Madras High Court
P.S. Balakrishnamaraja And Etc. Etc. vs S.K. Alagar Raja And Etc. on 24 February, 1993
Equivalent citations: AIR1993MAD357, (1994)IMLJ574, AIR 1993 MADRAS 357, 1995 A I H C 969, (1994) 1 MAD LW 582, (1994) 1 MAD LJ 574
ORDER Srinivasan, J.
1. In these matters, Original Petitions were filed in the court of the District Munsif, Srivilluputhur under Section 9(1)(a)(ii) of the Madras City Tenants' Protection Act (Act III of 1922) as. amended by Madras Act IV of 1972 and XXIV of 1973 for direction to the respective respondents to sell the properties to the petitioners for the price fixed by the Court. The petitions were numbered and taken on file as O.P. 20 of 1973, 3 of 1974,4 of 1974,22 to 24of 1973, 29 and 30 of 1973 and 17 and 18 of 1973 respectively. The respondents, who are the owners of the lands, questioned the constitutional validity of the said Section and raised other grounds contesting the sustain-ability of the petitions. When the matters were pending in the Court of the District Munsif, petitions were filed in this Court under Article 228 of the Constitution of India for transferring the Original Petitions to this Court as they involved the constitutional validity of a provision in an enactment. Those petitions were ordered and the Original Petitions were directed to be transferred to this Court. Though they ought to have been numbered in this Court as Original Petitions, they have been numbered as Referred cases erroneously. The mistake committed by the Registry in giving the proper nomenclature to the petitions need not detain us from disposing of the same.
2. The question to be decided in these cases is whether Section 9 of the Tamil Nadu City Tenants' Protection Act (Act 111 of 1922) as amended by Tamil Nadu Act XXIV of 1973 is constitutionally valid. The attack is not against the entire Section 9. It is only against clause (1)(a)(ii) of the Section which was introduced by Tamil Nadu Act XXIV of 1973.
It is contended that the clause violates Article 14 of the Constitution of India inasmuch as it is arbitrary and it has no nexus with the object of the Act. It is also stated that it travels beyond the scope of the object of the Act. The second contention is that when the clause was introduced, Article 19(1)(f) and Article 31 of the Constitution of India were inforce and the clause violated the said provisions and is consequently invalid and unconstitutional.
3. Article 19(1)(f) of the Constitution declared the fundamental right of all citizens to acquire, hold and dispose of 'property. Article 19(5) of the Constitution provided that the said right shall not affect the operation of any existing law in so far as it imposed, or prevent the State Government from making any law imposing reasonable restrictions on the exercise of such right in the interests of the general public or for the protection of the interests of any Scheduled Tribe. Article 31 of the Constitution provided that no person shall be deprived of his property save by authority of law. By the Constitution (Forty-fourth Amendment) Act, 1978, Article 19(1)(f) and Article 31 of the Constitution were deleted with effect from 20-6-1979. It is now settled law that the constitutional validity of an Act has to be decided on the basis of the Constitution as it was on the date when the Act was passed subject to any retrospective amendment of the Constitution. Constitution (Forty-fourth Amendment) Act, 1978, has been held not to be retrospective. Vide Waman Rao v. Union of India, and Manoei Francisco v. Collector of Daman, . Hence, the question whether Section 9 of the Tamil Nadu City Tenants' Protection Act as amended by Act XXIV of 1973 offends the provisions of Article 19(1)(f) and Article 31 of the Constitution of India has to be considered.
4. Tamil Nadu City Tenants' Protection Act (III of 1922) had originally the name, the Madras City Tenants' Protection Act. At the commencement, the object of the Act was to give protection to tenants of land belonging to others for a long period, who had put up building on the land in the hope that they would not be evicted from the land. The Act was made applicable only to the tenancies created before the commencement of the Act viz., 1922. The preamble clearly indicated that the intention behind the legislation was to give protection only to tenants who had constructed building on others' land in the hope that they would not be evicted so long as they pay a fair rent for the land. On account of the inflationary pressure in the wake of the First World War there was a steep rise in land values and rents, and many tenants who had constructed buildings on lands obtained on leases were sought to be evicted by the landlords. In order to prevent loss to the tenants consequent upon the enforcement of the strict provisions of the Transfer of Property Act, the Legislature enacted the Madras City Tenants' Protection Act III of 1922. Under the Act, every tenant is on ejectment entitled to be paid as compensation the value of the building which may have been erected by him or his predecesor.s-in-interest and for which compensation had not already been paid to him. By Section 9 of that Act, it is provided that any tenant entitled to compensation and against whom a suit in ejectment has been instituted may within the time prescribed apply to the Court for an "order that the landlord shall sell the whole or part of the land for a price to be fixed by the Court. By Section 12 of that Act, it is provided that nothing in any contract made by a tenant shall take away or limit his rights under the Act. There was a proviso to the Section which saved any stipulations made by the tenants in writing registered as to the erection of buildings, in so far as they relate to buildings erected after the date of the contract.
5. The act as originally enacted applied to the lands in the City of Madras. By Madras Act 19 of 1955, power was conferred upon the State Government to extend the Act by notification to tenancies of land created before the date on which the Act was extended, to any other municipal towns and any specified village within five miles of the City of Madras or such municipal town with effect from such date as may be specified in the notification. The State Government exerised its power and extended the provisions of the Act to several Municipal towns.
6. The proviso to Section 12 of the Act was interpreted by the Supreme Court in The Mylapore Hindu Permanent Fund Ltd. v. K. S. Subramania lyer, and Haridas Girdharidas v. VaradarajaPillai, and it was held that the protection against eviction was not available to the tenants who had stipulated in writing that the landlord could have the option of buying the building erected by the tenant at the" time of the termination of the tenancy. In the latter case, the Court made the following observation (at p. 2368 of AIR):--
"11. It must be remembered that the Madras City Tenants' Protection Act, 1921, was passed in 1922 to give protection to certain classes of tenants who had constructed buildings on others' lands in the hope that they would not be evicted so long as they paid a fair rent for the land. It was not the object of the Act to cover a hope if the 'hope' was entertained contrary to express stipulations as to erection of buildings. Accordingly, proviso to Section 12 exempted any stipulations made by the tenant in writing registered as to the erection of buildings, in so far as they related to buildings erected after the date of the contract."
7. The Legislature introduced Tamil Nadu Act IV of 1972 amending not only the preamble but also Section 12 of the Act. The Statement of Objects and Reasons for the said Act read thus:
"It has been represented to the Government that tenants who have invested large amounts in superstructres in lands taken on lease are denied the protection conferred by the Madras City Tenants' Protection Act, 1921 involving great hardship by reason of the proviso to Section 12 of that Act as interpreted by the Supreme Court in recent cases on the ground that they had entered into contract with the landlord to surrender both the buildings and the land on the expiry of the tenancy agreement. The Government have examined the representation and after careful consideration they have decided that the protection given by the Act should be enjoyed by all tenants, irrespective of the fact whether they have entered into an agreement with the landlords containing stipulations us to the erection of buildings constructed after the date of the contract and limiting the rights under the Act. In all recent tenancy legislations a provision is made that any stipulation in a contract taking away or limiting the rights conferred by the legislation should be ineffective. To be in formity with the trend of the recent tenancy legisaltion and also to avoid the hardship caused to such tenants it is proposed to omit the proviso to Section 12 of the Madras City Tenants Protection Act. 1921 with retrospective effect. The landlord may pay compensation to the tenant under Section 3 of the Act for the building or receive the value from the tenant for the land under Section 9 of the Act.
"2. Suitable validating provision has also been made in clause 4.
3. However, cases where the landlord has already taken possession of the land and buildings from the tenant are not to be affected by the proposed amendment-- See clause 5.
4. The bill seeks to give effect to the above objects."
8. In the preamble the words "in the hope that they would not be evicted" were deleted. The proviso to section ! 2 of the Act was also deleted. Consequently, the preamble after the amendment read. "Whereas it is necessary to give protection against eviction to tenants, who in Municipal towns, townships and adjoining areas in the State of Tamil Nadu have constructed buildings on others' lands, so long as they pay a fair rent for the land". Section 12 of the Act after the amendment is in the following terms:--
"Nothing in any contract made by a tenant shall take away or limit his rights under this Act."
Act IV of 1972 was made expressly retrospective by a validation Section, though cases in which the landlord had before the date of commencement of the Act taken possession of the land and building from the tenant, were excluded from the applicability of the said Act.
9. Even after the passing of Madras Act IV of 1972, the Courts expressed the view that the validation Section of the said Act did not enable the reopening of any judgment or decree or order of any Court or authority. In fact, the said view was expressed in an application filed in case which was decided by the Supreme Court in Haridas Girdharidass v. Varadaraja Piliai, . An application was filed for a direction to the landlord to sell the land to him in this Court. That application was dismissed. The judgment is reported in M. Varadaraja Pillai v. Haridas Girdharid (1973) 86 Mad LW136. The tenant filed an application for review of the judgment of the Supreme Court, but it was dismissed as withdrawn. Thereafter, the Legislature passed Tamil Nadu Act 24 of 1973 and amended the definition of "tenant" found in Section 2. of the Act and introduced the impugned provisions in Section 9 of the Act. The Statement of Objects and Reasons reads as follows :--
"The object underlying Tamil Nadu Act 4 of 1972 was to confer benefits on all the tenants who were in actual physical possession of the lands and buildings, notwithstanding any judgment, decree or order of any Court holding that the tenant was not entitled to the benefits of the Act by reason of the proviso to Section 12 of the principal Act. The position has been examined and it has been decided to amend the principal Act so as to confer the benefits of the Act on persons who were tenants under tenancy agreement to which the principal Act was applicable notwithstanding the fact that Courts have passed decrees for possession or for similar relief on the ground that the proviso to S. 12 of the principal Act as it stood before the publication of Tamil Nadu Act 4 of 1972 disentitled them to the benefits under the Act. The Bill seeks to achieve the above object.
The Bill also seeks to give a right to such persons to make an application to the Court within a period of two months of the publication of the proposed Act for claiming the benefits under the Act. Provision has also been made empowering the Courts to reopen and review the proceeding relating to such decree or order, as if the proposed Act were in force at the time at which the decree or order was passed."
10. A reading of the Statement shows that the amendment is for the purpose of giving relief to the tenant, who suffered decrees or orders of eviction by reason of the proviso to S. 12 of the Act. The second paragraph of the Statement also refers only to the persons mentioned in the first paragraph. As per the Statement of Objects and Reasons, it is only those persons against whom judgments, decrees or orders were passed are enable to make an application to the Court within a period of two months on the publication of the Act for claiming the benefits under the Act. The avowed object of the Amendment Act is only to protect such persons who were found by Courts to be disentitled to the benefits of S.9 of the Act by reason of the proviso to Section 12 of the Act. It was not the object of the Legislature to extend the benefit to other persons.
11. However, the actual amendment introduced in Section 9 of the Act as found in sub-clause (ii) of Clause (1)(a) thereof is in the following terms :--
"Notwithstanding anything contained in Clause (a)(i) of this sub-section, any such tenant as is referred to in sub-clause (ii)(b) of Clause (4) of Section 2 or his heirs, may within a period of two months from the date of the publication of the Madras City Tenants' Protection (Amendment) Act, 1973 apply to the Court (whether or not a suit for ejectment has been instituted or proceeding under S. 41 of the Presidency Small Cause Courls Act, 1882 (Central act XV of 1882) has been taken by the landlord or whether or not such suit or proceeding is pending) having jurisdiction 10 entertain a suit for ejectment or in the City of Madras either to such Court or to the Presidency Small Cause Court, for an order that the landlord under the tenancy agreement shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application."
The clause can be invoked by any tenant covered by Section 2(4)(ii)(b) or his heirs, whether or not a suit or proceeding has been instituted against him or them for eviction. It is this clause which is attacked as violative of Article 14, Arlicle 19(1)(f) and Article 31 of the Constitution of India.
12. We have seen that the object of the Amendment Act as set out in the Objects and Reasons is confined to a particular class of tenants against whom orders or decrees have been passed on the footing that they are not entitled to the benefits of Section 9 of the Act, in view of the proviso to Section 12 of the Act. The object of the main act has throughout been to give protection against eviction of tenants, who have constructed buildings on others lands so long as they pay a fair rent for the land. No doubt, the preamble as it stood originally, referred to the tenants who had constructed buildings in the hope that they would not be evicted so long as they paid fair rent. After the amendment of the preamble, all tenants who have constructed buildings on others' lands whether with a hope that they would not be evicted or without such hope, will be benefited by the provisions of the Act, It is only in consonance with the same, Section 12 of the Act amended and the proviso was deleted. But, still the object of the Act is only to give protection against eviction so long as the tenants pay a fair rent for the land. The right to purchase land under S. 9 of the Act arises only on ejectment, which is undoubtedly after the termination of the tenancy. Section 9(1)(a) of the Act expressly refers to a tenant who is entitled to compensation under Section 3 of the Act and against whom a suit in ejectment has been instituted or a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 has been taken. Section 3 of the Act provides for compensation to the tenant for the building only on ejectment. Thus, the provisions of the Act apply to a situation where the contractual relationship of landlord and tenant has been terminated and the landlord seeks to enforce his right to recover possession. The landlord is the owner of the land, who is attempting to take back possession of the land while the tenant is the owner of the superstructure, erected by him. Under the provisions of the Transfer of Property Act, the tenant will not be entitled to claim any compensation for the building. He must either remove the building or leave it to be enjoyed by the lessor. In many a case, the hardship to be suffered by the tenant would outweigh the advantage gained by the landlord by getting back possession of his land. In order to alleviate such hardship, the Legislation was enacted with a provision enabling the tenant to buy the land.
13. It has been held in Sundareswarar Devasthanam v. Marimuthu, SlR 1963 Mad 369, by a Division bench of this Court that Section 9 of the Act is in its nature expro-prietary and could be confined only to suits or applications in terms asking for possession and will not apply to a suit for declaration of the tenant's title and for an injunction. Section 9 of the Act, as pointed out by the Supreme Court in N. Vajrapani Naidu v. New Theatres Carnatic Talkies Ltd. , is not so much to deprive the landlord of his property or to acquire his rights to it as to give effect to the real agreement between him and his tenant, who induced the tenant to construct his building on the plot lot out to him. In the situation which arises after the termination of the tenancy, the Legislature thought fit to confer a statutory right on the tenant to purchase the land resulting in a coalescence of the ownership of the building and land.
14. The constitutional validity of the Section as it stood prior to the Amendment Act 24 of 1973 was upheld by this Court as well as the Supreme Court. Suffice it to refe:r to the judgment of the Supreme Court in Vajrapani Naidu's case, .
15. The clause introduced by the Amendment Act 24 of 1973 has now given a right to the tenant even in the absence of any suit or proceeding for eviction. Even a tenant whose contract of tenancy subsists is enabled by the said provision to appiy to the Court for a direction to the landlord to sell the land to him. When the object of the main act is to give protection against eviction and the object of the Amendment Act is to make that protection available to persons who have suffered decrees or orders by reason of the proviso to S. 12 of the Act, there is no doubt that the provisions found in S.9(1)(a)(ii) introduced by the amendment has no relation to the said objects and it travels far beyond the same. There is no nexus between the said objects and the provision introduced by the amendment. The question of protection against eviction could arise only on the termination of the contractual relationship and institution of a proceeding for eviction. When the tenant does not face any such threat and the landlord is willing to continue the relationship of landlord and tenant and has no intention to evict the tenant so long as the latter pays the fair rent, the provision enabling the tenant to compel the landlord to sell the land to him is arbitrary and unreasonable. It is relevant in this connection to remember the test laid down by the Supreme Court in Ameerunnissa v. Mahboob Begum, , in the following words (at pp. 94 and 95 of AIR):--
"(11) The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this Court and do not require repetition. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.
...
We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment but when on the face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground, the Court has got to invalidate the enactment on the ground of its violating the equal protection clause."
In the present case it goes without saying that the provision contained in Section 9(1)(a)(ii) of the Act conferring benefits on the tenants against whom no proceeding for eviction has been instituted has no rational basis and totally unconnected with the object of the Act. Hence, we hold that the provision introduced by the Amendment Act is viola-tive of Article 14 of the Constitution of India.
16. The provision is equally violative of Articles 19(1)(f) and 31 of the Constitution of India. Article 19(1)(f) declares the fundamental right of the landlord to hold properly. It is not necessary for the present purpose to refer to the right to acquire and dispose of. That fundamental right to hold properties is sought to be interfered with by a statutory right to purchase property conferred on the tenant. It has been held in S. M. Transport (P) Ltd. v. Sankaraswanygal Mutt, , that the right conferred on the tenant under S. 9 of the Act is not an interest or right in the property. It is reiterated inJP. Anantha-krishnan v. G. Ramakrishna, , in the following passage (at pp. 1277-78 of AIR) ;--
"10. Section 9 confers a privilege on a tenant against whom a suit for eviction has been filed by the landlord but that privilege is not absolute. Section 9 itself imposes restriction on the tenant's right to secure conveyance of only such portion of the holding as would be necessary for his convenient enjoyment, It creates a statutory right to purchase land through the medium of Court on the fulfilment of conditions specified in S. 9 of the Act. It is not an absolute right, as the Court has discretion to grant or refuse the relief for the purchase of the land. In S. M. Transport (P) Ltd. v. Sankaraswarnigal Mutt, , this Court considered the question whether the right of a tenant to apply to a Court for an order directing the landlord to sell the land to him for a price to be fixed by it under S. 9 of the Act is a property right. The Court held, that the law of India does not recognise equitable estates, a statutory right to purchase land does not confer any right or interest in the property. The right conferred by S. 9 is a statutory right to purchase land and it does not create any interest or right to the property. The tenant's right to secure only such portion of the holding as may be necessary for his convenient enjoyment is equitable in nature. Under the common law a tenant is liable to eviction and he has no right to purchase the land demised to him at any price as well as under the Transfer of Property Act. The only right of a tenant who may have put up structure on the demised land is to remove the structure at the time of delivery of possession on the determination of the lease. Section 9 confers an additional statutory right on a tenant against whom suit for ejectment is filed to exercise an option to purchase the demised land to that extent only which he may require for convenient enjoyment of the property. The tenant has no vested right in the property instead; it is a privilege granted to him by the statute which is equitable in nature."
Such a right cannot he allowed to take precedence over the fundamental right of the landlord to hold property. It must be noted that the right conferred by the new provision introduced by the amendment is not one arising after the termination of the contractual relationship or on the filing of a proceeding for ejectment. Hence, it cannot be justified as a reasonable restriction on the exercise of the landlord's fundamental rights within the meaning of Article 19(5) of the Constitution of India. It will he a case of deprivation of the landlord of his right to hold property without any justification therefor. The amendment is not a law which will fall under Article 31(2) of the Constitution.
17. Mr. R. Sundaravaradan, learned Senior Counsel appearing for the tenants submits that the object of the Act viz., protection against eviction is achieved by the right conferred on the tenant to purchase the land and thus, the provision is not arbitrary and unreasonable. According to learned counsel, the amendment falls well within the scope of the object. We do not agree. We have already pointed out that the object is only to protect the tenant against eviction and when there is no threat of eviction, there is no question of conferring a right on the tenant to purchase the land. Even the Statement of Objects and Reasons for the Amendment Act referred only to tenants who suffered (from) decrees or orders. Hence, there is no nexus between the object of the Amendment Act and the provision introduced.
18. Learned counsel compares the provisions of the Act with the Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Act (XL of 1971). That is substantive enactment to provide for the conferment of ownership rights on occupants of Kudiyiruppu in the State of Tamil Nadu. The scope and object of the said enactment is entirely different and no comparison can be made between that Act and the present Act.
19. Learned counsel submits that when the preamble of the Act is amended and the words "in the hope that they would not be evicted are deleted, the object of the Act has been widened and the Legislature has only conferred an additional benefit to the tenant by expanding his rights. We do not find any substance in the contention. We have already given our reasons earlier and it is not necessary to repeat them here. Learned counsel places reliance on certain passages in the judgment of a Division Bench of this Court in His Holiness Sri la Sri Ambalavane Pandara Sannadhi Avargal v. The State of Tamil Nadu, (1985) 2 Writ LR (Supp) 1. The Bench had to consider the constitutional validity of the Tamil Nadu Cultivating Tenants (Payment of Fair Rent) Amendment Act (17 of 1980) and the Tamil Nadu Public Trusts (Regulation of Administration of Agricultural lands) Amendment Act (18 of 1980). It was observed that the question as to whether there was necessity for legislation or not and what was the motive of Legislature in enacting a particular enactment were not matters into which the Court could go. But it was pointed out that the scope of the enquiry by the Court will be to see whether there was nexus between the two enactments and the objects. In the present case we are not going into the necessity of the amendment or the motive therefor. We have found that there is no nexus between the avowed object of even the Amendment Act and the provision introduced by the amendment. Learned Counsel invites our attention to the following passage in that judgment:--
"65. We have already reproduced Entry 18 which is the only relevant Entry so far as the impugned enactment is concerned. That Entry enables a State Legislature to enact Laws in respect of land, land tenures including the relationship of landlord and tenant and the collection of rent. It is now well established that the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part "of the Legislature, and the whole doctrine of colourable legislation resolves into the determination of the question of competency of a particular legislature, to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to enact are wholly irrelevant. If the Legislature lacks competency, then the question of motive does not arise at all. The question whether a statute is constitutional or not will thus depend upon whether there was power in the legislature to enact the impugned legislation. In a federal Constitution, where legislative powers are distributed between the Centre and the States, their respective spheres are marked by the Entires in the appropriate Lists. The question which arises is whether the Legislature has or has not, in respect of the subject-matter of the Statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such a transgression may be patent on the fact of the Statute, it may also be disguised and indirect. And it is statutes like this kind that fall within the expression of colourable legislation, which means that, although apparently the Legislature in passing a stalute purported to act within the limits of its powers, in substance and in reality it transgressed its powers, the transgressions being veiled from what appears on proper examination to be a mere pretence or disguise."
It is submitted by him that the competency of the Legislature cannot be questioned in this case. Though a faint attempt was made by one of the counsel appearing for the landlords to challenge the competence of the Legislature, it was not pressed and ultimately the arguments were confined to Arts. 14, 19(1)(f) and 31 of the Constitution of India.
20. Learned Counsel submits that the amendment is only regulating the relationship, of landlord and tenant and not an unreasonable restriction on the fundamental right of the landlord. We do not accept this contention. When the landlord is deprived of his property, it cannot be said that it is only a regulation of the relationship of the landlord and tenant.
21. Learned Counsel submitted that the provision introduced by the amendment would fall under Article 39(b) and (c) of the Constitution of India. There is no merit in this contention. We do not accept the same.
22. Learned Counsel referred to the judgment of Panchapakesa Ayyar, J. in Sayed Shamiah Thaikkal v. Ihrahim Sahib, (1957) 2 Mad LJ 265 and contended that even long before the present amendment, this Court had recognised the right of the tenant to file an Original Petition for a direction to the landlord to sell the land. In that case, before the Act was extended to the area in which the property was situtated, the landlord and the tenant had settled their rights by a consent decree in a suit for eviction whereby the tenant was to be a lessee for twelve years at a particular rate of rent and he was to vacate the premises at the end of the period. The decree privided that the landlord could get possession through Court and the tenant was entitled to remove the superstructure. It was during the period of tenancy provided in the decree, the Act was extended. The tenant filed an Original Petition for a direction under Section 9 of the Act to the landlord to sell the land to him. Repelling the contention that an Original Petition was not maintainable, the Court held that it was more appropriate to file an Original Petition in cases of that type. The learned Judge observed thus:--
"In these days of ex-proprietary and revolutionary laws, several rights never, dreamt of when the suit was disposed of, are given to tenants, agricultural and others, under Statutes which stand by themselves and have to be carefully gone into and interpreted before the relief vouchsafed by them is available to the person claiming them. The fact that person happened to be a party to a suit and decree, touching the matter either directly or tangentially, is irrelevant. So the proper way of deciding the questions arising under such independent Statutes will be in Original Petitions though the effect of allowing the Original Petition may be to modify a decree, where the party granted the relief is a party to the decree. But that cannot make any difference. Nor can it cause the least injury to the person affected. It is all a question of half a dozen and six, the nomenclature alone differing."
The observations cannot be taken out of the context of the case and utilised by the tenants in the present case.
23. In the result, we hold that S. 9(1 )(a)(ii) of the Tamil Nadu City Tenants' Protection Act introduced by the Tamil Nadu Act 24 of 1973 is unconstitutional in so far as it relates to tenants against whom a suit for ejectment has not been instituted or a proceeding u/ S. 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) has not been taken by the landlord. In all these cases, no suit for ejectment has been filed by the landlord. Hence, the Original Petitions filed by the tenants in the Court of the District Munsif, Srivilliputhur are unsustainable and are liable to be dismissed.
24. In the view we have taken, nothing survives in the Original Petitions filed by the tenants and there is no need for sending them back to the District Munsif, Srivilliputhur.
25. We must also place on record the information given by counsel regarding some of them. It is stated that in O.P. No. 4 of 1974 (R.C. 4/ 80) both the petitioners are dead and their legal representatives have not come on record. In O.P. Nos. 22, 23, 24, 29 and 30 of 1973 (R.C. Nos. 5 to 9 of 1980), it is represented that the parties have set led their disputes outside Court and the tenants have purchased the lands. But, counsel are not able to give definite information for want of definite instructions. Hence, we are not able to pass orders on that basis. As all the Original Petitions are being dismissed by us, we find it not necessary to call for further details in that regard.
26. In fine, the Original Petitions are dismissed. No costs.
27. Petitions dismissed.