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Haridas Girdharidas and ors. Vs. M. Varadaraja Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)1MLJ193
AppellantHaridas Girdharidas and ors.;m. Varadaraja Pillai
RespondentM. Varadaraja Pillai and anr.;haridas Girdharidas and ors.
Cases ReferredH. Girdhandas v. V. Pillai
Excerpt:
- k. veeraswami, c.j.1. this is a prolonged litigation involving landlord and tenant and the provisions of the madras city tenants protection act, 1921 (111 of 1922) as amended by madras acts xix of 1955, iv of 1972 and xxiv of 1973. the tenant, one varadaraja pillai, who having died on 21st may, 1974 and is now represented by his heirs, asks in his applications for a direction to the landlord to sell to him the land covered by the lease for a price to be fixed either on the ground that in view of madras act iv of 1972, the judgment in h. girdharidas v. v. pillai : [1972]1scr291 , is null and void or on reopening of review of that judgment in terms of section 9(3-a) of madras act xxiv of 1973. the appellants there had by a registered lease deed dated 17th november, 1938 leased out to the.....
Judgment:

K. Veeraswami, C.J.

1. This is a prolonged litigation involving landlord and tenant and the provisions of the Madras City Tenants Protection Act, 1921 (111 of 1922) as amended by Madras Acts XIX of 1955, IV of 1972 and XXIV of 1973. The tenant, one Varadaraja Pillai, who having died on 21st May, 1974 and is now represented by his heirs, asks in his applications for a direction to the landlord to sell to him the land covered by the lease for a price to be fixed either on the ground that in view of Madras Act IV of 1972, the Judgment in H. Girdharidas v. V. Pillai : [1972]1SCR291 , is null and void or on reopening of review of that Judgment in terms of Section 9(3-A) of Madras Act XXIV of 1973. The appellants there had by a registered lease deed dated 17th November, 1938 leased out to the tenant a certain plot of land for a period of fifteen years and three months on a rent of Rs. 560 pee month with an option for renewal for a further term of ten years but at the enhanced rent of Rs. 630 per month. Under the terms of the lease the tenant constructed a theatre on the land at a cost of more than Rs. 50,000 for exhibition of cinema films. At the expiration of the lease period, the lessor exercised the option of purchasing the buildings and sent the lessee a sum of Rs. 50,000 as agreed upon in the lease deed without deducting depreciation. But the lessee declined to accept it taking up the stand that the landlord had no right to enforce the stipulation in the lease deed providing for the landlord's option to purchase the building. Thereafter the landlord brought a suit for a declaration that the landlord was the owner of the superstructure from 1st March, 1964 and for rents etc., The suit was dismissed on the view that the landlord Was not entitled to invoke the proviso to Section 12. With this conclusion, a Division Bench of this Court to which one of us was a Party, concurred and dismissed the landlord's appeal. A further appeal by the landlord to the Supreme Court was however successful. It not only granted the declaration asked for by the landlord, but also on allowing an amendment of the plaint, directed the tenant to deliver possession to the landlord of the demised land and buildings and superstructures built thereon in good and satisfactory condition and granted mesne profits to be determined by the trial Court from 4th August, 1968 till delivery. Possession was directed to be delivered within 6 months from 18th August, 1971, the date on which the Supreme Court allowed the appeal.

2. We may mention that though the Madras City Tenants Protection Act, 1921 applied, only to tenancies prior to 21st February, 1922,the Madras Amending Act XIX of 1955 extended its benefits to the tenancies prior to 12th September, 1955. The preamble to the Act, as it originally stood, stated its object as that it was necessary to give protection to tenants, who in municipal towns and adjoining areas in the State of Madras had constructed buildings on others' lands in the hope that they would not be evicted so long as they paid a fair rent for the land. By Section 3 every tenant shall on ejectment be entitled to be paid as compensation the value of any building erected by him. The quantum of compensation to be paid by the landlord succeeding in the ejectment suit is to be determined by the Court and on payment thereof by the landlord into Court within the time statutorily allowed, the tenant shall put him into possession of the land with the building. If the amount is not so paid, the landlord shall not be entitled to institute a fresh suit for ejectment, or present a fresh application for recovery of possession for a period of five years. By Section 9(1) any tenant entitled to compensation under Section 3 and against whom a suit in ejectment has been instituted may within the prescribed time apply to the Court for an order that the landlord shall be directed to sell for a price to be fixed by the Court, the whole or part of the extent of land mentioned in his application. The Court may then deter-mine the extent of land to be sold by the landlord and the price therefor. If the Price is paid by the tenant, the Court shall pass the order directing a conveyance by the landlord to the tenant of the extent of land for which the price was fixed. The Court may further direct that the tenant should put the landlord into possession of the remaining extent of land if any. Section 12, which is the same except for the proviso, says that nothing in any contract made by a tenant shall take away or limit his rights under the Act. In order to give effect to these special provisions, Section 13 peace restriction on the application of the Transfer of Property Act, 1882. The Amending Act IV of 1972 substituted the preamble by a new one namely:

Whereas it is necessary to give protection against eviction to tenants, who in municipal towns and adjoining areas in the State of Tamil Nadu have constructed buildings on others' lands, so long as they pay a fair rent for the land.

By Section 3, the proviso to Section 12 has deemed always to have been omitted. Then we have Section 4:

Notwithstanding anything contained in any judgment, decree or order of any Court or other authority to the contrary, any stipulations made by a tenant in writing registered as to the erection of buildings in so far as they relate to buildings erected after the date of the contract shall, to the extent such stipulations take away or limit his rights under the Principal Act as amended by this Act, be and shall be deemed always to have been null and void and accordingly the tenant shall be and shall be deemed always to have been, entitled to the rights under the principal Act as amended by this Act.

The next section in the Amending Act is to the effect that Sections 3 and 4 therein shall not apply to any case where the landlord has before the date of the commencement of the Amending Act taken possession of the land and building from the tenant. The Amending Act came in to force from 9th February, 1972, it having received the assent of the President en that date.

3. In view of this Amending Act, the tenant made Application No. 437 of 1972 for a direction to the landlord to sell the land to him. Along with it was another application filed by the tenant to dispose of Application No. VII of 1965 which was pending all the time before and after the judgment of the Supreme Court to direct a sale of the land to him. On 13th October, 1972, Ismail and Palaniswamy, JJ., dismissed this application, vide M. Varadaraja Pilial v. Haridas Girdharidas (1973) 86 L.W. 156. The learned Judges were of opinion that Section 4 of Madras Act IV of 1972 neither expressly nor by necessary implication authorised re-opening or review of any final judgment, decree or order of any Court competently made by it in the proceedings validly instituted before it and that in the absence of any such provision in the Amending Act of 1972, they Were unable to accept the contention of the tenant that the Act authotised him to file the application. The tenant preferred appeals to the Supreme Court by Special Leave against those orders. Pending the appeals, the Supreme Court granted stay of execution of its decree for possession on the undertaking by the tenant that he world vacate and deliver possession with-in three months of the disposal of the appeals. While the appeals were still pending, the tenant sought a review from the Supreme Gout t of its earlier judgment and decree. But this review petition was dismissed on merits on 12th March, 1973. On 27th July, 1973 came into operation the Amending Act XXIV of 1973. This Act made important provisions enlarging the definition of tenant, giving him a fresh right to apply for an order against the landlord to sell the land for a price to be fixed by the Court and on an application of the tenant enabling the Court which passed the decree or order against him to review or reopen its earlier judgment. Section 2 expanded the definition of a tenant by adding the following clause:

(ii) includes-

(a) any such person as is referred to in Sub-clause (i) who continues in possession of the land after the determination of the tenancy agreement.

(b) Any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under Sub-section (3) of Section 1 and who or any of whose predecessors in interest had erected any building on such land and who continues in actual Physical possession of such land and building, notwithstanding that-

(1) such person was not entitled to the rights under this Act by reason of the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972) or

(2) a decree for a declaration or a decree or an order for possession or for similar relief has been passed against such person or the ground that the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City Tenant's Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972) disentitled such person from claiming the rights under this Act, and

(c) the heirs of any such person as is referred to in Sub-clause (i) or Sub-clause (ii)(a) or (ii)(b);

but does not include a sub-tenant or his heirs.

Section 3 of the Amending Act is as follows:

In Section 9 of the Principal Act - (i) Clause (a) of Sub-section (1) shall be renumbered as item (i) of that clause and after that item as so renumbered, the following item shall be inserted, namely (ii) Notwithstanding anything contained in Clause (a)(i) of this Sub-section, any such tenant as is referred to in Sub-clause (ii)(b) of Clause (4) of Section 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenant's Protection (Amendment) Act, 1973 apply to the Court (whether or not a suit for ejectment has been instituted or proceeding under Section 41 of the Presidency Small Causes Courts Act, 1882 (Central Act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending) having jurisdiction to entertain a suit for ejectment or in the City of Madras either to such Court or to the Presidency Small Cause Court, for an order that the landlord under the tenancy agreement shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application. '

(ii) after Sub-section (3), the following sub-section shall be added, namely:

(3-A) Notwithstanding anything contained in Clause (b) of Sub-section (3) of this section or in Section 5 of the Madras City Tenants Protection (Amendment) Act in 1972 (Tamil Nadu Act IV of 1972), or any other law for the time being in force, the Court which passed the decree or order referred to in Sub-clause (ii)(4)(2) of Clause (4) of Section 2 shall, on application made by the tenant referred to in that sub-clause within a period of two months from the date of the publication of the Madras City Tenants' Protection (Amendment) Act, 1973 reopen or review the proceedings relating to such decree or order and may pass a decree or an order that the tenant referred to in the said Sub-clause is entitled to the lights under this Act and pass such other supplemental, incidental or consequential orders as are necessary for the purpose as if the Madras City Tenants Protection (Amendment) Act, 1973, were in force at the time at which the decree or order Was passed.

4. The next section substituted the heading of Section 4 in the 1972 Act by 'certain stipulations to be and to be deemed to have been null and void' In Section 5 of the 1972 Act, at the commencement, the fallowing expression shall be inserted namely:

Subject to the provisions of Sub-section (3-A) of Section 9 of the Principal Act, as amended by the Madras City Tenants Protection (Amendment) Act, 1973.

By Section 4 of the 1973 Act, the words, 'taken possession' in Section 5 of the 1972 Act were substituted by the words ' been delivered actual physical possession'. Evidently taking advantage of the amending Act of 1973, the tenant filed Review Petition No. 28 of 1973 in C.A. No. 74 of 1971 on the ale of the Supreme Court. By this petition the tenant asked the Supreme Court to reopen and review the Judgment and decree in H. Girdharidas v. V. Pillai : [1972]1SCR291 , and pass a decree that the petitioner was entitled to the rights and benefits under the Madras City Tenants Protection Act III of 1922, as amended by Madras Acts XIX of 1955, IV of 1972 and XXIV of 1973 and make all necessary orders and directions giving him all the rights under the said Act to which he was entitled and to direct the landlord to sell the land to him for a price to be fixed by the Court. But this petition was dismissed as withdrawn on 30th August, 1973. Thereafter on 10th September, 1973 the tenant filed Application No. 2525 of 1973 in G.S. No. 28 of 1964 on the Original Side of this Court to reopen and review the judgment and decree in that suit as reversed and modified by the Supreme Court in H. Girdharidas v. F. Pillai : [1972]1SCR291 and pass a decree that he was entitled to the rights and benefits under the Madras City Tenants Protection Acts of 1922 as amended by Acts of 1955, 1972 and 1973 and to make all necessary orders and directions giving him all the rights to which he was entitled under Section 9(3-A). This is the main application with which we are concerned at the moment. To complete the narration, on 27th September, 1973, the appeals arising from M. Varadaraja Pillai v. Haridas Girdkaridas (1973) 86 L.W. 156, were withdrawn and they were dismissed by the Supreme Court. On 5th March, 1974 in a contempt application in the Supreme Court taken out on behalf of the landlord against the tenant, the Supreme Court passed the following order:

Mr. Setalvad on behalf of his clients (tenant) gives an unconditional undertaking that possession will be handed over in compliance with the undertaking dated the 10th January, 1974 within three weeks from today. After compliance with the undertaking dated 10th January, 1974, if Mr. Sctalvad's clients wish to seek proceedings in the appropriate Court with regard to his rights of possession to the premises he will do so on notice to Mr. Sorabjee's clients and will obtain directions in that behalf from the appropriate Court.

Mr. Setalvad says that applications are pending in Court at Madras. We do not express any opinion on that.

This C.M.P. will be kept pending and be listed for hearing before this Bench four weeks from today.

In view of this order of the Supreme Court, the tenant delivered possession of the demised land and buildings to the landlord on 24th March, 1974. On 21st May, 1974, the tenant Varadaraja Pillai died and on 26th August, 1974. Application No. 2698 of 1974 was taken out by the landlord to dismiss Application No. 2526 of 1973 which is for direction for sale of the land, as having abated on the death of Varadaiaja Pillai.

5. Before we proceed further, let us see the effect of the three Amending Acts. As the Act originally stood, it applied to tenancies of lands in the City of Madras brought into existence prior to 21st February, 1922. By reason of the Amending Act XIX of 1955, the application of the Act was extended to tenancies in existence prior to 12th September, 1955. It is not necessary for purposes of this case to see how the preamble in its unamended form could justify such extended application because subsequent to 11th February, 1922 no tenant would have entertained the hope in constructing buildings on demised land that he would not be evicted therefrom, nor could he have expected while building on the land, such an Amending Act. The rule in England has been that when a person built upon, another's land, the building became part of the land and went along with it, but in India, that is not the rule. Section 108 of the Transfer of Property Act, which regulates the rights and liabilities of the lessor and the lessee, provides by Clause 108(h) that the lessee may even after the determination of the lease, remove at any time whilst he is in possession of the demised property but not afterwards, all things which he has attached to the earth, provided he leaves the property in the state in which he received it. The lessee in such a case cannot justifiably claim compensation for the building when he surrenders possession of the land. In England, the rule of estoppel by equity was developed from Ramsden v. Dyson (1866) L.R. H.L. 129, in which Lord Kings down observed:

The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord and upon the faith of such promise or expectation with the knowledge of the landlord, and without objection by him lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation.

The Privy Council in Forbes v. Ralli , applied this principle to India. The landlord who let out the land, having represented that the tenancy was a permanent one and the tenant having acted on that representation and put up constructions, it was held at page 149:

Estoppel prevents the Plaintiff (landlord) from evicting from their holding the defendants whom he the Plaintiff induced by his representation and conduct to believe that they had a fixity of tenure although not of rent, in the lands that had been leased to them.

We may also mention that the principle of Ramsden v. Dyson (1866) L.R. 1 H.L. 129, has since been approved by the Supreme Court in Union of India v. Indo-Afghan Agencies : [1968]2SCR366 . The preamble to the Act was then based on this equitable principle which is given effect to by its provisions. By Section 3 a tenant on ejectment will be entitled to be paid the value of the building he has constructed as compensation and the tenant on payment of such compensation by the landlord, shall put him into possession of the land with the building. Alternatively the tenant who is entitled to compensation under Section 3 and against whom a suit or proceeding in ejectment has been instituted, may apply to the Court for a direction to the landlord to sell to him the land for a price to be fixed by it. Section 12 enjoined that nothing in any contract made by a tenant shall take away or limit his rights under the Act. The rights under the Act are those just mentioned, namely for the tenant to get compensation for the building in a suit for his ejectment or his right for a direction to the landlord to sell, the land to him for a price to be fixed by the Court. The proviso to this section ran thus:

Provided that nothing herein contained shall affect any stipulations made by the tenant in writing registered as to the erection of buildings in so far as they relate to buildings erected after the date of the contract.

In passing, we may mention that decisions were not uniform as to the scope and effect of this proviso. The Supreme Court has however in H. Girdharidas v. V. Pillai : [1972]1SCR291 ; as between the parties to this case, held, that the proviso to Section 12 covers the stipulation in the lease deed dated 17th November, 1938 which we have already referred to. The Amending Act IV of 1972 by the substitution of a new preamble dropped the word 'hope' and purported to give protection against eviction to tenants who in municipal towns and adjoining areas in this State have constructed buildings on others' lands so long as they pay a fair rent for the land. This substitution takes effect retrospectively as if that was the one always in existence. Section 3 of the Amending Act dropped the proviso to Section 12 of the main Act with similar retrospective effect. We have already set out Section 4 of the Amending Act. Its effect is to render ab initio null and void stipulations in tenancy agreements taking away or limiting; the tenant's rights under the principal Act as modified by the 1972 Act. The opening non-obstante clause in this section is claimed to nullify the Judgment in H. Girdharidas v. V. Pillai : [1972]1SCR291 But we shall deal with this matter presently. It is noteworthy that Sections 3 and 4 of this Amending Act shall not apply to any case where the landlord has taken possession of the land and building from the tenant before the commencement of the Act.

6. The next Amending Act of 1973 enlarged the definition of a tenant so as to take within its ambit a person who was a tenant who had erected any building on the demised land and continued in actual possession of the land and building, notwithstanding that he, by reason of the proviso to Section 12 before its repeal would not have been entitled to the rights under the Act, or that there is a decree or order for declaration or for possession, or similar relief based on the said proviso before its repeal. Such a tenant will also include his heirs. Such a tenant has been given by Section 3 a fresh right to apply within the time specified to the Court having jurisdiction for a direction to the landlord to sell the land to him for a price to be fixed by the Court and such a remedy is available to him irrespective of whether or not, a suit or a proceeding for ejectment has been instituted. Section 3 of the Amending Act of 1973 also by introducing a new Sub-section (3-A) to Section 9 gives a further right to the tenant to apply to the Court which passed the decree or order against him based on the proviso to Section (12) to have it reopened or reviewed and ask for an order that he is entitled to the tights under the Act and consequential directions necessary as if the Amending Act was in force at the time at which such decree or order was passed. One more thing the Amending Act of 1973, did was to provide that Sections 3 and 4 of the Amending Act of 1972 shall not apply to any case only where the landlord had before the date of the commencement of that Act been delivered actual physical possession of the land and building by the tenant.

7. According to Mr. M.K. Nambiyar for the tenant, as a result of the last two Amending Acts, the Judgment in H. Girdharidas v. V. Pillai : [1972]1SCR291 , has been rendered null and void, along with the stipulations relating to the building in the lease deed and is out of the way of giving direction to the landlord to sell the land to the tenant, that the tenant has been conferred a right to apply for such a direction, which he has done now, and that, in any case, the tenant is entitled to have the Judgment of the Supreme Court in H. Girdharidas v. V. Pillai : [1972]1SCR291 , reopened or reviewed and to have suitable orders made for sale of the land to him. After a careful consideration of these submissions of Mr. Nambiyar, We are unable to agree with him for reasons which will appear presently.

8. Firstly, when on 24th March, 1974, Varadaraja Pillai delivered to the landlord physical possession of the land and building covered by the tenancy, he would have ceased to be a tenant even within the extended definition of a tenant under Section 2 of the Amending Act XXIV of 1973. In order for any person to come within the extended definition of a tenant (1) he must be a person liable to pay rent in respect of the land to which the tenancy relates under the tenancy agreement, express or implied, and (2) such person 'continues in possession of the land even after the determination of the tenancy agreement or (1) he must be a person who was a tenant which means that determination of the tenancy does not matter, (2) he should have been a tenant under a tenancy agreement to which the Act was applicable, (3) he or his predecessor in interest had erected any building on the land and (4) he continues in actual physical possession of the land and building'. If these requisites are satisfied by anyone, he will be a tenant within the extended definition of the expression and this will be so notwithstanding the fact that such person was not entitled to the lights under the Act by reason of the proviso to Section 12, as it stood before its repeal, or that a decree for declaration or a decree or order for possession had been made against such person on the ground of the proviso to Section 12 before its repeal which disentitled him from claiming rights under the Act. In our opinion, the requirement under Section 2(4)(ii)(a) or (b) as to continuance in possession of the land or continuance in possession of the land or continuance in actual physical possession of the land and building has to be satisfied not only as on the date the Amending Act XXIV of 1973 came into force and on the date of the application for sale, but also subsequently until an, order is made under Section 9 and the same as Well the provisions of that section are fully worked out. Such a requirement is necessary. Clauses (2) and (3) of Section 9 as a matter of fact, imply that the tenant continues in possession of the lands to be dealt with as contemplated therein even after the stage of fixing the price and payment thereof, even in the context of application under Section 9(1)(a)(ii).

8-A. Once Varadaraja Pillai put the landlord in possession of the land and building as afore said, he no more had any rights under the Act, in particular to claim to be a tenant within the extended definition and on that basis to apply and get an order for sale of the land under Section 9(1)(a)(ii). Section 5 of the Amending Act IV of 1972 as already noticed made Sections 3 and 4 inapplicable to a case in which the tenant before the commencement of that Act had delivered actual physical possession. The principle that once the tenant has delivered possession of the demised land and building to the land lord, there's an end of the tenancy and the tenant ceased to have that character any more, is with better force applicable to the extended definition of a tenant under the Amending Act XXIV of 1973.

9. Mr. Nambiyar says that the circumstances in which Varadaraja Pillai was compelled to deliver possession of the land and building to the landlord should make a difference. We do not see how. The judgment and decree of the Supreme Court while making a declaration that the landlord became the owner of the land and building, directed the tenant to deliver possession of both and in our opinion it makes no difference whether actual delivery was taken by the landlord in execution of that decree or Varadaraja Pillai in compliance with his undertaking as a condition for stay granted by the Supreme Court, delivered possession of the land and building. In either case, it was in satisfaction of the decree granted by the Supreme Court for possession. The circumstances of the delivery of possession are irrelevant and what is essential for the extended definition of a tenant to apply is that he must continue in possession of the land or continue in actual physical possession of the land and building. The word 'continues' suggests that possession with the person claiming to be tenant within the extended definition only at the time of the application under Section 9(1)(a)(ii) will not suffice.

10. Secondly it appears to us that Section 4 of the Amending Act of 1972 has not affected the continues operation of the decree and Judgment of the Supreme Court. We think that the non-obstante clause in that section does not have the effect of rendering the judgment end decree null and void, Having by Section 3 of that Act, repealed the proviso with retrospective effect so as to make it nonexistent from the inception, Section 4 of the Amending Act directs itself to rendering null and void with similar retrospective effect any stipulations in a tenancy agreement to which the Act was applicable which would be valid if the proviso had continued to operate. In order to effectuate that objective and since it was necessary for that purpose to depart from the view of the Jaw as laid down in any judgment or decree or order of any Court or other authority to the contrary the non-obstante clause was introduced in Section 4. All that the non-obstanle clause means is that, though Courts may have expressed in a judgment, decree or order a contrary opinion, nevertheless the invalidity of the stipulations should prevail. If judicial opinion was that such stipulations were valid, that should not stand in the way of the statute declaring such stipulations to be invalid. This does not mean that Section 4 has the effect of nullifying the judgment of the Supreme Court in H. Girdharidas v. F. Pillai : [1972]1SCR291 .

11. We do not for a moment doubt the competency of the Legislature acting within the limits of its powers under one or more legislative entries to make retrospective or retrospective laws and under the cover of them, directing that certain judgments, decrees or orders to the contrary should not be given effect to. But that is not what Section 4 of the Amending Act of 1972 has done. All that it has done is to declare the stipulations mentioned therein to be invalid and this declaration should prevail, though there may be judgments or decrees or orders to the contrary. That is not the same thing as by legislation directly nullifying judgments and decrees or orders of Courts, assuming that the Legislature can validly invade directly the realm of judicial power. Our attention has been invited to Piare Dusadh v. Emperor , Subbayya v. Bhushan Rao : AIR1941Mad817 R.L. Arora v. State of Uttar Pradesh : [1964]6SCR784 , Tirath Ram v. State of U.P. : AIR1973SC405 , Ahmedabad Corporation v. New S.S. & Weaving Co. : [1971]1SCR288 and Janapade Sabha v. Chindwara etc : [1970]3SCR745 . But in our opinion none of these cases enables us to uphold the contention of Mr. Nambiyar that the effect of the Amending Acts of LXXII and LXXIII is to nullify the judgment of the Supreme Court. Neither Section 4 of the 1972 Act, nor any other provision in any of those Amending Acts, expressly or by necessary implication, extinguishes the decision of the Supreme Court as between the parties or even indicates that effect should not be given to that decision. The decided cases which interpreted the non-obstante clauses using the expression 'not with standing' have been concerned with notifications, assessment orders, vesting orders, appointment orders of Tribunals or Courts of first instance and they show that the scope of the notwithstanding clause will depend on a variety of matters. R.L. Arora v. State of Uttar Pradesh : [1964]6SCR784 , is a peculiar case in which invalidation by Court of a notification under Section 6 of the Land Acquisition Act by quashing process was set at naught by a legislation validating the notification. But the ratio in this case has no application to the interpretation of the non-obstante clause in Section 4 of the 1972 Act or in the other provisions of the 1973 Amending Act, where it occurs. In our view, the judgment and decree of the Supreme Court are still operative and in full force. That means by reason of the declarations given by them, the landlord has become the owner of the land and building. In the absence of dual ownership that is to say, the land owned by the landlord and the building thereon owned by the tenant, there is hardly any room for the applicant to invoke the Madras City Tenants' Protection Act as amended by the aforesaid three Amending Acts.

12. Thirdly we do not see how this Court can be asked to review the judgment and decree of the Supreme Court. Section 9(3-A) only enables the Court which passed the decree or order to reopen or review the same. Article 137 of the Constitution provides that the Supreme Court shall have power to review any judgment pronounced or order made by it. This power is of course subject to the provisions of any law made by Parliament or any rules made under Article 145. Article 145 empowers the Supreme Court to make rules, with the approval of the President, for regulating its practice and procedure, including rules as to the conditions subject to which any judgment pronounced or order made by it may be reviewed and the procedure for such review including the time within which applications for the purpose are to be entered. Accordingly Order 40 of the Supreme Court Rules provides for it. Article 142(1) says that any decree, or order passed by the Supreme Court shall be enforceable throughout the territory of India in the manner prescribed by or under any law made by Parliament and until such provision is made in such manner as the President may by order prescribe. None of these provisions which we have referred to enables this Court to review the judgment and decree of the Supreme Court. The power of review by this Court is under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure. Both the section arid the order give power to review to the Court which passed the decree or made the order. The expression the Court Which passed the decree means under Section 37 of the Code of Civil Procedure, the Court of first instance, but this is only for purpose of execution of the decree or order. There is nothing in Section 9(3-A) of the Madras City Tenants Protection Act as amended to suggest that the expression 'the Court which passed the decree' therein means the Court of first instance. As a matter of fact as we have seen earlier, Varadaraja Pillai himself applied to the Supreme Court for review of its judgment in the light of the Amending Acts, but he withdrew the petitions. It was suggested that in as much as Section 9(3-A) speaks of the power to reopen not only a judgment and decree but also the proceedings relating to a decree or an order, this Court may well exercise this power. But the point is the Court which passed the decree or order is not this Court, but the Supreme Court and this Court cannot reopen or review that decree or order and that being so, it cannot also direct restitution.

13. That will suffice to dispose of these applications and on the view we have taken as above, we do not think it necessary to go into the constitutional validity of the AmendingActs. It was argued that on the death of Varadaraja Pillai, his applications for relief under Section 9 abated. It is said that the right to apply for sale is not a right to or in property and that therefore there can be no succession to that right. On that basis it is urged that the heirs of Varadaraja Pillai cannot continue the applications. This question again we do not think it necessary to decide as in any case, the applications have to fail.

14. All these applications are dismissed except Application No. 2698 of 1974. In consequence the Original petitions in the Court of Small Causes and the City Civil Court will also stand dismissed. NO costs.

15. In view of this, no orders are necessary on Application No. 2698 of 1974 and it is closed.

16. Lastly C.S. No. 28 of 1964 will now go before the Original side of this Court for disposal in accordance with the directions in the judgment and decree of the Supreme Court in H. Girdhandas v. V. Pillai : [1972]1SCR291 .


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