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TMI Blog1972 (1) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Act. The Salem Municipality instituted two suits O.S. No. 95 of 1961 and O.S. No. 96 of 1962 on the file of the court of the Subordinate Judge, Salem, against Varadaraja Pillai. O.S. No. 95 of 1961 was filed for recovery of mesne profits or damages for use and occupation A.S. No. 479 of 1963 has been preferred by Varadaraja Pillai in so far as the decision of the trial court went against him, while the Municipality has preferred A.S. No. 601 of 1963 in so far as the decision of the trial court went against the Municipality. O.S. No. 96 of 1962 was filed by the Municipality against Varadaraja Pillai for recovery of the suit property, land covered by T.S. No. 25/2, of an area of 30,070 sq. ft. and for damages. The suit was decreed as prayed for and Varadaraja Pillai has preferred the Appeal A.S. No. 455 of 1967. 2. The facts which led up to these appeals may be briefly stated. The Municipality granted a lease to the defendant of a vacant land (known at Victoria Market) in T.S. No. 25/2 in Fifth Division, Salem Town, for a period of ten years from 11th August 1938 to 10th August 1948, the area of the and leased being 28,210 sq. ft. This is evidenced by a registered lease deed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for recovery of possession of the land from Varadaraja Pillai. Ex. A-6 is another notice dated 1st October, 1958 issued by the Municipality to Varadaraja Pillai calling upon the latter remove the superstructure and hand over vacant possession of the property. To this the lessee appears to have sent a reply dated 23rd October 1958 in which he objected to vacate and also claimed rights under the Madras City Tenants Protection Act. To this the Municipality sent a reply, Ex. A-8, dated 1st November, 1958, the contention being that the Act was inapplicable to the lands belonging to the Municipality. The Municipality claimed that, as the lessee had failed to vacate and hand over possession within three months as specified in the lease, in pursuance of the notice, Ex. A-4 dated 9th May, 1958 the Municipality had become the owner of the superstructure and that the lessee should therefore hand over possession of the site and the superstructure to the Municipality within twenty-four hours of the receipt of the notice. The lessee did not comply with this demand and he moved the Government to direct the Municipality to extend the lease for a period of twenty years. The Government asked the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation under S. 3, and against whom a suit or proceedings in ejectment have been instituted, will be entitled to a direction from the court directing the landlord to sell the land for a price to be fixed by the court. Act 6 of 1926 introduced certain data for fixing the fair market value of the land. S. 9 (3) provides that on payment by the tenant of the price so fixed, the court shall pass a final order directing the conveyance of the land by the landlord to the tenant S. 12 provides that nothing in any contract made by the tenant shall take away or limit his rights under the Act, subject to the proviso that any stipulation 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 would be binding on the tenant. S. 13 provides that in the City of Madras the Transfer of Property Act, 1882, shall be deemed to have been repealed or modified to the extent necessary to give effect to the provisions of Madras Act 3 of 1922. 4. The amending Act 19 of 1955 came into force on the 12th of September, 1955. The effect of the amendment was that the State Government may by notification in the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alem and Tiruchirapalli, and any village within five miles of the towns aforesaid, and building for residential purposes only in any other area. In other words, the effect of the amendment is that the Madras City Tenants Protection Act of 1922 would apply whether the building is for residential or non-residential purposes in the aforesaid five towns, while the Act would only to buildings for residential purposes in all other areas. Under S. 6 of Act 13 of 1960, S. 9 of Act 3 of 1922 was amended to the effect 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 the land specified in the application. There is also a further provision in S. 6 that the court shall fix the minimum extent of the land to be conveyed by the landlord as pertaining to and connected with the buildings put up by the tenant and not the entire area of land comprised in the tenancy agreement. S. 9 of the Act of 1960 contains a special provision in respect of pending proceedings and in respect of rights and privileges which may have accrued to the tenant immediately before the commencement of the Act 13 of 1960. 6. From the foregoing, it will be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and damages at the same rate for the future from the date of the suit till delivery of possession. The period for which mesne profits were claimed was the period left over in the earlier suit upto the date of the second suit and future. In this suit too, the defendant raised the same objection about the vires and the scope and operation of Act 13 of 1960. On the merits the defendant raised the same objection that he was not liable to pay anything more than ₹ 2,500 per annum towards damages for use and occupation. 10. The learned Subordinate Judge overruled all the objections of the defendant and decreed the suit as prayed for. There is no discussion in the Judgment regarding the quantum of mesne profits, and, as the suit was decreed as prayed for, the defendant became liable under the decree to pay mesne profits to the plaintiff at the rate of ₹ 833.33 per mensem from 11th August, 1961 upto the date of delivery of possession. The amount in dispute in the connected appeal with regard to the mesne profits is a sum of ₹ 40,000 odd, after adjusting the admitted amount at the rate of ₹ 2,500 per annum, out of the amount of ₹ 52,000 odd, decreed by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty or an unreasonable restriction upon the tenants' right thereby offending Art. 14, Art. 19 (1) (f) and sub-clause (5) and Article 31 of the Constitution. The further contention of the learned counsel, (though independent) which is inseparably linked up with the other contention aforesaid is that this particular provision in the Act of 1960 excluding the tenancies of lands held by municipal councils from the purview of the Act is not retrospective in operation, that there is nothing in the Act, either express or by necessary implication, to hold that the exemption would apply to prior tenancies. On this aspect of the matter, arguments were advanced by counsel on both sides as to the precise ambit, nature and incidents of the rights conferred upon the tenant under the main Act, whether it is property or right to property or whether it is vested or accrued right, or whether it is merely a privilege and a bare right to take advantage of a provision of the Statute only on a particular contingency when a suit for eviction was filed against the tenant, etc. Learned counsel for the tenant placed considerable reliance upon S. 9 of the Amending Act of 1960 as supporting his contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as extracted at page 870 of the same decision shows the considerable inconvenience which was caused to public bodies when the Act applied to lands leased by Public Bodies. It is to remedy this serious defect that public bodies and municipal bodies had to be excluded from the purview of the Act: ....... on the reports received from Collectors, the Act was extended to certain Municipalities. But it was found that such extension caused inconveniences to public bodies and other institutions which owned the lands in as much as they were not able to get sufficient returns from these to carry on their activities under present conditions. It is for the party impugning a law as offending Art. 14 to place sufficient material before Court to show that the discrimination is not justifiable on any rational basis. There is a strong presumption that when the Legislature makes a classification, it does so in good faith and with full knowledge of, and familiarity with, the existing local conditions and the problems in the light of the needs of the public authorities so as to make the classification. The burden is heavy on the other side to establish that the classification is hostile and unw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Government or local authority or the Board would be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are, or are likely to be. Therefore, the tenants of the Government or local authority or the Beard are not in need of such protection as the tenants of private landlords are and this circumstance is a cogent basis for differentiation. The two classes of tenants are not by force of circumstances placed on an equal footing and the tenants of the Government or local authority or the Board cannot, therefore, complaint of any denial of equality before the law or of equal protection of the law. There is here no real discrimination, for the two classes are not similarly situated. Neither S. 4 of the Bombay Rent Act, nor S. 3-A of the Bombay Housing Board Act, can therefore, be challenged as unconstitutional on the ground of contravention of Art. 14 of the Constitution. 14. We may next refer to the Bench decision of the Mysore High Court reported in M.R. Puttiah v. Mysore City Municipality A.I.R. 1955 Mys. 121 in which the Government Notification exempting houses belonging to local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argument was not accepted, on the ground that such a view would involve the absurd result that no class can ever be exempted from the operation of any legislation. What this principle emphasizes is that there must be a reasonable and just relation to the object sought by the Legislature to be attained in the legislation, and that the classification must not be without any relationship to that object whatsoever. This principle does not lay down that the relationship must be such that it must necessarily advance the object of the legislation 'quae' the class exemption from its operation. It is impossible to understand how in any conceivable case when a class is exempted from the operation of law the object of that legislation am ever be advanced 'quae' the exempted class. If Mr. Javeri's contention were right, then no class can ever be exempted from the operation of any legislation. Take the very prohibition case which the Supreme Court was considering. The question that fell for determination was whether the Legislature was justified in exempting the Army from the operation of the Prohibition Act. If what Mr. Javeri says was correct, then the exemption could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a classification which was based on any true principle. Now, it is clear that in this case the Legislature was not in any sense exempting the Government from the operation of the Act in order to permit the Government to do the very thing which the Legislature was prohibiting in the case of landlords who were not a local authority or Central or State Government. It is not too much to assume, as the Legislature did in this case assume, that the very Government whose object was to protect the tenants and prevent the rent being Increased and prevent people being ejected, would not itself, when it was the landlord, do those very things which it sought to prohibit its people from doing, and therefore the underlying assumption of this exemption is that Government would not increase rents and would not eject tenants unless it was absolutely necessary in public interests and unless a particular building was required for a public purpose. 15. It is unnecessary to multiply decisions and it is sufficient to refer to a recent decision of the Punjab High Court reported in Sahaj Ram v. State of Punjab A.I.R. 1962 P H. 298 in which the same view was taken following the principle enunciated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and such other relevant aspects in interpreting the provisions in the statute, while determining whether the presumption that no statute should be retrospective in operation has been clearly and satisfactorily rebutted. The inference that a statute will have retrospective operation may rest upon unambiguous express provision to that effect in that statute itself or by necessary implication from the language employed in the light of the attendant and surrounding circumstances. The presumption against retrospective operation taking away vested rights would apply only if there is a vested right in the strict sense in order to raise the presumption, for, there is no presumption that an Act of Parliament is not intended to interfere with the existing rights. Most Acts of Parliament in fact do interfere with the existing rights and the adoption of a general rule, to rule out the operation of statutes with regard to transactions prior thereto would make legislation impossible and futile. (Vide: Craies on Statutes, 6th Edition, pages 397 and 398). At this stage it is necessary to refer to the note of warning given by Buckley, L.J. in West v. Gwynne (1911) 2. Ch. 1 (at pages 11 and 12) w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose that an Act is passed which provides that in respect of such a contract no debt shall arise. As an illustration, take the case of a contract to pay money upon the event of a wager, or the case of an insurance against a risk which an Act subsequently declares to be one in respect of which the assured shall not have an insurable interest. In such a case, if the event has happened before the Act is passed, so that at the moment when the Act comes into operation a debt exists, an investigation whether the transaction is struck at by the Act involves an investigation whether the Act is retrospective. Such was the point which arose in Moon v. Durden 2 Ex. 22, and in Knight v. Lee (1893) I.Q.B. 41. But if at the date of the passing of the Act the event has not happened, then the operation of the Act in forbidding the subsequent coming into existence of a debt is not a retrospective operation, but is an interference with existing rights in that it destroys A's right in an event to become a creditor of B. As matter of principle an Act of parliament is not without sufficient reason taken to be retrospective. There is, so to speak, a presumption that it speaks only as to the future. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and laws which merely profess to amend. If the amendment of the existing law is small, the Act professes to amend the prior enactment. If it is extensive, it repeals the old law and re-enacts it. In whichever form the new law is introduced, S. 6 would apply, provided that no different intention appears in the context. We shall now examine the pre-existing rights and obligations between the landlord and the tenant with regard to the superstructures put in by the tenant on the property leased (at before the Act was extended to Salem Municipal town by Notification of the Government dated 11th September 1956, (b) from 11th September 1956 till 27th June 1960 when the Madras Act, XIII of 1960 came into force and (c) after Madras Act XIII of 1960 came into force. Before the Act of 1922 the rights and obligations between the landlord and the tenant with regard to superstructure put in by the tenant were governed by the provisions of S. 108 of the Transfer of Property Act subject to an express contract to the contrary between the parties. S. 108 sub-Cl. (h) of the Transfer of Property Act provides that the lessee may, after the determination of the lease, remove, at any time whilst he is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to tenancies which had come into existence before the Act came into operation in any particular area and, at the same time, the Act would not apply to tenancies which came into being after that date. The legislation itself is quite a special kind and the object of the Act is to protect tenants who had constructed buildings on the lands leased out to them in the hope that they would not be evicted and would not be obliged to demolish the superstructure. After the Act had come into force, no such protection is necessary to tenants because there is no question of the tenants, putting up superstructures in the hope that they would not be evicted. The beneficial object of this enactment is apparent on the face of it, that the provisions apply only to prior tenancies. 21. After the Act of 1922, certain amendments were introduced by Madras Act 16 of 1926 and what is relevant in the instant case is that S. 3 was amended so as to entitle the tenant to include the value of the improvement which may have been made by him in the matter of compensation payable. Certain important amendments were introduced in the amending Act (Madras Act 19 of 1955). The Act was made applicable in the city of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em and Trichinopoly, while the building would mean only building for residential purposes in any other area. The result is that the Act would apply to residential and nonresidential buildings in the city of Madras and municipal towns of Coimbatore, Madurai, Salem and Trichinopoly, while, in other cases, the Act would apply only to residential buildings. In S. 6, the Act was amended to the effect that the fair rent for the land which the Court may fix shall not be enhanced by more man twenty five naya paise in the rupee. This provision obviously will have retrospective operation in respect of all tenancies. In S. 9 an important was introduced by the Act of 1960 to the effect that the landlord can be directed to sell only that minimum portion or extent of the land which may be necessary for the convenient enjoyment by the tenant with regard to the building put up by him. Previously, the provision was very wide and general and the tenant could have applied for a conveyance of the entire land leased. There are certain other consequential amendments introduced in S. 9. Here again, it has to be emphasized that the amendment introduced in S. 9 is retrospective and it applies to all tenanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on excluding the operation of the Act to non-residential buildings in all the notified areas excepting the City of Madras, Municipal towns of Coimbatore, Madurai, Salem and Tiruchirapalli would have full retrospective operation in the sense that in all the areas other than the aforesaid five Towns, the tenants of non-residential buildings would not be entitled to invoke the provisions of the Act and the provision is all-embracing to the effect that if any proceeding had been instituted by the tenant in respect of any notified area other than the aforesaid five towns, in respect of non-residential buildings, the proceeding would abate and all rights and privileges which might have accrued earlier to the tenants concerned so far as they related to non-residential buildings would cease and determine and shall not be enforceable. This does not mean that any other amendment will not have retrospective operation. From what we have mentioned above, it will be noticed that all the provisions introduced under the Act XIII of 1960 are necessarily retrospective in character. It is difficult to visualize how the amendments can be prospective in character when once the important fact is borne i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land leased and the market price has to be ascertained according to the lowest market value prevalent within seven years. Under the Amending Act XIII of 1960 which came into force during the pendency of the proceeding, the tenant had only the minimum right to get the conveyance of the minimum extent of land necessary for the convenient enjoyment of the tenant and the price shall be the average market value of three years immediately preceding. The tenant contended that the rights which had accrued to him before the amendment of 1960 are vested rights and the amendment of 1960 will not have retrospective operation. The learned Judge rejected this argument observing that the Amending Act of 1960 is not one which repealed the existing Act and replaced it with another. He applied the well established rule that in the absence of an express provision to the contrary, the presumption is that an amendment of a provision in an existing Act is deemed to have been part of the Act since the date of the passing of the original Act. 26. In this view the learned Judge held that it is the Act as amended that will govern the rights of the tenant. In the instant case, the principle in that decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant under S. 9 in Natesa Mudaliar v. S.B.K.P.K. Bhajana Matam (1966) 1 M.L.J. 130. It is sufficient to set out the following portion of the head-note in that decision of Justice Natesan: It cannot be said that the tenant has acquired any vested right in the matter. Under the common law and the Transfer of Property Act, the only, right of a tenant who had put up a superstructure is only to remove the structure on the expiry of the lease. The right to exercise an option of purchase of the land is given to the tenant only under the Act. It is a privilege conferred on him by the Act. The object of the Act was to afford protection to the tenant from eviction, and the right of purchase that was conferred upon him was only to that limited extent. No valuable right of the tenant can be said to be taken away when the Amended Act limits the extent of the land that has to be conveyed to him and for a prevailing price. 28. Vide also observations at page 137 of the same decision, where the learned Judge has followed and applied the principle enunciated by Srinivasan, J. in Gnanaprakasam v. Mahboob Bi: (1962) 1 M.L.J. 254 at 257. 29. It will be convenient, at this stage to refer to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing its previous decision in Kavulaparai Kottarathil Kochunni v. States of Madras and Kerala A.I.R. 1960 S.C. 1080 that there can be a law which deprives a person of his property provided it amounts to a reasonable restriction in the interests of the general public of for the protection of the interests of Scheduled Tribes. The amendments introduced in the City Tenants' Protection Act from time to time are undoubtedly for regulation of right of landlord and tenant and are in the interests of the general public and clearly satisfy the conditions of Art. 19 (1) (f). This decision is clear authority and it is no longer open to argument that the Act and the amendments offend Art. 14 or Art. 19 or Art. 31. Vide also the observations in Kavalappara Kottarathil Kochunni v. States of Madras and Kerala A.I.R. 1960 S.C. 1080 at pages 1092, 1095 and 1096. Subba Rao J. (as he then was) deals with the incidents of the right of the tenant under the Act in paragraph 30 of the judgment. The learned Judge observed as follows:- The question that falls to be considered is whether the second right, namely, the right of a tenant to apply to the court for an order directing the landlord to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar that the tenant's right is not property and there is no deprivation of property consequent upon the amendment and the presumption against retrospective operation of the statute will not apply to such a right, which merely stems from the statute. 31. We may also refer to a recent decision of justice Ismail in Syed Ibrahim v. Jalma A.I.R. II M.L.J. 83, in which the limited and the inchoate nature of the right under S. 9 of the Act was emphasized. In that case a suit for ejectment had been filed against the tenant and the tenant lost his right under the Act on account of failure to apply under S. 9 within the time limited by the Act. After the expiry of the time the tenant died and his Legal representatives, defendants 2 to 7 in the action, claimed a fresh opportunity to prefer an application under S. 9. The claim of these defendants was negatived. The learned Judge observed that the right of the tenant was an inchoate right to apply for purchasing the landlord's interest under S. 9 and that right would become a completed right only when an application has been made under S. 9 within the time prescribed by law. The same view was taken by justice Natesan in Kuppa Bai v. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given to the tenant to ask for a direction for the conveyance of the land and that that option can be exercised only if the landlord files an action in ejectment and that, so long as the landlord does not seek to evict him the option for the purchase of the land cannot and does not arise. The learned Judge has further emphasized that the right of the tenant is an inchoate, doubly contingent right, that is, (a) the landlord must commence an action in ejectment and (b) the tenant must exercise the option under S. 9 within the period specified under the Act. It was further observed that if, before the Act of 1960 came into force, no action in ejectment had been filed and the provision was repealed, the result was only that a right to take advantage of the provisions of the statue had been extinguished and that is not sufficient to attract the rule against retrospective operation of the amendment. It is also observed that the right is doubly contingent because the landlord had the option, his own unilateral option, to institute or not to institute a suit in ejectment and the tenant also had such an option to claim or not to claim benefit of the section. It is also necessary to bear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal. 33. In that case, the appellant before the Privy Council had purchased certain area of Crown land and the sale was carried put under S. 23 of the Crown Lands Alienation Act of 1861. Later, he invoked S. 22 of that Act and applied for the sale of further extents of land which adjoined the land which he had already purchased under S. 25. There was ft conditional purchase in terms of S. 22 of the Act. The Crown Lands Alienation Act of 1861 was repealed by the Crown Lands Alienation Act of 1884 and the repeal was subject to the saving provision extracted above. The Act of 1884 did not contain a similar provision or counterpart of S. 22 of the Act of 1861, and there was no provision relating to the conditional purchase of adjoining lands by a holder in fee simple of lands granted by the Crown. The policy of the later enactment was to exclude such holders from the purview of the Act of 1884. The argument on behalf of the appellant was that the provisions of the Act of 1884 extracted above preserved the right of the appellant under the Act of 1861. The argument was that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee wished to demolish existing building subject to the Ordinance, he could recover vacant possession of the premises after obtaining a re-building certificate from the Director of P Works. Under S. 3-B (2) of the Ordinance, when the Director of P. Works gave notice of his intention to grant a re-building certificate, the lessee should serve a notice in the prescribed form on the tenants who could, within three weeks of such notice, appeal by way of petition to the Governor in Council against the proposal of the Director of P Works to give a rebuilding certificate. In that event the lessee could present a cross petition under S. 3-D (2); every petition and cross-petition will have to be taken into consideration by the Governor who had an absolute discretion to direct whether or not to give a re-building certificate. 35. In 1956 K applied to the Director of P Works for re-building certificate and notice of these proceedings were served upon the tenants and sub-tenants of the premises who had preferred petitions of appeal to the Governor in Council. By April 1957, no decision had been taken by the Governor in Council in regard to these proceedings between the Crown lessee on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the landlord taking proceedings in ejectment which are only contingent. A hope based upon such a contingency cannot be regarded as an accrued right or privilege. If the relevant provisions ceased to be applicable by the amendment of Madras Act XIII of 1960, the hope or expectation of working out these rights on a particular contingency which had not accrued would perish and would not survive. Reference may be made to the following observations at page 730 in the Privy Council case, which sets up the rival contentions: At the time of the repeal, all the procedure under S. 3 and S. 13 had been followed, and it can properly be said that the stage had been reached when the lessee could expect and was entitled to have the petitions and cross petitions considered in the course by the Governor in Council and to have a decision reached. Could such expectation or entitlement be regarded as a right or a privilege ,either acquired or accrued, within the meaning and intendment of the interpretation Ordinance? Or was such expectation or entitlement something that necessarily came to an end at the time of the repeal? There might have been some express provision in the 1957 repealing Ordinanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the repeal, then, even in order to determine whether he shall be given a right which he did not have when the procedure was set in motion. 37. From this it is clear that unless there is a saving provision the right would not prevail. 38. Our attention was also drawn to a further decision of the Privy Council reported in Free Lanka Insurance Co. v. Ranasinghe (1964) 1 A.E.R. 457= 1964 A.C. 541 (P.C.) in which the principle in the earlier decision in Director of P. Works v. Ho. Po. Sang (1961) 2 All. E.R. 721= 1961 A.C. 901 was applied. In the latter decision of the Privy Council, the scope of the repealing of the Ceylon Motor Car Ordinance, 1938 by the ordinance of 1951 came into question and, on a consideration of the scope of the two provisions the Privy Council held that the right acquired by the respondent in that case was saved despite the repeal of the earlier ordinance. The decision turned upon the particular provisions of the Ordinance in holding that on the facts of the case, a right had vested and so preserved despite the repeal by subsequent legislation. It is significant to notice in that case, the accident had occurred while the prior Ordinance was in force an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of the repeal, are inchoate, incomplete or unperfected or which have not accrued or become vested.........If the right accrued under a repealed Act has not developed into a jus in rem and has not yet fully matured, and is merely continuing as a jus ad rem, not having progressed beyond an inchoative state, it cannot survive the repealed Act, and must fall with it, unless expressly saved. 40. Further, the learned Judge observed that the right of the appellant could not be deemed a matured or vested right and that it could be said to be vested only when it is complete and consummated so that nothing remained to perfect it. Quoting from Crawford on Statutory Construction, the learned Judge observed: A vested right has been defined as 'some right or interest in property' that has become fixed and established and is no longer open to doubt or controversy. 41. In that decision it was also pointed out that nobody has a vested right in a statute and an Act may be beneficial to a particular person, or its repeal may affect him injuriously, but the right of the Legislature to abrogate an Act by repealing it is absolute; we are clearly of the view that the above sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout any liability for compensation. Till 1956, under the general law taken along with the express bargain embodied in the lease deed, the tenant had no right to claim compensation. It is only in September 1956, as a result of the notification extending the Act to Salem Municipal town that the tenant became entitled to the right to claim compensation. In other words, it is the right created under the statute by which alone the tenant became entitled to claim compensation. It is beyond question and well established law that nobody has got any vested right in a statute and the Legislature has undoubted power to repeal a statute, however beneficial it may be and whatever rights it may have conferred. Again the power of the Legislature to enact such a repealing statute with retrospective operation cannot be questioned. The only condition is that it must satisfy the condition in Art. 19 (1)(f) as amounting to reasonable restriction in the interests of the general public. After the Constitution that is the only limitation. Prior to the Constitution, the right of repeal with retrospective operation was unqualified like the original power to enact a particular legislation. Again, the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful deprivation of property when it is noticed that prior to the notification he had no such property right and it is the Legislature that gave him some rights, and it is open to the Legislature to take away those rights. At this stage we may refer to the Bench decision of Rajamannar, C.J., and Justice Panchapakesa Ayyar in Globe Theatres v. State of Madras I.L.R. (1954) Mad. 616. In that case the Government issued a notification under Sec. 13 of the Madras Buildings (Lease and Rent Control) Act 1949 exempting certain buildings from the provisions of the Act. The tenant contended that under the Act aforesaid he had become a statutory tenant and certain rights had accrued to him and that he has been deprived of those rights and therefore the exemption offended Act, 19 (1)(f) of the Constitution. The learned Chief Justice rejected this argument observing that no fundamental right of the tenant was violated because the tenant, before the enactment, had no fundamental right to remain in possession of the building for all time, that whatever rights he relied upon were rights accrued and conferred by the very Act, that a statutory tenant is the creation of the Act, with certain rights an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of not less than six years immediately preceding the 1st January, 1938, and in respect of Poona, the Amending Act of 1946 provided that a tenant of a land in Poona will also become a protected tenant if he has been in possession of the land continuously for a period of six years immediately preceding 1st January, 1945. The combined operation of the Act of 1939 and the Act of 1946 was that in other areas a tenant will be protected tenant if he held the land continuously for a period not less than six years preceding 1st January 1938 while, in Poona area, a tenant would be a protected tenant if he held that land continuously for a period of not less than six years preceding the 1st January, 1945. The Act contained a further provision that within one year after the amending Act of 1946 came into force, it will be open to the landlord to obtain a declaration that the tenant was not a protected tenant. In that case no proceeding appears to have been taken by the landlord with the result that the tenant became a protected tenant within the meaning of the Act. While matter stood thus, this tenancy legislation was repealed by an Act of 1948 and the landlord relied upon this repeal to evic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature to be rectified, we have no doubt that the amendment will have no retrospective operation and tenants of lands of Municipal Councils would not be entitled to invoke the protection of the Act. As observed by the Supreme Court in Abdul Hakim v. State of Bihar A.I.R. 1961 S.C. 448 following the statement of the law in Md. Hanif Quarshi v. State of Bihar A.I.R. 1958 S.C. 731 the test whether a particular legislation satisfies Art. 19 (5) as a reasonable restriction in the interests of the general public cannot be formulated as a general test in the abstract, but the test of reasonableness should be applied to each individual statute impugned and no abstract stand or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition the prevailing conditions at the time of the legislation are all matters to be taken into account. Reference was made to the decision of the Supreme Court in the Bank National section Case reported in R.C. Cooper v. Union of India A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to be achieved by the statute. After this clear pronouncement, it is not open to the tenant to urge that the exclusion of tenancies of lands belonging to municipal councils is discriminatory and arbitrary or that the deprivation of the rights of the tenant under Ss. 3 and 9 with retrospective operation is an unreasonable restriction and not in the interests of the general public, being vocative of the conditions in Art. 19 (5). 45. In the course of the hearing we repeatedly put the question to the learned counsel for the appellant that the amendment of 1960 should serve some purpose and must have application at least in a limited category of cases seeing that the amendment applies to all tenancies of lands owned by municipal councils prior to September 1956 (the period when the Act was extended to Salem by Government notification). Mr. Vedantachari recognising that the Act must have some limited application urged that the amendment would have application only to buildings which were put by the tenant between September 1956 and July 1960 when Act XIII of 1960 came into force. We see no substance whatever in this contention, as there is a great fallacy involved in the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tify the serious defect and enable them to resume the land for putting the same for purpose of the public. We see no warrant whatever for interpreting the provision of Act XIII of 1960 in such a manner as to completely defeat the very purpose and object of the enactment. To sum up, the whole argument is founded on a fallacy that by reason of S. 9 of Act XIII of 1960 a limited retrospective operation alone has been given and that in the case of tenancies of lands owned by the municipality, the intention of the legislature is otherwise. As we have already observed, the argument overlooks the important fact that the amendment with regard to lands owned by the Municipality is incorporated in the main Section itself as forming part of the statutory provisions in S. 1 sub-S. (3) and (4) (a) proviso, while S. 9 is an independent provision with regard to non-residential buildings in the areas other than the City of Madras and the four Municipal towns. The amendment introduced in S. 1 of Act XIII of 1960 is to completely exclude from the purview of the Act, lands owned by municipal councils while the saving provision in S. 9 is with regard to a different aspect, viz, lands in which non-resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Ltd. v. Subramania A.I.R. 1970 S.C. 1583 while reversing the Bench decision of the Madras High Court in (1965) 2 M.L.J. 140 a portion of the Supreme Court's judgment is expressly based upon the concessions of Mr. Setalwad aforesaid. In Vajrapani Naidu's case (1965) 1 M.L.J. 47 S.C. (which affirmed the Bench decision of the Madras High Court reported in (1969) 2 M.L.J. 469 the lease deed contained the stipulation that the lessee, on the termination of the lease, would dismantle the construction and hand over vacant possession and in default, the lesser will be entitled to take possession of the site through court after dismantling the constructions and demolishing the buildings. Shah J. (as he then was) delivered the majority judgment on behalf of himself, Gajendragadkar C.J. and Sikri J. (as he then was). The majority judgment was to the effect that such a stipulation would not be saved by the proviso and that the stipulations which are saved by the proviso are stipulations containing restrictions about the size and nature of the building constructed, the materials to be used for the building and the purpose for which the building was to be utilised and that a wider mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be evicted and that he was putting the building on his own choke and volition without any hope of expectation extended by the landlord. The learned Judge further pointed out that if a lease is granted on favourable rent and the lessee undertakes to construct buildings and deliver the site with the buildings at the expiry of the term without any claim for compensation, such a condition would be saved by the proviso. In the concluding portion of the judgment, Rajagopala Ayyangar, J. says that there cannot be any distinction between a covenant by which the tenant agrees to reduce the compensation and a covenant by which the tenant agrees to demolish the superstructure and hand over vacant possession. Before referring to other cases, we think it necessary to emphasise that the minority judgment is based upon the crucial concessions made by the counsel, Mr. Setalvad, and also upon the fact that the stipulation which is covered by the proviso to S. 12 is a stipulation which should be in conformity with the object of the enactment as set forth in the preamble, i.e., a construction put up by a tenant on the land in the hope that he would not be evicted and that a tenant who built witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such that the tenant has bound himself by the stipulation which would disentitle him from claiming compensation, such a stipulation would be saved by the proviso, for the obvious reason that he cannot claim to be a tenant who put up a building in the hope that he would not be evicted. The further important aspect which emerges from this decision is that such a stipulation which disentitles him from claiming compensation is a stipulation in respect of erection of the building within the terms of the proviso. 50. The next decision to be referred to is the decision in Mylapore Permanent Fund case, reported in A.I.R. 1970 S.C. 1683. In understanding the ratio of this decision of the Supreme Court, it is necessary to mention at the threshold that the Bench decision of the Madras High Court which is reported in (1965) 2 M.L.J. 140 followed the decision of the Supreme Court in Vajrapani Naidu's case (1965) 1 M.L.J. 47 but the Supreme Court reversed the Bench decision of the Madras High Court, expressly pointing out that the Madras High Court has not properly understood the scope of the decision in Vajrapani Naidu's case and had overlooked the import of the concessions made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isentitle the tenant from claiming compensation would be a stipulation as to 'erection of buildings'. If both the landlord and the tenant had bestowed thought about the question of the building and the tenant had entered into a particular kind of stipulation with reference to a particular contingency, he would not be entitled to claim compensation. A careful examination of the judgment in Mylapore Permanent fund case shows that the strict and narrow view taken in Vajrapani Naidu's case would no longer hold the field and that later trend is definitely towards a liberal view, and there cannot be any exhaustive enumeration of stipulations which would be protected by the proviso and the question in each case is whether both the landlord and the tenant entered into a bargain by which the landlord obtained a stipulation the effect of which would be either to reduce the compensation or to disentitle the tenant from claiming compensation in a particular contingency. In this connection, it is necessary to emphasise that under Cl. (9) of the lease deed in the Mylapore Permanent Fund case, the landlord had stipulated and the tenant had agreed that if the tenant commits breach of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der v. Sridharan Nair (1963) 2 M.L.J. 559 already referred to. In that case the lease was evidenced by a registered lease deed dated 27th September 1945 for a period of 12 years and the covenant was that the lessee should put up the building as per the specifications contained in the lease deed, enjoy the building for 12 years and that at the termination of the lease, surrender possession of the site along with the building to the lesser without any claim for compensation. The lease expired on 27th September 1957 and the Act was extended to Coimbatore on 19th February 1958. The Sub-Court negatived the claim of the landlord for recovery of possession of the site and the building, but on appeal, a Bench of this court reversed the decision and decreed the landlord's suit, holding that the particular stipulation was saved by the proviso to S. 12. The important point to notice is that in this case the Bench decision of the Madras High Court in Vajrapani Naidu's case in 1959 2 M.L.J. 469 which was affirmed by the Supreme Court was relied upon on behalf of the tenant. After discussing the scope of that decision and some of the relevant decisions of the Supreme Court, the Bench hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the claim of the landlord and in the judgment, had referred to its own earlier decision in Vajrapani Naidu's case and now the scope of that decision had been explained in the later decision in the Mylapore Hindu Permanent Fund case in A.I.R. 1970 S.C. (sic). What is very significant to notice is that in paragraph 11 of the judgment the Supreme Court has clearly emphasised that the scope of the proviso and the scope of the stipulation will have to be understood in the light of the object of the enactment that tenants who had constructed the buildings on other's land in the hope that they would not be evicted should get protection while at the same time it was not the object of the Act to cover a hope if the hope was entertained contrary to the express stipulations as to the erection of buildings. It will be seen that in that case, in the actual working, allowing depreciation at 3 percent for about 30 years, the tenant may not be entitled to any compensation at all and, at any rate, the compensation that he may get would be illusory or a very insignificant fraction of the whole investment which the tenant had made in putting up the theatre in a locality like Mount Road, M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njeevaraya's case A.I.R. 1969 S.C. 435, or the lease may be for a short period like ten years or 15 years, which itself carries with it the implication that the building which the tenant puts up should be of a temporary character and if the lease is by a public authority, it is implicit in it that the public authority is not prepared to grant a lease with an obligation to pay compensation. An analysis of the later decision of the Supreme Court leads to the clear conclusion that the right of the landlord to enter into a stipulation not to be burdened with an obligation to pay compensation is saved by the proviso. Thus, the question in each case will be in what form the stipulation is couched in the lease deed so as to achieve this object of the landlord subject to which alone the lease had been granted. We are clearly of the view that it is not feasible or advisable to formulate any such formula or to exhaustively enumerate the stipulation within the strait jacket of an inflexible formula. 53. There is yet another crucial and significant feature in this case to justify the same inference that the lease in question would be governed by the proviso. The first lease, Ex. A. 1, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncil. He did not examine himself, and he did not adduce any evidence, as to what amount he claimed as the value of the superstructure. It is true that under S. 3, the tenant shall, on ejectment, be entitled. That does not mean that when the tenant does not ask for that relief and deliberately assumes a dubious conduct merely questioning the vires of the statute the court is bound to make an enquiry suo motu, the tenant being utterly indifferent about that aspect. S. 3 only means that the tenant is entitled to compensation, but he is bound to ask for that relief and adduce evidence for determining the actual amount of compensation. The additional issue framed in these terms, which says nothing about the quantum Whether the right to compensation given under S. 3 of the Madras City Tenants Protection Act would validly be taken away by the Madras Act 13 of 1960 ? itself shows the dubious attitude pursued by the tenant. Throughput the written statement he has raised in several places pleas concerning the vires of the Act on one ground or another, and nowhere has he asked that he should be paid compensation under S. 3. Even in his memorandum of appeal which he has filed in this court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperstructure besides the land, with effect from 1st July 1972 in the event of the defendant not removing the superstructure and delivering vacant possession before that date. We are alive to the fact that the relief which we are awarding in this manner does not logically follow from conclusion that the plaintiff has become entitled to the superstructure from September 1958. Even so, we are imposing this condition taking a sympathetic view of the predicament of the defendant. The result is that we fix the mesne profits at the rate of ₹ 500 per mensem from 11th August 1958 upto 30th June 1972 within which time the defendant should hand over vacant possession after removing the superstructure. In default, the plaintiff will be entitled to recover the land along with the superstructure and the plaintiff also will be entitled to mesne profits which will have to be determined in further proceedings both with regard to the land and with regard to the superstructures till such time the plaintiff obtains delivery of possession. C.M.P. 5450 of 1971, C.M.P. 4004 of 1971 and C.M.P. 3873 of 1971 are all ordered accordingly, subject to the conditions mentioned above. As regards the costs, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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