@JUDGMENTTAG-ORDER
1. Defendants are the appellants in A.S.No. 830 of 1984 and in C.M.A.NO. 407 of 1986.
2. The suit was filed by the respondent for recovery of possession of the suit property. The first defendant became a tenant under him on 3.3.1976
in respect of the vacant land. The tenancy was for a period of seven years and the first defendant agreed to vacate and handover possession after
the expiry of the said period i.e., on 1.3.1983. since the plaintiff wanted to construct a mini (cinema) theatre in the suit property, he issued a notice
to the first defendant. The first defendant sent reply stating about the sub-tenancy in favour of the second defendant.
3. The defence was that the first defendant carried out the levelling work in the suit property. He has sub-leased the suit property to the second
defendant. In the defence, the earlier lease given by the father of the plaintiff is also set out. The first defendant entered into an agreement with the
second defendant. They have put up constructions to the knowledge of Subbarayan the original lessor and then the plaintiff. The lease deed dated
3.3.1976 was a continuation of the earlier lease commenced from 1.3.1963. The second defendant is the successor of Esso Standard Easter Inc.,
Madras from 13.3.1974. The second defendant is entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Notice issued by the
plaintiff is not as per Section 11 of the Tamil Nadu City Tenants Protection Act. Hence, the suit is maintainable.
4. After the suit, the appellants filed I.A.No. 454 of 1983, claiming benefits under the City Tenants Protection Act.
5. The trial Court has framed as many as six issues in the suit and also framed the point as to whether the defendants 1 and 2 were entitled to the
benefits of the City Tenants Protection Act. On a detailed consideration, the trial Court found that the defendants, especially the second defendant
was not entitled to claim benefits under the City Tenants Protection Act. Therefore, it decreed the suit and dismissed the I.A. No. 454 of 1983.
Hence the two appeals.
6. The learned counsel for the appellants Mrs. Pushpa Sathyanarayanan, vehemently: contended that the suit is not maintainable, since notice u/s 11
of the Act is mandatory. According to the learned counsel for the appellant once a land is teased out to a tenant, the notice u/s 11 of the Act is
mandatory, without such notice, the suit cannot be filed. Section 11 of the Act reads as follows:
Notice before institution of suits or applications against tenants. No suits in ejectment or applications u/s 41 of the Presidency Small Causes
Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to
him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any and stating
the amount thereof.
In this case, admittedly the notice given by the respondent is not in accordance with section 11 of the Act.
7. Relying upon the said Section, the learned counsel for the appellants contends that there was, by the plaintiff to pay compensation for the
building putup by the second defendant. Therefore, the suit is not maintainable. The learned counsel also relied upon a latest decision of the
Supreme Court reported in S.A. Ramachandran Vs. S. Neelavathy, .
We are of the view that since the requirements u/s 11 are in the nature of conditions precedent which had to be complied with before instituting a
suit in a Court, the non-compliance would be fatal and such suit would be liable to be dismissed at the threshold. The requirements u/s 11 cannot
be compared with the requirements u/s 80 C.P.C. The right of a tenant who may, if not always, be a poor tenant, cannot be compared with the
mighty governments regarding whom it has been observed times out of number by the Courts that they should not litigate with their citizens on
technicalities and should not endeavour to defeat the suit by pleading the technical questions, so for example, want of notice u/s 80 C.P.C., or
limitation in case which are eminently just, proper and equitable. The Act essentially is for the protection of the tenants whereas no such protection
for the Government is contemplated by Section 80 of the Code of Civil Procedure.
8. The learned counsel for the respondent Mr. N.S. Varadachari, on the other hand contended that inasmuch as the first defendant, who alone is
the tenant, has not put up any superstructure, he is not entitled to the notice u/s 11 of the Act.
9. In the evidence, D.W.1 has admitted that apart from levelling the land, the first defendant has not put up any construction. On the other hand,
according to him, the superstructures were put up by the second defendant alone. Since the first defendant has not put up the superstructure and he
has sub-let the land to the second defendant and who alone has put up the superstructure, there is no necessity to send a notice to the first
defendant offering to pay compensation for the building and the trees, as contemplated by Section 11 of the City Tenants Protection Act.
10. The point that arises for consideration is: Whether a mere lease of land to a tenant before eviction is entitled to a notice of termination as
contemplated u/s 106 of Transfer of Property Act and another notice under the provision of Section 11 of the City Tenants Protection Act. If the
answer is to be in favour of the first defendant, then notice u/s 11 of the Act is necessary as per the Apex Court Judgment mentioned above.
11. Notice tinder Section 11 of the Tamil Nadu City Tenants Protection Act, 1921 contemplates a notice in writing has to be given to a tenant.
The definition of tenant after the amendment by the Madras Act XII of 1960 is as follows:-
Tenant'' in relation to any land (i) means a person liable to pay rent in respect of such land, under a tenancy agreement, express or implied, and (ii)
includes (a) any such person as is referred to in sub-clause (i) who continues in possession of the land after the determination of the tenancy
agreement, and (b) the heirs of any such person as is referred to in sub-clause (i) or sub-clause (ii) (a), but does not include a subtenant or his
heirs.
12. Section 3 of the City Tenants Protection Act reads as follows:
Every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been erected by him, by any of
his predecesors-in-interest, or by any person not in occupation at the time of the ejectment who derived title from either of them and for which
compensation has not already been paid. A tenant who is entitled to compensation for the value of any building shall also be paid the value of trees
which may have been planted by him on the land (and of any improvements which may have been made by him.)
13. According to the learned counsel for the respondent, a combined reading of Section 11 and Section 3 of the Act would indicate, notice
offering to pay compensation as contemplated u/s 11 is necessary only when a superstructure was put up by the tenant. The notice to be issued u/s
11 of the Act must be in writing requiring to surrender possession of the land and building and offering to pay a compensation for the building and
trees, and stating the amount thereof. According to him, if a tenant is not entitled to get compensation for the land and trees, there is no necessity
for such a notice.
14. It is to be seen that notice u/s 11 of the Act, the notice must require the tenant to surrender possession of land and building and there must be
an offer to pay compensation for building and trees. From Section 11 of the Act, we cannot separate the requirement to surrender land and
building and the offers to pay value for the building and issue to a notice to surrender the land alone. In substance, the notice u/s 11 of the Act is
contemplated only when there is a building in the land.
15. The preamble and other provisions of the Act also indicate that the benefits conferred under the Tamil Nadu City Tenants protection Act 1921
is only in respect of a tenant who has put up the superstructure in the land and not to a person who does not put up any construction in the land.
16. In this case, it is true that there are superstructures. But the counsel for the respondent is not in a position to find out in evidence to show that
the building was put up by the first appellant or to show that at some point of time or other, the first defendant/first appellant would become the
owner of the buildings as per the understanding between the first defendant and second defendant. In fact, the learned counsel for the appellants
was not in a position to rely upon any clause in the rental agreement Ex.B. 10 entered into between the first and second defendant.
17. Mere authorisation for empowering the tenant to sub- lease the land leased out to him cannot confer the benefits contained in the City Tenants
Protection Act, upon the sub-tenant, because, we have seen the definition of ""tenant"" contained in Section 2(4) as it stood from the amendment
from 1960. It specifically excludes the sub-tenant when it says that the definition does not include a sub-tenant or his heirs. Therefore, if the chief-
tenant has not put up a superstructure or if the superstructure put up does not belong to the Chief-tenant, the landlord cannot issue a notice u/s 11
of the Act, because the notice u/s 11, as we have noticed earlier has to contain requiring the tenant to surrender the building and also an offer to
pay the compensation for the building. Notice u/s 11 cannot be issued by splitting the requirement to surrender and the offer to pay compensation
any thereby ignoring the building and compensation, i.e., a notice cannot be issued by simply calling upon the tenant to surrender the land alone. It
is not the object of the said section, in particular and the object of the entire enactment, in general, cannot ignore the purpose of the object, notice
to be given and the object sought to be achieved by the enactment which contemplates a notice like the one u/s 11 of the Act.
18. A tenant of land is normally and generally governed by the provisions of the Transfer of Property Act. Section 106 of the said Act
contemplates notice terminating the tenancy and calling upon the tenant to deliver possession etc. There are other protections also given to such a
tenant under the Transfer of property Act. Therefore, to hold that a tenant of land has to be invariably construed as a tenant with in the provisions
of Tamil Nadu City Tenants Protection Act, 1921, is warranted.
19. The case cited by the learned counsel for the appellants namely, S.A. Ramachandran Vs. S. Neelavathy, , is a case where there was no
dispute that the tenant put up the superstructure. The point that was mainly considered in the said case is, Whether there was waiver or not by the
tenant. The High Court found that the tenant waived his right to notice, since he filed an application u/s 9 of the act claiming the benefit under The
City Tenants Protection Act. The Apex Court found in the said case that the tenant was not allowed to invoke the provision u/s 9 of the act at all,
as he had filed only an application for condoning the delay under the said Section beyond time and the same was rejected. In such circumstances,
the Apex Court held that the notice u/s 11 was mandatory. Therefore, in my view the decision cited by the appellant is not helpful to her.
20. In Ananthakrishnan Nair, P. v. Dr. G. Ramakrishnan, 1987 (100) L.W. 1093, the Apex Court has reiterated that the benefits conferred under
the City Tenants Protection Act is only to a tenant in occupation. Therefore, I do not find any infirmity in the finding that the defendants 1 and 2 are
not entitled to the benefits of the Tamil Nadu City Tenants Protection Act. Consequently, the first appeal as well as the Civil Miscellaneous Appeal
have to be dismissed, accordingly they are dismissed. However, there will be no order as to costs. Consequently, C.m.P.No. 16828 of 1984 is
dismissed so unnecessary.
