portion of it which was not necessary to give adequate protection to the tenant. In carrying out the policy of the Act, it was wholly unnecessary for the landlord to be deprived of a large portion of the holding and to be compelled to sell it at a price far lower than the prevailing market value. In my opinion, to deny the application of the principles underlying the amendment would in effect be expropriatory in so far as the landlord's interests are concerned, and no construction of the provisions of the Act which would lead to such a result, unless such a result is expressly intended by the Act, could be given to the amendment. Therefore, in applying the general rule that a statute should not be regarded as having retrospective effect, unless so expressed by the terms thereof or by necessary implication, the equally important consideration that expropriatory effect should not be given to a piece of legislation unless that intention is expressly made out by the terms of that legislation, has-to be borne in mind. In the view that I take that the policy of the Act was only to safeguard the tenant against eviction, whatever right was conferred on the tenant must be limited to that extent necessary to effectuate that purpose. It should follow that by necessary implication the amended provision became applicable to all pending proceedings.

8. It also seems to me that in a manner of speaking, the right to apply for a sale of the holding to the tenant can be separated from the rest of the provisions regarding the extent of the land to be conveyed to him and the price to be fixed therefor, the latter being merely procedural in their scope. It is undisputed that in so far as matters of procedure are concerned, the amendment must be held to be retrospective in its operation. The right being only to be protected against eviction, all other matters ancillary to granting that protection must in my opinion be deemed merely procedural in their scope, and, if that view is correct, it should follow that the two matters for which the amendment provided, viz., the limitation of the extent of the land to be conveyed to the tenant and the principles upon which the price-thereof was to be fixed, were procedural matters only to be governed by the amended; provision.

9. In the view that I have taken above, it follows that the order of the Court below has to be set aside and the matter remanded for fresh determination in the light of the amended Act. The Petitions are accordingly allowed. The applications under Section 9 are directed to be re-opened and disposed of in the light of the provisions of the amending Act and in the light of the observations contained above. Under the circumstances of the cases, there will be no order as to costs.


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