Skip to content


K.S.K. Zafrullakhan Vs. K. Arunachalam and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)2MLJ491
AppellantK.S.K. Zafrullakhan
RespondentK. Arunachalam and ors.
Cases ReferredKillick Nixon Limited v. V.R. Narqyana Rao
Excerpt:
.....operation only when there is nothing repugnant in the subject or context, is a well-known proposition. as i have already indicated, counsel had some doubts as to whether this decision bad been rendered in a case where a fair rent had to be fixed. the amendment restricting the exemption to a period of five years would not help the defendant here, the learned counsel next submitted that if the decision of the bench were to be applied here, then it would follow that the provisions of section 30, clause (i) would have no application to a building like this for ever it is not necessary for me to consider whether the provision would be out of force with reference to the present building in case the contruction as contended for by the respondents is accepted......separate proceedings under order 20, rule 12, civil procedure code.5. in the present appeal, the learned counsel for the appellant (defendant) submitted that section 30 of the act would not apply to the present property. the first part of his objection was that section 30 of the act provided that.nothing contained in this act shall1 apply to any building, the construction of which was, after the date of the commencement of this act, completed and notified to the local authority concerned.and, therefore, the point taken was that it was not a case where there was only construction (as distinguished from repair) of a building, which means a whole building coming within the scope of section 30 of the act, the construction of which was completed after the tamil nadu act (ii of 1962).....
Judgment:

V. Sethuraman, J.

1. In the Second Appeal, the only question that arises is whether the suit building is exempted under the provisions of Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The suit property and the adjoining properties on the east and west belong to the plaintiffs. They were originally constructed with mud walls. Since they were in a dilapidated condition, the plaintiffs claimed to have demolished the same and put up new constructions in the month of December, 1966. The defendant became a tenant in respect of one of the shops so put up on a monthly rent of Rs. 100. Originally he was to occupy the property for only one year. But, even after the expiry of the period of one year, the defendant continued to occupy the shop and did not vacate the premises. The plaintiffs claimed that they required the shop for their convenient enjoyment and also for additional accommodation. They pointed out that the entire construction of the property having been completed in 1966, the provisions of Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act would apply so as to except the building from the operation of the said Act. They, therefore, came forward with a suit in the civil Court praying for recovery of possession of the newly-constructed shop in the possession of the defendant bearing door No. 69, in Tamil Sangam Road, Madurai Town, and for mesne profits.

2. The defendant resisted the suit on the ground that the plaintiffs had effected only minor repairs to the portion of Door No. 69, that the building had not been demolished and reconstructed as required by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, that the said building was, therefore, covered by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, and that he was entitled to the benefit of the said Act, so that in the absence of a valid notice to quit and in the absence of proceedings before the authorities constituted under the Tamil Nadu Buildings (Lease and Rent Control) Act, he was not liable to be evicted and, was entitled to the benefit of the said Act. He, therefore, contested the suit on the ground that the suit itself was not maintainable.

3. The trial Court held that even though the suit property was constructed in the year 1966, since it was only a portion of the building bearing door No. 69 it was not exempt from that Act so that the provisions of the said Act would apply and that, therefore, the suit for ejectment was not maintainable. The suit was, therefore, dismissed. The plaintiffs, therefore, appealed to the lower appellate Court.

4. The learned Principal Subordinate Judge pointed out in paragraph 6 of his judgment that in the instant case, it was not in dispute that the inpugned shop along with the other shops were recently constructed in such a way that they could be let out separately, that they were let out to independent tenants and that each shop had an independent entrance and was thus capable of being let out separately for non-residential purposes. The learned Judge was inclined to hold that this was a case which would clearly come under the scope and purview of Section 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act and that the suit was-perfectly maintainable in the civil Court by virtue of the said provisions. Before him; there was a plea based on the amendment under Act XXXIII of I973 to the provision of Section 30 of the Act. The learned Judge held that the amendment did not apply to the pending proceedings and' that, therefore, the plaintiffs were entitled to the relief's prayed for. He left open the question of mesne profits to be decided in separate proceedings under Order 20, Rule 12, Civil Procedure Code.

5. In the present appeal, the learned Counsel for the appellant (defendant) submitted that Section 30 of the Act would not apply to the present property. The first part of his objection was that Section 30 of the Act provided that.

Nothing contained in this Act shall1 apply to any building, the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned.

and, therefore, the point taken was that it was not a case where there was only construction (as distinguished from repair) of a building, which means a whole building coming within the scope of Section 30 of the Act, the construction of which was completed after the Tamil Nadu Act (II of 1962) amending the Tamil Nadu Buildings (Lease and Rent Control) Act. On this point there is a specific statement of the learned Principal Subordinate Judge that it was not in dispute that impugned shop along with the other shops were recently constructed in such a way that they could1 be let out separately and that they were let out to independent tenants. In the face of this admission in the lower Appellate Court, I do not think it possible to accept the submission of the learned Counsel for the appellant so as to require me to go into the question of fact as to whether there was only a repair to the existing building or whether there was a construction of a new building. The Courts below have proceeded on the basis that there was a construction of a new building on the said property. Therefore, I proceed on the basis that there is a construction of a building as contemplated by Section 30(i).

6. The next part of the objection was that Section 30(i) required two conditions to be satisfied, namely, that the building must be one, the construction of which was completed after the date of the commencement of the Act and that there must be a notification to the local authorities concerned. The learned Counsel took me through the plaint to show that there was no averment therein suggesting that there was any notification to the local authorities concerned. For the respondents, was pointed out that the defendant had not taken up this point at any stage so far and that if only lie had taken up the point at any earlier stage, they could have let in the necessary evidence. My attention is also drawn to the deposition in the trial Court in which it was stated by the first plaintiff as P.W. 1 that after he constructed the new building he intimated the municipality. In the course of cross-examination, he has stated that he did not have any record for any such intimation. He has, however, filed Exhibits A-8 and A-9 to Show that as a result of the notice, the municipality had increased the tax for the property. Under Exhibit A-8 dated 12th September, 1966, before the construction was completed, the tax was Rs. 293.37 per half-year. Under Exhibit A-9 dated 14th March, 1968, after the building was completed the tax was increased to Rs. 567.15. This was referred to in the course of deposition.

7. The point for consideration is whether there has been notification as contemplated by Section 30 of the Act in the present case. The section only says that 'nothing contained in the Act shall apply to any building the construction of which was, after the date of the commencement of the Act, completed and notified to the local authority concerned.' The word notified' does not appear to require any written notice If it was so needed, the legislature would have said so. It is enough if there is an intimation given to the municipality and the evidence of P.W. 1 clearly shows that there was such an intimation. I do not, therefore; see any substance in the submission that there was no notification to the local authority concerned so as to satisfy one of the conditions required by Section 30(i) of the Act.

8. The learned Counsel for the appellant took another point before me, namely, that Section 30 would contemplate a whole building being constructed and not a mere part. It was pointed out that the present property bore the same municipal door number as earlier so as to show that the property was only a part that had been constructed. For this purpose, my attention was drawn to Section 30(ii) is which the words 'part thereof have been used so as to show that, the building contemplated by Clause (i) of Section 30 would only be the entire building and not a part thereof. Section 30, as it was enacted originally, ran to the extent relevant as follows:

30. Nothing contained in this Act shall apply to-

(i) any building the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned, or

(ii) any residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book of the municipal council, district board, panchayat or panchayat union council or the corporation of Madras, as the case may be, exceeds two hundred and fifty rupees per mensem, or

(iii) ...

The word, 'building' has been defined in Section 2(2) as meaning 'any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes'. Therefore, if the definition of the word 'building as indicated in Section 2(2) applied, there can be no doubt that Section 30(i) and (ii) would apply even to part of a building which had been constructed as contemplated by that provision. The contention of the counsel was that the context required the non-application of the definition. I have carefully considered this submission. I do not find that there is any substance in it. The definition would apply unless the context otherwise required. The context in Section 30(i) does not appear to require the ruling out of consideration of the definition provision. The section can be given a proper and reasonable meaning by applying the definition rather than by not applying it There is no anomaly pointed out if the definition is applied. I do not, therefore, see my way to accept this part of submission by the learned Counsel.

The learned Counsel then drew my attention to the amendment of this provision later. The amendment was actually introduced by Tamil Nadu Act II of 1962. Under that amendment, Clause (ii) was amended to run as follows:

30. Nothing contained in this Act shall apply to-

(i)...

(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part thereof exceeds two hundred and fifty rupees.

The difference in the wording between the old provision and the provision as introduced in 1962 is obvious. The provision as indicated earlier applied only to a residential building, the whole of whose assessment exceeded Rs. 250. Supposing a tenant was occupying a small part of a building paying, say a sum of Rs. 10 per month as rent and supposing the whole building had been assessed on the basis of the rental value of more than Rs. 250 per mensem, then the tenant would, on the provision as it was, not be eligible for the protection extended by the Act. It is this anomaly which was sought to be rectified by the amendment made in 1962, so that the exemption would apply only to a case where the rental portion under the occupation of the tenant exceeds Rs. 250. This was obviously a clarificatory amendment which came to be passed to get over the anomaly existing in the previous provision. An existing meaning of a word in a provision does not change by a subsequent amendment of a different one. Therefore, the amendment in Clause (ii) does not, in my opinion, in any way throw light on the meaning of the word 'building' in Clause (i) of Section 30.

9. The learned Counsel in order to suppor this proposition that the definition provision need not be read into every other provision of the Act drew my attention to the decision in Mohammed Jaffar v. Palaniappa Chettiar : (1964)1MLJ112 . The proposition laid down therein, namely, Shat the definition itself is restricted in its operation only when there is nothing repugnant in the subject or context, is a well-known proposition. The Court was not in a position in that case to apply the definition provision to Section 7(3)(e) of the Madras; Buildings (Lease and Rent Control) Act, 1949, corresponding to Section 10(3)(c) of the Act of 1960 in the context of that particular provision. As I have already indicated, there is nothing in the context of Section 30 Clause (i) which requires me to rule out of consideration the definition provision.

10. Another contention which was taken before me was that the provisions of the amending Act, 1973, would apply to the present case. Clause (i) of Section 30 was amended by Tamil Nadu Act (XXIII of 1973), so as to run as follows:

30. Nothing contained in this Act shall apply to-

(i) any building for a period of five-years from the date on which the construction is completed and notified to the local authority concerned; or

The submission of the learned Counsel was that assuming that this building was completed in 1966, the period of exemption would enure only up to 1971 or so and that as we are in the year 1976, the; exemption has already run out of force, so that the benefit of the Act would go to the defendant. The counsel was quite fair to bring to my notice a decision reported only in the short notes in Killick Nixon Limited v. V.R. Narqyana Rao (1974) 1 M.L.J. 16. That was a decision of a Bench of this Court in A.S. No. 518 of 1973. The counsel appears to have some doubt as to whether that was a case for fixation of fair rent and whether that decision would have any application to the facts of the present case which is a case of eviction. In that decision, the learned Judges held that the amending Act (Madras Act XXIII of 1973) did not indicate as to what was to happen to the decisions of civil Courts rendered prior to the amendment of Section 30 of Madras Buildings (Lease and Rent Control) Act (XVIII of 1960). Therefore, the amending Act it was held, could not be taken to affect pending proceedings or the decisions rendered therein. If the Legislature intended the amendment to be retrospective so as to affect vested rights, the learned Judges held that, it would have made a specific provision for abatement of the pending proceedings and the decisions rendered therein as was done when the amending Act (II of 1962) was passed. It could not be held that Act (XXIII of 1973) either expressly or by necessary implication provided for abatement of pending proceedings. The Court took the view that in the absence of any such provision, it had to be taken that the amending Act was only prospective. This is a decision which is binding on me and it shows that the amendment made in 1973 to Section 30(i) would have no application to the proceedings commenced earlier in this case. As I have already indicated, counsel had some doubts as to whether this decision bad been rendered in a case where a fair rent had to be fixed. The head-note shows that the judgment was rendered in a suit for ejectment and possession. That suit also had been decreed, as here, prior to the coming into force of the amending Act. Therefore, that decision would squarely apply to the facts here. The amendment restricting the exemption to a period of five years would not help the defendant here, The learned Counsel next submitted that if the decision of the Bench were to be applied here, then it would follow that the provisions of Section 30, Clause (i) would have no application to a building like this for ever It is not necessary for me to consider whether the provision would be out of force with reference to the present building in case the contruction as contended for by the respondents is accepted. The matter does not arise here. Any anomaly as pointed out by the learned Counsel would not also justify a conclusion contrary to the specific and' clear language of the provision as it was in force in the relevant year. If there is any anamoly as contended by the learned-counsel, then the proper forum for getting over the anomaly would be a different one. In the circumstances, I do not see-any substance in the plea of some anomaly, imaginary or real, so as to come to a different conclusion, on the face of the clear language of Clause (i) of Section 30 as it was in force at the relevant time.

11. In the result, there is no merit in the-second appeal and it is dismissed with. costs. No leave.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //