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C. Kannammal v. Kanakasabai Mudaliar

Madras High Court

Nov 13, 1930

Judgment

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Concise Analytical Summary of the Opinion

Factual and Procedural Background

The present appeals arise from two ejectment suits in which the plaintiffs are the same and different defendants were sued in each case. The defendants pleaded protection under the Madras City Tenants Protection Act (referred to in the opinion as the City Tenants Protection Act). The learned City Civil Judge accepted that plea and dismissed the suits, and the plaintiffs appealed.

Relevant facts found in the opinion: rental agreements were executed in 1921 for five-year terms, with the lessees undertaking at the expiry to deliver vacant possession to the plaintiffs. The sites were used as firewood depots. Defendants contended that buildings (sheds) existed on the suit land long before the 1921 rental agreements. Plaintiffs' witnesses claimed the buildings were removed immediately before the agreements and re-erected afterwards (apparently to escape the Act), but the Court rejected that account as uncorroborated and improbable. The Court concluded the buildings pre-existed the leases and that Section 12 of the Act therefore did not apply.

Legal Issues Presented

Whether Section 12 of the Madras City Tenants Protection Act applied (i.e., whether the tenants had bound themselves in writing as to erection of buildings so as to take the cases out of the Act).
Whether the preamble to the Act limits the Act's protections to a narrower class of tenants — specifically, tenants who constructed buildings "in the hope that they would not be evicted" — so that inexpensive or makeshift structures (such as the sheds used as firewood depots) or tenants lacking the particular subjective expectation are excluded from protection.
Whether the plaintiffs complied with the procedural requirements (notice) prescribed by the Act such that they could recover possession.

Arguments of the Parties

Appellants (Plaintiffs)

The plaintiffs' witnesses asserted that the buildings were removed immediately before the execution of the 1921 rental agreements and re-erected afterwards (apparently to escape the Act's protection).
Implicit in their position is that the defendants should not be entitled to the Act's protection on the facts of these cases (for example, because the undertaking in the lease or the circumstances meant Section 12 or the Act did not apply).

Respondents (Defendants)

The defendants pleaded the provisions of the City Tenants Protection Act and argued that the buildings (sheds) existed long before the 1921 rental agreements, so the defendants are tenants falling within the Act's protection.
They contended that Section 12 (which applies where a tenant has bound himself in writing as to erection of buildings) could not apply to the present facts.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
L'Apostre v. Le Plaistrier (1708) cited in Copeman v. Gallant (1716) 1 P. Wms. 314	Example of using the preamble/title to restrict the meaning of general words in the body of a statute (limiting references to "any goods or chattels" to bankrupts' goods where preamble shows statute relates to bankrupts).	Used as an instance of the class of cases where a preamble may be consulted to confine the statute's scope when the text is otherwise general.
Brett v. Brett (1826) 162 E.R. 456	Example where the preamble narrowed the meaning of general statutory expressions (references to "any will or codicil" read as confined to wills/codicils devising real estate because of the preamble).	Offered as an illustrative authority that preambles may be used to limit statutory expressions in appropriate cases.
Reg v. Cockerton (1901) 1 Q.B. 726	Where the statute's title referred to Elementary Schools, references to "schools" in the body were treated as meaning Elementary Schools.	Another illustration of preamble/title being used to limit statutory scope where appropriate.
Nga Hoong v. The Queen (1857) 7 M.I.A. 72	Authority indicating that the text of a statute can go beyond the scope suggested by its preamble.	Cited to show that where the text is clear and wider than the preamble, courts should not read the preamble as restricting the express terms of the statute.
Ganesh Krishnaji v. Krishnaji (1889) I.L.R. 14 B. 387	Example where an Act styled/phrased for a particular class (the Dekkhan Agriculturists' Relief Act) nonetheless made provision wider than the preamble suggested.	Used to demonstrate that the statute's text may have a wider scope than its preamble and that courts should be cautious in limiting express provisions solely by reference to the preamble.
Queen-Empress v. Indarjit (1889) I.L.R. 11 A. 262	Example where the Workmen's Breach of Contract Act was held to have wider scope than its preamble indicated.	Cited similarly to show that Acts may operate beyond the scope implied by the preamble.

Court's Reasoning and Analysis

The Court's analysis proceeded in two main strands: (A) factual determination about the existence and timing of the buildings; and (B) legal construction of the Act and the role of the preamble.

(A) Factual findings and application of Section 12)

The evidence that the sheds/buildings existed on the land prior to the execution of the 1921 leases was described by the Court as "quite incontestable" and the plaintiffs' contrary account (that the buildings were removed and later re-erected) was rejected as uncorroborated and self-interested.
Given those factual findings, the Court held it unnecessary to pursue the contested question whether the undertaking in the lease amounted to a stipulation within Section 12; in any event, on the facts Section 12 could not apply because the buildings pre-existed the leases.
The Court also noted the Act's very wide definition of "building" (which explicitly includes "shed" and similar structures), and held it could not say that the firewood sheds fell outside that definition.

(B) Construction of the Act and the preamble)

The Court considered whether the preamble — which referred to tenants who had constructed buildings "in the hope that they would not be evicted so long as they pay a fair rent" — should be used to confine the Act's protections to that class of tenants only.
The Court explained the established principles for using a preamble: it may be resorted to (i) where the statute's text is susceptible of different constructions (ambiguity), or (ii) where very general language requires limitation by reference to the preamble to indicate the particular instances intended to be covered (citing Craies).
The Court reviewed illustrative authorities where preambles limited the text (L'Apostre v. Le Plaistrier; Brett v. Brett; Reg v. Cockerton) and authorities showing the text may go beyond the preamble (Nga Hoong; Ganesh Krishnaji; Queen-Empress v. Indarjit).
Applying these principles, the Court concluded that the preamble in this Act was too vague and imprecise to be read as a limiting provision that would confine the Act's explicit and otherwise clear provisions. The Court emphasized that before restricting an Act by its preamble, the Court must be satisfied that the Legislature intended such a restriction; courts should not speculate about legislative intention or substitute their own view for the express words of the statute.
Consequently, the Court held that the defendants could claim the benefit of the Act and that the plaintiffs had failed to comply with the Act's terms as to notice.

Concurring/Additional Remarks (Bhashytim Aiyangwr, J.)

The additional opinion characterizes the Madras City Tenants Protection Act as exclusively retrospective, applying only to tenancies created before its commencement, and reproduces the preamble wording cited by the Court.
The concurrence sets out definitions from Section 2: "building" (including house, out-house, stable, latrine, shed, hut and any other such structure, of any material), "land" (does not include buildings), and "tenant" (tenant of land liable to pay rent, those deriving title from him, and persons continuing in possession).
The concurrence summarizes the effect of the key operative provisions (sections 3, 9 and 12): generally a tenant who has erected a building and who is sought to be ejected has either (i) a right to recover compensation equal to the value of the building (s.3), or (ii) at his option, the right to acquire the land for the lowest market value it bore during the preceding seven years (s.9), except where section 12 applies (written stipulation and then erection pursuant thereto).
The concurring judge expressed judicial concern about the very wide and unqualified nature of sections 3 and 9 and their capacity to work hardship (noting section 9's expropriatory character), and stated that he had been inclined during the hearing to limit the Act to cases contemplated by the preamble. However, after consultation with his learned brother and having regard to the vagueness of the preamble, he agreed with the primary judgment and the order dismissing the appeals, though "not without some hesitation."

Holding and Implications

APPEALS DISMISSED WITH COSTS.

Direct consequences stated in the opinion:

The Court held that the defendants were entitled to claim the benefit of the Madras City Tenants Protection Act on the facts of these cases.
The plaintiffs had failed to comply with the Act's requirements regarding notice, and the suits were dismissed accordingly.
The concurring judge agreed with the result, while recording hesitation about the breadth of the Act's operative provisions but concluding that the preamble was too vague to justify limiting the Act's express terms.

The opinion does not set out broader policy consequences beyond the immediate effect on the parties; it focuses on applying the Act as written to the facts before the Court.

Show all summary ...

1. The plaintiffs are common to the two suits out of which these appeals arise, separate defendants being sued in ejectment. The defendants pleaded the provisions of the City Tenants Protection Act and the learned City Civil Judge has accepted this plea and dismissed the suits. The plaintiffs therefore appeal.

2. In each case a rental agreement was executed in 1921 for a term of five years, the lessee undertaking at the expiry of that time to deliver vacant possession to the plaintiffs. The evidence shows that the sites were used as firewood depots and the case of each defendant is that there was a building on the suit land long before the date of the rental agreements. Whether or not therefore the undertaking to deliver up the land as received by the tenant be held to amount to such a stipulation as is provided for by Section 12 of the Act as to the erection of buildings, that provision, it is contended, cannot apply to the facts of the present cases. The evidence that there were buildings on the land before the execution of the leases is in our view quite incontestable but it is unnecessary to discuss it because the plaintiffs' witnesses themselves speak of it. We agree with the Lower Court in being unable to accept their story that the buildings were removed immediately before the agreements were executed and re-erected afterwards. The only reason suggested is that the Act was then in prospect, but the evidence itself is interested, uncorroborated and seems clearly designed to escape the provisions of the Act. So far as appears, the firewood business continued uninterruptedly and there is no reason therefore to suppose that the sheds used in connection with it were taken down and put up again. Section 12 cannot therefore in our view have any application. Nor in view of the very wide definition of "building" which the Act contains are we able to say that the sheds are not comprised in that term.

3. The question has been raised whether in cases of this class, where the building is of so inexpensive a description, recourse may be had to the terms of the preamble to the Act in order to deprive the defendants of its protection. The preamble opens as follows:

Whereas it is necessary to give protection to tenants who in many-parts of the City of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land.

4. It is argued that it is only tenants who can establish that they constructed their buildings in the hope alluded to whom the Legislature intended to protect by this special enactment. Now it is well settled that the terms of a preamble may be resorted to in two classes of cases. The first class is where the text of the Statute is susceptible of different constructions, and it has not been suggested that any such difficulty arises here. Apart from such discrepancy as is to be found between the preamble and the text, the Act itself is perfectly clear and straightforward. The second class of cases is thus described by Craies, 3rd Edition, page 183:

If very general language is used in an enactment, which it is clear must have been intended to have some limitation put upon it, the preamble may be used to indicate to what particular instances the enactment is intended to apply.

5. That is to say that in some cases it may be permissible to control the scope of the enactment by the terms of the preamble. The text-writer goes on to cite two English cases in which such a course was adopted. The first was that of L'Apostre v. Le Plaistrier (1708) cited in Copeman v. Gallant (1716) 1 P. Wms. 314 where, the preamble showing that the statute related to the goods of bankrupts, a reference in the body of the Act to any goods or chattels was construed as restricted to the bankrupts' property. So in Brett v. Brett (1826) 162 E.R. 456 where the preamble only professed to deal with wills and codicils devising real estate, the expression "any will or codicil," whenever used in the Act. was held to mean only a will or codicil which devised real estate. On the same principle where the title of the Act showed that it related only to Elementary Schools, references to schools in the body of the Act were held in Reg v. Cockertori (1901) 1 Q.B. 726 to mean Elementary Schools. It may be said that cases such as these also depend upon the existence of an ambiguity, although it is not the meaning of the Act itself which is doubtful but of the Act when read with the title or preamble, and where the enactment is sufficiently explicit of itself it may not be permissible to look into the preamble in order to obtain a gloss upon it. There can be no doubt indeed that many instances could be found of the text of an Act going beyond its preamble. This was recognized in Nga Hoong v. The Queen (1857) 7 M.I.A. 72. In Ganesh Krishnaji v. Krishnaji (1889) I.L.R. 14 B. 387 it was held that the Dekkhan Agriculturists' Relief Act, although so styled and although the preamble showed that the Act was intended only for the relief of agriculturists, yet made provision in section 3 for certain suits not relating to agriculturists. Similarly, in Queen-Empress v. Indarjit (1889) I.L.R. 11 A. 262 the Workmen's Breach of contract act (xiii of 1859) was held to have a wider scope than the language of its preamble would show. It is, I think, indisputable that before restricting the scope of an Act by the terms of its preamble the Court must be satisfied that there was an intention on the part of the Legislature that its scope should be so restricted and, in fact, that the Legislature would have agreed, had the point been so put, that the passage relied upon in the preamble should form part of the text of the Act. It is not open to the Court to speculate regarding the intentions of the Legislature or to frame its decisions in conformity with what it would itself have done had it been legislating. Now in the present instance, if the preamble had declared it necessary to protect a certain clearly defined class of tenants, it might be reasonable to hold that, although the text is silent, there was an intention so to restrict it; though even then the meaning of the Act would not be so clear as if the restriction had appeared in the body of it. But the expression "tenants who in many parts of the City of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land" is as far as possible from defining a class, and I think it very doubtful whether any Legislature can have intended to impose on the Courts the difficult, if not impossible, duty of deciding on the presence of such an attitude of mind. Nor would it be in any degree usual to make such an attitude of mind a test of the possession of legal rights. It seems to me more probable that the Act was passed in its wide terms because they were the only workable terms, and in the hope that it would approximately remedy the existing evils and hard cases would be few. While, therefore, it can hardly be doubted that the Act must sometimes work hardship upon landlords, I do not think it is permissible to give them relief by recourse to this method of construction.

6. I must accordingly hold that the defendants could claim the benefit of the Act and that the plaintiffs failed to comply with its terms as regards notice. The appeals are accordingly dismissed with costs.

Bhashytim Aiyangwr, J.

7. I wish to add a few words on the Madras City Tenants Protection Act, which has come in for construction in these cases. It is an exclusively retrospective enactment as it applies only to tenancies created before its commencement. Its preamble shows that the Legislature set about it

"to give protection to tenants who in many parts of the City of Madras have constructed buildings on others' lands in the hope that they would not be evicted so long as they pay a fair rent for the land"

. But it is found that the actual provisions of the Act are far too wide and unqualified. Before proceeding to consider them the following definitions of building, land and tenant given in the interpretation clause, that is, Section 2, have to be stated:

Building includes a house, out-house, stable, latrine, shed, hut and any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever";

Land does not include buildings;

Tenant means tenant of land liable to pay rent on it, every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy.

8. Now going to the body of the Act its important sections are only sections 3, 9 and 12, The other sections are either immaterial for our present purpose or are merely subsidiary. The effect of sections 3, 9 and 12 may be summarised thus: except in cases where a tenant of land has first bound himself by stipulations in writing registered as to the erection of buildings and then erected the building (section 12) every tenant of land who has erected a building on it and whom the landlord seeks to eject from the land shall have the right to recover compensation equal to the value of the building (section 3), or, at his option, the right to acquire the land from its owner for the lowest market value it bore within the next preceding 7 years (section 9). It., is noteworthy that these provisions stand absolutely unqualified. The area of the land, the period or the avowed purpose of the lease, the size or character of the building put up by the tenant, none of these or similar considerations are made to count for anything. 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. The landlord might have himself paid much more for the land than its minimum market value during the next preceding 7 years, still he could recover no more than that minimum from the tenant for parting with his property. I found it hard to believe that the provision in section 9 which is capable of working so much injustice and hardship on the landlord and which so partakes of the nature of expropriation could have been intended to apply "to all tenancies of land created before the Act. I was accordingly inclined during the hearing to the view that its application should be confined to the class of cases contemplated in the preamble, that is, to cases where the tenant put up his building under circumstances from which it may reasonably be inferred that he did so in the hope or expectation that he would not be evicted from the land so long as he paid a fair rent for it. But on subsequent consultation with my learned brother as to how far the preamble of an Act can be held to confine the scope of its express provisions and having regard to the vagueness of the preamble in question I am not sure that the view entertained by me is free from doubt. On the footing that the text of this Act cannot be read subject to its preamble the view taken by my learned brother in the judgment just pronounced is, if I may say so with respect, unexceptionable. I accordingly agree with the order made by him though still not without some hesitation.