Ramamurti, J.@mdashThe above three appeals were all heard together, as the dispute arises out of a lease transaction entered into between the Salem Municipal Council (hereafter referred to as the Municipality) and one Varadaraja Pillai, on 23rd May 1949. The controversy centers round the vires as well as the proper interpretation of the provisions of the Madras City Tenants Protection Act (Madras Act III of 1922) as well as the later Amending Act (Madras Act XIII of 1960). There is also controversy between the parties as to the quantum of manse profits due; from Varadaraja Pillai aforesaid. For convenient reference, Madras Act III of 1922 will be referred to as the Act and the Amending Act XIII of 1960 will be referred to as the Amending Act.
2. The Salem Municipality instituted two suits, Original Suit No. 95 of 1961 and Original Suit No. 96 of 1962 on the file of the Court of the Subordinate Judge, Salem, against Varadaraja Pillai. Original Suit No. 95 of 1961 was filed for recovery of manse profits or damages for use and occupation. Appeal Suit 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 Appeal Suit No. 601 of 1962 in so far as the decision of the trial Court went against the Municipality. Original Suit 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 Suit No. 455 of 1967.
3. 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 as 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 land leased being 28,210 sq. ft. This is evidenced by a registered lease deed, which has been marked as exhibit A-l in the suit, Original Suit No. 96 of 1962. (Note: unless necessary, the documents will be referred to as exhibited and marked in the suit, Original Suit Iw. 96 of 1962). The lease was granted for the specific purpose of enabling the Defendant, Varadaraja Pillai, to put up a cinema theatre, indeed as per the lease deed he should complete the construction of the theatre before 15th September 1939. It is unnecessary to refer to the other conditions; the main condition that is relevant for discussion is that, on the termination of the lease, the lessee should remove the superstructure, i.e., the theatre building, and hand over vacant possession of the land to the Municipality. At the time of the termination of the lease, Varadaraja Pillai applied for a fresh lease, offering certain terms and at the same time some others also applied for the lease of the suit property. But ultimately the Municipality granted a fresh lease to Varadaraja Pillai, evidenced by the registered lease deed, exhibit A-2, dated 23rd May, 1949. This lease was for a period of ten years from 11th August 1948 to 10th August 1958. The extent of the land leased was 30,070 sq. ft., and the annual rent was Rs. 2,500. This lease contained an important condition (different from the earlier lease, exhibit A-l) to the effect that on the termination of the lease the lessee should hand over vacant possession after removing the superstructure within the time specified by the Municipality and that, if the lessee did not remove the superstructure, the entire superstructure and all the buildings put up by the lessee shall belong to the Municipality. The lease further provided that the Municipality shall give three month''s notice on or before 10th May 1958 the lessee to remove the buildings and deliver vacant possession of the properly. It is not in dispute that such a notice was issued by the Municipality calling upon the lessee to remove the superstructure and hand over vacant possession. Exhibit A-4, dated 9th May 1958 is the first notice issued by the Municipality calling upon the lessee to remove the superstructure and hand over vacant possession of the land. Exhibit A-5 is the resolution of the Municipality that the vacant site was required by the Municipality for its purposes, that no further renewal or fresh lease could be granted to the lessee and that appropriate proceedings would be taken for recovery of possession of the land from Varadaraja Pillai. Exhibit A-6 is another notice, dated 1st October 1958 issued by the Municipality to Varadaraja Pillai calling upon the latter to 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, exhibit A-3, 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, exhibit 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, Plaintiff to consider the suggestion of granting such'' a lease, but the Municipality by its resolution, dated 24th March 1961 resolved that there could not be any extension of the lease as the land in question was adjacent to the existing bus stand, that the land was required for extending the bus stand and for constructing a workshop in a portion of the site to repair lorries and other vehicles maintained by the Municipality and that it war; not possible to allow others to have use of the land even on payment of rent. The lessee thereupon initiated proceedings in the High Court, Writ Petition No. 295 of 1961, and obtained a temporary injunction on 16th September 1961 restraining the municipality from taking proceedings against him for eviction from the land. That writ petition was ultimately disposed of and dismissed by this Court on 3rd November 1961, and all attempts on the part of the lessee to secure either a fresh lease or renewal proved futile. During the tendency of the writ petition the Municipality instituted the first suit, Original Suit No. 95 of 1961, on the file of the Court of the Subordinate Judge, Salem, on 10th August 1961 for recovery of damages for use and occupation from 11th August 1958 to 10th September 1961 at the rate of Rs. 383.33 per month. At the same time the Municipality reserved its right to file a suit for possession after the disposal of the writ petition (Writ Petition No. 295 of 1961).
4. Before referring to the defence of the lessee, it will be convenient at this stage to refer to the Madras City Tenants Protection Act (III of 1922) as amended by the Amending Acts XIX of 1955 and XIII of 1960. Act III of 1922 came into force in February 1922, and was published in the Gazette on 21st February 1922. The Act applied to all leases created before its commencement and it applied only to the City of Madras. In the definition Section (Section 2) building is defined as including a house, out-house, etc., taking within its ambit, without any distinction, a residential or non-residential building. Section 3 provides that a tenant on ejectment shall be entitled to be paid as compensation the value of any building which may have been created by him or by his predecessor-in-interest. It also provided vide Amendment of 1926 that the tenant will also be entitled to the value of any improvement which may have been made by him. Section 9 provides that any tenant who is entitled to compensation u/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 land-lord to sell the land for a price to be fixed by the Court. Act VI of 1926 introduced certain data for fixing the fair market value of the land. Section 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 land lord to the tenant. Section 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. Section 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 III of 1922.
5. The amending Act XIX 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 Gazette extend the Act to any other municipal town and any specified village within five miles of the City of Madras or such municipal town. It also declared that the Act shall apply to tenancies created before the commencement of the Amending Act XIX of 1955, i.e., the Act shall have no application to tenancies created after 12th September 1955. The Amending Act of 1955 contained other provisions carrying out consequential verbal and other amendments in the Act of 1922. From December 1955 the Government issued notifications from time to time extending the Act to various municipal towns and villages. The Act was extended to Salem Municipal Town by a notification of the Government, dated 11th August 1956. The result of the Amending Act of 1955 and the notifications of the Government aforesaid was that the Madras City Tenants Protection Act applied to leases of lands, in other areas including lands belonging to municipalities, created before the commencement of the Act of 1955, i.e., 12th September 1955. The Act applied to all buildings alike, whether residential or non-residential. Throughout, the definition of tenant included a tenant who continued in possession of the land after the determination of the tenancy agreement. As Varada-raja Pillai became a lessee under the registered lease deed, exhibit-A-2, dated 23rd May 1949, he became entitled to the protection of the Madras City Tenants Protection Act, (as amended by Act XIX of 1955) on 11th August 1966 when the Act was extended to Salem.
6. Next, we come to the Amending Act XIII of 1960, which introduced certain far-reaching changes. The main controversy in all the three appeals relates to the vires of the provisions introducing such changes and the proper interpretation thereof. Section 2 of Act XIII of 1960 introduced a proviso to Sub-section (3) of Section 1 of Act III of 1922 to the effect that the Act shall not apply to tenancies of land owned by the Corporation of Madras, by the Municipalities and by the local panchayats and other public bodies like the Madras City Improvement Trust, etc. u/s 3 of Act XIII of 1960 a new definition of building was substituted in the place of the old definition of building in the Act of 1922. The effect of the Amending Act of 1960 is that building will include a building for residential or non-residential purposes; in the City of Madras, the Municipal Towns of Coimbatore, Madurai, Salem and Tiruohirappalli, 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 nonresidential purposes in the aforesaid five towns, while the Act would apply only to buildings for residential purposes in all other areas. u/s 6 of Act XIII of 1960, Section 9 of Act III 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 Section 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 building put up by the tenant and not the entire area of land comprised in the tenancy agreement. Section 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 XIII of 1960.
7. From the foregoing it will be seen that the important changes introduced by Madras Act XIII of 1960 are to make the Act not applicable to tenancies of lands owned by the Corporation of Madras and Municipal authorities and village panchayats. A special and restricted definition of building has been given: building means a building for residential or non-residential purposes in the City of Madras and four other municipal towns, including Salem, and for residential purposes only in all other areas. There is a special provision with respect to pending proceedings to the effect that any proceeding pending in any Court other than a proceeding relating to any property in the City of Madras and the four, municipal towns aforesaid, shall abate so far as such proceedings relate to non-residential buildings and that all rights and privileges which may have accrued immediately before the commencement of that Act in respect of any property situate in any area other than the City of Madras and the four municipal towns aforesaid shall cease and determine in so far as they related to non-residential buildings.
8. In the first suit the Defendant raised, among others, the objection that Madras Act XIII of 1960 offended Article 19(1)(f) and Article 31 of the Constitution and also Article 14, inasmuch as the exemption of lands belonging to the Municipality from the operation of the Madras City Tenants Protection Act was arbitrary and discriminatory. On the merits the Defendant also contended that the Plaintiff was not entitled to claim anything more than Rs. 2,500 per annum towards mesne profits.
9. The learned Subordinate Judge over-ruled all the objection? and hold that after Madras Act XIII of 160 the Defendant was not entitled to claim any protection under the Madras City Tenants Protection Act. With regard to manse profits, on a consideration of the oral and documentary evidence, the learned Subordinate Judge passed a decee against the Defendant for a sum of Re. 12,000 at the late of Re. 4,000 per annum for three years from 11th August 1958 to 10th September 1961.
10. In the second suit (Original Suit No. 96 of 1963) which was filed on 11th July 1962, the Plaintiff asked for a decree directing the Defendant to deliver vacant possession of the land after removing the superstructure and also damages of Rs. 9,700 odd at the rate of Rs. 883.33 per mensem for the period 11th August 1961 to 10th July 1962 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 XIII of 1960. On the merits the Defendant raised the same objection that he was not liable to pay anything more than Rs. 2,500 per annum towards damages for use and occupation.
11. The learned Subordinate Judge over ruled 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 Rs. 883.33 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 profit it a sum of Rs. 40,000 odd, after adjusting the admitted amount at the rate of Rs. 2,500 per annum out of the amount of Rs. 52,000 odd decreed by the trial Court.
12. In the light of the arguments advanced before us, the following are the main points which arise for determination :
(1) Whether the amendment introduced by Madras Act XIII of 1960 by way of proviso to Section 1, Sub-section (3) to the effect that none of the provisions of the Act would apply to tenancies of land owned by the Corporation of Madras, by the municipal councils concerned and local panchayats is ultra vires unconstitutional and volatile of Article 14, Article 19(1)(f) read with Sub-clause (5) and Article 31 of the Constitution ?
(2) Even if the amendment aforesaid is legal and valid, will it have retrospective operation in respect of tenancies of land which had not expired but were current and subsisting ?
(3) Even if the tenant is entitled to the benefits, of the Act, is the stipulation in the lease deed that at the determination of the lease the tenant shall remove the superstructure and deliver vacant possession within a specific period or in default thereof the superstructure put up by the tenant will become property of the municipality, covered or saved by the proviso to Section 12 of the Act as being a stipulation made by the tenant in writing and registered as to erection of buildings ?
(4) What is the relief to which the municipality is entitled with regard to the site, eased and/or in regard to the superstructure put up by the tenant ? and
(5) What is the amount which the municipality is entitled to recover as mesne profits or damages for use and occupation from the tenant ?
13. On behalf of the tenant it was urged that as per the second lease (exhibit A-2) which would expire only on 10th August 1958, a valuable right was vested in and accrued to the tenant under the provisions of the main Act by reason of the Notification of the Government, dated 1lth September 1956 extending the provisions of the Act to Salem Municipal Town and the tenant had become entitled to the benefits conferred under sections 3 and 9 of the Act.'' It is further urged that the Act of 1960, in so far as it excluded from its purview tenancies of land owned by municipal councils, is arbitrary, discriminatory and not based upon any valid legal classification and that, to the extent to which the amendment took away the benefits which had accrued to the tenants concerned, the amendment constitutes an arbitrary illegal deprivation of tenants'' property or an unreasonable restriction upon the tenants'' right thereby offending Article 14, Article 19(1)(f) and Sub-clause (5) and Article 31 of the Constitution. The further contention of the learned Counsel (though independent) which is in separably 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 pro-perty 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 parti cular contingency when a suit for eviction was filed against the tenant, etc. Learned Counsel for the tenant placed considerable reliance upon Section 9 of the Amending Act of 1960 as supporting his contention that the amending Act is to have retrospective operation with regard to tenancies of non-residential buildings to all places except the City of Madras, municipal towns of Coimbatore, Madurai, Salem and Tiruchirappalli. In substance the argument is that by reason of the specific provision in Section 9 of the Act of 1960, the law prior thereto continues to be in force without any break and change relating to properties situate in the City of Madras and in the municipal towns of Coimbatore, Madurai, Salem and Tiruchirappalli, regardless of the question to whom the property belongs, i.e., who the landlord is.
14. There is absolutely no substance in the contention that exclusion of tenancies of lands belonging to public authorities is discriminatory and offending Article 14. Except a meter legal argument in the abstract, there has been no pleading and no materials have been placed to establish'' this contention. The Act had been in force for thirty-eight years and when the amendment was introduced'' exempting tenancies of lands owned by local authorities, it has to be presumed that there was "ample justification for introducing such a change. In the Statement of Objects and Reasons, it is stated :
The Act is it now stands applied to tenancies of lands owned by local authorities. As it is considered necessary that the Act should not apply to such tenancies, it is proposed to amend the Act suitably for the purpose.
The local authorities must have experienced considerable hardship and inconvenience and the Government ought to have received representations and complaints about the effect and operation of the Act in relation to lands owned by local authorities. There is a strong presumption that the Legislature understands and correctly appreciates the needs of its own people and that its laws are directed to problems arising by experience and that its discriminations are based on adequate grounds. At this stage we may refer to the decision of the Supreme Court reported in
...on the reports received from Collectors, the Act was extended to certain Municipalities. But it was found that such extension caused inconvenience to public bodies and other Institutions, which owned the lands inasmuch 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 to Article 14 to place sufficient material before the Court to show that the discrimination is not justifiable on any rational basis. There is 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 unwarranted. The law of the subject is well settled and it is sufficient to refer to ; the enunciation of the legal principles by the Supreme Court in
There can be no question that this exemption is given by Section 4 to certain-classes of tenants and this classification is based on an intelligible differentia which distinguishes them from other tenants and this differential has a rational relation to the object sought to be achieved by the Act. It is the business of the Government to solve the accommodation problem and satisfy the public need of housing accommodation. It was for the purpose of achieving this object that the Board was incorporated and established. It is not to be expected that the Government or local authority or the ''Bound 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 Board 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 of local authority or the Board can not, therefore, complain of any denial of equality before the law or of the equal protection of the law There is here no real discrimination for the two classes are not similarly situated. Neither Section 4 of the Bombay Rent Act nor Section 3-A of the Bombay Housing Board Act can, therefore, be challenged as unconstitutional on the ground of contravention of Article 14 of the Constitution.
We may next refer to the Bench decision of the Mysore High Court reported in M.R. Puttidh v. Mysore City Municipality AIR 1955 Mys 121 in which the Government notification exempting houses belonging to local bodies from the purview of the provisions of the Mysore House Rent Control Act was upheld on the same principle differentiating the Government, i.e., properties belonging to the Government. It was held that such exemption excluding from the purview of the Act buildings belonging to local bodies, is not unguided or arbitrary, but it has rational basis as the object of the exemption was clearly to enable local bodies to discharge their functions unhampered by the restrictions of the Rent Control Act. The ground of the discrimination was that the local bodies, in the interests of the general public, ought to have the freedom to deal with the buildings owned by them in conformity with the general law, only when they can efficiently function and discharge their public duties. The same view was taken in Venkatadri v. Tenali Municipality AIR 1956 And. 61 following the Bench decision of the Bombay High Court in
What this principle emphasises is that there must be a reasonable and just relation to the object sought by the Legislature to be. attained in the legislations 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 exempted from its operation. It is impossible to understand how in any conceivable case when as class is exempted from the operation of the law the object of that legislation can 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 whet he 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 not have been upheld because it is impossible to contend that the policy of prohibition was furthered and the moral principle underlying that legislation was advanced by the Army being permitted to consume liquor as against the civilians who could not do so. But the Supreme Court upheld the classification on the ground that is was a reasonable classification, that the Army had a discipline of its own, that the Army, looking to its traditions, its past and the dangerous profession which it had to practice, was entitled to certain relaxations which the civilians as a class were not entitled to, and it is from this point of view that the Supreme Court came to the conclusion that there was a reasonable and just relation to the class exempted to the object sought by the legislation to be attained . In our opinion in the judgment from which this was an appeal to the Supreme Court we have laid down the same principles and they are to be found in Fram Nussencanji v. State of Bombay 52 Bom. L.R. 799 (F.B.). This is what the judgment says (page. 820) :
...Although it is for the Legislature to determine what classification to make, the classification must have reasonable and just relation to the subject of the particular legislation, or, as it has been differently put, differences made by the Legislature must be pertinent to the subject in respect of which the classification is made.
Therefore, what is emphasised is relevancy between the class exempted and the object of the legislation, or, in other words, the logical connection between the two. What is emphasised is not the fact that in exempting a class the Legislature must carry out the entire legislation ''quae'' the exempted class. It is further pointed out in that judgment that whenever a class is excluded from the operation of the law, it must be possible for the Court to say that there must be some reasonable basis for the exclusion of that class. Therefore, really that is the substantial test. Can it be said in this case that there is no reasonable basis for the exclusion of the Government from the operation of this Act, and the burden must lie upon the Appellant to satisfy us that the exemption is so arbitrary and so capricious that the Legislature, knowing the problem it had to deal with, being the representatives of the people, indulged in an illogical and irrational classification and not 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 these 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.
It is unnecessary to multiply decisions and it is sufficient to refer to a recent decision of the Punjab High Court reported in
5. Local Government, that is to say, the constitution and powers of municipal corporations, improve, ment trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
This shows that local authorities and municipal corporations and public bodies and district boards, etc. constitute a separate class by itself. We have, therefore, no hesitation whatever in rejecting the objection under Article 14 of the constitution as totally devoid of substance.
15. We shall next take up the question as to whether the provision of the exclusion of tenancies of land owned by municipal councils from the purview of the Act is re prospective in operation. The law is well settled that no statute should be construed as to take away the rights which have become vested or accrued unless the language in the statute is express or by necessary implication plainly to require such a construction. Unless there is strong indication to the contrary, the new law ought to be construed so as not to interfere with vested and accrued rights.
Even so, it is not an invariable rule that a statute could, not be retrospective unless so expressed in the very terms of the section which has to be construed, but the question in each case is whether the Legist nature has sufficiently expressed, that intention. We must look to the general scope and purview of the statute and, the remedy sought to be achieved, the former state of the law, the mischief or evil sought (To See the View Please Click Here) be rectified, the benefits sought to be achieved for the benefit of the community or the public in genera) 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: Crais on Statutes, sixth 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, 11, 12 where it was observed that the word retrospective is very often used loosely that a good deal of confusion had been caused by the fact that that word is used in more senses than one and that a statute is not retrospective merely because it affects existing rights nor is it retrospective merely because a part of the requisities for its action is draum from a time antecedent to its passing. Vide also XXXVI Halsbury''s Laws of England, page 423, paragraph 643.) In West v. Gwynne (1911) 2 Ch. 1,11, 13 the question arose about the applicability of clause 3 of the Convincing and law of Property Act, 1892 which contained a provision that in all leases containing a covenant against assignment, under letting or parting with possession of the property leased without the consent of the lessor shall be deemed to be subject to a'' proviso that no fine or a sum of money in the nature of fine shall be payable in respect of such consent of the lessor. In that case, the lease was of the year 1874 and the argument was that Section 3 of the Conveyancing and Law of Property Act, 1892, would not apply to a lease which had come into existence prior to that Act. This objection was not accepted. Buckley L.J. stated the law in these terms'':
During the argument the words '' retrospective and ''retroactive'' have been repeatedly used, and the question as been stated to be whether Section 3 of the Conveyancing Act, 1892, is retrospective. (To See the View Please Click Here) my mind the word '' retrospective'' is inappropriate, and the "question is riot whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act and not as to the date as from which the new law, as enacted by the Act, is to be taken to have been the law. Numerous authorities have been cited to us. I shall not travel through them. To my mind they have but little bearing upon this case. Suppose that by contract between A and B there is in an event to arise a debt from B to A and suppose 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) 1 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.'' 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, no to speak, a presumption that it speaks only as to the future. But there is no like presumption that an Act is not intended to interfere with existing rights. Most Acts of Parliament, in fact, do interfere with existing rights. To construe this Section I have simply to read it, and, looking at the Act in which is contained, to say what is its fair meaning.
16. At this juncture, we may notice that this rule of presumption against retrospective operation is also embodied, in Section 38 of the English Interpretation Act of 1889, (52 & 53 Victoria Chapter 63) and the same principle is also adopted and embodied in Section 6 of the General Clauses Act (Central Act X) of 1897)(Corresponding to Section 8 of the Madras General Clauses Act (I of 1891). Section 6 of the General Clauses Act (Central Act X of 1897) is in these terms:
Section 6:
Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not:-
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enact-ment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed.
Even though Section 6 deals only with the effect of repeal, it is settled law that the principle underlying hereunder applies not only to repeal, but also applies to amendments of prior enactments. Reference may be made to the Bench decision of the Allahabad High Court in
17. In the first place, it is necessary to bear in mind the vital fact that in all the places where the Act comes into operation either by reason of the provisions of the Act of 1922 or the Act of 1955 or by reason of the Notification by Government extending the Act to other areas, the provisions of the Act would apply retrospectively 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.
18. After the Act of 1922, certain amendments were introduced by Madras Act XVI of 1926 and what is relevant in the instant case is that Section 3 was amended so as to entitled the tenant to include the value of the improvements which may have been made by him in the matter of compensation payable.
19. The State Government was also given power to extend the Act by a notification to municipal towns and other areas and in those notified areas, the Act would come into force with regard to tenancies created prior to that notified date. Other amendments were made in the other seotions to indicate that the concerned provisions of the Act would apply only to tenancies created before the date on which the Act came into force. It is in pursuance of the Act of 1955 that the Government notified areas, in all nineteen. In all these places the Act applied without any distinction between residential and non-residential buildings and to whomsoever the property belonged. It did not make any difference whatever, whether the land belonged to the Government or a municipal authority or a private individual; the tenant was entitled to the benefits of the provisions of the Act. In view of the problems and the difficulties experienced in the working of the Act in all these places Act XIII of 1960 introduced various important amendments. The first amendment is the provision that the Act shall not apply to tenancies of land owned by the Corporation of Madras, other municipal councils and other public bodies. The Act contained the further provision that the Government would have the power to cancel any prior notification issued by the Government in extending the provisions of the Act to any particular area. The important thing to notice is that there is a specific provision in the Act XIII of 1960 (Section 2 Sub-clause (5) of Act XIII of 1960) that if the Government issued a subsequent notification cancelling a prior notification with the result that the Act ceased to apply to any particular area, such notification of cancellation will have retrospec. tive effect in the sense that if any proceeding is pending (instituted under the provisions of the Act as extended by virtue of a prior notification which had been since cancelled) that proceeding shall abate and all rights and privileges which might have accrued immediately prior to such date to any person by virtue of the Act as extended, shall cease and determine and shall not be enforceable.
20. The next important amendment is that the building would include residential or non-residential in the city of Madras, and in the municipal towns of Coimbatore, Madurai, Salem 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 non-residential 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 Section 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 than twenty-five naye paise in the rupee. This provision obviously will have retrospective operation in respect of all tenancies. In Section 9 an important amendment 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 Section 9. Here again, it has to be emphasized that the amendment introduced in Section 9 is retrospective and it applies to all tenancies. In other words, it will not be open to a tenant to contend that a vested right had accrued to him to ask for the conveyance of the entire land leased and that his right should not be restricted to the minimum extent of land, necessary for the convenient enjoyment of the building. The retrospective operation is implicit even though in the amendment introduced, there is no specific provision to that effect. Section 9-A is introduced providing for a right of appeal in respect of orders passed u/s 6, Section 7, Section 7-A or Section 9 and contains the provision that the provisions mentioned earlier would apply to suits in ejectment and other proceedings which are pending. This does not mean that Section 9 would not apply if no proceeding has been instituted. If any proceeding is instituted and pending, Section 10 contains the specific provision that the Act will have retrospective operation. If no proceeding has been initiated and if a dispute arises after 1960, it is Section 9 which would apply irrespective of the fact that the lease had been created before the amendment was introduced and the tenant cannot insist that he should have the right to obtain a conveyance of the entire land. The next important Section is Section 9 of Act XIII of 1960 which is in these terms :
Every proceeding pending before any Court, other than a proceeding relating to any property situated in:-
(i) the City of Madras,
(ii) the municipal towns of Coimbatore, Madurai, Salem and Tiruchirappalli, and
(iii) any village within five miles of the City of Madras or of the municipal towns aforesaid.
On the date of the publication of this Act in the Fort St. George Gazette, and instituted under the provisions of the principal Act, shall, in so far as such proceeding relates to non-residential buildings, abate, and all rights and privileges which may have accrued immediately before such date to any person in respect of any property situation in any area other than the areas referred to above by virtue of the principle Act, shall, in so far as they relate to nonresidential buildings, cease and determine and shall not be enforceable:
Provided that nothing contained in this Section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section.
The obvious purpose of this section is to declare that the provision 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 Tiruchirappalli 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 visualise how the amendments can be prospective in character when once the important fact is borne in mind that, whether it is a particular provision of the original Act or a particular area or an amendment, every one of these things is to apply to tenancies prior thereto. This important characteristic of this legislation should always be borne in mind. With regard to tenancies of lands belonging to the municipal authorities, there is a general provision in Section 2 that nothing contained in the Act shall apply to tenancies of land owned by the Corporation of Madras and the municipal councils. That is an overriding provision and that provision by itself, is sufficient to hold that prior tenancies of such lands will not be affected by the provisions of the Act. That is necessarily implicit in the statutory provision excluding lands of public bodies. The view that the Act would still continue to apply to tenancies of land owned by the public authorities would render the important amendment introduced u/s 2 nugatory and purposeless. The argument of learned Counsel for the tenant overlooks the important fact that the amendments introduced under the various sections, i.e., sections 2, 3, 4, 5, 6, 7 and 8 are all amendments which are to be incorporated in the main Act itself so that, whenever a problem arose, the Act will have to be applied as such. Section 9 alone is an independent provision which cannot be incorporated in the Act of 1922 and will have to remain as a separate provision in Act XIII of 1960. The difference in the applicability of the Act with regard to residential and non-residential buildings is introduced in Section 2 of the principal Act by Section 3 of Act XIII of 1960, and Section 9 of Act XIII of 1960 is intended to deal with the retrospective character of the operation of the amendment introduced u/s 3 of Act XIII of 1960. Because there is such a specific provision like Section 9, it is meaningless to contend that the provision in Section 2 of Act XIII of 1960 is not retrospective in operation when the very provision says in express language that nothing contained in the Act shall apply to tenancies of land owned by the Corporation of Madras or the municipal authorities.
21. At this stage, reference may be made to the decision of S. Rinivasa, J. in Gnanaprakasam v. Mahboob Bi. (1962) 1. M.L.J. 264. In that case, there was a proceeding pending u/s 9 of the City Tenants'' Protection Act under which the tenant would be entitled to conveyance of the entire 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 tendency 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 proceeding. 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.
22. 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 decision directly applied because, at the time the action was instituted, the Act as amended would apply and would not cover land owned by municipal council.
23. The right conferred upon the tenant u/s 9 depends upon various contingencies! and cannot be regarded as a vested or accrued right the moment the Act was extended to Salem Municipal town, so as to invoke the doctrine that Act XIII of 1960 will have no retrospective operation by invoking the presumption against retrospective operation. The tenant merely is entitled to a bare statutory right u/s 9 to apply for the sale of the land provided a suit in ejectment has been instituted or a proceeding u/s 41 of the Presidency Small Causes Courts Act has been taken by the landlord. Unless the landlord had commenced an action in ejectment, the tenant has no right whatever. The statutory right u/s 9 is solely contingent upon the landlord filing a suit in ejectment. Farther, the tenant should have applied within the period of one month specified u/s 9. This limited nature of the right of the tenant as a mere statutory right depending upon the contingency provided u/s 9 came up for consideration before a Bench of thi3 Court consisting of Ramachandra Iyer, C.J., and Anantanarayanan, J., (as he then was) in Sundareswarar Devastanam v. Marimuthu A.I.R-1963 Mad. 369 in which it was held that Section 9 is, in nature, expropriator and should be confined only to suits or applications in terms asking for possession and that the tenant cannot file a suit for a declaration of title on the basis of Section 9. From this decision it is clear that from the period when the Act was extended to Salem Municipal town and till the Amending Act of 1960, came into force the tenant could not be said to have acquired a vested or perfected right and everything was contingent upon the landlord instituting a suit in ejectment and the tenant having applied within one month for the conveyance of the land. These are two important contingencies and before those contingencies had occurred and at a time when the tenant could not have. come to a Court to seek a declaration of the right, the Act has been amended. In that context, the rule regarding the presumption against retrospective operation taking away vested and accrued rights cannot have application. The same view was taken about the contingent nature of the right of the tenant u/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 Natesan, J.
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.
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. 264, 267.
24. It will be convenient, at this stage, to refer to the decision of the supreme Court reported in
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 sell the land to him for a price to be fixed by it, u/s 9 of the principal Act is a right to property. The law of India does not recognise equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that a right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right: that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land. If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a non-proprietory right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant: that was the basis of the judgment of this Court in
From this it is clear that as 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.
25. We may also refer to a recent decision of Ismail, J. in Syed Ibrahim v. Jalma (1908) 2 M.L.J. 83 in which the limited and the inchoate nature of the right u/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 u/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 u/s 9. The claim of these Defendants was negative. The learned Judge observed that the right of the tenant was an inchoate right to apply for purchasing the landlord''s interest u/s 9 and that right would become a completed right only when an application has been made u/s 9 within the time prescribed by law. The same view as taken by Natesan J. in Kuppa Bai v. Rajagopal Nadar (1939) 2 M.L.J. 541. The learned Judge had to deal with the question of retrospective operation with reference to the definition of tenant as it originally stood, included the heirs of the tenants as well as assignees and persons deriving title from the original tenant. But, under the definition as amended in 1960, assignees and persons deriving title from the tenant had boon omitted and the question arose whether this provision will have retrospective operation. The argument was that a vosted right had accrued to the tenant under the original Act so as to let in his assignees and the amending Act should not be understood as having retrospective operation to deprive the tenant of such a right. That argument was rejected by the learned Judge in the view that the crucial point of time is when the action in ejectment was filed and that at that time the assignee was not a tenant entitled to the benefits of the Act and that it is only a tenant as defined in the Act then in force against whom a suit in ejectment has been filed that is entitled u/s 9 of the Act to apply to the Court within one month for an order directing the landlord to sell the land for a price to be fixed by the Court. The argument that certain rights have become vested in and accrued to the tenant under the original Act and that the amendment could not be construed to have retrospective operation so as to deprive those existing rights unless there are express words to that effect in the statute is dealt with at pages 546 to 551. The learned Judge has referred to the principle enunciated in the English and Indian decisions and in particular, the observations of Subba Rao, C.J. (as he then was) in 8.
26. It will be convenient, at this staga, to refer to the oft-quoted leading decision of the Privy Council in Abbott v. The Minister for Lands (1895) A.C. 425 in which the question arose whether the saving clause would keep alive a mere right to take advantage of a statutory provision. The saving clause was in these terms (like the provisions of Section 6 of the Indian Act X of 1897, the General Clause Act). Provided always that notwithstanding such repeal:-
(b) All rights accrued and obligations incurred or imposed under or by virtue of any of the said repealed enactments shall subject to any express provisions of this Act in relation thereto remain unaffected by such repeal.
In that case, the Appellant before the Privy Council had purchased certain area of Crown land and the sale was carried out u/s 25 of the Crown Lands Alienation Act of 1861. Later he invoked Section 22 of that Act and applied for the sale of further extents of land which adjoined the land which he had already purchased u/s 25. There was a conditional purchase in terms of Section 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 Section 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 right make the conditional, purchase was a right accrued at the time, when the Act of 1884 was passed and remained unaffected despite the repeal of the Act of 1861. The Privy Council, rejecting the argument, observed as follows:-
Their Lordships think not and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words ''obligations incurred or imposed''. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot property be deemed a right accrued within the meaning of the enactment.
The a foresaid statement of law has been applied and followed or distinguished in several cases in England and in India in varying contexts of different statutes whenever the question arose whether a right or a privilege to take advantage of a provision in a statute would or would not amount to a right accrued so as to be saved by Section 6 of the General Clauses Act or so as not to attract the doctrine of the presumption against retrospective operation of a statute. It is unnecessary to refer to the several decisions; Natesan, J. in the decision referred to above in
27. 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 subtenants 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 one side and the tenants and sub-tenants on the other. On April 9, 1957, the relevant provisions of the Landlord and Tenant Ordinance were repealed and there was no specific provision which provided the machinery for the consideration to be given to any pending petitions or cross petitions or granting of re-building certificate subsequent thereto. Section 10 of the Interpretation Ordinance contained the provision corresponding to Section 6 of the General Clauses Act in India and the question arose whether the right of K., the Crown lessee, was saved by the following provision :
By the Interpretation Ordinance, Section 10, the repeal of any enactment was not to ''(b) affect the previous operation of...anything duly done...under any enactment so repealed; or'' (c) affect any right...acquired...under any enactment so repealed.
In October 1957, the Governor directed a re-building certificate to be given and this was questioned by the tenants and sub-tenants on the ground that by the repeal of sections 3A and 3E of the Landlord and Tenant Ordinance there was no question of any rebuilding certificate being issued to the Crown lessee to enable him to obtain vacant possession of the premises. The claim of the tenants and sub-tenants was upheld by the Privy Council which held that in April 1957 when the Landlord and Tenant Ordinance was repealed, no right or privilege had accrued to K and that the fact that the Director of P. Works had given notice of intention to grant a re-building certificate did not confer any right thereto and that K. had nothing more than a hope that it will be granted. The Privy Council also held that the right of K. to have the matter considered by the Governor in Council was not an accrued right or privilege within Section 10. The relevant observations are to be found in pages 730, 731 and 733. It will be noticed that at the time the Ordinance was repealed, the Crown lessee had no accrued right and he had no more than a hope that the Governor in Council would give a rebuilding certificate and it was a mere expectation. In the instant case, the same principle applied because the right under sections 3 and 9 of the tenant was not an accrued right; it is merely a stage of expectation and hope that as and when the landlord took proceeding in ejectment the tenant could take advantage of these statutory provisions. The whole thing rested upon the hope or expectation on 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 those 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 u/s 3A and Section 3B 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 due 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 ordinance by which it could have been ordained that the petitions and cross petitions awaiting consideration should receive such consideration in spite of the repeal, and that subsequently, an effective re-building certificate could be given.
After posing the problem as extracted above, Lord morris stated the Law in these terms :
Was the lessee, therefore, possessed on April 9, of a ''right'' (or privilege) within the meaning of the Interpretation Ordinance? In their Lordships view, the entitlement of the lessee in the period prior to April 9 to have the petition and the cross-petition considered was not such a ''right''. On April 9 the lessee was quite unable to know whether or not he would be given a re-building certificate and until the petitions and the cross-petition were taken into consideration by the Governor in Council, no one could know. The question was open and unresolved. The issue rested in the future. The lessee had no more than a hope or expectation that he would be given a re-building certificate, even though he may have had grounds for optimism as to his prospects. It is to be observed that, u/s 10(e), a repeal is not to affect any investigation, legal proceeding or remedy ''in respect of any such right''. The right referred to is the right mentioned in Section 10(c), i.e., a right acquired or accrued under a repealed enactment. This part of the provisions in para (e) of Section 10 does not and cannot operate unless there is a right as contemplated in para (c) It may be, therefore, that, under some repealed enactment a right has been given but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is manifest distinction between an investigation in respect of right and an investigation which to decide whether some right should or should not be given. On a repeal, the former is preserved by the interpretation Act. The latter is not. Their Lordships agree with the observation of Blair-Kerr, J., that:
It is one thing to invoke a law for the adjudication of rights which have already accrued prior to the repeal of that law, it is quite another matter to say that, irrespective of whether any rights exist at the date of the repeal, if any procedural step is taken prior 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.
From this it is clear, that unless there is a saving provision the right would, not prevail.
28. Our attention was also drawn to a further decision of the Privy Council reported in Free Lanka Insurance Co. v. Ranasinghe (1964) 1 All E.R. 457 in which the principle in the earlier decision in Director of Public Works v. Ho Po Sang (1961) 2 All E.R. 721 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 and the party injured in the accident had acquired a right to claim compensation and the liability as against the other party also had arisen. That is a clear case of a right accrued and a corresponding liability having arisen under a prior law.
29. We may refer to a Full Bench decision of the Punjab High Court in
An unqualified repeal of a statute, conferring civil rights or powers operates to deprive the citizen of all such rights or powers which, at 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.
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.
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 statement of the law in the Full Bench decision aforesaid clearly governs the instant case.
30. We do not think it necessary to refer to all the decisions relied upon by learned Counsel for the tenant: no useful purpose will be served thereby because those cases are easily distinguishable turning upon the particular provisions of the statute. We must, however, advert to one aspect which was repeatedly stressed in the course of the argument that the decision of the Supreme Court in
31. Let us examine what the rights of the tenant are in relation to superstructure and whether any unconstitutional deprivation of property or rights to property comes in. In the instant case, the lease deed expressly provides that on the termination of the lease the lessee will remove the superstructure without any right to claim compensation and in default to do so, the lessor would be entitled to take the superstructure, again, without 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 for the structure put up by him on the land leased compensation It is only in September 1956, as a result of the notification extending the Act to the 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 statue, 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 conditions in Article 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 to extend by notification carried with it the power to cancel the notification. Here again, no subject has a right to claim that the notification issued by the Government could be enforced all time and should never be cancelled. This cancellation can be in part or in whole. For instance, instead of introducing this provision in the main enactment by Act XIII of 1960 the Government could well have issued a notification canceling the applicability of the Act to lands owned by municipal councils in the fifteen towns. That power to issue a cancellation in that modified form cannot be questioned. The position is a fortiori where it takes place in the form of a legislative enactment. We have already emphasized that the City Tenant''s Protection Act (the Original Act of 1922 and the amendments from time to time) satisfies, the conditions of Article 19(1)(f) as a legislation to regulate the rights between the land-lord and tenant clearly conceived in the interests of the general public. These are all rights conferred and obligations created under the special statute. If the Legislature is satisfied, by experience of the working of the Act, that certain provisions do not serve the public interests and do not serve the purposes of the Act it is open to the Legislature to amend the Act to achieve the object and to prevent the mischief of the original enactment which was detrimental to the interests of the public in so far as it wont. Thus, it will be seen that the amendment itself easily satisfies the conditions in Article 19(1)(f). The inclusion of tenancies of lands in Salem town within the purview of the Act in September 1956 is, in one sense, (virtually) an exemption of tenancies of lands in Salem Town from the purview of the general provisions of the Transfer of Property Act and from the express stipulation which the parties entered into. The power to introduce such exemption carries with it the power to cancel that exemption. The original Act and the extension to Salem are clear infringements of the rights of the landlord, serious in road and curtailment of his rights. The Act is justified as being in the public interests and as satisfying the test laid down in Article 19. The same test has been satisfied when the Legislature introduces an amendment cancelling the extension in part or in whole. From the foregoing it will be seen that the tenant cannot complain of an unlawful deprivation of property when it is noticed that prior to the notification he bad 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 Panchapakesa Ayyer in Globe Theatres v. State of Madras ILR (1954) Mad. 616. In that case the Government issued a notification u/s 12 of the Madras Buildings (Lease and Rent Control) Act of 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 and, therefore, the exemption offended Article 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 and restrictions and when those rights are taken away there is no violation of Article 19. We have no hesitation in rejecting the argument of the learned Counsel for the tenant, as acceptance of such and argument would lead to absurd and anomalous results that a statute which creates rights for the first time not available under the general law or under the contract can never be repealed on the ground that it would amount to unlawful deprivation infringing Article 19(1)(f). No subject can claim an unqualified vested right that a statute which confers rights upon him should be in force for all time ad infinitem regardless of all circumstances.
32. We may refer to two decisions of the Supreme Court on which considerable reliance was placed by learned Counsel. Those decisions turn upon the particular provisions of the statute and they are easily distinguishable. The first decision in
The Courts recognize in the Legislature some degree of elasticity in the matter of making a classification between persons, objects and transactions. Provided the classification is based on some intelligible ground, the Courts will not strike down that classification, because, in the view of the Court, it should have proceeded on some other ground or should have included in the class selected for special treatment some other persons, objects or transactions which are not included by the Legislature. The Legislature is free to recognize the decree of harm and to restrict the operation of a law only to those cases where the need is the clearest. The Legislature need not extent the regulation of a law to all cases it may possibly reach, and may make a classification founded on practical grounds of convenience. Classification to be valid, must, however, disclose a rational nexus with the object sought to be achieved by the law which makes the classification. Validity of a classification will be upheld only if that test is independently satisfied. The Court in examining the validity of a statute challenged as infringing the equality clause makes an assumption that there is a reasonable classification and that the classification has a rational relation to the object sought 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 land belonging to municipal councils is discriminatory and, arbitrary or that the deprivation of the rights of the tenant under sections 3 and 9 with retrospective operation is an unreasonable restriction and not in the interests of the general public, being violative of the conditions in Article 19(5).
33. In the course of the hearing we repeatedly put the question to 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. Vedanthachari recognizing 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. If the superstructure has been put up by the tenant before 1956 he would get the protection under the Act, if the presumption against retrospective operation were to be applied, the rights of the tenants who put up the superstructures before September 1956 will have to be enforced and they will not be extinguished. Till Act XIII of 1960 came into force, the tenant can put up a building even after September 1956 and such tenant or tenants would equally get the protection of the Act, so long as the tenancies were created prior to September 1956. In other words, till July 1960, the tenants would be entitled to the protection of the Act, regardless of the question when the superstructure was put up, whether before September 1956 or during the period from September 1956 to July 1960, provided, the tenancies had come into existence before September 1956. The crucial factor is the date of the creation of the tenancy and not when the superstructure was put up by the tenant. For instance, let us assume that the Act XIII of 1960 had not been enacted at all. Every tenant whose tenancy had commenced prior to September 1956 will be entitled to protection of the Act whether the superstructure was put up by him before 1956 or subsequently thereafter. When once the notification was issued by the Government in September 1956, the tenants of all tenancies price thereto became entitled to the statutory rights. To put it differently, if retrospective operation were denied to the Amending Act of 1960, there will be no prior tenancy whatever to which the amendment could apply i.e., the amendment will be futile and will serve no purpose whatever. The rights of tenants, who have put up superstructure before September 1956 are in the tame character executory as the rights of tenants who might have put up superstructure between September 1956 and July 1960. The precise ambit and nature of the right, the conditions to be satisfied for the enforce ability of that right, the contingency to which these rights are subjected are all the same and it is impossible to distinguish between one category of tenant and another. The acceptance of the argument of the learned Counsel for the Appellant would result in the absurd consequence that the Act will serve no purpose and the public authorities will not be able to carry out their obligations even though the very object of the amendment is to rectify 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 provisions 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 Section 9 of Act XIII of 1960 a limited retrospective operation alone has been given and that in the case of tenancies of lands caned 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 Section 1 Sub-section (3) and (4)(a) proviso, while Section 9 is an independent provision with regard to nonresidential buildings in the areas other than the City of Madras and the four municipal towns. The amendment introduced in Section 1 of Act XIII of 1960 is to completely, exclude from the puriew of the Act, lands owned by municipal councils while the saving provision in Section 9 is which regard to a different aspect, viz., lands in which non-residential buildings have been put up by tenants in certain areas. In this connection, we may also refer to the Bench decision of the Bombay High Court in
34. We shall now take up for consideration the third question as to how far the stipulation in the lease deed to hand over vacant possession on the termination of the losse after the removal of the superstructure or in d fault, the municipality will be entitled to take the superstructure is saved by the proviso to Section 12. Section 12 is in these terms:
Nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulations made by the tenant) in writing registered as to the erection of buildings in so far as they relate to buildings erected after the date of the contract.
There is a wealth of case law as to the precise a cope of the proviso and the import of the words, Stipulations as to the erection of buildings found in the. proviso. The Supreme Court has rendered five'' decisions in quick succession during the peried 1965 to 1972, in all of which, on the particular facts of the respective cases, the Supreme Court had to deal with the problem. The later decisions indicate that the strict and narrow view taken in the majority judgment in the earliest decision in Vajrapani Naidu''s case reported in Vajrapani Naidu v. New Theatres Car. Talkies (1965) 1 M.L.J. 47 (S.C.) had not been adhered to and the later decisions have taken a more liberal view taking note of not only the criticism in the dissenting judgment, but also the crucial concessions made in the course of the arguments by Mr. Setalwad who appeared for the landlord in Vajrapani Naidu''s case (1965) 1 M.L.J. 47 (S.C.). In M.H.P. Fund Ltd. v. Subramania AIR 1970 S.C. 1883 while reversing the Bench decision of the Madras High Court in
35. The next case to be referred to Is
36. In V. Sanjeevaraya v. Raghavachari AIR 1960 S.C 435 the problem which arose in
37. The next decision to be referred to is the decision in the Mylapore Permanent Fund case reported in M.H.P. Fund Ltd. v. Subramania AIR 1970 S.C. 1883. 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
38. The next case to be referred to is the latest decision of the Supreme Court in
39. In that case,
40. 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, exhibit A-l, was from 11th August 1938 to 10th August 1948 and the second lease, exhibit A-2, was from 11th August 1948 to 10th August 1958. The second lease cannot be said, to be a mere renewal of the first case because, with regard to the area and other terms and conditions of the lease, the later lease contains terms entirely different from the earlier lease. In the earlier lease, the tenant was to remove the superstructure within period fixed and in default, the municipality would become the owner. A comparison of the terms and, conditions of the two leases shows that the second lease is not a simple renewal of the earlier lease. The resultant position is that in 1948, when the Act was in force, the municipality was proposing to lease the same site. In fact, there were other competing offers on a rent of Rs. 4,000 and Us. 5,000--(Vide exhibit A-l and exhibit A-2 and the evidence of P.WS. 1 and 2, showing that there was an offer for Rs. 5,000). But, yet, the municipality granted the lease to the Defendant at a very confessional rate of Rs. 2,500 and at that time the Defendant had already put up a building. Under those circumstances, the only covenant in relation to erection of buildings which the municipality can enter into is to stipulate that if a fresh lease were to be granted from 1948 it should not be held liable for compensation. We cannot understand, in what other manner the municipality can enter into a stipulation with regard to erection of buildings. How can it be postulated that in 1948, at the time of the second, lease, the tenant put up a building in the hope that he would not be evicted ? The acceptance of the contentions of the other side would result in the absurd consequence that the municipality granted the second lease being obliged to take the cinema theatre and the furniture, etc. and carrying on business of exhibition of films which certainly is not the normal activity of a municipal council. It will be appropriate at this stage to refer to the dubious conduct pursued by the lessee. It is admitted by the learned Counsel for the tenant and is beyond dispute that the tenant did not file any application u/s 9 for the conveyance of the land. Again, it if admitted and it is not in dispute that the tenant did not raise any specific plea asking for payment of compensation expressing his willingness that the superstructure may be taken by the municipal council. 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 u/s 3, the tenant shall, on ejectment, be entitled to compensation. 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 amendments the Court is bound to make an enquiry suo motu, the tenant being utterly indifferent about that aspect. Section 3 only means that the tenant is entitled to compensation, but ho 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 u/s 3 of the Madras City Tenants'' Protection Act would validly be taken away by the Madras Act XIII of 1960--"itself shows the dubious attitude pursued by the tenant. Throughout 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 u/s 3. Even in his memorandum of appeal which he has filed in this Court against the decree for possession passed by the trial Court, the Appellant has made no complaint that the trial Court has not awarded compensation to him. It is clear beyond doubt that the tenant was content to take the extreme position about the vires and scope of the amendment and did not seek any relief relying upon either Section 3 or Section 9. On a consideration of all the aspects of the matter'' we are also of the further view that having regard to this deliberate course adopted by the tenant in not having asked for any relief as per Section 3 or Section 5 as prescribed by the Act, the contentions of the tenant will have to be rejected.
It only remains to consider points 4 and 5 set out above. In the first suit, Original Suit No. 95 of 1961, the Plaintiff merely claimed mesne profits from 11th August 1958 upto the date of the plaint, 10th August 1961 and reserved its right to recovery of possession till the disposal of the writ petition No. 295 of 1961, which the tenant had filed questioning the right of the Municipality to recover possession. A sum of Rs. 31,799.88 P. calculating the mesne profits at the rate of Rs. 883.33 P. per mensem was claimed by the municipality. The parties adduced oral and documentary evidence and the Subodinate Judge fixed the mesne profits at the rate of Rs. 4,000 per annum. In that suit the Plaintiff adduced oral and documentary evidence and the Defendant had not adduced any evidence. Indeed he did not even examine himself. The municipality has preferred the appeal, Appeal Suit No. 601 of 1963, claiming the difference disallowed by the trial Court. The Defendant has preferred the appeal, Appeal Suit No. 479 of 1963, contending that he is not liable to pay any mesne profits and he is liable to pay only at the rate of Rs. 2,500 per annum, the rent stipulated in the lease deed. Original Suit. No. 96 of 1962 was filed on 11th July 1962, within one year after the filing of the earlier suit. Here too, the Plaintiff, claimed at the same rate of Rs. 883.33 per mensem for the uncovered period from 11th August 1961 to 10th July 1962 as well as till the date of delivery of possession. Though, in the body of the plaint, in several paragraphs, the Plaintiff had stated that the Plaintiff had become entitled to the possession of the superstructure also in the prayer column, the Plaintiff merely asked for the relief of vacant possession the land after removing the superstructure. Here too, the same contest was raised by the Defendant. On the question of mesne profits, neither side adduced any evidence in Original Suit No. 96 of 1962 and the trial Court decreed the claim as prayed for awarding mesne profits at the rate of Rs.883.33 P. per mensem. The Defendant has preferred the appeal Appeal Suit No. 45.5 of 1967. In the second suit, neither party addueed evidence, presumably on the footing that the evidence adduced in the earlier suit would serve the purpose in view of the fact that the second suit was filed within a very short time, within one year of the earlier suit, the interval being so short, the parties presumably proceeded on the footing that the evidence as to mesne profits adduced in the first case would furnish the data in the latter suit. Whatever that may be, learned Counsel on both sides argued the appeal on the basis that the question of mesne profits in Appeal Suit No. 455 of 1967 will have to be determined on the basis of the evidence in Original Suit No. 96 of 196. Learned Counsel on both sides agreed to this course to obviate a remand and avoid unnecessary protracted multiplicity of proceedings and further expenses. There is no dispute, and the evidence clearly establishes, that the suit property is in a very important locality and a most coveted business place. On the east of the suit property there is a municipal road, very near the property there is the central bus stand and there are petrol bunks in between the road and the bus stand. Again, very near the property, there is a Mariamman Koil. The Revenue Officer of the municipality, P.W. 5 and the Head Clerk, P.W. 6 have given evidence. According to their evidence, the property would easily fetch a rent of Rs. 900 per mensem. In 1948 when the first lease expired, P.W. l to 3 offered to take the suit property on an annual rent of Rs. 4,000 to Rs. 5,000. Indeed, they Lad, also complained to the municipality that some favoritisms was being showed to the Defendant and the property was leased for a low income, that the municipality was losing and that they are prepared to take the property on lease for Rs. 5,000. Exhibits A-l to A-3 corroborate the oral evidence of P.Ws. 1 to 3 who are also carrying on similar business and there can be no doubt that the offers made by them in 1948 are genuine offers. Exhibits A-16 to A-18 are the three lease deeds executed by the municipality in favour of Burmah Shell Oil Company, Standard Vacuum Oil Company and Caltex Petrol Company. In each case the area is about 3,200 square feet and works out at the rate of Rs. 883 per mensem. The learned Judge has not given satisfactory reason why he did not accept the evidence adduced by P.Ws. 1 to 3 backed up by the petitions, exhibits A-l to A-3. The very fact that there are competitors in the field shows that the municipality could have accepted the genuine offers at the rate of Rs. 5,000 per annum. As regards the evidence afforded by exhibit A-16 to A-18, the learned Judge is wrong in thinking that higher rent was paid because the property was put to a particular use. There is the further evidence of the municipality leasing the land of an areas of 1,600 square feet at the rate of rupee one per day and that would work out at the rate of Rs. 900 per mensem. The fact that the lease was given for three months would not mean that for the nine months the property will be vacant and Rs. 2,700 should be taken as the tent which the land will fetch for one year is clearly an erroneous reason. It is a fact which the Court will easily take judicial notice of that in between 1948 and 1961 the value of vacant sites and the rental value have enormously increased. Nothing is suggested against the evidence of P.Ws. 1 to 3 and P.Ws. 5 and 6 as to why their evidence should not be accepted. We are clear in our minds that on the question of fixing the mesne profits from the year 1961, the barest minimum will be Rs. 500 per mensem. It should again be reiterated that on the side of the Defendant he had adduced no evidence, literally nil. He was content merely to raise legal objections about the vires of the Act. It will be convenient at this stage, to refer to three applications filed by the municipality. One is Civil Miscellaneous Petition No. 3873 of 1971 in Appeal Suit No. 455 of 1967, the appeal against the decree in Original Suit No. 96 of 1962. In this application, the contention of the municipality is that even though in the relief column the municipality asked for vacant possession of the after demolition of the superstructure, the municipality will still be entitled to mesne profits, with reference to the building as well, inasmuch as, under the judgment of the learned Judge, in Original Suit No. 96 of 1962, the Plaintiff has become the owner of the building form September-October 1958. Mr. V.K. Thiruvenkatachari, learned Counsel for the municipality contended that from the date of the plaint in Original Suit No. 96 of 1962 till the actual delivery of possession the municipality will be entitled to mesne profits both with respect to the land as well as with respect to the building of which the municipality had become the owner and so far as the actual relief of possession is concerned, the municipality may as well as content with the relief for vacant possession after demolition of the superstructure. According to the learned Counsel, the fact that with reference to the relief of recovery of possession the municipality has asked for a lesser relief does not mean that the municipality is disentitled from claiming mesne profits with reference to the building upto the date of delivery of possession. Following this argument, the learned Counsel contended that the decision of the trial Court determining mesne profits in the sum of Rs. 88333 Paise should in any event be affirmed and the decree should be brought in conformity with the judgment so as to entitled the Plaintiff to a decree for possession. We cannot say that this contention lacks substance. P.W. 5 has given evidence that the income of the theatre will be easily Rs. 2,000 per mensem. Here again, with reference 10 Civil Miscellaneous Petition No. 3873 of 1971, the objection of the tenant is merely technical for the same purpose and to clarify the position, the municipality also filed Civil Miscellaneous Petition No. 4004 of 1971 for leave to raise an additional ground that the municipality will be entitled to mesne profits with regard to both the land and the building The municipality also filed Civil Miscellaneous Petition No. 5450 of 1971 to amend the plaint to include the prayer for recovery of the land as well as the superstructure with, all the accessories, etc. The Defendant contents on the ground that it alters the character of the suit and also that would entail harship and prejudice to the Defendant since he would be liable to payment profits for the period which would be barred by limitation and he would be deprived of the plea of limitation which had accrued to him. We are not impressed with the objections raised by the Defendant. As already observed, the Plaintiff has asked for mesne profits upto the date of delivery of possession and on the findings, the Plaintiff would certainly be entitled to mesne profits with regard to the land as well as the superstructure. This will not disentitle the Plaintiff to mesne profits in respect of the superstructure during the interim period till delivery of possession. All the averments to entitle the Plaintiff to mesne profits in respect of the superstructure as well as to the relief of possession of the superstructure are found in the pleading and the judgment of the trial Court also has clearly uphold the right of the Plaintiff to the from September 1958. In the notice exhibit A-4, the Plaintiff has asserted his right to the superstructure. The omission to ask for the relief of possession of the superstructure is inadvertent; the amendment asked fordoes not alter the nature and character of the suit. Even though the Plaintiff is entitled to the amendment as asked for, allowing of the amendment is in the discretion of Court and we would desire to impress the fact particularly to avoid imposing a huge burden upon the parties indulging in such protected proceedings. Taking an ever all view of the matter, we are of the view that the ends of justice will be met by allowing the plaint to be amended subject to this condition that the Plaintiff will be entitled to a decree for possession of the superstructure 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 condi tion taking a sympathetic view of the predicament of the Defendant. The result is that we fix the mesne profits at the rate of Rs. 500 per mensem from 11th August 1958 up to 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 mense profits which will have to be determined in further proceedings both with regard to the land and with regard to the superstructure till such time the Plaintiff obtains delivery of possession. Civil Miscellaneous Petition No. 5450 of 1971, Civil Miscellaneous Petition No. 4004 of 1971 and Civil Miscellaneous Petition No. 3873 of 1971 are all ordered accordingly, subject to the conditions mentioned above. As regards the costs, we think that costs one set in all the appeals would be sufficient. Appeal Suit No. 601 of 1962 is allowed, no costs in the appeal. Appeal Suit No. 479 of 1963 is dismissed, no costs in the appeal. In both the matters, the costs as awarded by the trial Court shall stand. The appeal, Appeal Suit No. 456 of 1967 is dismissed. The Municipality will be entitled to its costs on the valuation in the appeal as valued in Appeal Suit No. 455 of 1967 and the costs in the trial Court as taxed.
