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TMI Blog1965 (4) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... nder S. 9 of the Act for an order directing the lessor to sell the land to them. The trial Court, a learned Sub-Judge in first appeal and Anantanarayanan J. in second appeal to the High Court of Madras held that the tenants were entitled to the order. A Division Bench of the High Court took a contrary view in a Letters Patent Appeal preferred by the lessor. The tenants have appealed to this Court against the judgment of the Division Bench. The question naturally turns upon the provisions of the Act the relevant parts of which we will, therefore, set out at once. S.2 (4). Tenant means tenant of land liable to pay rent on it.......... S.3. Every tenant shall on ejectment be entitled to be paid as compensation the value of any building which may have been erected by him. S.9. Any tenant who is entitled to compensation under section 3 and against whom a suit in ejectment has been instituted .... may...... apply to the court for an order that the landlord shall be directed to sell .... the extent of land to be specified in the application. S.12. Nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covenant not to build was valid. They, therefore, must have held that it did not affect a right under s. 3 for if it did, it must have been ineffective under s. 12. Now when the learned Judges held that the covenant did not affect the right under s. 3, they must have decided what that right was and who were the tenants entitled to it. In deciding the validity of the covenant they must, therefore have fully and finally interpreted the section and decided its scope and effect. After that they could not again proceed to ascertain the scope of the section. But this is what they did and this is where their principal error lay. Basing themselves on one interpretation of the section they held the covenant to be valid and basing themselves on the validity of the covenant so found, they gave the section a second and a different interpretation. In deciding the validity of the covenant they had not said that s. 3 had no application where the covenant existed. If they had, they would have decided what they called the scope of the section without any aid from the covenant and there would have been no need for deciding the scope of the section again on the basis of the validity of the covenant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said earlier, there is no dispute that the tenants are entitled to their rights under ss. 3 and 9. If however, the covenant not to build affects the right to claim compensation under s. 3, such a covenant would be of no effect, for under s. 12 nothing in any contract shall take away a tenant s rights under the Act. The case will then also be the same as if there was no covenant at all. That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under ss. 3 and 9 in spite of the covenant not to build and a breach of it by them. Before Anantanarayanan J. the argument for the lessor was somewhat different. It was said that s. 3 had to be read in harmony with the general law, that is, s. 108(h) of the Transfer of Property Act, which gave the tenant a right to build when the lease did not prohibit building and, therefore, the erection under s. 3 must be one permitted by law. The learned Judge rejected this, contention, in our opinion rightly, on the ground that s. 3 and s.9 contained no words justifying it and under s. 12 no contract could be made affecting the sections earlier mentioned. He also pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants I and 2 took on lease for a year from February 10, 1953, a vacant site on a rent of ₹ 35 per month. The lease-deed contained a term that no building should be built on the land. Without the knowledge and consent of the landlord the appellants I and 2 built structures on the vacant site and continued to hold over even after the expiry of the year. They inducted sub-tenants. The respondent-landlord sued in ejectment in 1956 and the suit stood closed for arguments on February 25, 1958. On that date appellants I and 2 applied under S. 9 of the above Act claiming the right to purchase the land. The case was reopened and some more evidence was received. The District Munsif, Coimbatore by his judgment dated April 8, 1958 accepted the claim of appellants 1 and 2 and took action to determine the price for the land as required by the Act. An appeal by the respondent-landlord before the Subordinate Judge, Coimbatore and a second appeal in the High Court failed. Me present appeal is from the judgment dated September 21, 1962 of the Division Bench in an appeal filed under cl. 15 of the Letters Patent and by certificate from the Division Bench. By that judgment the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of rent. They are not relevant here and we are not concerned with ss. 7, 7A and 8. Section 9 (omitting portions not relevant here) then states : 9. Application to court for directing the landlord to sell land. (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 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 situate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? Sections 3 and 9 are imperative and s. 9 is expressly made applicable to pending suits in ejectment such as this was. Appellants 1 and 2 made the applications within a week of the extension of the Act to Coimbatore and were within the time limited for their action. The result must obviously follow unless the latter part of s. 12 can save the respondent. That can only be if the stipulations by the tenant as to the erection of the building in so far as they related to buildings erected after the date of the lease-deed had been in writing registered . The leaseded is in writing but is not registered. By the first part of s. 12: the tenant is protected against his own contract. The landlord is protected by the second part, but the landlord here cannot seek the protection of the second part because the leasedeed is not registered. The appellants also claimed that the words stipulations as to the erection of buildings cannot take in a covenant not to construct at all, as laid down in N. Vajrapani Naidu and Another v. New Theatres Carnatic Talkies Ltd.(A.I.R 964 S.C. 1440). The ruling certainly is in the appellants favour but it is not necessary to rely on it for the disposal of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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