S. Natarajan, J.
1. The appellant herein is the respondent in I.A. No. 5752 of 1966 in O.S. No. 1381 of 1966 on the file of the Court of the 5th Assistant Judge, City Civil Court at Madras. In a suit for ejectment instituted by the : appellant in O.S. No. 1381 of 1966, the tenant viz., the respondent herein set up the plea that he was entitled to the benefits conferred by the Madras City Tenants' Protection (Amendment) Act, 1955 XIX of 1955), hereinafter referred to as the Act and filed I.A. No. 5752 of 1966 for the appointment of a Commissioner to determine the market; value of the suit land. Overruling the objection of the appellant that the respondent was not entitled to the benefits of the Act, the learned 5th Assistant Judge has ordered the appointment of a Commissioner and hence this appeal by the aggrieved plaintiff.
2. To appreciate the contentions of Mr. N. Sivamani, learned Counsel for the appellant, a concise history of the case has got to be made. The suit is In respect of a site in 38-B, Mount Road, Madras and in which the respondent has installed tanks for storing petroleum and mechanised pumps for the distribution of petrol. Under Exhibit B-1 dated 6th September, 1955, the respondent wrote to the appellant stating that they Were agreeable to take the site on lease, that the rent will become payable and the lease would commence from the date they occupy the site, that the appellant may fill up and sign the enclosed draft lease deed and return the same so as to enable the respondent 1.0 prepare a regular lease deed on stamp paper. It is also mentioned in Exhibit B-1 that : the commencement of the lease and the occupation of the site will be after the respondent, obtained necessary sanctions from the various authorities lite the inspector of Explosives, the Commissioner of Police, and the . Corporation of Madras. On 9th September, 1955 under Exhibit; B-2 the appellant replied, to Exhibit B-1 by stating that the rent for the site should be Rs. 400 per month and that the rent should be paid to him from 1st September, 1955, as he had been keeping the site in reserve for the respondent in spite of offers of lease from other quarters. Under Exhibit B-4 dated 27th October, 1955, the respondent informed the appellant that they have agreed, to pay a rent of Rs. 400 for the site and that they Were entitled to surrender the site without any obligation on their part if they did not succeed in obtaining necessary local sanctions from various authorities. Under Ex. B-6 dated 9th January, 1956, the appellant called upon, the respondent to finalise the lease transaction without further delay as he was getting offers for the site from other parties. To this, the respondent sent a reply, Exhibit B-7 dated 12th January, 1956 stating that they were awaiting the police sanction for the installation of petrol pumps in the suit site and that they will be finalising the lease only after receiving all the local sanctions. On 2nd April, 1956 under Exhibit B-8 the appellant called upon the respondent once again to finalise the lease without further delay and giving reasons also therein for this request. On 4th April, 1956, under Exhibit B-9 the respondent informed the appellant that all local sanctions except the Corporation building permit have been received and that they were making arrangements to finalise the lease agreement. The appellant on 18th April, 1956 under Exhibit B-10 called upon the respondent to pay him the advance rent of Rs. 4,800 for a period of one year and also rent for 8 months from 1st September, 1955 to 30th April, 1956. On 21st April, 1956 the respondent sent a cheque for Rs. 8,000 which comprised of rent advance of Rs. 4,800 and rent of Rs. 3,200 from 1st September, 1955 to 30th April, 1956 and this was acknowledged by the appellant under Exhibit B-14 dated 25th April, 1956. On 16th May, 1956 the appellant informed the respondent that the rent for May had fallen due, that he was likely to be away from the city for some time and that therefore, the necessary formalities regarding the lease may be completed at an early date. On the same date, the respondent wrote Exhibit B-13 and informed the appellant that the lease deed was being got ready and that they would advise the appellant in due course, the exact date for the registration. Ultimately, the site was handed over to the respondent on 16th June, 1956. Exhibit A-1 registered lease deed was executed by both the parties in the month of October, 1956 and the relevant clause therein with which only we are now concerned is to the following effect. 'To hold the same to the lessee from the first day of September, 1955 for the term of 10 years paying therefor during the said term the monthly rent of Rs. 400. The lease also provides an option in favour of the respondent to renew the lease for a further period of 10 years on the same rent. The advance rent of Rs. 4,800 has to be adjusted by the lessee against the rent payable for the last year of the tenancy.
3. Taking the stand that he was entitled to terminate the lease and recover possession of the leased site the appellant filed the suit for ejectment. The respondent appears to have raised various defences in the suit inter alia contending that he was entitled to an option for a renewal of the lease for a further period of 10 years and that he was also a tenant within the meaning of Section 2(4)(1) of the Act. It is in pursuance of this last defence the respondent filed I.A. No. 5752 of 1966 for a Commissioner being appointed to determine the market value of the suit land.
4. The learned 5th Assistant Judge has hold that though possession of the site was handed over only in June, 1956 and the lease deed itself came to be executed only in October, 1956, nevertheless the tenancy must be deemed to have come into existence with effect from 1st September, 1955 in view of the recitals in the possession receipt and the lease deed and in view of the agreement reached between the parties for rent being paid for the leased site with effect from 1st September, 1955, itself.
5. The Madras City Tenants Protection Act, 1921(III of 1922) as amended and enacted as the Madras City Tenants' Protection (Amendment) Act, 1955, (Madras Act XIX of 1955) came into force on 12th September, 1955 and therefore one of the crucial factors for consideration in the controversy between the parties is as to when exactly the tenancy in favour of the respondent was created. It is therefore on this aspect of the matter that Mr. N. Sivamani focussed the first portion of his argument.
6. Section 1(3) of the Act reads as follows : 'This Act shall apply in the City of Madras, only to tenancies of land created before the commencement of the Madras City Tenants' Protection (Amendment) Act, 1955, and in any municipal town or village to which this Act is extended by notification under Sub-section (2), only to tenancies created before the date with effect from which this Act is extended to such town or village'. The argument of Mr. Sivamani in support of his contention that the respondent cannot be deemed to be a tenant within the meaning of the Act was that though the rent was paid, as per the agreement reached between the parties, with effect from 1st September, 1955 onwards, the actual handing over possession of the site was only in June, 1956 and the registered lease deed between the parties was entered into only in October, 1956 and as such the respondent cannot be heard to say that the tenancy in his favour was created before the commencement of the Act and that therefore he is entitled to the benefits conferred under Section 3 or 9 or 11 of the Act. On the other hand, Mr. N.G. Raghavachari, learned Counsel for the respondent placed reliance upon the fact that it was at the instance of the appellant himself that the lease period was made effective from 1st September, 1955 that the 10 year period of lease provided for under Exhibit A-1 comes to a termination on 31st August, 1965, that as such the lease period must be held to be effective and operative from 1st September, 1955, that the respondent had actually paid rent for the site in question from 1st September, 1955 and therefore urged that the appellant was estopped from now contending that the tenancy was created subsequent to the coming into force of the Act. On a consideration of the matter, I find that the argument of the learned Counsel for the appellant in this behalf cannot be sustained or upheld. It is no doubt true that possession of the site has been delivered only in June, 1956 and the registered lease deed itself has come in to existence only in October, 1956. Notwithstanding these features the tenancy between the parties must be deemed to have been in existence from 1st September, 1955 onwards for more than one reason. In the letter dated 16th June, 1956 under which the respondent has acknowledged taking possession of the suit site, the specific recital is that the site has been 'handed over, taken over effective from 1st September, 1955'and this letter has been signed by both the parties. Further, more, as already stated, Exhibit A-1 also makes it clear that the lessee was to hold the site on lease from 1st September, 1955 for a period of 10 years ending on 31st August. 1965. Over and above these things, there is also irrefutable evidence to show that the respondent has been making payment towards rent for the site from 1st September, 1955 onwards itself. On account of all these factors it is no longer possible for the appellant to contend that the tenancy in favour of the respondent was created subsequent to the Act and therefore the respondent cannot claim any protection under the Act.
7. The second contention of Mr. Sivamani related to the construction of the superstructures on the suit site subsequent to the corning into force of the Act. The argument advanced by the learned Counsel was that it is only those tenants who had put up buildings or superstructures prior to the commencement of the Act who will be entitled to claim the benefits of Sections 3 and 9 of the Act and the respondent in this case, having admittedly put up the superstructures only after June, 1956 cannot either claim payment of compensation for the superstructures under Section 3 of the Act or claim a right in his favour to purchase the leased land on which he has put up the superstructures. In advancing arguments on this aspect of the matter, Mr. Sivamani also contended that due regard must be had to the preamble of the Act which made it clear that the Legislature intended to give protection only to those tenants who 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. Reliance was placed by Mr. Sivamani on the terms of the lease deed which laid down that the lease was only for a duration of 10 years, that it was a terminable lease thereafter and that as such the respondent cannot be deemed to be a person who had constructed the superstructures on the suit land in the hope that he would not be evicted so long as he paid a fair rent for the land.
8. Mr. N.C. Raghavachari, learned Counsel for the respondent sought to nullify the contentions of the appellant by stating that the payment of compensation referred to in Section 3 can only have a reference to compensation in respect of buildings which were in existence at the time of the filing of the suit for ejectment and that the Act did not require the building or superstructure to be in existence even at the time of the commencement of the Act in order to enable a tenant to claim protection under the Act. He also argued that the rights and liabilities of the parties must be determined according to the clear terms of the section and that the object of the legislation as reflected in the preamble cannot be made use of to curtail, the rights of a tenant.
9. Before going into a consideration of the rival contentions of the parties I shall make reference to some decisions which have dealt with questions arising under the Act under various circumstances.
10. The Privy Council had to consider in Ranganatkam Chetti v. Ethirajulu Nayudu the question as to whether a tenant whose lease had expired on 30th September, 1922 and who continued in possession and obtained on 1st February, 1923 a new lease for 10 years from, 1st October, 1922 with a stipulation for payment of a higher rent was entitled to the Madras City Tenant's Protection Act (III of 1922). The Privy Council held that though the physical possession of the lessee was continuous, his possession after 1st October, 1922 was attributable to the new tenancy formally embodied in the lease executed on 1st February, 1923. The above decision of the Privy Council was interpreted by this Court in several cases to mean that if there had been no change in the terms of the tenancy, the tenant would be entitled to claim continuity of tenancy, even if he had executed a fresh lease after the coming into force of the Act. In Nayar Varada Pillai v. Gkulam Dastagir : AIR1946Mad11 and Ganesa Mudcliar v. Chellammal : 39ITR660(Mad) . it has been held that where a tenant continues on the land on the same conditions as before, the mere fact that a fresh lease deed was executed by him does not disentitle him from claiming the benefits of the Act.
11. A Bench of this Court presided by Rajamannar, G.J. in Annamalai and Company Limited v. Sibgathulla Sahib (1955) M.L.J. 653 : I.L.R. (1956) Mad. 251 : A.I.R. 1956 Mad. 98. had to consider the question as to whether a tenant who was in occupation of a vacant piece of land was entitled to the benefits of the Act by virtue of earlier proceedings between his predecessor-in-interest and the landlord wherein the right of the tenant was upheld. The suit property therein formed part of a bigger block of land and there was a prior suit for eviction against the lessees of the entire block of land, it was held in that case that the lessees were entitled to protection under the Madras City Tenant's Protection Act as there were buildings on portions of that block. Subsequently, the entire block of land was purchased by the plaintiff and portions of the land came to be in the occupation and enjoyment of the descendants of the lessee as a result of partition and defendants in the subsequent suit were alienees from such descendants of separate portions. In the suit by the plaintiff for recovery of possession of pieces of vacant land from the defendants, the Bench held that the prior decision did not operate as a res judicata and that in respect of those defendants who were in occupation of only vacant pieces of land they were not entitled to the protection afforded by the City Tenants Protection Act. Following this decision Ismail, J., has held in Nagamma Bai (alias) Leela Bai v. Thangavelu Naicker (1973) 86 L.W. 388. that a defendant who had removed the hut which he had put up earlier and started putting up a new hut after the coming into force of the Act was not entitled to the benefits of either Section 3 or 9 or 11 of the Act.
12. The scope and effect of Section 12 and the proviso contained therein came up for consideration by the Supreme Court in the following cases. In Vajrapani Naidu v. New Theatres Carnatic Talkies Ltd. : 6SCR1015 the Supreme Court held that the stipulations not protected by Section 12 are only those in writing registered and relate to erection of building such as restrictions about the size and nature of the building constructed, the building materials to be used therein and the purpose for which the building is to be utilized. In a later case, in M.H.P. Fund Ltd. v. Subramania (1971) 1 S.C.J. 525 : (1971) M.L.J. 94 : (1971) 1 A.W.R.94 : A.I.R. 1970 S.G. 1683. the Supreme Court held that the decision in Vajrapani Naidu v. Mew Theatres Carnatic Talkies Ltd. : 6SCR1015 did not lay down that only stipulations regarding restrictions about the size, nature of the buildings constructed, the building materials to be used therein and the purpose for which the building is to be utilised, exhaust completely all the stipulations that are protected by the proviso to Section 12 and that they are only illustrative examples of the stipulation. In that view, the Supreme Court held that a term in a registered lease deed, in and by which the lessee of a vacant piece of land, agreed to surrender on the termination of the lease, not only the land but also the superstructure put up by him for the price agreed to between the parties and provided for in the lease is 'a stipulation made by the tenant in writing registered as to the erection of buildings' so as to attract, in favour of the landlord, the proviso to Section 12 of the Act.
13. The question as to whether a tenant who had covenanted in an unregistered lease deed that the tenant was not to raise any building but who had erected a building in disregard of the stipulation was entitled to the benefits of the Act and whether the covenant in the unregistered lease deed would come within the proviso of Section 12 came up for consideration before the Supreme Court in Venkataswami Aaidu v. Narasram Naraindas : 1SCR110 . The Supreme Court held that inasmuch as the lease deed was an unregistered one the conditions laid down in the proviso to Section 12 Were not satisfied and therefore the stipulation can not be construed to the detriment of the tenant. In a later case, in V.S. Mudaliar v. N.A. Raghavachary : 2SCR158 . a similar stipulation entered into in a registered lease deed between the tenant and the landlord was held to be operative in favour of the landlord and the Court therefore held that the proviso to Section 12 was attracted and the tenant cannot claim protection under the Act.
14. All these decisions though cited at the bar do not offer any solution for the controversy between the parties in the instant case. The argument of Mr. Sivamani that a right to which a tenant would be entitled under the Act must be determined with reference to the object of the Act as enunciated in the preamble cannot however be conceded. It has been observed in Venkataswami Naidu v. Narasram Naraindas : 1SCR110 . that the preamble cannot operate to annul any section and that though a preamble is a key to the interpretation of a statute it is not ordinarily an independent enactment conferring rights or taking them away and cannot restrict or widen the enacting part which is clear and unambiguous. Therefore, the conduct of the respondent in putting up the superstructure notwithstanding his awareness that the lease was a terminable one cannot disentitle the respondent to the benefits conferred under Sections 3 and 9 of the Act if he were otherwise entitled to the same.
15. It now remains for me to consider the second main argument of Mr. Sivamani viz., that admittedly there were no superstructures on the leased site when the Act came into force and the superstructures having been built by the tenant after the coming into force of the Act, he will not be entitled to any protection under the Act. Though this question has not directly arisen for consideration in any reported case, Mr. Sivamani has invited my attention to two decisions of this Court which lend support to his view. The first case is a decision by Ramachandra Iyer, G.J. and Ananthanarayanan, J., in Sundareswarar Devasthanam v. Marimuthu : AIR1963Mad369 . The principal questions that arose for consideration in that case Were with respect to the applicability of Section 9 of the Madras City Tenants Protection Act, 1921, to a property owned by a Hindu religious institution over which the trustee or the manager has only a qualifield power of disposal and the second as to the true construction of section 47 of the Presidency Small Cause Courts Act of 1882. Dealing with the facts of that case, the Bench has held that in order to attract the provisions of the Act, the tenant must have put up a superstructure prior to the date of the Act. Following this decision Ismail, J., has held in S.A. No. 901 of 1968 and C.R.P. No. 1338 of 1968 as follows : 'The finding of the Courts below that the superstructure was put up by the appellant-petitioner subsequent to 29th June, 1955, is a finding on a question of fact and has been arrived at after referring to every one of the pieces of evidence adduced before the Court. In view of this, that finding will have to stand and its correctness cannot be canvassed in the second appeal. Mr. Chandramouli, having regard to this position alone, sought to argue that the appellant will be entitled to the protection of the Act even though he had put up the superstructure after the extension of the Act to the Madurai Town. However, a Bench of this Court in Sree Sundareswarar Devasthanam v. Marimuthu : AIR1963Mad369 . has proceeded on the basis that the protection will be available to a tenant only if he had put up the superstructure prior to the coming into force of the Act or the extension of the Act as the case may be. That being a decision of a Bench, it is binding on me even though the point did not directly arise in that judgment. Following that judgment, it must be held that the appellant-petitioner is not entitled to the protection of the Act because the superstructure was put by him subsequent to the extension of the Act to the city in question'. Having regard to the decision of the Bench and the manner in which it has been interpreted by Ismail, J., I am of opinion that I am also bound by the view taken by the Bench and consequently the respondent in this case who has admittedly put up the superstructure subsequent to his taking possession of the site in June, 1956 will not be entitled to claim any benefit under the Madras City Tenants Protection (Amendment), Act, 1955. The learned 5th Assistant Judge has placed reliance on the decision of the Supreme Court in Venkataswami Naidu v. Narasram Naraindas : 1SCR110 . to come to the conclusion that the respondent is entitled to the benefits of the Act, but he has failed to consider the contention of the appellant that the superstructure on the leased site was only built subsequent to the coming into force of the Act. The Supreme Court case referred to above did not deal with this aspect of the matter, but only dealt with the question as regards the validity of a covenant made by a tenant in the lease deed restricting his rights to put up any building in the vacant site.
16. In conclusion, as a result of the decisions of this Court referred to by me earlier, I hold that the respondent is not entitled to any benefits under the Act and consequently the order of the 5th Assistant Judge holding an opinion to the contrary and ordering the appointment of a Commissioner cannot be sustained. The appeal is therefore allowed and the order of the 5th Assistant Judge is set aside. The trial of the suit will be proceeded with as regards the other contentions which arise for consideration in the suit. There will be no order as to costs.