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K.S.K Zafrullakhan v. K. Arunachalam And Others.

Madras High Court

Jan 30, 1976

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The plaintiffs owned the suit property and adjoining properties. The original structures were mud-walled and dilapidated; the plaintiffs demolished them and erected new constructions in December 1966. The defendant became a tenant of one newly constructed shop (door No. 69, Tamil Sangam Road, Madurai) at a monthly rent of Rs. 100, initially for one year, but continued in occupation after the term expired. The plaintiffs sued in the Civil Court for recovery of possession of the newly constructed shop and for mesne profits, asserting that the building was exempt from the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 under S. 30 because construction was completed after commencement and notified to the local authority.

The defendant resisted, contending that only minor repairs were carried out (i.e., no new construction), that the building remained covered by the Rent Control Act, that there was no valid notice to quit and no proceedings before the statutory authorities, and therefore the suit was not maintainable. The trial court dismissed the suit, holding that the property (a portion identified by Door No. 69) was not exempt under the Act. On appeal, the Principal Subordinate Judge reversed, finding the shops were recently constructed so as to be separately lettable with independent entrances and that S.30 applied; he held the 1973 amendment did not apply to pending proceedings and left mesne profits to separate proceedings. The plaintiffs' appeal proceeded as a Second Appeal challenging the trial court's dismissal and raising the scope and application of S.30.

Legal Issues Presented

Whether the suit building (or the portion in occupation) is exempt from the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 under Section 30 because its construction was completed after the commencement of the Act and notified to the local authority.
Whether the requirement of notification in S.30 requires a written formal notice, or whether an intimation to the municipality (and evidential indicia such as municipal tax reassessment) suffices.
Whether S.30(i) contemplates exemption of an entire building only or also of a part of a building (i.e., whether the statutory definition of "building" which includes "part of a building" applies to S.30(i)).
Whether the 1973 amendment to S.30 (which limited exemption to five years after completion and notification) applies to the present case and to proceedings commenced before the amendment.

Arguments of the Parties

Plaintiffs' Arguments

The original structures were demolished and new constructions were completed in December 1966.
Because construction was completed after the commencement of the Act and was notified (intimated) to the local authority, S.30 applies to exempt the building from the Rent Control Act; therefore the Civil Court can entertain a suit for recovery of possession.
They required the shop for convenient enjoyment/additional accommodation, and sought possession and mesne profits.

Defendant's Arguments

The plaintiffs effected only minor repairs rather than new construction; the building continued to be covered by the Rent Control Act and the defendant was entitled to its protection.
There was no sufficient notification to the local authority as required by S.30.
In the absence of a valid notice to quit and proceedings before the statutory authorities, the defendant could not be evicted and the suit was not maintainable in Civil Court.
The 1973 amendment restricting the exemption to five years meant the exemption had lapsed (if applicable), so the defendant should benefit from the Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
A. Mohammed Jaffar Saheb v. A. Palaniappa Chettiar	The principle that a statutory definition may be restricted in its operation where the subject or context is repugnant; i.e., a definition applies only unless the context requires otherwise.	The court observed that this principle is well-established, but found nothing in the context of S.30(i) that required excluding the general definition of "building" (S.2(2)). Therefore the definition (including "part of a building") was held applicable to S.30(i).
Killick Nixon Ltd v. V. R. Narayana Rao	The decision that the 1973 amending Act (Madras Act 23 of 1973) did not expressly or by necessary implication abate pending proceedings and was therefore prospective; consequently, the amendment could not be taken to affect proceedings or decisions rendered prior to the amendment.	The court treated this decision as binding and held that the 1973 amendment limiting the exemption to five years did not apply to proceedings (and decrees) that were commenced or rendered prior to that amendment; thus the 1973 amendment did not defeat the plaintiffs' claim in this case.

Court's Reasoning and Analysis

The court's analysis proceeded in sequential steps grounded on the facts adduced at trial, the statutory text, the definition provision, and relevant precedent.

Factual foundation: The court accepted the findings of the lower appellate court — specifically, that the impugned shop and other shops were recently constructed in such a way as to be separately lettable and had independent entrances. On that basis, the court proceeded on the assumption that a "construction of a building" as contemplated by S.30(i) had occurred (thus it did not re-open the subsidiary factual contest about repair versus new construction).
Notification requirement under S.30(i): The court examined the wording of S.30 — exemption applies where a building's construction was completed after commencement of the Act and "notified to the local authority concerned." The court held that the word "notified" does not necessarily require a formal written notice; had the legislature intended a written requirement, it would have said so. Evidence before the court included the first plaintiff's deposition that he intimated the municipality of the new construction, and exhibits (A8 and A9) showing a municipal tax increase after completion (from Rs. 293.37 to Rs. 567.15). Although P.W.1 had no documentary record of the intimation, the tax reassessment supported the conclusion that notification/intimation took place. On that basis the court found the notification requirement satisfied.
Meaning of "building" and applicability to parts: The court considered S.2(2)'s definition of "building" as "any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes." The defendant argued that S.30(i) envisaged an entire building only. The court applied the standard rule that a statutory definition applies unless the context requires otherwise; it found no contextual repugnancy in S.30 that would justify excluding the definition. Accordingly, S.30(i) could apply to a part of a building separately constructed and lettable.
Effect of earlier amendment (Madras Act II of 1962): The court observed that the 1962 amendment altered clause (ii) of S.30 but did not shed light on the meaning of "building" in clause (i). The amendment addressed an anomaly in clause (ii) and was clarificatory; it did not alter the interpretation of clause (i).
Effect of 1973 amendment (Madras Act 23 of 1973): The 1973 amendment imposed a five-year temporal limit for the exemption in S.30(i). The defendant argued that if the building was completed in 1966, the five-year exemption expired (circa 1971) and therefore the defendant should be entitled to Act protections. The court relied on a Bench decision (Killick Nixon Ltd v. V. R. Narayana Rao) holding that the 1973 amending Act did not expressly or impliedly abate pending proceedings or decisions rendered before the amendment and thus was prospective. The court concluded that the 1973 amendment did not apply to the present proceedings (which arose before the amendment), so the temporal restriction did not defeat the plaintiffs' claim.
Conclusion from combined analysis: Because the court found (a) that the lower courts' factual finding of new construction and separate lettability stood, (b) that notification/intimation to the municipality sufficed and was supported by evidence (tax reassessment), (c) that the statutory definition of "building" includes parts and applies to S.30(i), and (d) that the 1973 amendment did not affect pending proceedings, it followed that the building (or the portion in question) was exempt under S.30 as it stood at the relevant time. Thus the suit for possession was maintainable in the Civil Court.

Holding and Implications

Holding: APPEAL DISMISSED — the Second Appeal lacked merit and was dismissed with costs. No leave was granted.

Direct implications for the parties:

The appellate court's decision (holding that S.30 applied and that the Civil Court could grant possession) stands affirmed by this court's dismissal of the Second Appeal.
The plaintiffs are therefore entitled to the reliefs as adjudged by the lower appellate court in respect of possession; the matter of mesne profits was left by the lower court to be decided in separate proceedings under Order 20, Rule 12, C.P.C., and that procedural direction remains intact.

Broader implications and precedent:

The court applied established principles (definition provisions apply unless context requires otherwise; statutes amending vested rights are to be treated as prospective unless clear intent to the contrary) and followed the cited Bench authority treating the 1973 amendment as prospective. The opinion does not purport to create a novel precedent beyond applying those principles to the facts before it.

Note: This summary is based exclusively on the content of the provided opinion. No information beyond that text has been added.

Show all summary ...

1. In this Second Appeal, the only question that arises is whether the suit building is exempted under the provisions of S. 30 of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. The suit property and the adjoining properties on the east and west belong to the plaintiffs. They were originally constructed with mud walls. Since they were in a dilapidated condition, the plaintiffs claimed to have demolished the same and put up new constructions in the month of December, 1966. The defendant became a tenant in respect of one of the shops so put up on a monthly rent of Rs. 100/. Originally he was to occupy the property for only one year. But, even after the expiry of the period of one year, the defendant continued to occupy the shop and did not vacate the premises. The plaintiffs claimed that they required the shop for their convenient enjoyment and also for additional accommodation. They pointed out that the entire construction of the property having been completed in 1966, the provisions of Sec. 30 of the Tamilnadu Buildings (Lease and Rent Coutrol) Act would apply so as to exempt the building from the operation of the said Act. They, therefore, came forward with a suit in the Civil Court praying for recovery of possession of the newly constructed shop in the occupation of the defendant (bearing door No. 69, in Tamil Sangam Road, Madurai Town, and for mesne profits.

2. The defendant resisted the suit on the ground that the plaintiffs had effected only minor repairs to the portion of Door No. 69, that the building had not been demolished of the Tamilnadu Buildings (Lease and Rent Control) Act, that the said building was, therefore, covered by the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act and that he wag entitled to the benefit of the said Act, so that in the absence of a valid notice to quit and in the absence of proceedings before the authorities constituted under the Tamilnadu Buildings (Lease and Rent Control) Act, he was not liable to be evicted he was entitled to the benefit of the said Act, so that in the absence of a valid notice to quit and in the absence of proceedings before the authorities constituted under the Tamilnadu Buildings (Lease and Rent Control) Act, he was not liable to be evicted. He, therefore, contested the suit on the ground that the suit itself was not maintainable.

3. The trial Court held that even though the suit property was constructed in the year 1966, since it was only a portion of the building bearing Door No. 69 it was not exempt from that Act so that the provisions of the said Act would apply and that, therefore, the suit for ejectment was not maintainable, The suit was, therefore, dismissed. The plaintiffs, therefore, appealed to the lower appellate Court.

4. The learned Principal Subordinate Judge on appeal pointed out in paragraph 6 of his judgment that in the instant case, it was not in dispute that the impugned shop along with the other shops were recently constructed in such a way that they could be let out separately, that they were let out to independent tenants and that each shop had an independent entrance and was thus capable of being let out separately for non-residential purposes. The learned Judge was inclined to hold that this was a case which would clearly come under the scope and purview of S. 30 of the Tamilnadu Buildings (Lease and Rent Control) Act and that the suit was perfectly maintainable in the Civil Court by virture of the said provisions. Before him, there was a plea based on the amendment under Act 33 of 1973 to the provisions of S. 30 of the Act. The learned Judge held that the amendment did not apply to the pending proceedings and that, therefore, the plaintiffs were entitled to the reliefs prayed for. He left open the question of mesne profits to be decided in separate proceedings under O. 20, R. 12, C.P.C

5. In the present appeal, the learned counsel for the appellant (Defendant) submitted that S. 30 of the Act would not apply to the present property. S. 30 of the Act provided:

“Nothing contained in this Act shall apply to any building, the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned”.

The point taken was that it was not a case where there was only construction (as distinguished from repair) of a building, which means a whole building, coming within the scope of S. 30 of the Act, the construction of which was completed after the Tamilnadu Act II of 1962 amending the Tamilnadu Buildings (Lease and Rent Control) Act. On this point there is a specific statement of the learned Principal Subordinate Judge that it was not in dispute that the impugned shop along with the other shops were recently constructed in such a way that they could be let out separately and that they were let out to independent tenants. In the face of this admission in the lower appellate Court, I do not think it possible to accept the submission of the learned counsel for the appellant so as to require me to go into the question of fact as to whether there was only a repair to the existing building or whether there was a construction of a new building. The courts below have proceeded on the basis that there was a construction of a new building on the said property. Therefore, I proceed on the basis that there is a construction of a building as contemplated by S. 30(i).

6. The next part of the objection was that S. 30(i) required two conditions to be satisfied, namely that the building must be one, the construction of which was completed after the date of the commencement of the Act and that there must be a notification to the local authorities concerned. The learned counsel took me through the plaint to show that there was no averment therein suggesting that there was any notification to the local authorities concerned. For the respondents, it was pointed out that the defendant had not taken up this point at any stage so far, and that if only he had taken up the point at any earlier stage, they could have let in the necessary evidence. My attention is also drawn to the deposition in the trial Court in which it was stated by the first plaintiff as P.W.1 that after he constructed the new building, he intimated the municipality. In the course of cross-examination, he has stated that he did not have any record for any such intimation. He has, however, filed Exs. A8 and A9 to show that as a result of the notice, the municipality had increased the tax for the property. Under Ex. A8, d. 12th September 1966 before the construction was completed, the tax was Rs. 293.37 per half year. Under Ex. A9, d. 14th March, 1968 after the building was completed, the tax was increased to Rs. 567.15 This was referred to in the course of deposition.

7. The point for consideration is whether there has been notification as contemplated by S. 30 of the Act in the present case. The section only says that ‘nothing contained in the Act shall apply to any building the construction of which was, after the date of the commencement of the Act, completed and notified to the local authority concerned.’ The word ‘notified’ does not appear to require any written notice. If it was so intended, the legislature would have said so. It is enough if there is an intimation given to the municipality and the evidence of P.W.1 clearly shows that there was such an intimation. I do not therefore, see any substance in the submission that there was no notification to the local authority concerned so as to satisfy one of the conditions required by S. 30(i) of the Act.

8. The learned counsel for the appellant took another point before me, namely, that S. 30 would contemplate a whole building being constructed and not a mere part. It was pointed out that the present property bore the same municipal door number as earlier so as to show that the property was only apart that had been constructed. For this purpose, my attention was drawn to S. 30(ii) in which the words ‘part thereof have been used so as to show that the building contemplated by Cl.(i) of S. 30 would only be the entire building and not a part thereof. S. 30, as it was enacted originally, ran, to the extent relevant, as follows:

“30, Nothing contained in this Act shall apply to—

(i) any building the construction of which was, after the date of the commencement of this Act, completed and notified to the local authority concerned, or

(ii) any residential building the rental value of which, on the date of the commencement of this Act, as entered in the property tax assessment book of the municipal council, District Board, Panchyat or panchayat union council or the Corporation of Madras, as the case may be, exceeds two hundred and fifty rupees per mensem, or

(iii)………………………………………”.

The word, ‘building’ has been defined in S. 2(2) as meaning “any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes”. Therefore, if the definition of the word ‘building’ as indicated in S. 2(2) applied, there can be no doubt that S. 30(i) and (ii) would apply even to a part of a building which had been constructed as contemplated by that provision. The contention of the counsel was that the context required the non-application of the definition. I have carefully considered this submission. I do not find that there is any substance in it. The definition would apply unless the context otherwise required. The context in S. 30(1) does not appear to require the ruling out of consideration of the definition provision. The section can be given a proper and reasonable meaning by applying the definition rather than by not applying it. There is no anomaly pointed out if the definition is applied. I do not therefore, see my way to accepting this part of submission by the learned counsel.

9. The learned counsel then drew my attention to the amendment of this provision later. The amendment was actually introduced by Tamilnadu Act II of 1962. Under that amendment, clause (ii) was amended to run as follows:—

“30. Nothing contained in this Act shall apply to

(i)……………

(ii) any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part thereof exceeds two hundred and fifty rupees.”

The difference in the wording between the old provision and the provisions as introduced in 1962 is obvious. The provision as indicated earlier applied only to a residential building, the whole of whose assessment exceeded Rs. 250/-. Supposing a tenant was occupying a small part of a building paying, say a sum of Rs. 10/- per month as rent and supposing the whole building had been assessed on the basis of the rental value of more than Rs. 250/- per mensem, then the tenant would, on the provision as it was, not be eligible for the protection extended by the Act. It is this anomaly which was sought to be rectified by the amendment made in 1962, so that the exemption would apply only to a case where the rental portion under the occupation of the tenant exceeds Rs. 250/-. This was obviously a clarificatory amendmect which came to be introduced when the anomaly existing in the previous provision, was realised. An existing meaning of a word in a provision does not change by a subsequent amendment of a different one. Therefore, the amendment in clause (ii) does not, in my opinion, in any way throw light on the meaning of the word ‘building’ in clause (i) of S. 30.

10. The learned counsel in order to support his proposition that the definition provision need not be read into every other provision of the Act drew my attention to the decision in A. Mohammed Jaffar Saheb v. A. Palaniappa Chettiar (1). The proposition laid down therein, namely, that the definition itself is restricted in its operation only when there is nothing repugnant in the subject or context, is a well-known proposition. The court was not in a position in that case to apply the definition provision to S. 7(3(c) of the Madras Buildings (Lease and Rent Control) Act, 1949, corresponding to S. 10(3)(c) of the Act of 1960 in the context of that particular provision. As I have already indicated, there is nothing in the context of S. 30, clause (i) which requires me to rule out of consideration the definition provision.

11. Another contention which was taken before me was that the provisions of the amending Act, 1973, would apply to the present case. Cl.(i) of S. 30 was amended by Tamilnadu Act 23 of 1973 so as to run as follows:—

“Nothing contained in this Act shall apply to (i) any building for a period of five years from the date on which construction is completed and notified to the local authority concerned: or”

The submission of the learned counsel was that assuming that this building was completed in 1966, the period of exemption would enure only upto 1971 or so, and that as we are in the year 1976, the exemption has already run out of force, so that the benefit of the Act would go to the defendant. The counsel was quite fair to bring to my notice a decision reported only in the short noties in Killick Nixon Ltd v. V. R. Narayana Rao (2). That was a decision of a Bench of this Court in A.S 518 of 1973. The counsel appears to have some doubt as to whether that was a case for fixation of fair rent and whether that decision would have any application to the facts of the the present case which is a case of eviction. In that decision, the learned Judges held that the amending Act (Madras Act 23 of 1973) did not indicate as to what was to happen to the decisions of civil courts rendered prior to the amendment of S. 30 of Madras Buildings (Lease and Rent Control) Act 18 of 1960. Therefore, the amending Act, it was held, could not be taken to affect pending proceedings or the decisions rendered therein. If the legislature intended the amendment to be retrospective so as to affect vested rights, the learned Judges held that it would have made a specific provision for abatement of the pending proceedings and the decisions rendered therein as was done when the amending Act (II of 1962) was passed. It could not be held that Act of 1973 either expressly or by necessary implication provided for abatement of pending proceedings. The Court took the view that in the absence of any such provision, it had to be taken that the amending Act was only prospective. This is a decision which is binding on me and it shows that the amendment made in 1973 to S. 30(i) would have no application to the proceedings commenced earlier in this case. As I have already indicated, counsel had some doubts as to whether this decision had been rendered in a case where a fair rent had to be fixed. The head-note shows that the judgment was rendered in a suit for ejectment and possession. That suit also had been decreed, as here, prior to the coming into force of the amending Act. Therefore, that decision would squarely apply to the facts here. The amendment restricting the exemption to a period of five years would not help the defendant here.

12. The learned counsel next submitted that if the decision of the Bench were to be applied here, then it would follow that the provisions of S. 30 Cl.(i) would have no application to a building like this for ever. It is not necessary for me to consider whether the provision would be out of force with reference to the present building incase the construction as contended for by the respondents is accepted. The matter does not arise here.

Any anomaly as pointed out by the learned counsel would not also justify a conclusion contrary to the specific and clear language of the provision as it was in force in the relevant year. If there is any anomaly as contended by the learned counsel, then the proper forum for getting over the anomaly would be a different one. In the circumstances, I do not see any substance in the plea of some anomaly, imaginary or real, so as to come to a different conclusion, on the face of the clear language of clause (i) of S. 30 as it was in force at the relevant time.

13. In the result, there is no merit in the Second Appeal and it is dismissed with costs. No leave.

VCS