Full Judgment Text
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PETITIONER:
THE NEW THEATERS (CARNATIC TALKIES) LTD., COIMBATORE.
Vs.
RESPONDENT:
N. VAJRAPANI NAIDU.
DATE OF JUDGMENT07/10/1983
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
CHANDRACHUD, Y.V. ((CJ)
MUKHARJI, SABYASACHI (J)
CITATION:
1984 AIR 1 1984 SCC (1) 329
1983 SCALE (2)1046
ACT:
Madras City Tenants, Protection Act: 1921 & Madras City
Tenants, Protection (Amendment) Act, 1960 Section 9-Effect
of the amending act-Applicability to pending proceedings.
HEADNOTE:
The respondent and his mother granted a lease in
respect of an open site of land for a period of 20 years in
favour of a person, who constructed a theatre thereon and
who later assigned his rights to the appellant and the
appellant was accepted as a tenant by the respondent. The
respondent subsequently served notice upon the appellant
calling upon it to vacate the property and to surrender
vacant possession of the site. The appellant refused, and
set up can oral agreement entitling it to an extension of
the lease for a further period of 20 years. The respondent
filed a suit for ejectment against the appellant and the
appellant filed a suit for specific performance of an
agreement to extend the lease. The subordinate-Court decreed
the respondent’s suit for possession with mesne profits and
dismissed the appellant’s suit.
The appellant appealed to the High Court against the
two decrees, and during their pendency the Madras City
Tenants’ Protection Act, 1921 was extended to the town where
the suit property was situated. The appellant thereupon
filed a Civil Miscellaneous Petition in the appeal arising
out of the suit for ejectment, for directions under section
9 of the Act for sale of the site. This application was
resisted by the respondent on the ground that section 9 was
void. The High Court upheld the validity of the section,
declared the appellant entitled to purchase the site under
section 9 and remitted the matter to the subordinate-Court
for appointment of a Commissioner to fix the market value of
the site. Against that order the respondent preferred a
Letters Patent Appeal which was dismissed and this order was
confirmed by the Supreme Court.
During the pendency of the appeal in this Court,
section 9 of the Madras City Tenants’ Protection Act was
amended by Madras Act No. XIII of 1960. The respondent filed
two Civil Miscellaneous Petitions in the High Court praying
for review and modification of the earlier order in view of
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the amended section 9, and for stay of the valuation
proceedings.
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After the dismissal of the respondent’s appeal in the
Supreme Court, the High Court dismissed the pending appeals
as withdrawn transferred the two Civil Miscellaneous
Petitions to the trial court and directed it to fix the
market value of the site and pass final orders. The
subordinate-Court held that the respondent was entitled to
the benefit of the amended section 9, and directed the
Commissioner to determine the minimum extent of land
necessary for convenient enjoyment and fix the price on the
basis of the average market value of the land during the
three years immediately preceding the date of its order. The
appeal to the District Court and the Civil Revision Petition
in the High Court against this order were dismissed.
In the appeal to this Court it was contended on behalf
of the appellant that the amended section 9 of the Madras
City Tenants’ Protection Act, could not be invoked, and that
section 9, as it stood before the amendment, governed the
rights of the parties, and that in any event the amended
section 9 should have been invoked in the appeal pending in
the Supreme Court, and that relief not having been sought
there, it was not open to the respondent to seek relief
after the appeal had been disposed of by the Supreme Court.
Dismissing the appeal, the Court.
HELD: 1 (i) If the suit was pending on the date when
the amendments in the principal Act (Madras City Tenants’
Protection Act, 1921) were brought into force, the amended
provisions of the Act will govern the disposal of the suit.
[337 D]
(ii) The suit continued pending on the date when the
principal Act was amended by Act XIII of 1960. Consequently,
it was governed by the provisions of the amended section 9.
As the scheme under the original section stood superseded by
the scheme enacted under the amended section, the order of
July 28, 1958 stood aborted and pursuant to the amended
section fresh proceedings had to be taken by the Court to
dispose of the suit. [338 A-B]
(iii)When the Amendment Act XIII of 1960 amended the
principal Act, it amended not only section 9 thereof but
section 10 also. Section 10 was amended in order that the
amended provisions should apply to pending ejectment suits
and proceedings. The provisions of the amended section 9 (1)
reveal that the scheme respecting the tenant’s right to
purchase, and the landlord’s obligation to sell, the land
stood modified. Whereas the original section 9 (1) provided
for the making of an application by the tenant within a
specified period to the court for an order directing the
landlord to sell the land for a price to be fixed by the
court, and court was required to fix the price according to
the lowest market value prevalent within seven years
preceding the date of the order, and to order, within a
period to be determined by the court, the tenant to pay into
court or otherwise as directed the price so fixed, the
amended section 9 (1) is divided into two clauses. Clause
(a) entitles the tenant within an identical period, to apply
to the court for an order requiring the landlord to sell,
for a price to be fixed by the court, the whole, or part of,
the extent of the land specified in the application. Clause
(b) provides that the court will first decide the minimum
extent of the land necessary for convenient enjoyment by the
tenant, and thereafter the
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court will fix the price of such minimum extent of land or
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of the extent of the land specified in the application,
whichever is less. [336 F-H; 336 H-337 C]
In the instant case, the appellant had already filed
Civil Miscellaneous Petition No. 1835 of 1958 praying for
directions under section 9 for the sale of the site. On that
application the High Court passed an order dated July
28,1958 holding the appellant entitled to purchase the site
on paying the full market value current on that date and had
directed the trial court to appoint a Commissioner to fix
the value of the site. That order did not dispose of the
application and the suit, for under the original section
9(3) the statute contemplated an order by the Court, after
it was satisfied that the tenant had paid the price
determined by it, directing the conveyance of the land by
the landlord to the tenant. It was only after such an order
was made that the application and the suit would stand
concluded. [337 E-G]
2. The scope of the earlier appeal filed in the Supreme
Court was restricted to the validity of section 9 and 12 of
the unamended Madras City Tenants’ Protection Act, and the
Court declined to consider the operation of the amendments
brought about in 1960. It was, therefore, open to respondent
after the disposal of the appeal to apply to the court below
for an order in terms of the amended section 9. [338 F-H;
339 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1601 of
1971.
Appeal by Special Leave from the Judgment and Order
dated the 30th March, 1971 of the Madras High Court in
C.R.P. No. 19883 of 1968.
T.S. Krishnamurthy Iyer, Gopal Subramanium and Mrs.
Saroja Gopalakrishnan for the Appellant.
P. Govindan Nair, Miss Seita Vaidyalingam and Mrs. Baby
Krishnan for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by special leave is directed
against an order dated March 30,1971 of the Madras High
Court dismissing a revision petition arising out of
proceedings under the Madras City Tenants Protection Act,
1921.
Almost fifty years ago, on September 19, 1934, the
respondent and his mother granted a lease in favour of one
Abhirama Chettiar in respect of 50 cents of open land in
Coimbatore for a period of twenty years on an annual rent of
Rs. 1080 for the construction of a building suitable for use
as a theatre. Abhirama Chettiar constructed a theatre on the
site. Subsequently, on July 14, 1937 Abhirama
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Chettiar assigned his rights to the appellant. The appellant
attorned to the respondent and was accepted as a tenant. In
March, 1964, the respondent served notice upon the appellant
calling upon it to vacate the property and surrender vacant
possession of the site. The appellant refused to do so, and
set up an oral agreement entitling it to an extension of the
lease for a further period of twenty years. The respondent
filed a suit against the appellant for its ejectment.
Shortly thereafter, the appellant filed a suit against the
respondent for specific performance of an agreement to
extend the lease. On January 16, 1957 the learned
Subordinate Judge, Coimbatore, decreed the respondent’s suit
for possession with mesne profits and dismissed the
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appellant’s suit. The appellant appealed to the High Court
against the two decrees. During the pendency of the appeals
the Madras City Tenants’ Protection Act, 1921 was extended
to the town of Coimbatore with effect from February 19,
1958. The appellant filed Civil Miscellaneous Petition No.
1835 of 1958 in the appeal arising out of the suit for
ejectment and prayed for directions under s. 9 of the Act
for the sale of the site to it. The application was resisted
by the respondent on the ground that s. 9 was void. On July
28, 1958 Panchapkesa Iyer J. passed the following order:
"I declare that the petitioner is entitled to
purchase the site concerned in the petition under
Section 9 of the Act, but on paying the full market
value current today as freely undertaken by himself.
The lower Court will appoint a suitable experienced
commissioner to fix the value of the site based on the
market value prevalent this day (28th July 1958). The
Commissioner’s fees will be paid by the commissioner
who will bear it himself. In this petition all the
parties will bear their own costs. As soon as this
order becomes final the petitioner will withdraw A.S.
No. 100 of 1957 and 255 of 1957 on the file of this
Court, as infructuous as undertaken by him, and they
will then be dismissed without costs."
The petition was remitted by the learned Judge to the
Subordinate Court, Coimbatore for appointing a Commissioner
to fix the market value of the site. Against that order the
respondent preferred a Letters Patent Appeal, which was
dismissed. The respondent then appealed to the Supreme
Court. By its judgment dated March 4, 1964, reported as N.
Vajrapani Naidu and Another v. The New Theatre
333
Carnatic Talkies Ltd., Coimbatore the Supreme Court upheld
the judgment of Panchapakesa Iyer J. and dismissed the
appeal.
Now during the pendency of the appeal in the Supreme
Court, s. 9 of the Madras City Tenant’s Protection published
in the Fort St. George Gazette dated July 27, 1960 Act was
amended by Madras Act No. XIII of 1960. Upon that, the
respondent filed two petitions in the High Court, C.M.P. No.
7241 of 1960 praying for the review and modification of the
order dated July 28, 1958 in the light of the amended s. 9,
and C.M.P. No. 7242 of 1960 praying for stay of the enquiry
directed by that order. On April 1, 1964, upon the dismissal
of the respondent’s appeal in this Court, the High Court
dismissed the appeals against the decrees passed by
Panchapakesa Iyer J. as withdrawn. The High Court also
transferred the C.M.P. Nos. 7241 and 7242 of 1960 to the
trial court for consideration, and directed the trial court
to fix the market value and pass final orders in C.M.P. No.
1835 of 1958. The learned Subordinate Judge held that the
respondent was entitled to the benefit of the amended s. 9
of the Act, and directed the Commissioner to determine the
minimum extent of land necessary for convenient enjoyment by
the appellant to take steps for fixing the price thereof on
the basis of the average market value of the three years
immediately preceding the date of its order. C.M.P. No. 7242
of 1960 was dismissed as superfluous. Against the order of
the trial court the appellant filed an appeal in the court
of the learned First Additional Judge, Coimbatore. The
appeal was dismissed. Thereafter, the appellant filed Civil
Revision Petition No. 1883 of 1968 in the High Court, and on
March 30, 1971 the High Court dismissed the Revision
Petition. The High Court affirmed that the case was governed
by the amended s. 9 of the Act, and rejected the contention
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of the appellant that C.M.P. No. 7241 of 1960 was not
competent in the High Court as the order dated July 28, 1958
by Panchapakesa Iyer J. had been confirmed by the Supreme
Court, in appeal.
Two contentions have been raised by the appellant in
this appeal. The first is that the amended s. 9 of the
Madras City Tenants’ Protection Act cannot be invoked in the
present case, and that s. 9, as it stood before the
amendment, is the provision which governs the rights of the
parties. The other contention is that, in any event, the
amended s. 9 should have been invoked in the appeal
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pending in this Court and the relief not having been sought
there it was not open to the respondent to seek relief after
the appeal has been disposed by this Court and the order of
Panchapakesa Iyer J. had acquired finality.
Before its amendment by Madras Act XIII of 1960, s. 9
provided as follows:-
"9. (1) Any tenant who is entitled to compensation
under section 3 and against whom a suit in ejectment
has been instituted or proceeding under section 41 of
the Presidency Small Cause Courts Act 1882, taken by
the landlord, may within one month of the date of the
Madras City Tenants Protection (Amendment) Act, 1955,
coming into force or of the date with effect from which
this Act is extended to the municipal town or village
in which the land is situated or within one month after
the service on him of summons, apply to the court for
an order that the landlord shall be directed to sell
the land for a price to be fixed by the court. The
court shall fix the price according to the lowest
market value prevalent within seven years preceding the
date of the order and shall order that, within a period
to be determined by the court, not being less than
three months and not more than three years from the
date of the order, the tenant shall pay into court or
otherwise as directed the price so fixed in one or more
instalments with or without interest.
(2) XX XX XX
(3) On payment of the price the court shall pass a
final order directing the conveyance of the land by the
landlord to the tenant. On such order being made the
suit or proceeding shall stand dismissed, and any
decree or order in ejectment that may have been passed
therein but which has not been executed shall be
vacated."
Upon its amendment, s. 9 now reads:-
"9 (1) (a) Any tenant who is entitled to
compensation under section 3 and against whom a suit in
ejectment has been instituted or proceeding under
section 41 of the Presidency Small Cause Courts Act,
1882, taken by the landlord, may within one month of
the date of Madras
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City Tenants, Protection (Amendment) Act, 1955 coming
into force or of the date with effect from which this
Act is extended to the municipal town or village in
which the land is situated or within one month after
the service on him of summons 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 specified in the application.
(b) on such application, the court shall first
decide the minimum extent of the land which may be
necessary for the convenient enjoyment by the tenant.
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The court, shall then fix the price of the minimum
extent of the land decided as aforesaid, or of the
extent of the land specified in the application under
clause (a) whichever is less. The price aforesaid shall
be the average market value of the three years
immediately preceding the date of the order. The court
shall order that within a period to be determined by
the court not being less than three months and not more
than three years from the date of the order, the tenant
shall pay into court or otherwise as directed the price
so fixed in one or more instalments with or without
interest.
(2) XX XX XX XX
(3) (a) on payment of the price fixed under clause
(b) of sub-section (1) the court shall pass an order
directing the conveyance by the landlord to the tenant
of the extent of land for which the said price was
fixed. The court shall by the same order direct the
tenant to put the landlord into possession of the
remaining extent of the land, if any. The stamp duty
and registration fee in respect of such conveyance
shall be borne by the tenant.
(b) On the order referred to in clause (a) being
made, the suit or proceeding shall stand dismissed, and
any decree or order in ejectment that may have been
passed therein but which has not been executed shall be
vacated."
The question whether the case is governed by the
unamended s. 9 or the amended s. 9 turns on the
consideration whether the amendment of s. 9 was intended to
operate retrospectively or must
336
be construed as prospective only. Let us begin from the
beginning. When the Madras City Tenants’ Protection Act was
extended to the town of Coimbatore in 1958, the respondent’s
suit for ejectment had already been filed and in fact was
pending in appeal. It was never disputed between the parties
that s. 9 would operate retrospectively and affect the
rights of the parties in the pending appeal. It was on that
basis that the appellant applied to the court for the
benefit of the provisions of s. 9. The Act itself clearly
laid down that s. 9 could be invoked in a pending suit or
proceeding, for s. 10 declared that s. 9, among other
provisions, would "apply to suits in ejectment ...........
which are pending ..... in the city of Madras before the
commencement of the Madras City Tenants’ Protection
(Amendment) Act, 1958, and in any municipal town or village
before the date with effect from which this Act is extended
to such town or village." It is to enable a tenant to secure
the benefit of s. 9 in a pending suit or proceeding that s.
9 (1) provides that such tenants may apply under that
provision "within one month of the date of the Madras City
Tenants’ Protection (Amendment) Act, 1955 coming into force
or of the date with effect from which this Act is extended
to the municipal town or village in which the land is
situated ......." This provision was necessary to enable s.
9 to govern pending suits and proceedings. The other
provision in s. 9 (1) providing that the period of one month
would commence from "the service on him of summons" applied
to future suits and proceedings.
When the Madras Act XIII of 1960 amended the principal
Act, it amended not only s. 9 thereof but s. 10 also.
Section 10 was amended in order that the amended provisions
should apply to pending ejectment suits and proceedings. The
Legislature employed the same device in respect of pending
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suits and proceedings as it had when respect of pending
suits and proceedings as it had when the Act was originally
applied to such suits and proceedings, the only difference
being that while the original s. 10 referred to the then
existing provisions of the Act, the amended s. 10 referred
to the amended provisions, including the amended s. 9, of
the Act. It is apparent from the provisions of the amended
s. 9 (1) extracted earlier that the scheme respecting the
tenant’s right to purchase and the landlord’s obligation to
sell, the land now stood modified. Whereas the original s. 9
(1) provided for the making of an application by the tenant
within a specified period to the court for an order
directing the landlord to sell the land for a price to be
fixed
337
by the court, and the court was required to fix the price
according to the lowest market value prevalent within seven
years preceding the date of the order, and to order, within
a period to be determined by the court, the tenant to pay
into court or otherwise as directed the price so fixed, the
amended s. 9 (1) is divided into two clauses. Clause (a)
entitles the tenant, within an identical period, to apply to
the court for an order requiring the landlord to sell, for a
price to be fixed by the court, the whole, or part of, the
extent of the land specified in the application. The court
can now direct the sale of a part only of the land mentioned
in the application and is not compelled to pass an order in
respect of the entire land. Clause (b) provides that the
court will first decide the minimum extent of the land
necessary for convenient enjoyment by the tenant, and
thereafter the court will fix the price of such minimum
extent of land or of the extent of the land specified in the
application, whichever is less. Furthermore, the price is to
be the average market value of the three years immediately
preceding the date of the order. We are clear in our mind
that if the suit was pending on the date when the amendments
in the principal Act were brought into force, the amended
provisions of the Act will govern the disposal of the suit.
Now, the appellant had already filed C.M.P. No. 1835 of
1958 praying for directions under s. 9 for the sale of the
site. On that application Panchapakesa Iyer J. had passed an
order dated July 28, 1958 holding the appellant entitled to
purchase the site on paying the full market value current on
that date, and had directed the trial court to appoint a
Commissioner to fix the value of the site. The order did not
dispose of the application and the suit, for under the
original s. (3) the statute contemplated an order by the
court, after it was satisfied that the tenant had paid the
price determined by it, directing the conveyance of the land
by the landlord to the tenant. It was only after such order
was made that the application and the suit would stand
concluded. In Gnanaprakasam and Another v. Mahboob Bi and
others, a learned Single Judge of the Madras High Court held
that even where the original court had made an order fixing
the price of the land and directing its payment by the
tenant, the application filed by the tenant could not be
regarded as at an end so long as final orders directing
execution of conveyance and delivery of possession were not
passed. The stage for passing such order had not been
reached yet when the principal Act was amended by
338
Act XIII of 1960. The suit continued pending on the date
when the amendments took effect. And consequently, it was
now governed by the provisions of the amended s.9. We may
reiterate that the order dated July 28,1958 did not complete
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the proceeding in the suit. It constituted one stage only in
the suit, and inasmuch as the suit was now to be disposed of
in accordance with the amended statute the incomplete
proceeding had to give way to the operation of the amended
statute. As the scheme under the original section stood
superseded by the scheme enacted under the amended sections
the order of July 28,1958 stood aborted and pursuant to the
amended section fresh proceedings had to be taken by the
court in order to dispose of the suit.
The respondent, therefore, filed C.M.P. No. 7241 of
1960 praying for a review of the order dated July 28,1958 in
the light of the amended s.9. In other words, the court was
now called upon to dispose of the application of the
appellant, not in the light of the provisions of the
original s.9 but on the basis of the provisions of the
amended s.9. We are of opinion that the trial court is right
in taking the view, and the High Court in affirming it, that
C.M.P. No. 1883 of 1968 and the suit had to be disposed of
on the basis of the provisions of the amended s.9. The
contention to the contrary raised by the appellant must
fail.
We are also unable to accept the other contention of
the appellant that the respondent should have invoked the
benefit of the amended s. 9 in the appeal pending in this
Court, and that not having done so it was not open to the
respondent to apply for relief in the court below after the
appeal had been disposed of by this Court. It is apparent
that the scope of the appeal filed in this Court was
restricted to the validity of s.9 and s. 12 of the unamended
Madras City Tenants’ Protection Act. It must be remembered
that the order of Panchapakesa Iyer J, when gave rise to
that appeal, was made before the Act was amended in 1960,
and this Court concerned itself solely with the validity of
the unamended statutory provisions. In fact, perusal of its
judgment will show that this Court declined to consider the
operation of the amendments brought about in 1960. In the
circumstances, it is not possible to urge that the
respondent might, or ought to, have insisted on relief under
the amended s.9 in the appeal pending in this Court. It was,
339
therefore, open to the respondent after the disposal of the
appeal by this Court to apply to the court below for an
order in terms of the amended s.9.
In the result, the appeal is dismissed with costs.
N.V.U. Appeal dismissed.
340