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Judgment
This Civil Miscellaneous Appeal involves a question of some degree of interest and importance, upon the application of Sections 3 and 9 of the
Madras City Tenants'' Protection Act to the facts of the case. The question, in brief, is whether a tenant who has admittedly contravened the terms
of the lease which included a prohibition upon erecting a superstructure, is entitled to claim compensation for the building u/s 3 and in consequence,
to claim the statutory option u/s 9 for purchase of the land. This particular point does not appear to have been decided by authority, so far, though,
as I shall presently indicate there ae dicta in two Bench decisions of this Court in support of the interpretation that the tenant can so claim rights
under the Act, notwithstanding the fact, that, technically speaking, he (the tenant) is a tort-feasor whom the landlord is entitled to restrain by a
suitable injunction. The facts necessary for an appreciation of this question, and the single other related question involved in this appeal, are as
follows.
The appellant here is the plaintiff in the suit, and the appellant in the first Court, who sued for recovery of possession of leased property.
Admittedly, the terms of the lease included a prohibition against the erection of any building thereon by the lessee. But notwithstanding this
prohibition, the lessee put up a superstructure on the vacant site originally leased for the purposes of a fuel depot. While the suit was partly under
trial, the provisions of the Madras City Tenants'' Protection Act were extended to this area (municipal town of Coimbatore) by a Government
order, dated 10th February, 1958. Taking advantage of this, the lessees filed I.A. No. 295 of 1958 u/s 9 of the Act contending that they had
become entitled to purchase the site in question from the plaintiff (landlord). The case of the plaintiff (Appellant) was that this petition was
incompetent, because the lessee has deliberately infringed the terms of the lease. Another relevant fact was that the plaintiff (landlord) entered into
an agreement to sell the site in question to one Rangaswami Chettiar, as evidenced by Exhibit B-15, dated 28th August, 1956. The appellant
further actually executed a sale-deed in favour of the wife of Rangaswami Chettiar, viz., Exhibit A-6, dated 17th December, 1957. The argument
was that the provisions of the Madras City Tenants'' Protection Act could not apply, as it was an essential pre-requisite for the application of
Section 9 that the landlord should possess the title. A further argument was advanced that the Act itself was unconstitutional, as offending Article
19(1)(f) and Article 31 of the Constitution of India.
I shall deal very briefly with the subsidiary questions raised, before taking up for discussion the main ground which, as I indicated earlier, is an
undecided matter of some degree of interest and importance. As regards the question of constitutional validity, it is really not necessary to go into
this, in view of the Bench decision of the learned Chief Justice and Ganapatia Pillai, J., in N. Vajrapuri Naidu and Another Vs. The New Theatres
Carnatic Talkies Ltd., . It has been held by the learned Judges in this decision that the Madras City Tenants'' Protection Act (Act III of 1922)(as
amended by Act XIX of 1955), and particularly Sections 3 and 9 thereof, did not infringe Article 31 or Article 19 (I)(f) of the Constitution of
India. With regard to the other subsidiary ground, I am in enture agreement with the lower appellate Court that all that is necessary is a clarification
in this respect, and that the ground is really no bar to the application of the tenants for the recognition by the Court of their option to purchase the
land u/s g; For, apart from the fact that the transaction of sale in the present case was pendente lite, the truth appears to be that no title was
conveyed in favour of the third party, by the time the tenants acquired rights under the Madras City Tenants'' Protection Act by virtue of the
extension of the Act to Goimbatore municipal area. For, it is not in dispute that the sale-deed Exhibit A-6 was not registered, and that, until it is so
registered, no title passes to the vendee. The vendee is not a party to the present action, and is not bound by any decision herein. The possible
conflict of title between the vendee under the alleged sale, and the tenant who may obtain title by virtue of the present order of Court u/s 9, cannot
be resolved within the compass of this suit. It will necessarily have to be relegated to some other action, and the parties must be left to work out
their remedies. It is true, as contended by Sri T.M. Krishnaswami Iyer, for the appellant, that there seems to be nothing in the scheme of the Act to
prevent a landlord from conveying a valid title in the property to another, in anticipation of the application of the Act to a particular area. We are
not really further concerned with this matter, and I express no opinion upon the rival claims to title between the intending purchaser who can put
forward an agreement to sell in his favour, followed by a sale deed so far unregistered, and the tenant claiming from the original landlord, in
pursuance of the order u/s 9.
We may now proceed to discuss the substantial ground upon which the appeal has been argued.
It must be conceded that this ground was not placed in proper perspective in the first appellate Court. In that Court, the ground seems to have
been expressed in the following form; since the tenant admittedly infringed the term of the lease which prohibited building, the argument was that he
was not such a tenant as is contemplated by the Preamble of the Act, which runs as follows :
Whereas it is necessary to give protection to tenants who have constructed buildirgs on others'' lands in the hope that they would not be evicted so
long as they pay a fair rent for the land it is hereby enacted as follows.
The learned Subordinate Judge in appeal rightly negatived this contention based upon this argument founded upon the Preamble. He pointed out
that a similar argument had been advanced in Kannammal v. Kanakasabhai (1930) 61 M.L.J. 535 : ILR 54 Mad. 845 and that it had been
negatived. Whatever might be the strict position in law with regard to the propriety of a scrutiny of a preamble to an Act forthe purpose of
construction of a statute, I do not think it could be disputed that the statute itself may not be rigidly confined to the scope indicated by the
Preamble. The statute does not become bad for that reason. As observed by Curgenven, J., in Kannammal v. Kanakasabhai (1930) 61 M.L.J.
535 : ILR 54 Mad. 845 aforesaid at page 848:
There can be no doubt indeed that many instances could be found of the text of an Act going beyond its Preamble.
learned Counsel for the appellant (Sri T.M. Krishnaswami Ayyar) desires to advance the same argument, founded upon the definite prohibition
in the lease which was infringed by the tenant, in another form altogether.
The argument of Sri T.M. Krishnaswami Iyer is this. u/s 108 (h) of the Transfer of Property Act, the common law is that the tenant may erect a
superstructure on the land, unless expressly prohibited. But if he does so, the landlord has a right to get back possession of the property in the state
in which the lessee received it. In other words, the option is for the lessor or the landlord either to take the building on paying compensation, or if
he is unwilling to pay compensation, to allow the lessee to remove the building, I.K. Rowthen v. Nazrali Sahib (1903) 14 M.L.J. 25 : ILR 27 Mad.
learned Counsel would, therefore, interpret Section 3 of the Madras City Tenants'' Protection Act harmonioulsy with this state of rights under
the common law, and not in conflict therewith. According to this interpretation, the words:
every tenant shall, on ejectment, be entitled to be paid as compensation the value of any building which may have been erected by him, etc.,
Imply that the erection ought to be at least one permitted by the law and the contract governing the parties, and not expressly prohibited
thereby. In other words Section 3 was not at all intended to apply to tenants who infringed an express prohibition by building on the land, and such
a tenant cannot have an option to purchase the property u/s 9. If we turn for a moment to Section 12 of the Act, we see that this relates to "" any
stipulation made by the tenant in writing registered as to the erection of buildings "", in other words, this section saves the operation of mutual
stipulations under the contract which might form the conditions under which the superstructure could be erected. This matter has been referred to
by Ganapatia Pillai, J., in N. Vajrapuri Naidu and Another Vs. The New Theatres Carnatic Talkies Ltd., already. referred to. It was therein
observed that the learned Judges were not concerned, in that particular case, with the instance of an erection of buildings contrary to the
stipulations contained in the written contract. But in the present case, we have an instance of a superstructure erected contrary to the contract, not
in the sense (referred to by Ganapatia Pillai, J.) that the contract deed contained certain stipulations as to building, which were in fact exceeded or
contravened, but in the more absolute sense that, according to the contract, the tenant could not build on the land at all. But, is there anything either
in the scheme of the Act, or in the wording of Section 3 itself, to lend support to the interpretation of the learned Counsel for the appellant that such
a tenant could not claim compensation for the superstructure u/s 3.
Their Lordships of the Supreme Court have explicitly laid dawn in Sri Ramnarayan v. State of Bombay AIR 1959 S.C. 457 that:
If the language of the eneactment is clear and unambiguous, it would not be legitimate for the Court to add any words thereto and evolve therefrom
any sense which may be said to carry out the supposed intentions of the Legislature.
If the Legislature had intended that it was not every ''tenant'' as defined in Section 2(4) of the Act, who could claim compensation for the
superstructure, but only a tenant who was not infringing an express term of the contract by so building, the Legislature ought to have used those
words of restriction or qualification in Section 3 itself. The Legislature has not used those words. Again, the actual words used are plain,
unqualified and unambiguous. The rule of construction is that Courts are not at liberty to add any words thereto, in order to give effect to the
suppesed intentions of the Legislature. It is true that we might suppose that a special enactment of this character does not make inroads into the
prior common law or the law of property except as specifically stated in the Act. But, this will not enable us to assume that there is a restriction or
qualification which might be more in consonance with the general background of property law, which has to be read into the section as words of
qualification, when they are not there. I may here point out that, even apart from the commencing words of Section 12:
Nothing in any contract made by a tenant shall fake away or limit his rights under this Act.
We have also Section 13 which specifically purports to restrict the application of the Transfer of Property Act, to the extent to which it is
necessary to give effect to the provisions of the Madras City Tenants'' Protection Act.
Therefore, I am compelled to assume that Section 3 would apply even where a superstructure is built without authorisation, or contrary to
contract, by the concerned tenant. If Section 3 would apply, Section 9 applies as a logical consequence, and such a tenant is entitled to re-
purchase the property. I am fortified in this by two observations, both occurring in Bench decisions of this Court. In Kannammal v. Kanakasabkai
(1930) 61 M.L.J. 535 : ILR 54 Mad. 845 Bashyam Ayyangar, J., specifically stated the law to be that:
Even if the tenant had erected the building without or against the consent of the landlord the Act would appear to permit the former to acquire the
land through its instrumentality.
Similarly, in the Bench decision in N. Vajrapuri Naidu and Another Vs. The New Theatres Carnatic Talkies Ltd., Ganapatia Pillai, J., reiterates
this interpretation in almost identical language (page in, paragraph 6).
Even apart from the question of interpretation, there is material in the present case to show that the landlord must have been aware of the
building operations conducted by the tenant, and that he did not then choose to invervene or to claim the prohibition. The first Court actually held
that the landlord consented to the building. We need not go so far, but certainly there seems to have been some degree of acquiescence or
standing by. But, however this might be, I think that the tenants are entitled to succeed upon the question of interpretation itself, as I have earlier
indicated.
In result, therefore, the appeal fails, and is dismissed with costs. Leave granted.