Madras High Court
Arulmigu Selvavinayagar Temple, Rep. ... vs Vincent And Company Pvt. Ltd., Rep. By S. ... on 9 March, 2007
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. Whether proceedings under Section 9 of the Chennai City Tenants Protection Act will come to an end only on execution of Sale Deed either by Temple or by the Court onbehalf of Temple A N D
2. Whether decree or order has not been executed or satisfied in full so as to apply Amendment Act 2 of 1996 are the points arising for consideration in this Revision Petition.
2.1. This Revision arises on the following facts:- Petitioner / Temple has filed Ejectment Suit in O.S.No. 33 of 1981. In the said Suit, Respondent / Company filed an Application under Section 9 of the Chennai City Tenants Protection Act (for short "the Act"). That Application was allowed. After enquiry, value was fixed at Rs. 45,000/- per ground. The Court has fixed the value of the tenanted premises at Rs. 2,25,330/-. The Landlord / Temple has filed Ejectment Appeal No. 2 of 1985, which was dismissed on 30.01.1986. In the Revision preferred against that Judgment in C.R.P.No. 3362 of 1986, the Court has enhanced the market value to Rs. 80,000/- per ground. Pursuant to the orders of the High Court in C.R.P.No. 3362 of 1986 balance of Rs. 1,80,761/- was also deposited.
2.2. Petitioner / Temple did not execute the Sale Deed. Hence, Respondent / Company has filed M.P.No. 860 of 1994 under Section 9(3) of the Act to direct execution of the Sale Deed. On 22.12.1995, Court has passed the order in M.P.No. 860 of 1994 directing execution of the Sale Deed on or before 30.01.1996. In the meantime, on 11.01.1996, Amendment Act 2 of 1996 was passed.
2.3. Alleging that proceedings are abated on account of Amendment Act 2 of 1996, the Temple has filed a Memo. Stating that proceedings were terminated as early as on 22.12.1995, Respondent / Tenant has resisted that Memo. Referring to proviso to Sub-section(3) of Section 1 of the Act, court below observed that nothing contained in the Amendment Act shall be deemed to invalidate proceedings in which order passed has been executed. Pointing out that quantum of compensation in respect of the land has been deposited by the Tenant, the Court has ordered further proceedings, which is challenged in this Revision Petition.
3. Inviting attention of Court to the various observations in the decisions reported in Sreedharan Nair v. Mottaipatti Chinna Pallivasan Muslim Jamath, Virudhunagar and Mylapore Club v. State of Tamil Nadu 2006 (I) L.W. 558, Learned Counsel for the Revision Petitioner / Temple has contended that mere deposit of the amount would not terminate the proceedings. It was submitted that unless the Sale Deed is executed by the Temple in favour of the Respondent or in the alternative by the Court onbehalf of the Temple, the fruit of the decree cannot be realised by the Respondent and hence, proceedings will come to an end only on execution of Sale Deed either by Temple or by the Court onbehalf of the Temple in the matter.
4. Taking me through dates and events, Learned Counsel for Respondent has submitted that the contentious points raised by the Temple are already covered by the decision of the Full Bench of this Court in the decision reported in Arulmigu Kasi Viswanathaswamy Devasthanam by Fit Person v. Kasthuriammal . Learned Counsel for the Respondent has submitted that when the quantum of compensation in respect of land as determined by the Court was deposited by the Tenant, the rest is only routine procedure and hence, Amendment Act 2 of 1996 cannot take away right of the Tenant to purchase the site accrued on him prior to the passing of the Amendment Act.
5. As per Section 3 of Amending Act 2 of 1996, the proceedings instituted by the Tenant in respect of any land owned by any religious charities belonging to the Hindu, Muslim, Christian or other religion is pending before any Court or any authority abates and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the date of publication of the amending Act shall in so far as such rights and privileges relate to any matter falling within the scope of the Principal Act, as amended by this Act ceased and determined. This provisio deals with the pending proceedings under the Principal Act and caused them to be abated in order to give effect to the amending Act.
6. Constitutional validity of Section 3 of the Amending Act has been upheld by the Full Bench of this Court in Sreedharan Nair v. Mottaipatti Chinna Pallivasan Muslim Jamath, Virudhunagar . As to when judicial proceedings would become concluded was considered by the Full Bench in Arulmigu Kasi Viswanathaswamy Devasthanam by Fit Person v. Kasthuriammal (F.B). The question posed before the Full Bench was:
Whether Section 3 of the Amendment Act of 1996 giving exemption to the religious institutions from the purview of the Tamil Nadu City Tenants Protection Act takes away the vested rights of the Tenant who obtained an order in his / her favour in an Application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921?
7. In Kasi Viswanathaswamy Devasthanam's case, by the order dated 03.05.1991, the Trial Court fixed the minimum extent and cost of the land and directed the Defendant / Tenant to pay Rs. 4,00,119.78 towards the cost of the site in 36 instalments. In compliance of the order, Tenant deposited the entire amount in instalments. Thereupon, Tenant filed an Application in I.A.No. 11035 of 1995 on 06.06.1994 praying the Trial Court to direct the Respondent to execute the Sale Deed in her favour. On 09.01.1996, the Trial Court has passed an order in I.A. No. 11035 of 1994 directing the Plaintiff to execute Sale Deed in favour of the Tenant. Two days later i.e., on 11.01.1996, Amendment Act 2 of 1996 came to be notified. The Full Bench considering the question whether Section 3 of the Amendment Act 1996 would take away vested right to the Tenant who obtained an order in her favour in an Application under Section 9 of the Act and considering the question as to when the proceedings are terminated, speaking for the Bench, M. KARPAGAVINAYAGAM, J., (as His Lordship then was) has held as under:
33. ... When a tenant is found to be entitled to the protection under Section 9 of the Act, the procedure contemplated in Section 9(1)(b) and Section 9(2) and Section 9(3) has to be followed. The first step contemplated under Section 9(1)(b) of the Act is that the Court must decide the minimum extent of the land required for the convenient enjoyment of the land. The second step is that the Court shall fix the price of the minimum extent on the average market value. The third step is that the Court shall order payment into Court by tenant. Then the fourth step is that on intimation about the payment within the stipulated time, the Court shall pass an order directing conveyance by the Landlord to the Tenant. The moment such an order is passed, the suit or proceedings shall stand automatically dismissed. Thereafter, no further judicial order is contemplated....
34. The order passed on 09.01.1996 which has not been challenged before the appellate forum has been passed by the Trial Court under Section 9(3)(a). The moment an order under Section 9(3)(a) is passed, it shall be construed that the proceedings got terminated and the suit stand dismissed as per Section 9(3)(b) of the Act. Through this deeming provision, it is clear that the prayer sought for by the Tenant for execution of Sale Deed had already been granted and the tenant got the relief which she wanted from the Court. In other words, by the said deeming provision the proceedings initiated by the Tenant and the suit filed by the landlord stood terminated or concluded on 09.01.1996 itself. Admittedly, the Amendment Act 2 of 1996 was passed and the same came into force only on 11.01.1996. Therefore, the first ingredient namely pendency of the proceedings is absent....
8. The Full Bench has concluded as under:
50. To Sum up: The amendment Act 2 of 1996 would apply when the two conditions exist:
i. The proceedings initiated by the Tenant in respect of any land owned by the religious institution must be pending before any Court on the date of publication of the Act.
ii. The decree or order has not been executed or not satisfied in full.
In this case, on the application filed under Section 9 seeking for a direction to the Landlord to sell the land by execution of the sale deed, an order has been passed under Section 9(3)(a) after compliance of the conditions imposed by the Trial Court by the Tenant. Therefore, the moment the order under Section 9(3)(a) is passed, it shall be construed that the proceedings got terminated and the suit stood dismissed as per Section 9(3)(b) of the Act. Accordingly, the first ingredient viz., the pendency of the proceedings is absent. Further, when once a final order under Section 9(3)(a) is passed, the deeming provision 9(3)(b) comes into play, thereby meaning that the order is fully satisfied and complied with by the tenant and the statute does not contemplate any further action in this regard. Consequently, the second ingredient also is absence. Hence, the Amendment Act 2 of 1996 would not apply to the present case. The question is answered accordingly....
9. In this case, cost of land as per orders of the Court in M.P.No. 610 of 1983 was deposited in 1983. Since Sale Deed was not executed by Petitioner / Temple, M.P.No. 860 of 1994 was filed under Section 9(3)of the Act on 20.07.1994 seeking direction to Temple to execute the Sale Deed. As per order in C.R.P.No. 3362 of 1986 enhanced market value at Rs. 80,000/- per ground was ordered to be deposited in instalments commencing from 20.08.1993. It is seen from the records that the balance of enhanced value was deposited in Court on 04.05.1994. M.P.No. 860 of 1994 was allowed on 22.12.1995 directing execution of the Sale Deed on or before 30.01.1996. In the meantime, Amendment Act 2 of 1996 came into force on 11.01.1996. As per the decision of Full Bench, when the order under Section 9(3)(a) of the Act is passed (in this case on 22.12.1995) the proceedings became concluded. Judicial proceedings have been concluded by virtue of the orders passed under Section 9(3)(a) and 9(3)(b) of the Act on 22.12.1995 itself. Hence, as per the Full Bench decision, Amendment Act 2 of 1996 would not apply to the present case.
10. Learned Counsel for Petitioner / Temple has contended that the execution of the Sale Deed remains to be done in favour of the Tenant to get absolute right in the property and as such, it cannot be said that the order passed by the Trial Court has been executed or satisfied in full before the publication of the Amendment Act. In support of his contention, Learned Counsel for Petitioner / Temple has drawn the attention of the Court to certain observations of the Full Bench in Sreedharan Nair's case to persuade the Court that there are conflicting views in the two decisions. The Learned Counsel made forcible presentation in contending that there are conflicting views between the two Full Bench decisions and drawn the attention of the Court to the following observations in Sreedharan Nair's case:
...71. In fact in D.C.Bhatia v. Union of India , the learned Judge held in paragraph 52 that if the statute is to be operated the tenant cannot claim to continue to have the old statutory protection. They also referred an observation by Tindal, C.J., in the case of Kay v. Goodwin 1830 (6) BING 576 : 130 E.R. 1403 (E.R.1405) The effect of repealing a statute is to obliterate it as completely from the records of the parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law.
In paragraph 53, they made it further clear that the provisions of the repealed statute cannot be applied after it has been repealed. But what has been acquired under the repealed Act cannot be disturbed. In any new order further step is need to be taken under the Act, that cannot be taken even after the Act is repealed.
In paragraph 55 they further held as follows:
In the instant case, the legislature has decided to curtail or take away the protection of the Delhi Rent Control Act from a section of the Tenants. The Tenants had not acquired any vested right under the Delhi Rent Control Act, but had a right to take advantage of the provisions of the repealed Act so long as that law remained in force....
73... Section 3 of amending Act envisages the abatement of the pending proceeding. Neither the mere order under Section 9 in favour of the tenants to purchase the land or to deposit of such determined value of the land would amount to any accrued right. As in para 52 of the judgment in Bhatia's case , if any further proceedings are to be taken under the repealed Act, then that cannot be taken.
74. In this case, if we look at the provisions of the Principal Act, the Court passes an order under Section 9 and determines the price of the land with the extent of the land to be conveyed to the tenant. Section 9(1)(b) contemplates the payment of such determined amount by the Tenant. Sub-section (2) of Section 9 deals with the default clause. Sub-clause 3(a) of Section 9 envisages the further procedure after the deposit of the cost of the land by the tenant. As per the said provision, the tenant has to surrender the land with improvement to the landlord and the landlord has to execute the sale deed in favour of the tenant at the cost of the tenant. If this procedure is over, then the Court has to give a finality to the Suit, as contemplated under Sub-section 3(b) of Section 9. Hence when some further action or the procedure is contemplated under the Principal Act at the time of the commencement of the amending Act 2 of 1996, then the further proceedings cannot be pursued....
11. Drawing support from the above observations, Learned Counsel for the Petitioner has submitted that Sub-clause 3(a) of Section 9 of the Act envisages further procedure after deposit of cost of land by the Tenant and that Sale Deed has to be executed and then Court has to give finality to the suit as contemplated under Sub-section3(b) of Section 9 of the Act. It was submitted that the order passed on 22.12.1995 cannot be stated to be the order having the effect of "executed or satisfied in full", so as to exclude the applicability of Amendment Act 2 of 1996.
12. The contentious points now urged by the Learned Counsel for the Revision Petitioner were squarely considered by the Full Bench in Kasi Viswanathaswamy Devasthanam's case. Whereas in Sreedharan Nair's case, the Full Bench has considered the constitutional validity of Section 3 of the Amending Act. Observations in paras 71 and 73 of Sreedharan Nair's case, quoted above are obiter dicta. Learned Counsel for Revision Petitioner Temple has submitted that as against the Judgment of Full Bench in Kasi Viswanathaswamy Devasthanam's case, Special Leave Petition has been preferred before the Supreme Court. In any event, at present it cannot be concluded that there are conflicting views expressed by two Benches.
13. The point is squarely covered by the Full Bench decision in Kasi Viswanathaswamy Devasthanam's case. With passing of the order under Section 9(3)(a) of the Act on 22.12.1995, the proceedings instituted by the Tenant must be held as concluded. Hence, the Amendment Act 2 of 1996 would not apply to the present case. The Impugned order is in consonance with dictum laid down by the Full Bench in Kasi Viswanathaswamy Devasthanam's case and hence, the same cannot be interfered with.
14. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected C.M.P.NO. 13287 of 2000 is closed.