S. Swamikkannu, J.
1. This Second Appeal involves a very interesting point of law and that is whether a Government Order, passed under a special enactment, is retrospective or prospective in operation. It is well-established that unless a Government Order specifically incorporates as a condition that it is retrospective in operation, it cannot be construed that it has got a retrospective operation. But it is submitted by Mr. R.S. Venkatachari, learned Counsel for the respondents, that the decisions of this Court as well as the Supreme Court would show that a Government Order has to be construed as retrospective in operation because 'Law' in Article 13 of the Constitution of India, is defined by the Supreme Court in the decision viz, Shankari Prasad v. Union of India 1951 S.C.J. 775 : (1951) 2 M.L.J. 683 : 64 L.W. 1005 : 1952 S.C.R. 89 : A.I.R. 1951 S.C. 458, as including rules, regulations, notifications and Government Orders and, as such, when a Government Order is passed by a relevant department of the Government, it must be construed as nothing but a delegated legislative act that had been done by executive effect, In the instant case, two Government Orders are relevant, which were passed by the Home Department of the Government of Tamil Nadu- The earlier Government Order viz., G.O. Ms. No. 1998, Home, dated 12th August, 1974 is to the effect that it exempts from the operation of the provisions of the Act which includes public as well as private trusts. But so far as the subsequent Government Order under consideration viz , G.O. Ms. No. 2000, Home, dated 16th August, 1976 is concerned, it is specifically provided in it that it is only the public trusts that are exempted from the operation of the provisions of the special enactment viv , the Tamil Nadu Buildings (Lease and Rent Control) Act. The lower Appellate Court has taken a view that the subsequent Government Order has got a retrospective effect and as such though in the instant case the suit has been filed prior to the date of the subsequent Government Order, yet the effect of the Government Order has to be conferred on the persons claiming the benefit of the subsequent Government Order.
2. On the other hand, Mr. N. Sivamani, learned Counsel for the appellant, vehemently contends that the Government Order that has come into existence subsequently has been passed by the Home Department with the specific prescription of limitation to the benefit under the said Government Order so far as public trusts are concerned and the said benefit cannot be construed as one which can be extended to private trusts. In other words, the distinction between the private and public trusts has been contemplated only because of the coming into existence of the subsequent Government Order of the Home Department of the Tamil Nadu Government.
3. It is relevant in this connection to note that during the time of the II World War and the difficult periods which British India had to undergo, orders were being passed by the relevant departments of the Government, prescribing the benefits which the tenants will enjoy and that the very object of those orders was to relieve the tenants from oppression on the part of the landlord with respect to residential buildings. These orders came to remain permanently on the statute book by the coming into existence of the first enactment of the year 1949 and the subsequent enactments. As a matter of fact, this branch viz, matters relating to the Rent Control Act, have become a permanent feature in the entire jurisprudence of our country. Now let me briefly state the facts of the instant case in order to appreciate the above contentions raised on behalf of either side relating to the prospective and retrospective operation of the Government Order.
4. O.S. No. 110 of 1975 was filed for a decree against the defendants for possession and direction to the defendants to put the plaintiff in possession and also for a direction to the defendants to pay to the plaintiff Rs. 20 towards arrears of rent and for future mesne profits under Order 20, Rule 12 of the Code of Civil Procedure. The plaintiff has alleged that it is the landlord of the building described in the plaint as door No. 90.A, Sannadhi Street, Tirupapuliyur, Cuddalore, and the said building was rented to the first-defendant on a monthly rent of Rs. 5. The further allegations in the plaint are that the first-defendant has sub-let the building to the second-defendant without the knowledge and consent of the plaintiff, that plaintiff had started a Tamil College and wanted the first-defendant to vacate the building, that the first defendant agreed to vacate the building on 30th June, 1973 itself, that the first-defendant was fully aware of the necessity of the building to run the college and that on the strength of the promise and assurance of the first defendant the plaintiff started the college expecting him to vacate the building The first defendant colluded with the second defendant. The plaintiff with great inconvenience is running the college in its premises where there is no sufficient space. The plaintiff issued a notice to the defendants to vacate the building on 20th July, 1974, on the ground that the first defendant has sub-let the building and for personal use for running the Tamil College. The first defendant evaded to receive the notice and the second defendant received the notice and gave a reply with a false allegation. The defendants are liable to be evicted is the submission incorporated in the plaint by the plaintiff. It is further alleged that the first defendant has committed default in the payment of rent and is in arrears of rent from 1st October, 1974 to 1st February, 1975. The arrears of rent came to Rs. 20. The plaintiff filed R. C. O. P. No. 52 of 1974 against the defendants for eviction. The plaintiff-institution, according to it, is a religious, charitable and educational one and hence exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence the suit was filed.
5. In the written-statement filed on behalf of the first defendant it is inter alia contended that it is false to say that the first defendant took the properties on rent on a monthly rent of Rs 5 and it is only Rs. 3 per month. The first defendant has been a tenant for the past seven years and has been paying the rent regularly. The first defendant has not sub-let any portion to the second defendant. The plaintiff has not started any Tamil College. The Tamil College has been started by a Committee and they only can represent the college. The first defendant further contended in his written-statement that the alleged requirement of the premises in question for the Tamil College is not bona fide. The plaintiff is letting out the Mutt for marriage and for that purpose only the first defendant is sought to be evicted. The first defendant further contended that for the present no college is functioning. It is also contended by the first defendant in his written-statement that he has improved the property by spending nearly Rs. 1,500. He will be put to serious hardship if he is asked to vacate, the premises is the submission made by the first defendant in his written-statement. He is prepared to pay any reasonable rent. There is no valid notice to quit. It is false to say that the first defendant is in arrears of rent. The second defendant is an unnecessary party to the suit. The first defendant denies all other allegations that are not specifically admitted in his written-statement. The written statement filed by the first defendant has been adopted by the second-defendant. As a matter of fact in Exhibit A-4 the reply notice sent on behalf of second defendant on 4th July, 1974, it is inter alia contended that he is not a sub-tenant under the first defendant, that he is not in occupation of the property, that he is running a tea-stall in which the first-defendant is also a partner, that in order to have consultation for the business he used to go to the house of the first defendant and apart from it he has nothing to do with the suit-premises. In the additional written-statement that was filed before the Trial Court, it was inter alia contended by the first defendant that the Trial Court had no jurisdiction to try the suit, that by the Government Order passed recently the Tamil Nadu Buildings (Lease and Rent Control) Act, has been made applicable to private trusts and that the plaintiff is admittedly a private trust and hence the Rent Controller will have no jurisdiction to entertain the suit.
6. On the above pleadings, the following issues were framed for trial:
(1) Whether the defendant is liable to be evicted?
(2) Whether there is no valid notice to quit?
(3) Whether the monthly rent is Rs. 5 or or Rs. 3?
(4) Whether the first-defendant has sub-let the suit property to second defendant?
(5) To what relief, if any, is the plaintiff entitled?
(6) Additional issue : Is the suit not maintainable in view of the recent Government Order referred to in the additional written-statement?
7. On behalf of the plaintiff, the power agent of Sri la Sri. Siva Shanmugha Arumugha Gnaniar Mutt, Tirupapuliyur, has examined himself as P. W. 1. Exhibits A-1 to A-12 were filed on behalf of the plaintiff. The first defendant had himself examined as D.W. 1 and on behalf of defendants Exhibits B-1 to B-8 were filed before the Trial Court. Under issues Nos. 1 to 4 the Trial Court found that the evidence of D. W. 1 and Exhibits D-1 to D-4 clearly establish that the monthly rent payable is Rs. 3 and as such the monthly rent is only Rs. 3 and not Rs. 5. The Trial Court also found that on a perusal of Exhibit A-1, copy of notice, dated 20th of July, 1974, issued by the counsel for the plaintiff to the defendants, it is seen that it is in conformity with the provisions under Section 106 of the Transfer of Property Act and as such the Trial Court held that it was a valid notice to quit. It was further held that the requirement of the plaintiff for running Tamil College is bona fide. It was also held that the evidence of P. W. 1 shows that the first defendant is in arrears of rent and that the first defendant is liable to pay arrears of rent of Rs. I2 at the rate of Rs. 3 per month. It was also found by the Trial Court that the first defendant has sub-let the premises to the second defendant and on that ground the defendants are liable to be evicted. The Trial Court also found that the first defendant has sub-let the building to the second defendant and defendants are also in arrears of rent and the requirement of the plaintiff is bona fide. On this ground also, according to the trial Court, the defendants are liable to be evicted. On the additional issue the Trial Court found that a Government Order, passed, during the pendency of any proceedings is not applicable to the said proceedings. Hence the Trial Court further found that inasmuch as the Government Order was passed during the pendency of the present proceedings and there is no retrospective effect given in the Government Order, the same cannot interfere with the proceedings pending before that Court. Accordingly it decreed the suit with costs.
8. An appeal was preferred by the defendants and on the point 'whether the suit is not maintainable and if so whether the remedy of the plaintiff is to seek the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act?', the lower Appellate Court came to the conclusion that the law as it stood on the date when the judgment was rendered will have to be administered by the Court, that on the date when the matter came up for enquiry and decision of the Court, the Government Order had been introduced, taking away the private trust from the sphere of exemption and on the date when the judgment was rendered the plaintiff, being a private trust, was one which came under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Therefore, the lower Appellate Court held that the Trial Court ought to have applied only the law as it then stood, namely, when the matter was taken up for trial and when the judgment was rendered and since on the date of the trial and judgment, the exemption had been taken away in respect of private trusts the suit is not maintainable. It was further held by the lower Appellate Court that the remedy of the plaintiff is only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and that in view of the decision in Ethirajammai v. Hassan Khanoo alias N. M. Hassan : AIR1977Mad327 , the suit is not maintainable and the remedy of the plaintiff is only under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and accordingly the appeal was ailowcd by the lower Appellate Court and the judgment and decree of the Trial Court were set aside.
9. Aggrieved by the above judgment and decree of the lower Appellate Court, the plaintiff came forward with this Second Appeal, which was admitted by this Court, on the basis of the following substantial questions of law:
(1) Whether the suit is not maintainable in view of G.O. Ms. No. 200. of 1976 granting exemption only to institutions which are of a public religious or charitable nature?
(2) Whether the lower appellate Court erred in dismissing in entirety the appellant's suit when the appellant had asked not only for possession of the property but also for arrears of rent?
10. The point for consideration in this Second Appeal is whether the G.O. Ms. No. 2000, Home, dated 16th August, 1976 is retrospective in operation or is it only prospective? In other words, is the G.O. Ms. No, 2000, Home, dated 16th August, 1976, published at page 510 of Part II--Section 2 of the Tamil Nadu Government Gazette, dated the 1st September, 1976, regarding exemption of all buildings owned by Hindu, Christian and Muslim religious public trusts and charitable trusts from all provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, is exercisable in respect of private trusts also, especially when this Government Order which is of the year 1976, is exclusively giving exemptions to the public charitable trusts alone?
11. It is relevant in this connection to note that at the time of the institution decision of the suit i.e., O.S. No. 110 of 1975, this Government Order that was applicable was regarding exemption. The said G.O. Ms. No. 2000, Home, dated 16th August, 1976, published at page 510 of Part II--Section 2 of the Tamil Nadu Government Gazette, dated the 1st September, 1976, reads as follows:
In exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960), and in supersession of the Home Department Notification No. II(2)/HO/38/3811/74, dated the 12th August, 1974, published at page 444 of Part-II, Section 2 of the Tamil Nadu Government Gazette, dated the 21st August 1974, the Governor of Tamil Nadu hereby exempts all the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts from all the provisions of the said Act.
12. On the other hand, the text of the Notifications issued by the Government of Tamil Nadu as per G.O. Ms. No. 1998, Home, dated 12th August, 1974, is as follows:
In exercise of the powers conferred by Section 29 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) the Governor of Tamil Nadu hereby exempts all the buildings owned by, the Hindu, Christian and Muslim religious trusts and Charitable Institutions from all provisions of the said Act.
13. A reading of the above G.O. Ms. No. 898, Home, dated 12th August, 1974, clearly shows that exemption has been granted from the operation of the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Act XVIII of 1960) with respect to all buildings owned by both public as well as private trusts. On the other hand, a reading of G.O. Ms. No. 2000, Home, dated 16th August, 1976, shows that the exemption has granted only with respect to buildings owned by the public trusts and public charitable trusts from all the provisions of the Tamil Nadu Act XVIII of 1960. We find that the exemption contemplated by G.O. Ms. No. 1998, Home, dated 12th August, 1974, inter alia applies to all the buildings owned by Hindu religious trusts and charitable institutions, without exceptions. All buildings to which the Notification applies are exempt from all the provisions of the Act without exception. It is also relevant in this connection to note that Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, by its provisions deals with the exemption, and the same reads as follows:
Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any building or class of buildings from all or any of the provisions of this Act.
It is under the above provisions of the Act, namely, Section 29, the above exemption was notified by the Government,
14. It is also provided under Section 34 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) that the Government may, by Notification, make rules to carry out the purposes of this Act. The said Section 34 of the Act reads as follows:
34. Power to make rules:
(1) The Government may, by notification make rules to carry out the purposes of this Act.
(2) without prejudice to the generality of the foregoing power, such rules may provide for--
(a) all matters expressly required or allowed by this Act to be prescribed ;
(b) the procedure to be followed by Controllers and appellate authorities in the performance of their functions under this Act;
(c) the manner in which notices and orders under this Act shall be given or served;
(d) setting aside ex parte orders and orders of dismissal for default passed under this Act;
(e) applications for making legal representatives of deceased persons, parties to proceedings under this Act and the time within which such applications shall be preferred;
(f) the procedure to be followed in taking possession of a building and in disposing of the articles found therein at the time of taking possession; and
(g) the fee leviable in respect of applications and appeals under this Act.
(3) In making a rule under this section, the Government may provide that a person who contravenes any of the provisions thereof shall be punishable with fine which may extend to one thousand rupees.
(4) (a) All rules made under this Act shall be published in the Tamil Nadu Government Gazette and unless they are expressed to come into force on a particular day, shall come into force on the day on which they are so published.
(b) All notifications issued under this Act shall, unless they are expressed to come into force on a particular day, come into force on the day on which they are published.
(5) Every rule made under this Act shall, as soon as possible after it is made, be placed on the table of both Houses of the Legislature, and if, before the expiry of the session in which it is so placed or the next sessions, both Houses agree in making any modification in any such rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
15. Mr. N. Sivamani learned Counsel appearing for the appellant, refers to the decision reported in Sengalneer Pillaiyar Temple, Koranadu v. Manickam Chettiar (1977) 1 M. L. J 425 : 90 L.W. 162, wherein it was held that 'the Notification of the Government exempting all buildings belonging to Religious Trusts and Charitable Institutions from all the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act has no retrospective operation.' In this decision it was also held, relying on the decision, reported in Income-tax Officer, Alleppy v. M. C. Ponnoose : 75ITR174(SC) , that:
The very concept of exemption, must exclude any idea of retroactive application, 'To exempt' means to free from control.' It follows that the act of freeing anything from pre-control must necessarily begin to operate only from here and now. It is in this sense that legislature had invested the State Government with the power to grant exemption under Section 29 of the Act. It is to be noted that the section requires an overt act on the part of the executive to render the provisions of the Act inapplicable to the buildings covered by the notification. On the plain language of Section 29, the power to exempt is exercisable only so as to have effect from the moment of its exercise. There are no words in the section to indicate that the exemption could be notified by the Government with retrospective effect.
We have already incorporated the text of the Notification issued by the Government of Tamil Nadu in its Government Order viz., G.O. Ms No. 1998, Home, dated 12th August, 1974. in exercise of the powers conferred by Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) the Governor of Tamil Nadu exempted all the buildings owned by the Hindu, Christian and Muslim religious trusts and Charitable Institutions from all provisions of the said Act, by virtue of the above Notification of the year 1974. The language of this Notification is plain enough. In the first place, the exemption inter alia applies to all the buildings owned by Hindu, Christian and Muslim religious trusts and Charitable Institutions without exception, and in the second place all buildings to which the Notification applies are exempted from all the provisions of the Act without exception. As already seen, Section 29 of the Act under which the above exemption was notified by the Government, exempts all buildings owned by the Hindu, Christian and Muslim religious trusts and Charitable Institutions from all provisions of the said Act.
16. We find that under Section 29 of the Act and on the language of the Notification dated 12th August, 1974, referred to above, the exemption contemplated excludes any iota of retrospective application. Thus the Legislature, we find, had invested the State Government under Section 29 of the Act. It is to be seen that Section 29 requires an overt act on the part of the executive to render the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) in applicable to the buildings covered by the Notification. There are no words in the section to indicate that the exemption could be notified with retrospective effect by the Government. We also find that the nature of the power conferred under Section 29 of the Act is purely executive in character I am unable to uphold the contention raised by Mr R.S. Venkatachari that it is legislative in character.
17. It is relevant in this connection to note that in Globe Theatres v. State of Madras : AIR1954Mad690 , a Division Bench of this Court considered the constitutional validity of a similar power of exemption conferred on the State Government by an identical provision in Section 13 of the Madras Buildings (Lease and Rent Control) Act (XXV of 1949) and proceeded in that case on the footing that Government's power under the section to exempt any building or class of buildings from the provisions of the Act was purely in executive discretion. The contention that was raised before the Bench was that the discretion, as conferred by the Statute, was arbitrary. The Bench, however, expressed the view that in the context of the scheme of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1949 and its various provisions, the discretion to exempt was a guided and controlled discretion. Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960) is in the same terms and has to be viewed as conferring on the State Government an executive discretion in the matter of exemption. This view is also further strengthened by the provision under the succeeding section, Section 30 of the Act of 1960, in which by contrast, the exemption to certain classes of buildings, is exigible under the very terms of that statutory provision. Thus, it follows that the Government's power under Section 29 of the Act of 1960 is purely an executive power. It is a power which is exercisable only prospectively and if a Notification is issued with retrospective effect, the Notification, to that effect, would be ultra vires the provisions of Section 29 of the Act. In this regard, we can resort to the ratio decidendi imbedded in the decision rendered by the Supreme Court in Income tax Officer Alleppey v. M. C. Ponnoose and Ors. : 75ITR174(SC) , In the said case, the Court was concerned with a Notification, which was stated to have retrospective operation, but the Court, on construction of the enabling provisions of the Act, held that the Notification to the extent that it was expressed to operate retrospectively was ultra vires as being in excess of the powers conferred on the executive by the Statute.
18. In the instant case, as we have already noticed, the Notification of the State Government, dated 16th August, 1976 is not expressed to take effect on any earlier date. On the contrary, as I have stated earlier, the language is 'The Governor of Tamil Nadu hereby exempts'. It follows that the plain language of the Notification cannot be read so as to give it retrospective effect since to do so would be to impute to the Government a power to grant exemption with retrospective force, which as we have seen earlier, the Government does not possess on a true construction of Section 29 of the Act.
19. In this regard Mr. R.S. Venkatachari learned Counsel for the respondent, relies on the word 'suspersession' in the Notification of the Government Order G.O.Ms. No. 2000 Home, dated 16th August, 1976, published in the Tamil Nadu Government Gazette, Part II, Section 2 page 510. According to Mr. R.S. Venkatachari the existence of the word 'Supersession' in this Government Order has to be taken into consideration in support of his contention that the power vested with the State Government to exempt certain buildings by means of a Government Order published in the Tamil Nadu Government Gazette, enables it to legislate. In other words, he submits that, by virtue of the legislative power vested with the Government, by means of conditional legislation, it has published G.O. Ms. No, 2000, Home, dated 16th August, 1976, superseding the earlier Government Order of the year 1974 and as such this latter Government Order of the Home Department of the Government of Tamil Nadu, dated 16th August, 1976, must be construed as one having retrospective effect. I have already stated that this contention is untenable, as the power of exemption under the provisions of Section 29 of the Act vested with the Government by means of a Government Order can only be held as an executive Act and not a legislative Act.
20. Mr. R.S. Venkatachari, learned Counsel appearing for the respondent, refers to the meaning of the word 'Supersede' as it occurs at page 1830 of Webster's Dictionary of the English Language--Unabridged--Encyclopedic Edition, which is as follows:
1. to cause to be set aside or dropped from use as inferior or obsolete and replaced by something else.
2. to take the place or office of; to succeed.
3. to remove or cause to be removed so as to make way for another; to supplant.
21. Mr. R.S. Venkatachari, learned Counsel for the respondent, referred to the decision reported in Sadhu Singh v. District Board , and quotes the following observation of the Punjab High Court in paragraph 13 at page 211:
It is not disputed and indeed it could not be, in view of any number of decisions of the Privy Council and the Supreme Court, for instance, Queen v. Burah (1879) 51 A. 178 : I.L.R. 4 Cal. 172 : (P. C), Hamdard v. Union of India : 1960CriLJ671 , and Vasanlal v. State of Bombay : 1978CriLJ1281 , that delegation of power to the Government to determine the time as to when the statute should apply, the person or persons to whom it is to apply, and the place or places to which it would apply has never been held to be void because it has always been treated as conditional legislation, and not delegated legislation. In principle, we do not see any difference between the grant of this type of power and the power under the impugned Section 3. (East Punjab Urban Rent Restriction Act (IX of 1949).
The power of exemption is inherent in the first type of cases, the power given to the Government to apply a statute to a particular place or to a particular set of people as and when it deems fit. The exemption power is there by necessary implication, for the Government can by not applying the statute to any territory within its jurisdiction is necessarily exempting the territory to which it refuses to apply the statute under that power.
On the other hand, we see no difference in principle when in the second type of case, the exercise of power of exemption is postponed after the statute has come into operation. In both cases the discretion is left to the Government to apply or to exempt any appropriate cases, persons and things from the applicability of the statute. The reason in both the cases would be the same, i.e., that certain circumstances exist which would not justify the applicability of the statute or which would justify the grant of exemption. Therefore if in the first class of cases the exemption is conditional as has repeatedly been held it must be so held in the cases of the second class.
In the above passage, Mr. R.S. Venkatachari, learned Counsel for the respondent, submits that the Section 3 of the East Punjab Urban Rent Restriction Act (III of 1949) referred to is equivalent to Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960).
22. Mr. R.S. Venkatachari, learned Counsel for the respondent, also refers to the decision reported in Tricky City Cooperative Bank v. Additional Commissioner far Workmen's Compensation, Madras (1957) 2 M.L.J. 185 : (1957) M. W N. 323, In this decision, the effect of exemption under Notification after appeal but before orders under the provision of Section 6 of the Madras Shops and Establishments Act, (XXXVI of 1947) was considered. It was held that the Additional Commissioner for Workmen's Compensation has jurisdiction when the appeal was presented to him under Section 41 (2) of the Act to render a decision under Section 41 (3) of the Act, but he lost his jurisdiction on 15th November, 1955, when the statutory exemption under Section 6 of the Act came into play, by which the proceedings before him were rendered without jurisdiction. The decision in Jyoti Prakas v Bagala (1922) 36 Cal. 124, was referred to the Court in the said case. It was observed by Rajagopalan, J., with respect to the said reference as follows:
Adopting the words of the learned Judge and applying the principle laid down there, I hold the Additional Commissioner had jurisdiction when the appeal was presented to him under Section 41 (2) of the Act (Madras Shops and Establishment Act (XXXVI of 1947) to render a decision under Section 41 (3). Before he could exercise his jurisdiction, the provisions of the Act ceased to apply to the petitioner and his employee, who was the appellant before the Additional Commissioner. Consequently the Additional Commissioner lost his jurisdiction and could no longer exercise the power conferred upon him; The proceedings taken by the Additional Commissioner subsequent to 15th November, 1955, when the statutory exemption under Section 6 of the Act (Madras Shops and Establishments Act (XXXVI of 1947) came into play, were without jurisdiction and could not affect the subject matter of the appeal that had been presented to him.
23. Mr. R.S. Venkatachari, learned Counsel for the respondent, by referring to this decision submits that the facts in the instant case are similar to the facts in the decision reported in the above case, though the decision referred to had been given under the provisions of another enactment.
24. Mr. R.S. Venkatachari also refers to the following passage that occurs at page 2937 of Stroud's Judicial Dictionary, Third Edition, with respect to the word 'supersede' which runs as follows:
1. A compulsory order 'supersedes' a voluntary winding up (of a company) as from the date of the order; but that does not mean that it entirely puts an end to everything that has been previously done in the voluntary winding up.
2. A clause that nothing in a general Act shall 'suspersede' the provisions of any local Act means that if anything is provided for by a local Act then the expressions of the General Act relating to that thing shall not have application in the locality covered by the local Act; e. g., in Town Council (Scotland) Act, 1900 (63 and 64 Vict. c. 49), Section 117, if a burgh Act provides for the appointment of an auditor, then the Secretary for Scotland cannot (under Section 94) appoint an auditor, for that burgh (Smith v. Irvine Magistrates 40 S.C.L.R. 76, for 'no sensible administrators of a corporation would go on appointing an auditor to do, at additional expense, work that was already done for them under official employment' per Lord McLaren, ibid. and the burgh's power to appoint would be superseded.
25. Mr. R.S. Vekatachari, learned Counsel for the respondent, also refers to the decision reported in A. Sankaranarayanan v Madras University : (1970)1MLJ551 , for the following proposition:
The power of the Senate under Sections 16 and 29 which is similar to the rule-making power of an executive under any Act is not legislative but one of subordinate legislation conferred for working out details and carrying the enactment into operation. In re, The Delhi Laws Act 1951 S.C.J. 527 : 1951 S.C.R. 747 : A.I.R. 1951 S.C. 932, referring to The Queen v. Burah (1879) 5 Ind. App. 178 (P.C.) : I.L.R. 4 Cal. 172, followed : Iore G A. Natesan v. K B Ramanathan (1917) I.L.R. 40 Mad. 125 : 31 M.L.J. 634 : A.I.R. 1918 Mad 763, explained : Halsbury's Laws of England, 3rd Edition, Vol. 1 3, page 708, paragraph 1442, distinguished : Par do v. Bingham (1869) 4 Ch. App. 735, and Rajnarain Singh v. The Chairman, Patna Administration Committee : 1SCR290 , and Craies on Statute Law, 6th Edition, page 386, referred. Power to legislate retrospectively can even be implied. The position under the Act prior to the amendment and the intention behind the amendment being clear, even if the substitution of the pre-amendment Chapter 19 and Section 10 of the Statute by the new Chapter 19 and Section 11 is in the nature of retrospective subordinate legislation, it is impliedly permitted by the Amending Act. Craies on Statute Law 6th Edition, page 391, Followed.
The main purpose of the register of registered graduates is to constitute an electorate to choose Senate members. After the amendment, a graduate not residing in the area of the University loses the right of his name being in the register as well as the right to cootest Senate election. Yet as the new Chapter 19 and Section 11 only carry into effect the express intention of the legislature under Sections 54-A and 56 of the Amending Act to make a complete change they are valid. Director of Public Works v. Ho Po Sang 1961 A. C. 901, distinguished.
26. The following observation of Alagiriswami, J. as then was, is referred to by the learned Counsel for the respondent:
Mr. Tairuvenkatachari referred to the decision of the Supreme Court in In re, The 1912 Delhi Laws Act 1961 S.C.R. 747 : 1951 A.I.R. 1951 S.C. 332, where at pages 766 and 767, the Supreme Court dealt with the argument that the doctrine delegatus potestas non potest delegare cannot apply to actions of legislatures and if these lcgislatures]delegate powers to some other authority to make rules or regulations or authorise the executive Government to enforce laws made by them or other legislatures wholly or in part and with or without restrictions or modifications, the legislatures are perfectly competent to do so. The learned Judge went on:
When a legislative body passes an Act it has exercised its legislative function. The essentials of such function are the determination of the legislative policy and its formulation as a rule of conduct. These essentials are the characteristics of a legislature by itself. It has nothing to do with the principle of division of powers found in the Constitution of the United States of America. Those essentials are preserved when the legislature specified the basic conclusions of fact, upon ascertainment of which from relevant data by a designated administrative agency, it ordains that its statutory command is to to be effective. The legislature having thus made its laws, it is clear that every detail for working it out and for carrying the enactments into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive officer. While this also is sometimes described as a delegation of legislative powers, in essence it is different from delegation of legislative power which means a determination of the legislative policy and formulation of the same as a rule of conduct I find that the word 'delegation' is quite often used without bearing this fundamental distinction in mind. While the so-called delegation, which empowers the making of rules and regulations, has been recognised as ancillary to the power to define legislative policy and formulate the rule of conduct the important question raised by the Attorney-General is in respect of the right of the legislature to delegate the legislative functions strictly co-called. Again at page 770 after referring to the case of The Queen v. Burah (1879) 5 Ind. App. Cal.178 (P.C.) : I.L.R. 4 call 172. their Lordships quoted from the judgment of Markby, J., in that judgment which was to the following effect.
The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has and was intended to have plenary powers of legislation as large and of the same nature as those of Parliament itself....If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited... it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.
27. As I already pointed out while the Senate may be the legislature of the University, it is in no sense a legislature as ordinarily understood and it was not exercising power in making the statutes but was only exercising the power of subordinate legislation which is referred to by their Lordships of the Supreme Court in the extract quoted earlier, wherein their Lordships pointed out that the legislature having made its laws, it is clear that every detail for working it out and for carrying the enactment into operation and effect may be done by the legislature or may be left to another subordinate agency or to some executive Officer. It is in that sense the detail for working it out has been left to the subordinate agency, that agency in this case being Senate.
28. Mr. Thiruvenkatachari referred to the decision of the Supreme Court in Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna : 1SCR290 , where at page 298, Bose, J., set out within a short compass the conclusions of the Supreme Court in the earlier cases but this does not in any way add to the strength of the arguments already noticed. Thus, the contention of Mr; Thiruvenkatachari that the Senate of the Madras University is a legislature and that within the scope of its legislative power, it was competent to pass such legislation as it chose and, therefore, even though the new statutes framed by it might be retrospective in effect, they could be upheld, has to be rejected.
29. Mr. Thiruvenkatachari then contended that the right of the petitioner to have his name continued on the register of graduates of the Madras University was not a right which had been taken away by the new statutes. He referred to the decision in Director of Public Works v. Ho Po Sang 1961 A. C, 90, where the Privy Council held that in the case before them the aggrieved party cannot be said to have a right under the repealed ordinance and he had no more than a hope that a certificate would be given. The present case cannot be equated to that case; the petitioner had his name in the register of graduates and if elections were held as they were bound to be held once in three years, he had a right to stand for election. The main purpose, if not the only purpose, as already indicated of the preparation of the register of graduates is to constitute an electorate which will elect a certain number of members to the Senate. Therefore, the petitioner did have a right which was taken away by the impugned statute. I consider, however, that the validity of the new Chapter 19 and new statute 11 in that Chapter could be upheld on another ground. A power to frame laws retrospectively need not necessarily be express. It could even be implied. In Craies on Statute Law, 6th Edition at page 391 it is pointed out:
If it is necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation, Baron Parke, said Lord Hatherley in Pardas Case (1869) 4 Ch. pp. 735 at p. 740 did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and said that the question in each case was whether the legislature had sufficiently expressed that intention. In fact, we must look to the general scope and purview of the Statute, and at the remedy sought to be applied and consider what was the former state of the law, and what it was that the legislature contemplated.'....In Main v. Stark (1890) 15 A. C. 384 at p. 388, Lord Selborne said:
Their Lordships, of course, do not say that there might not be something in the context of an Act of Parliament, or to be collected from its language, which might give to words prima facie prospective a larger operation, but they ought not to receive a larger operation unless you find some reason for giving it... In all cases it is desirable to ascertain the intention of the legislature, He went on : 'Words not requiring a retrospective operation, so as to affect an existing statute prejudicially, ought not to be so construed' ; but in Reynolds v. Att. Gen. for Nova Sootia 1896 A. C. 240 at page 244, it was held that this rule did not extend to protect from the effect of a repeal a privilege which did not amount to an accrued right.I think it is plain from a reading of the Madras University (Amendment) Act, 1966 in conjunction with the Madurai University Act that the intention of the legislature was that a new register of graduates was to be prepared by the Madras University as well as by the Madurai University, that the register of graduates of the Madras University was to consist of graduates residing within the Madras University area, that the register of graduates was to consist not of persons whose names were to be on it for life, but only for five years, and that the new register of graduates was to contain the names of graduates of any University whatsoever provided they were resident within the areas of the respective Universities. The old State of the law and the intention behind the amendment carried out by the legislature being thus clear there is no difficulty in holding that even if the substitution of the old Chapter 19 and old Statute 10 of the statutes of the Madras University by the new Chapter 19 and new Statutes II were in the nature of retrospective subordinate legislation, it is permitted by implication of the new legislation.
30. Mr. R.S. Venkatachari, learned Counsel for the respondent, also relies on the decision reported in Kandaswamy Mudaliar v. Sheik Ahmed Peer Mohammed Musihafa (1977) 90 L.W. 123, In that case certain eviction petitions were filed in 1971 before the Rent Controller. They were ordered in 1972 and appeals (C. M. As.) were preferred by the tenants against the eviction orders. While the appeals were pending before the Appellate Authority, the Notification dated 12th August, 1974 in G.O. Ms. No. 1998, Home, was issued by the Government of Tamil Nadu exempting all the buildings owned by the Hindu, Christian and Muslim religious trusts and charitable institutions from all the provisions of the Act under Section 29. The appeals were dismissed by the Appellate Authority in 1975, and Civil Revision Petitions were filed against those orders contending that the G.O. aforesaid was passed while the appeals were pending before the Appellate Authority and that, therefore, it had no jurisdiction to pass any order disposing of the appeals. It was held that
The Notification in question does not purport to affect pending proceedings. Therefore, the appeals and revisions pending on the date the Notification came into force are not affected by the Notification. The Civil Miscellaneous Appeals before the Appellate Authority were pending on the date of the Notification, and consequently, the Appellate Authority was properly seized of jurisdiction while disposing of the appeals.
But the Civil Revision Petitions in that case were filed in the Court after the Notification came into force and therefore they were held to be not maintainable. It was also held that the principles regarding the interpretation of the statutes are the same in India as in England, as well as in America. it was further held in that decision that a right of appeal or revision is a vested right, and an appeal or revision pending in a forum at the time the statute affecting the jurisdiction of that forum comes into force is not affected by the statute unless the statute-clearly expresses an intention to operate retrospectively.
Mr. R.S. Venkatachari, learned Counsel for the respondent, also refers to the decision reported in Ethirajamma v. N. Hassan Khanoo alias N.M. Hassan : AIR1977Mad327 . In the said case, it was held that:
There is no vested right in the landlord to be protected, and he cannot be heard to say that the civil Court should grant a decree for possession simpliciter after holding that the Amending Act has no application and that the building is exempt from the provisions of the Act on the ground that when he filed the suit, the building was exempt. After the amendment the building is certainly not exempt from the provisions of the Act. The stand taken by the landlord is untenable.
It must be remembered that in the instant case it is only the earlier Government Order viz., G.O. Ms., No. 1998, Home, dated 12th August, 1974, that was in existence at the time of the filing of the suit before the trial Court and that Government Order was superseded by the subsequent Government Order viz., G.O. Ms. No. 20C0, Home, dated 16th August, 1976. By the subsequent Government Order viz., G.O. Ms No. 2000, Home, dated 16th August, 1976, the Governor of Tamil Nadu has exempted all the buildings owned by Hindu, Christian and Muslim religious public trusts and charitable trusts from all provisions of Tamil Nadu Buildings (Lease and Rent Control) Act. By this Government Order private trusts are not exempted as they were exempted under the previous Government Order viz., G.O. Ms, No. 1998, Home, dated 12th August, 1974.
It was observed, By N.S. Ramaswami, J., in the decision above referred to viz., Ethirajamma v. N. Hassan Khanoo alias N.M. Hassan : AIR1977Mad327 , as follows:
It is to be noted that under Section 10 of the Act and the corresponding provisions in the earlier Rent Control Law a tenant shall not be evicted even though there might be a ...civil Court decree for possession unless any of the grounds in that section is made out. Therefore if the civil Court does not go into the question whether the Act is applicable to the building or not n d simply grants a piece for possession (as the civil Court's jurisdiction is not ousted even in a case where the building comes within the purview of the Act), it is not only open but also the duty of the executing Court to see whether the Act is applicable. However, if the civil Court decides that the Act is not applicable while granting a decree for possession, it would not be open to the executing Court to go behind it. That being the position there is no vested right in the landlord to be protected and he cannot be heard to say that the civil Court should grant a decree for possession simpliciter after holding that the Amending Act has no application and that the building is exempt from the provisions of the Act on the ground that when he filed the suit the building was exempt. After the amendment, the building is certainly not exempt from the provisions of the Act. The stand taken by the landlord is untenable. The decree passed by the Appellate Court is therefore the proper one.
C. Sebastian v. R.C. Diocese, Madurai (1976)1 M.L.J. 435 : 89 L.W. 392, and Shawani v. Mahaveer Banians Stores (1977) I M.L.J. 25, both rendered by Gokulakrishnan, J , and the Bench decision reported in S.P. Temple v. Manickam Chettiar : (1977)1MLJ425 . all relate to cases of building having been exempted by G. O Ms. No. 1998, Home, dated 12th August, 1974, by virtue of the powers under Section 39 of the Act. Those are all cases where the proceeding had been instituted in the Rent Control Court. In the two cases before Gokulakrishnan, J , the Rent Controller had passed an order of eviction even before the buildings concerned were exempted by the abovesaid Government Order. The effect of the exemption under the Government Order is that the landlord would be entitled to get an order of eviction even without satisfying any of the grounds contained in Section 10 of the Act and without going before the Rent Controller. It has been pointed out by the Division Bench in S.P. Temple v. Manickam Chettiar : (1977)1MLJ425 , column 2 that the landlord (temple in that case) having had a cause of action to go before the Rent Controller under some of the grounds contained in Section 10 of the Act, there was nothing to show that it lost its right to evict the tenant on those grounds merely because the Government notified the building as one exempt from the provisions of the Act. These decisions which relate to cases of subsequent exemptions granted under the Government Order may not have a bearing on the present question, because there the point was that once the Rent Controller entertained the petition whether his jurisdiction can be held to have been taken away by the Government Order. After the Government Order the Rent Controller cannot entertain a petition as he would not have jurisdiction. But what is to happen to a petition validly entertained prior to the Government Order which is not retrospective? The Court said that as there was no abatement of the proceedings they should go on to the end. The vested right to file an appeal (or revision) was also held not to have been taken away.
Mr. R.S. Venkatachari, learned Counsel appearing for the respondent, also refers to the decision reported in Mahant Ram Saroop Dasji v. S.P. Sahi : AIR1959SC951 . In that case, the appellant as Mahant of the Solouna asthal made an application in the High Court under Article 226 of the Constitution praying inter alia for the issue of a writ quashing the order of the Bihar State Board of Religious Trusts requiring the appellant to submit a return of income and expenditure under Section 59 of the Bihar Hindu Religious Trusts Act, 1950, on the grounds, inter alia, that the Salouna asthal was a private institution and not a religious trust within the meaning of the Act and that the Act did not apply to private trusts. The High Court took the view that the language of Section 2(1) of the Act, which defined a 'religious trust', was wide enough to cover within its ambit both private and public trusts recognised by Hindu law and that the Salouna asthal did not come within any of the two exceptions recognised by the the section. It was held in the said decision as follows:
that on a true and proper construction of the provisions of the Act, considered in the background of previous legislative history with regard to religious, charitable or pious trusts in India, the definition clause in Section 2(1) of the Act does not include within its ambit private trusts and that the provisions of the Act do not apply to such trusts.
The essential distinction in Hindu Law between religious endowments which are public and those which are private is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust.
In the instant case, it is relevant to note that it is conceded that the trust is a private trust. The trial Court in paragraph 13 of its judgment has twice observed as follows:
Admittedly the plaintiff is a private trust'. As a matter of fact the character of the trust is not at all argued before this Court at this stage. Therefore, it, is clear that the trust in question is a private trust.
31. Mr. N. Sivamani, learned Counsel for the appellant, however, contends that the scops and effect of the Notification can be well understood by bearing in mind the ratio decidendi laid down in the decision reported in Sengalaneer Pillaiyar Temple, Koranadu v. Manickam Chettiar : (1977)1MLJ425 He reiterates his argument by submitting that the power exercisable by the Government under the Statute as in the instant case seems to be more in the nature of an executive Act than a legislative one. In other words, he contends that the arguments advanced by Mr. R.S Venkatachari, learned council for the respondent, that the effect of the subsequent Government Order, viz., G.O. Ms. No. 2000 Home, dated 16th August, 1976 is retrospective in nature has to be held as inconsistent and untenable because the scope and effect of a Notification issued by the State Government in exercise of its power under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (XVIII of 1960 ) is only an executive one and as such it is only prospective in its operation and not retrospective. I am inclined to uphold the contention of the learned Counsel for the appellant. In view of the reasons that it is not specifically mentioned anywhere in the subsequent Government Order viz., G. O Ms. No. 2000, Home, dated 16th August, 1976, that it has got a retrospective effect, on the relevant date, so far as the instant case is concerned, it was only the previous Government Order viz, G.O. Ms. No. 1998, Home, dated 12th August, 1974, which was in effect and existence. Therefore, it is only that Government Order viz , G. O Ms. No. 1998, Home, dated 12th August 1974 that has to be relied on for deciding the points in the appeal and not on any ground, as now contended on behalf of the respondent, that the subsequent Government Order viz., G.O. Ms. No. 2000, Home, dated 16th August, 1976, can be relied upon and the benefit of the same can be conferred on the respondent.
32. Mr. N. Sivamani, learned Counsel for the appellant, also refers to the decision reported in Victoria Edward Hall, Madurai v. Sethuraman (1978) 91 L.W. 179, wherein it was held that:
The specification that the institution is a philanthrophic institution under Section 29 (k) of the Urban Land Tax Act, made by the Government has to be treated as being applicable from the date of the commencement of the amending Act of 1971 i.e., fasli year 1381.
There should be a distinction between the exemption notification and a notification which is merely declaratory. Under Section 29 (k), once a declaration is given, the lands owned by the petitioner will not come under the purview of the Act. The notification, as such, does not grant the exemption, and the exemption is granted by the statute as a result of the declaration given by the Government that the petitioner institution is a philanthropic institution. Thus, the declaration is as regards the nature of the institution and the nature and object of the institution does not differ or change from year to year. Apart from this, the notification issued by the Government declaring the petitioner as a philanthropic institution was on a petition filed by the petitioner on 17th July, 19.4. Since the notification is silent as to when it will become effective, the application filed by the petitioner has to be looked into.
Mr. N. Sivamani, learned Counsel for the appellant, also refers to the decision reported in Rameshwar and v. Jot Ram and others : 1SCR847 , and relies on the following observation of the Supreme Court that occurs at pages 850 and 851 of the decision, which runs as follows:
The solitary point which thus falls for determination is as to whether the subsequent event of the landowner's death at the appellate stage unsettles the right acquired by the tenants or whether the tribunal must uphold rights which have crystallized as on the date the applications were made and, in any event, the deposits of the first instalment were made by each of the tenants. We see no difficulty in answering this question against the appellant, but, in view of the persistent submission based upon a few rulings of this Court, the Federal Court and the High Courts, made by counsel for the appellant, we may as well consider the question of law, adopting an interpretative attitude which will further and not frustrate the legislative will in case there are alternatives choices for the Court. Of course, construction which will promote predictability of results, maintenance of reasonable orderliness, simplification of the judicial task, advancement by the Court of the purpose of the legislation and judicial preference for what it regards as the sounder rule of law as between competing ones, must find favour with us. A plain reading of Section 18. without reference to consideration of subsequent events at the appellate level, yields the easy and only conclusion that the rights of parties are determined on the date they come to Court and what is an insurmountable obstacle to any other construction is that once the deposit is made the title to the land vests in the tenant. Agrarian reform law affects a considerable number of people and to keep rights uncertain over a long stretch of time till appeals and reviews and revisions and other processes are exhausted, is to inject unpredictability of results, for it is quite on the cards that a landlord may die in the long course of litigation, or other events may happen at later stages beyond the trial Court. Can rights of parties fluctuate with such uncertain contingencies? If so, stabilization of landownerships; so vital to the new pattern of agrarian relations, will be postponed for a long time.
Judicial task is simplified by adopting the golden rule that the rights of parties must be determined when they seek justice and not when the last Court has had its last say, long years after the litigation was initiated? A system of orderliness about rights in land will result from this approach. More than all, the sounder rule of law as between rival claims to consideration of or indifference to, subsequent events is surely that which excludes the later event factually or its legality. Such a reading of the statutory scheme rhymes well with rapid agrarian reform contemplated by the farmers.
The philosophy of the approach which commends itself to us is that a litigant who seeks justice in a perfect legal system gets it when he asks for it. But because human institutions of legal justice function slowly, and in quest of perfection, appeals and reviews at higher levels are provided for, the end produce comes considerably late. But these higher Courts pronounce upon the rights of parties as the facts stood when the first Court was first approached. The delay of years flows from the infirmity of the judicial institution and this protraction of the Court machinery shall prejudice no one. Actus curias neminem gravabit (An act of Court shall prejudice no one-Latin for lawyers Sweet and Maxwell.). Precedential support invoked by the appellant's counsel also lets him down provided we scan the fact situation in each of those cases and the legal propositions therein laid down.
The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact situations or legal positions and drive parties to fresh litigation whereas relief can be given right here. The broad principle, so stated, strikes a chord of sympathy in a Court of good conscience. But a seeming virtue may prove a treacherous vice unless judicial perspicacity, founded on well-grounded rules, studies the plan of the statute, its provisions regarding subsequent changes and the possible damage to the social programme of the measure if later events are allowed to unsettle speedy accomplishment of a restructuring of the land system which is the soul of the whole enactment. No processual enquiry can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice. This wider perspective explains the rulings cited on both sides and the law of subsequent events on pending actions.
After referring to the decisions reported in P. Venkateswarlu v. Motor and General Traders : 3SCR958 , Bhajan Lal v. State of Punjab : 2SCR497 , Lachmeshwar Prasad Shukul v. Keswar Lal Chaudhuri , and Ramji Lal v. The State of Punjab , the Supreme Court held that--
While taking cautious judicial cognizance of 'post-natal' events, even for the limited and exceptional purposes explained earlier, no Court, will countenance a party altering by his own manipulation, a change in situation and plead for relief on the altered basis.
Mr. N. Sivamani, learned Counsel for the appellant, also refers to the decision reported in Per Mohammed v Rajamani Bai (1981)2 M.L.J. 170, wherein Ratnam, J., has observed as follows:
The use of the words 'where a landlord has obtained possession of a building under this clause' in the proviso postulates a prior securing of possession of a building under Section 10(3) (a) of the Act. The later part of the proviso is to the effect that such a landlord will not be entitled to apply again under this clause. The language employed in the later part of the proviso, namely, 'to apply again' contemplates, in my view, a second application by the landlord under Section 10(3) (a) of the Act and not a subsequent stage of an application already filed. In cases where an application has been filed and an order for eviction had been obtained and that order is questioned in appeal or revision, as the case may be, then it will not be in consonance with the language of the proviso to apply it to such a case, as there is no question of the landlord applying again when the prior application is still pending either in appeal or in revision. The second . proviso referred to already in its two parts covers, in my view, all the cases contemplated under Section 10(3) (a) (i) to 10(3)(a)(iii) of the Act. The first part part of the second proviso would cover Section 10(3) (a) (i) while the second part would cover Section 10(3) (a) (ii) as well as Section 10(3)(a)(iii) of the Act. But the object of the proviso, as a whole whether the building is residential or non-residential, is to preclude a landlord who has already recovered possession of such a building by resorting to Section 10(3) a (i) to 10(3)(a)(iii) of the Act from a second resort' as it were, to the same provision to enable him to secure possession of the building. This is brought out by the use of the words ''to apply again' which discloses a repetitive act on the part of the landlord. In the present case, the respondents had not obtained possession of a portion of the premises on the date when the respondents filed H.R.C. No. 1672 of 1974, namely, 8th July, 1974, and, therefore, that application cannot be considered to be once again at the instance of the landlord. Therefore, even as a matter of construction, the proviso cannot stand attracted to the present case.
Mr. N. Sivamani, learned Counsel for the appellant, also refers finally to the decision reported in Firm Amar Nath v. Tek Chand : 1SCR695 , and relies on the following observation of the Supreme Court at page 1550 paragraph 4, which runs as follows:
Under the above notification, the provisions of Section 13 are made inapplicable to decrees in respect of buildings constructed during the years specified in (a) for a period of 5 years to be calculated from the dates of their completion provided during the said period suits had been instituted by the landlords against the tenants. There is no doubt, from the facts set out above, that the building in respect of which exemption from the application of Section 13 is being claimed was completed in March, 1960 and a suit had also been filed on 14th January, 1963 before the expiry of the period of 5 years from that date. It is contended by the learned Advocate for the appellant that the decree in that suit having been passed on 14th August, 1969 after the period of 5 years from the date of construction, the exemption from the restrictions placed by Section 13 will not be available, because according to him not only the suit should be filed but the decree for eviction should be obtained within the said period of 5 years. This contention on the very face of it would lead to incongruity or would, if accepted, have the effect of nullifying the very purpose for which the exemption was being given. We were reminded with a somewhat emphatic assertion what appears to us to be unexceptionable that the Courts are not concerned with the policy of the legislature or with the result, whether injurious or otherwise, by giving effect to the language used nor is it the function of the Court where the meaning is clear not to give effect to it merely because it would lead to hardship. It cannot, however, be gainsaid that one of the duties imposed on the Courts in interpreting a particular provision of law, rule or notification is to ascertain the meaning and intendment of the legislature or of the delegate, which in exercise of the powers conferred on it, has made the rule or notification in question. In doing so, we must always presume that the impugned provision was designed to effectuate a particular object or to meet a particular requirement and not that it was intended to negative that which it sought to achieve. It is clear that the Government intended to grant certain inducements to persons who had the means to construct buildings by exempting any such building so constructed for a period of five years. The period of five years could commence from the date of construction or from some other date. Initially, as the earlier notifications would show, that exemption of 5 years was given from the date when the building was constructed but by the impugned notification it was intended to confer the benefit by giving exemption of five years from a subsequent date, namely, the date of the institution of a suit, provided it was instituted within a period of 5 years from the date of the construction of the building. A closer reading of the notification would show that it was intended to clarify and provide a workable solution in respect of buildings constructed in 1959, 1960, 1961, 1962 and 1963. These buildings had already teen exempted from the provisions of Section 13 by two earlier notifications, the first. one in 19 0 giving exemption upto 31st December, 1963 and the second in 1963 for 5 years from the date of completion of the building. it is clear from the language of the notification that what is exempted is the decree for ejectment of a tenant from the application of Section 13. The very purpose of exemption of buildings from the operation of Section 13 was to give landlords the rights which as owners of buildings they had under the ordinary law, namely, to give them on lease at rents which they thought were remunerative and to evict tenants during that period without any fetters imposed by the Act. If no provision was made for exempting such decrees in respect of the exempted buildings, the exemption granted will be illusory. Clause (b), therefore, provided for the time during which that suit in which the decree has been passed should be filed. The decrees passed in such suits will be executable free from the fetters imposed by Section 13 of the Act. It is obvious that the filing of a suit by itself does not confer any exemption because what is exempted from the provisions of Section 13 is the decree. A suit filed, therefore, must end in a decree though that decree may be passed subsequent to the expiry of the 5 years' period during which exemption from the application of Section 13 has been granted.
33. On a careful and anxious scrutiny of the entire evidence available on record, both oral and documentary, together with the ratio decidendi imbedded in the decisions referred to by either side in this case, this Court finds that inasmuch as the subsequent Government Order viz., G.O. Ms. No. 2000, Home, dated 16th August, 1976, does not specify that it is retrospective in its operation and it only supersedes the earlier Government Order viz., G.O. Ms. No. 1998, Home, dated 12th August, 1974, and that by the subsequent G.O. the Government, by virtue of the powers vested with it under Section 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act (Tamil Nadu Acs XVIII of 1960, has specified that the exemption is only granted to the public trusts, whereas in the earlier Government Order, the benefit of exemption could be invoked by both viz., the private as well as public trusts in getting themselves exempted from the provisions of the special enactment, namely, the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960) (Tamil Nadu Act XVIII of 1960), it is only the provisions of the earlier Government Order viz., G. O Ms. No. 1998, Home, dated 12th August, 1974, that are applicable to the instant case. Therefore, necessarily the appeal has to be allowed.
Accordingly, the appeal is allowed, the judgment and decree of the lower Appellate Court are set aside and the judgment and decree of the trial Court are confirmed. Under the circumstances, there is no order as to costs.