ORDER
S. Jagadeesan, J.
1. 1. In all these writ petitions the validity of the Madras City Tenants' Protection (Amendment) Act, 1994 (hereinafter referred to as Act 2 of 1996) whereunder Clause (f) was added to the first proviso to Sub-section (3) of Section 1 of the Madras City Tenants' Protection Act, 1921 (hereinafter referred to as Act 3 of 1922) is being challenged. Under the said Amendment Act 2 of 1996 the properties owned by the religious institutions are exempted from the purview of the Act 3 of 1922.
2. In all these writ petitions, the petitioners are the tenants in respect of the property belonging to various religious institutions. The Division Bench referred these cases by their order dated 15.10.1996 to a larger Bench, as a doubt is raised as to whether the earlier judgment of the Division Bench in the case of Varadaraja Pillai v. Salem Municipal Council, 1972 (85) L.W 760 dealt with the right of the tenants under Section 9 of the main Act 3 of 1922 alone or also dealt with the right of the tenants under Section 3 of the said Act 3 of 1922.
3. In fact we had an occasion to deal with this batch of cases earlier and we dismissed all the writ petitions by our judgment dated 30.8.2000 holding that since the judgment in Varadaraja Pillai's case 1972 (85) L.W 760 was taken on appeal to the Supreme Court in C.A.187 and 273 of 1973 and the appeals having been dismissed by the Supreme Court by order dated 10.9.1986 the judgment in Varadaraja Pillai's case 1972 (85) L.W 760 got merged with the judgment of the Apex Court dated 10.9.1986 in C.A.187 and 273 of 1973 and on the ground of doctrine of merger, it is not open to us to reconsider the Apex Court judgment.
4. Some of the petitioners herein took the matter on appeal in C.A.No.2480 and 2481 of 2001 etc. The Apex Court by judgment dated 18.9.2002 allowed the appeals and set aside the order of this Court dated30.8.2000 and remanded the matter for fresh disposal by this Court. The Apex Court was of the view that its decision in Varadaraja Pillai's case will not attract the doctrine of merger, since the appeals 187 and 273 of 1973 were dismissed on the technical ground without any law being laid. Hence the batch of cases is taken up for final disposal.
5. The petitioners are admittedly the owners of the superstructures in the site belonging to the various religious institutions each of which is one of the respondents in the respective writ petitions. In fact the religious institutions leased out the site to the petitioners on various terms and conditions and the petitioners, with such sanction of the landlord, have constructed the building. In some of the cases the owners of the land, the religious institutions filed the civil suits for recovery of possession of the respective properties in accordance with the terms of the lease.
6. As Act 3 of 1922 confers a right on the tenant to file an application under Section 9 of the said Act, seeking for the conveyance of the land, the petitioners in some of the cases filed petitions under Section 9 and got favourable orders.
7. Now by virtue of the amendment introduced to the main Act through Tamil Nadu Act 2 of 1996, the properties owned by the religious institutions were exempted from the purview of the Act. The petitioners filed these writ petitions challenging the constitutional validity of the said Act.
8. When originally these writ petitions were listed before the Division Bench consisting of Hon'ble Mr. Justice K.A. Swami, the Chief Justice and Hon'ble Mr. Justice AR. Lakshmanan while the learned Judges heard the matters, the Government Pleader placed reliance on the decision of the earlier Division Bench of this Court in Varadaraja Pillai's case 1972 (85) L.W 760 and contended that the amendment introduced by the Tamil Nadu Act 2 of 1996 is identical to an earlier amendment introduced to the main Act under Section 2 of the Amending Act 13 of 1960 whereby the first proviso to Subsection (3) of Section 1 of the Act 3 of 1922 was added. Under Section 2 of the Act 13 of 1960 the buildings owned by the Corporation of Chennai and other focal authorities such as Panchayat, Municipality and other City Corporations etc. were exempted from the purview of the main Act 3 of 1922. Under the Amending Act 1960 the definition 'building' was also substituted whereby it was made clear that the 'building' will include a building 'residential' or 'non-residential' in the City of Madras etc. While considering the constitutional validity of those amendments in Varadaraja Pillai's case 1972 (85) L.W 760 the Division Bench upheld the same. Since the provisions under the Tamil Nadu Amendment Act II of 1996 being identical to that of the amended provisions of Act 13 of 1960, the Division Bench judgment in Varadaraja Pillai's case 1972 (85) L.W 760 would squarely cover the issues involved in these writ petitions.
9. In the present batch, the Division Bench, after hearing the above arguments of the Government Pleader felt some difficulty in accepting the principles laid down by the Division Bench in Varadaraja Pillai's case1972 (85) L.W 760 that Amending Act 13 of 1960 repealed the right of the tenant to claim compensation under Section 3 of the main Act III of 1922.
10. Hence the Division Bench referred the matter to a larger Bench. The order of reference dated 15.10.1996 is reported in S.Shanmugavel v. The State of Tamil Nadu by its Secretary Law Dept. Madras-9, 1997 (1)L.W 55 (JS).
11. Since the batch is listed before us on an order of reference, it is but necessary for us to extract the relevant portion of the order of reference which is as follows:
'During the course of the arguments, learned Government Pleader for H.R. & C.E., sought to rely upon a decision of the Division Bench of this Court in Varadaraja Pillai v. Salem Municipal Council 1972 (85) L.W.760. In the said decision, Madras City Tenants' Protection Act 3 of 1922 and Amending Acts 6 of 1926, 19 of 1955 and 13 of 1960 are considered. While dealing with the validity of the provisions contained in the said Act, it has been held that the tenant would not be entitled to claim compensation to the superstructure put up by him. The relevant portion of the judgment reads thus:
'Learned counsel urged that under Section 3 the superstructure belongs to the tenant, that there was no need for the tenant to file any application for conveyance under Section 9, that the moment the tenant put up the building he became the owner of it, but his right to claim compensation was postponed till an action in ejection was filed by the landlord. Learned counsel further urged that under Section 9 the tenant is to acquire the landlord's land and that right, even if taken away, is different from the right under Section 3 and the extinguishment of the tenant's right to his own property which he had put up with his own money. We are not impressed with his argument and we are not prepared to hold that there is any difference in the principle so far as the effect of the repeal is concerned, whether it is a right under Section 3 or a right under Section 9.' While dealing with Article 14 of the Constitution, it has been held thus:-
'After this clear pronouncement, it is not open to the tenant to urge that the exclusion of tenancies of lands belonging to municipal councils is discriminatory and arbitrary or that the deprivation of the rights of the tenant under Sections 3 and 9 with retrospective operation is an unreasonable restriction and not in the interests of the general public, being violative of the conditions in Article 19(5).' According to this decision, Act 13 of 1960 has repealed the right of the tenant to claim compensation under Section 3 of the Act, As the present Act is in pari materia, the reasons stated therein would be equally applicable.
However, we find it difficult to agree with the said decision having regard to the wordings contained in the Proviso to Sub-section (3) of Section 1 of the Act and also the Objects and Reasons stated for enacting Act 2 of 1996 and also the provisions contained in Section 3of Act 2 of 1996. The proviso to Sub-section (3) of Section 1 specifically provides thus:
'Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which a decree or order passed has been executed or satisfied in full before the said date.' It does not refer to the superstructure constructed on the land by the tenant. Under Section 3 of Act 2 of 1996, what is abated is the proceedings instituted by the tenant in respect of any land owned by religious institutions or religious charities belonging to Hindu, Muslim, Christian or other religion and pending before any Court. Under the Madras City Tenants' Protection Act, two rights are given to the tenant viz., to claim compensation of the value of the building put up by him, on ejection, alternatively, he has an option to apply to the Court for an order directing the landlord to sell the land to mm for a price to be fixed by the Court.
In the Statement of Objects and Reasons, as extracted above, two reasons are given. Taking into consideration all these aspects, we are inclined to take a view that Act 2 of 1996 only takes away the right of the tenant to make an application under Section 9 of the Act. However, the right to claim compensation for the superstructure put up by him with the consent or permission of the landlord, in the event he is evicted from the land, under Section 3 of the Act, cannot be held to have been taken away, because the proviso to Sub-section (3) of Section 1 of the Act deals only with the tenancies of the land owned by the institutions, referred to in the subsequent clauses, whereas Section 3 only relates to compensation for the value of the building put up by the tenant, on ejectment. Thus the building put up by the tenant, on the land belonging to the religious institution or any other institution, as enumerated in the proviso to Sub-section (3) of Section 1 of the Act, is not touched by the amendment.
In fact, in S.M. Transports P. Ltd. v. Sankaraswamigal Mutt, their Lordships of the Supreme Court have held that they were not concerned, in that case, with the rights conferred under Section 3 of the Act. This is made clear in para 30 of the said judgment which is as follows:
'..We are not concerned here with the rights conferred under Section 3 of the Act, for the simple reason that neither of the appellants claimed a right thereunder. Both of them have taken proceedings only under Section 9 of the Act and they have approached the High Court for a writ of mandamus that the petition should be disposed of under the provisions of Section 9 of the Act. This Court's opinion on the question of the Constitutional validity of the Act in so far as deprived the appellants of their right under Section 3 of the principal Act is not called for; that will have to be decided in an appropriate case. The question that falls to be considered is whether the second right, namely, the right of a tenant to apply to the Court for an order directing the landlord to sell the land to him for a price to be fixed by it, under Section 9 of the Principal Act is a right to property. The law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that theright is created not by contract but by a statute cannot make a difference in the content or the incidents of the right; that depends upon the nature and the scope of the right conferred, the right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any the less a non proprietary right. In our view, a statutory right to apply for the purchase of land is not a right of property. It is settled law that a contract to purchase a property does not create an interest in immovable property. Different consideration may arise when a statutory sale has been effected and title passed to a tenant that was the basis of the judgment of this Court in Jayavantsinghji v. State of Gujarat, on which Mr.Viswanatha Sastry relied. But we are not concerned here with such a situation. It is said that the appellants have acquired a right under the 1955 Act to hold and enjoy the building erected by them by exercising their right to purchase the site of the said business and that the impugned Act indirectly deprived them of their right to hold the said buildings. This argument mixes up two concepts, namely (i) the scope and content of the right, and (ii) the effect and consequence of the deprivation of that right on the other properties of the appellants. Section 9 of the principle Act extended by the 1955 Act, only confers a right in respect of the land and not of the superstructure. If that Act held the field, the appellants could have purchased the land, but by reason of the 1960 Act they could no longer do so. Neither the 1955 Act conferred any right as to the superstructure under Section 9 of the principal Act nor did the 1960 Act take that right away if this distinction between the land and the superstructure is borne in mind the untenability of the argument would become obvious. The 1960 Act does not in any way affect the appellant's fundamental right. Therefore, their prayer that the District Munsif should be directed to proceed with the disposal of the applications filed by them under Section 9 of the principal Act could not be granted. The aforesaid decision in S.M. Transport's Case, of the Supreme Court, was heavily relied upon by this Court in deciding Varadaraja Pillai's Case, 1972 (85) L.W 760. However, the aforesaid aspect of the case pointed out by the Supreme Court does not appear to have been taken note of. For all these reasons, we are of the view that the decision in Varadaraja Pillai's Case, 1972 (85) L.W 760 requires re-consideration. Therefore, we are of the opinion that it is just and appropriate to refer these cases to a larger Bench.'
12. A careful perusal of the order of reference makes it clear that the Division Bench in the case of Varadaraja Pillai, 1972 (85) L.W. 760 was of the view that the judgment does not reveal that different rights under Section 3 and Section 9 of the principal Act distinctly discussed by the Supreme Court in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt, had been taken note of. According to the order of reference, without considering the distinct rights under the two provisions viz., of Section 3 and Section 9 of the principal Act, the Division Bench in the case of Varadaraja Pillai v. Salem Municipal Council 1972 (85) L.W.760 held that it is notopen to the tenant to urge that the exclusion of tenancies of land belonging to Municipal Councils is discriminatory and arbitrary or that the deprivation of the rights of the tenancies under Section 3 and Section 9 with retrospective operation is an unreasonable restriction and that in view of the judgment of the Supreme Court in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt, the judgment in Varadaraja Pillai v. Samem Municipal Council, 85 L.W.760 is to be reconsidered.
13. As the Apex Court by order dated 18.9.2002 in C.A.2480 of 2001 etc. directed the Full Bench to hear and decide all the controversies arising for decision in the writ petitions, we gave a full hearing to the respective counsel.
14. Before entering into the discussion, it is better to have a look at Sub-section (3) of Section 1 of Act 3 of 1922 which is as follows:
'This Act shall apply:-
(a) in the areas in which this Act is in force on the date of publication of the Madras City Tenants' Protection (Amendment) Act, 1979 in the Tamil Nadu Government Gazette, only to tenancies of land created before that date; and
(b) in any other area, only to tenancies of land created before the date with effect from which this Act is extended to such area by notification under Clause (b) of Sub-section (2):
Notes:-Sub-section (3) substituted by Tamil Nadu Act 2 of 1980.
Provided that nothing contained in this Act shall apply to tenancies of land owned,-
(a) in the city of Madras, by the Corporation of Madras,
(b) in any other municipal area, by the Municipal council concerned;
(bb)in any township by the township committee concerned.
Notes:-Clause (bb) inserted by Tamil Nadu Act 2 of 1980.
(c) in any area in a district as defined in the Madras District Boards Act, 1920 (Madras Act XIV of 1920), which is comprised within the local limits of a panchayat constituted under the Madras Village Panchayats Act, 1950 (Madras Act X of 1950), or of a Panchayat Act, 1958 (Madras Act XXXV of 1958), or by the panchayat union council concerned;
(d) in the case of all areas in a district defined as aforesaid which are not comprised within the local limits of such panchayat or panchayat union by the District Board concerned; and
(e) by the board of Trustees for the improvement of the City of Madras Constituted under the Madras City Improvement Trust Act, 1950 (Madras Act XXXVII of 1950):
Provided further that nothing contained in this Act shall apply to tenancies of land vested or deemed to be vested in, or acquired by, the Board of Trustees of the Port of Madras under the Major Port Trusts Act, 1963 (Central XXXVIII of 1963). Notes:-Proviso to sub-section (3) of Section 1 added by Madras Act III of 1960 and the second proviso inserted by Madras Act XXV of 1955.
(f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion.
Explanation-.-For the purpose of this clause,-
(A)'religious institution' means any-
(i) temple;
(ii) math;
(iii) mosque;
(iv) church;
(v) other place whatever name known;
which is dedicated to, or for the benefit of, or used as of right by, any community or section thereof as a place of public religious worship.
(B)'religious charity' means a public charity associated with a religious festival or observance of religious character (including wakf associated with a religious festival observance of religious character), whether it be connected with any religious institution or not.
Notes:-Clause (f) inserted by Tamil Nadu Act 2 of 1996 with effect from 11.1.1996.'
15.The first proviso to Sub-section (3) of Section 1 exempts from the purview of the Act the tenancies of the land owned by
(a) the Corporation of Madras, in the City of Madras;
(b) owned by the Municipal Council concerned, in any other municipal area;
(bb) by the Township Committee concerned, in any Township;
(c) by the Panchayat or by the Panchayat Union Council constituted under the Tamil Nadu Panchayats Act, 1958, the panchayat constituted under the Tamil Nadu Village Panchayats Act, 1950;
(d) by the District Board concerned in case of all areas in a District which are not comprised within the local limits of such panchayat or panchayat union;
(e) by the Board of Trustees for the Improvement of the City of Madras constituted under the Madras City Improvement Trust Act, 1950 (Madras Act XXXVII of 1950).
16. By way of amendment under the Act II of 1966 one more clause (f) is added to the first proviso to Sub-section (3) of Section 1 which is as follows:
(f) by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion,
Explanation - for the purpose of this clause:-
(A)'religious institution' means any-
(i) temple;
(ii) math;
(iii) mosque
(iv) church; or
(v) other place by whatever name known which is dedicated to or for the benefit of, or used as of right by, any community or section thereof as a place of public religious worship;
(B)'religious charity' means a public charity associated with a religious festival or observance of religious character (including a wakf associated with a religious festival or observance of religious character) whether it be connected with any religious institution or not.'
17. Under the newly introduced clause, the tenancies in respect of the land owned by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religion have been exempted from the purview of Act III of 1922. In these writ petitions, the validity of this amendment is being challenged.
18. The learned senior counsel for the petitioners contended that the original Act 3 of 1922 is intended to confer the benefit on the tenants with the intention that the tenants who construct the superstructure in the site under the lease cannot be harassed or put to loss by the eviction proceedings. Now the amendment introduced under the Amending Act 2 of 1996 virtually confers a right on the landlords which is contrary to the intention of the legislature while enacting the principal Act. Further the principal Act confers a right on the tenant under Section 9 to purchase the site. If the tenant is unable to purchase the site, under Section 3 the tenant is entitled for compensation in respect of the superstructure. Now by the Amending Act which is under challenge, the rights of the tenants under both the provisions are taken away which is unreasonable. It is further contended that the classification made under the Amending Act between the leases under the religious institutions and the leases under other category is also unreasonable and arbitrary as there is no nexus with the object that is sought to be achieved by such classification of the tenancy. It was also contended that the Amending Act does not make any distinction between residential and non-residential tenancies; especially when both the tenancies cannot be treatedalike. They added that the amending provision is in violation of Article 19(1)(g) and 21 of the Constitution of India. Further Section 3 of the Amending Act 2 of 1996 contemplates the abatement of the pending proceedings which would amount to taking away the vested right of the tenants in cases where the tenants had obtained an order from the Court in respect of the purchase of the property or in respect of the payment of compensation. By taking away such right, the tenants are compelled to forgo their property in favour of the landlord and as such the same is in violation of Article 300A of the Constitution of India.
19. Per contra, the learned Additional Advocate General contended that Act 3 of 1922 being a beneficial legislation, granting certain benefits to the tenants who constructed the superstructure, it is always open to the State to withdraw such benefits conferred under the Statute, depending upon the need in the larger interest. There is no absolute conferment of right on the tenants to purchase the site. Always such rights of the tenants are subjected to the landlord exercising their right of recovery of possession. When that be so, the contention raised on behalf of the tenants that they have got an absolute right of purchase of the site and the same was taken away by way of amendment, cannot be sustained. Even in respect of Section 3 of Act 3 of 1922 which deals with the rights of the tenants to receive the compensation for the superstructure, the Court is empowered to determine the compensation in accordance with Section 4 of the Act 3 of 1922. At the same time no machinery is provided under the said Act which enables the tenant to compel the landlord to pay the compensation. Section 6 of Act 3 of 1922 deals with the situation where the landlord failed to pay or deposit the compensation for the superstructure. In such circumstance, it cannot be said that Act 3 of 1922 confers unbridled right on the tenant to receive the compensation. He further contended that Act 3 of 1922 is a special enactment, dealing with the rights of the tenant who raised the superstructure in the lease-hold site and also the obligation of the landlord. By virtue of the amendment, the provisions of Act 3 of 1922 stand repealed so far as the religious institutions mentioned in Clause (f) of Sub-section 3 of Section 1 of the principal Act are concerned. When a beneficial legislation is repealed, naturally the rights of the parties would be governed under the general law, as if the beneficial legislation was never in existence. When the special enactment is legislated, then the application of the general law being excluded. Now by virtue of the repealing of the said beneficial legislation, the general law would come into play. Article 300A of the Constitution of India is not attracted, since the property of the tenant is not taken away by the State. So far as the classification is concerned, the tenancies in respect of the properties owned by the religious institutions, form one group, when compared with the other tenancies. In fact the tenancies in respect of the religious institutions were exempted from the purview of the Rent Control Act and such exemption having been upheld by the Apex Court, on the same principle, the present Amendment Act also has to be upheld. The right claimed by the tenants being one conferred under the Statute, it cannot besaid such right is a vested right of the tenants. When the legislature confers certain rights under the Statute to a certain group of individuals, it is always open to the legislature to take away such rights. When the petitioners in these cases did not challenge the legislative competence of the legislature in enacting the amended Act, the further question does not arise for consideration.
20. Mr.T.R. Rajagopalan, the learned senior counsel appearing for some of the religious institutions adopted the argument of the learned Additional Advocate General.
21. Mr. Mohan Parasaran, appearing for the petitioner in W.P.4814 of 1997 contended that so far as his client is concerned, the landlord filed the suit for eviction and the petitioner filed an application under Section 9 of Act 3 of 1922. The Court allowed the application and the proceedings with regard to the determination of the value of the land and the extent of the land to be conveyed to the petitioner are pending. In such circumstance, the petitioner, by virtue of the order of the Court, has a right to purchase the site and when that be so, it is not open to the legislature to take away such right by nullifying the judgment of the Courts by virtue of Section 3 of the Amending Act which contemplates the abatement of the pending proceedings.
22. Mr. Ram Mohan, the learned senior counsel also contended that the proviso to Section 3 of the Amending Act will be applicable even in a case where the tenant had deposited the value of the land in the Court and it need not be a case of finality. When the quantum of compensation in respect of the land to be paid by the tenant is determined and the amount had been deposited, the rest is only the routine procedure, unconnected with the rights of the parties. In fact once an order is passed under Section 9 that confers a right on the tenant to purchase the site and such right cannot be taken away by the legislature.
23. From the above arguments, the questions that arise for consideration are:
(i) Whether the Amending Act 2 of 1996 of the Madras City Tenants' Protection Act offends Article 14, 15, 19(1)(g) and 21 of the Constitution of India?
(ii) Whether exemption granted to the religious institutions from the purview of Act 3 of 1922 has no nexus with the object that is sought to be achieved?
(iii) Whether Section 3 of the Amending Act 2 of 1996 takes away the vested rights of the tenant in cases where the tenants have obtained order in their favour in the applications filed under Section 9 of the original Act 3 of 1922?
(iv)Whether amending Act 2 of 1996 takes away the right of the tenant for compensation in accordance with Section 3 of the Principal Act 3 of 1922?
24. If we have a look at the order of reference of the learned Division Bench, it is clear that the Division Bench entertained a doubt as to whether the principles laid down by the Division Bench in Varadharaja Pillai's case, wherein it was held that it is not open to the tenant to urge that the exclusion of the tenancies of the land belonging to the Municipal Councils, is discriminatory or arbitrary or that the deprivation of rights of the tenants under Sections 3 and 9 with retrospective operation is an unreasonable restriction, is correct because, while the Division Bench which dealt with the Varadaraja Pillai's case, relied upon the Supreme Court judgment in S.M.Transports (P) Ltd v. Sankaraswamigal Mutt, and ultimately held that the rights of the tenants under Sections 3 as well as 9 were taken away. Whereas the Apex Court while dealing with S.M.Transport's case, specifically excluded from their discussion about the rights of the tenants under Section 3 of the Act which is clear from the following passage:
'This Court's opinion on the question of the constitutional validity of the Act in so far as it deprived the appellants of their right under Section 3 of the principal Act is not called for, that will have to be decided in an appropriate case.'
25. When the Apex Court did not consider the validity of the Act 13 of 1960 with reference to Section 3 of the principal Act 3 of 1922, the Division Bench in Varadaraja Pillai's case is not correct in coming to the conclusion that the rights of the tenants under Sections 3 and 9 of the Principal Act are covered by the judgment of the Apex Court in S.M.Transports case. However, the Division Bench which referred the batch to larger Bench concluded that the issue in so far as the right of the tenant concerned under Section 9 of the principal Act is covered by the judgment of the Division Bench in Varadaraja Pillai's case which placed reliance on the Apex Court judgment in S.M.Transport's case.
26.The learned counsel for the petitioners pointed out that the order of remand of the Supreme Court dated 18.9.2002 has directed this court to decide all the issues raised in the writ petitions fully and finally and hence it is for this Court to decide all the controversies arising for decision in these writ petitions in full and further contended that this Court has to go into the validity of Amending Act 2 of 1996 with reference to Sections 3 and 9 of the Principal Act.
27. Though we are of the view that the order of reference pertains to the validity of the Amending Act with reference to Section 3 of the Principal Act, the order of remand is not clear as to whether this Court has to go into the validity of the amending Act with reference to Sections 3 and 9 of the Principal Act or the validity of the amending Act with regard to Section 3alone along with other controversies arising in individual cases which may be the out come of our judgment. To avoid any controversy, we deal with all the questions raised before us.
28. Issue No.1 to 3: If we have a look at the statement of objects and reasons of Act 3 of 1922, it is clear that the dwelling houses and other buildings within the limits of the City of Madras have been erected by the tenants on the lands belonging to others in the expectation that subject to the payment of fair ground rent they would be left in undisturbed possession, notwithstanding the absence of any specific contract as to the duration of the lease or the terms on which the buildings were to be leased. Attempts made or steps taken to evict a large number of such tenants had shown that such expectations were likely to be defeated. The tenants, if they were evicted, can, at the best, only remove the superstructure, which has to be done only by pulling down the building. As a result of such wholesale destruction, congested parts of the City (Municipal Town) would become more congested to the serious detriment of public health. In the circumstance it was just and reasonable that the landlords when they evicted the tenants should pay for and take the building. There may however be cases where the landlord would be unwilling to eject a tenant, if he could get a fair rent for the land. The Act provides for the payment of compensation to the tenant in case of ejectment for the value of any buildings which may have been erected by him or his predecessors in interest. It also provides for the settlement of fair rent at the instance of the landlord or tenant. Provision is also made to enable the tenant to purchase the land in his occupation.
29. Section 1 of the Principal Act deals with the area of application of the Act. By way of amendment, periodically, the applicability of the Act has been extended to more areas. Section 3 of the Principal Act deals with the payment of compensation on ejectment. Section 5 of the Principal Act deals with the determination of the compensation awardable under Section 4 of the Principal Act which deals with the disposal of the suit for ejectment. Section 6 of the Principal Act deals with the case where the landlord is unable to or unwilling to pay the compensation. Section 9 of the Principal Act deals with the fight of the tenant to apply for the purchase of the land. However, the proviso to Sub-section (3) of Section 1 deals with the exemption of the tenancies in respect of the land owned by various authorities from the purview of the Act.
30. Under the Amending Act 13 of 1960, the buildings relating to the tenancies of the statutory authorities such as the Corporation of Madras for the City of Madras; Municipal Council concerned in any other Municipal area Township Committee concerned in any Township; by the Panchayat or by the Panchayat Union Council constituted under the Tamil Nadu Panchayat Act, 1958 and the Tamil Nadu Village Panchayats constituted under the Village Panchayat Act, 1950 as well as the District Board, are exempted.
31. Under the impugned amended Act, Sub-clause (f) was introduced to the proviso to Sub-section (3) of Section 1 of the Principal Act exempting the properties owned by the religious institutions and religious charities.
32. The statement of objects and reasons pertaining to the amended Act 2 of 1996 are as follows:
'Temples and other Religious Institutions own large extents of lands endowed to them by their devotees in the City of Madras and in other urban areas. The urban vacant lands have been taken on lease by individuals on very low rents for construction of residential as well as non residential buildings thereon. The lease rents for the lands fixed several years ago have no relationship either to the extent occupied or to the locality. Further, the Madras City Tenants Protection Act, 1921 (Tamil Nadu Act III of 1922) inter alia confers on the tenant who has erected a building on the land leased out to him and against whom eviction proceedings have been initiated, the right to apply to the Court to direct the sale of the whole or part of the land to him. The Act as it now stands applies to tenancies of lands owned by religious institutions and religious charities belonging to Hindu, Muslim, Christian or other religion also. It is considered that the provisions of the said Act, under which the landlord can be forced to make a sale of the land leased out to a tenant would not be in the interest of the religious institutions and the religious charities and that it is not desirable to allow lands belonging to the religious institutions and religious charities which have been endowed by the devotees to be taken away from them by the tenants. With a view to enabling such religious institutions and religious charities to get reasonable income from their urban properties it is proposed to amend the said Madras City Tenants' Protection Act, 1921 so as to exempt such tenancies of lands owned by such religious institutions and religious charities from the provisions of the said Act, with necessary abatement provision. The Bill seeks to give effect to the above proposal.' (Italics supplied)
33. From the above statement of objects and reasons, it is clear that the amendment Act 2 of 1996 was enacted with an avowed object of excluding the tenancies of lands owned by the religious institutions and religious charities belonging to Hindu, Muslim, Christian and other religious institutions from the purview of the Madras City Tenants' Protection Act, 1922 so that the landlord is not forced to make a sale of the land leased out to the tenant and thereby enabling the religious institutions and the religious charities to retain the land endowed by the devotees to subserve the object of endowment and at the same time to enable the religious institutions and religious charities to get reasonable income from the urban properties.
34. By virtue of this exemption, it is the contention of the learned counsel for the petitioners that the rights of the tenants under Section 9 aswell as 3 of the Principal Act were taken away which would offend Article 14, 15, 19(1)(g) and 21 of the Constitution of India.
35. Though several authorities were cited, drawing the attention of this Court in respect of various enactments, we are dealing with the relevant authorities alone.
36. The judgment of the Apex Court in S.M.Transports' case as well as the judgment of the Division Bench of this Court in Varadaraja Pillai's case arising out of the same enactment, considered the constitutional validity of the amending provision granting exemption to a particular category of the tenancies i.e., in respect of the land owned by City Corporation etc..
37. When a similar provision had been discussed and dealt with by the Division Bench of this Court as well as the Apex Court under the same enactment, we are of the view that the principles laid down by the Apex Court are binding and of this Court will be more relevant and helpful in deciding the questions involved in these cases; especially when we keep the following passage of the Supreme Court in our mind in dealing with the precedents in the case of Gangadhar Behera v. State of Orissa AIR 2002 SCW 4271 wherein the learned Judges with the approval quoted the principles laid down by the Apex Court in Padma Sundara Rao v. State of Tamil Nadu, wherein the learned Judges held as follows:
'There is always peril in treating the words of a judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases'
38. In Suganthi Suresh Kumar v. Jagadeeshan 2001 (3) CTC 29 : AIR 2002 SCW 298 the Apex Court has held that the law declared by the Supreme Court cannot be by passed by High Court on account of non consideration of some issue.
39. The Apex Court in the case of S.M.Transports Case, : had an occasion to consider the validity of Section 3 introduced by the Amending Act 13 of 1960, granting exemption for the non residential building from the purview of the Principal Act 3 of 1922. Regarding pending proceedings, it was made clear that on the date of the publication of Act 13 of 1960 in the Fort St. George Gazette, the proceedings instituted under the provisions of the Principal Act shall in so far as such proceedings relates to the non residential buildings abate. The result of the said amending Act in respect of the non-residential building in places other than the City of Madras and the other specified Municipal Council is that the proceedings pending in Courts in respect of those buildings abated and the rights acquired by the tenants under 1955 Act in respect of the said land are extinguished. The learned Judges of the Supreme Court upheld the validity of the said provision in the following terms:
'On the basis of the allegations made in the affidavit filed on behalf of the State of Madras, supported as it is by the statistical data furnished before us, we hold that there are real differences between non-residential buildings in the Towns of Madurai, Coimbatore, Salem and Tiruchirappalli and those in other towns of the Madras State which have reasonable nexus to the object sought to be achieved by the Act.'(refer para 23 at page 872)
In paragraph 30 at page 873, the learned Judges of the apex Court have dealt with the two rights of the tenant under the principal Act viz.,
(i) the entitlement of the tenant for the compensation of the value of the building erected by him; and
(ii) an option to apply to the Court for an order directing the landlord to sell the land to him for a price to be fixed by the Court.
The learned Judges specifically mentioned that they were not concerned with the rights conferred under Section 3 of the Act, as the appellants therein did not claim a right thereunder. Section 3 of the principal Act deals with the payment of compensation on ejectment. More precisely, the learned Judges at page 874 have stated thus:
'This Court's opinion on the question of the constitutional validity of the Act in so far as it deprived the appellants of their right under Section 3 of the principal Act is not called for; that will have to be decided in an appropriate case.'
Having said so, the learned Judges of the Apex Court considered the question with regard to the right of the tenant under Section 9 of the principal Act and ultimately held that neither 1955 Act conferred any right as to the superstructure nor 1960 Act take that right away and the relief under Section 9 of the principal Act could not be granted. Even though the distinction has been kept between the right to compensation under Section 3 and the right of purchase by the tenant under Section 9 of the principal Act, it is clear that the learned Judges did not consider the question of the right of the tenant to get the compensation under Section 3 in the said case.
40. This is clear from the following passage:
'The question that falls to be considered is whether the second right, namely, the right of a tenant to apply to the Court for an order directing the landlord to sell the land to him for a price to be fixed by it, under Section 9 of the principal Act is a right to property. The law of India does not recognize equitable estates. No authority has been cited in support of the contention that a statutory right to purchase land is, or confers, an interest or a right in property. The fact that the right is created not by contract but by a statute cannot make a difference in the content or the incidents of the right; that depends upon the nature and the scope of the right conferred. The right conferred is a right to purchase land .If such a right conferred under a contract is not a right of property, the fact that such a right stems from a statute cannot obviously expand its content or make it any theless as non-proprietary right. In our view, a statutory right to applyfor the purchase of land is not a right of property. It is settled law thata contract to purchase a property does not create an interest inimmovable property. Different consideration may arise when astatutory sale has been effected and title passed to a tenant; that wasthe basis of the judgment of this Court in Jayvantsinghji v. State ofGujarat, : on which Mr. Viswanastha Sastry relied.But we are not concerned here with such a situation. It is said that theappellants have acquired a right under the 1955 Act to hold and enjoythe buildings erected be them by exercising their right to purchase thesite of the said buildings and that the impugned Act indirectlydeprived them of their right to hold the said buildings. This argumentmixes up two concepts, namely, (i) the scope and content of the right,and (ii) the effect and consequences of the deprivation of that right onthe other properties of the appellants. Section 9 of the principal Act,extended by the 1955 Act, only confers a right in respect of the landand not of the superstructure. If that Act held the field, the appellantscould have purchased the land, but by reason of the 1960 Act theycould no longer do so. Neither the 1955 Act conferred any right as tothe superstructure under Section 9 of the principal Act nor did the1960 Act take that right away. If this distinction between the land andthe superstructure is borne in mind the untenability of the argumentwould become obvious. The 1960 Act does not in any way affect theappellants' fundamental right. Therefore, their prayer that the DistrictMunsiff should be directed to proceed with the disposal of theapplications filed by them under Section 9 of the principal Act couldnot be granted.' (Italics supplied)
41. From the above discussion of the Apex Court, it is clear that the statutory right to apply for the purchase of the land under Section 9 of the principal Act is not a right to property and consequently the amending Act 13 of 1960, by which the non-residential buildings were exempted from the purview of the Act was upheld on the ground that the same do not offend Article 19(1)(g) as well as Article 31(1) of the Constitution of India.
42. We have to follow the same principle in this case also. When Section 9 of the Principal Act 3 of 1922 does not confer on the tenant any right over the property, then naturally the contentions raised by the learned counsel for the petitioners that by virtue of the present amendment the rights of the tenants under the religious institutions over the property is taken away, has to be rejected more so especially in view of the following passage:
'Neither the 1955 Act conferred any right as to the superstructure under Section 9 of the principal Act nor did not 1960 Act take that right away.'
43. While dealing with the amending provision of Act 19 of 1955 the Division Bench of this Court in Varadaraja Pillai's case, after referring to the judgment of the Apex Court in S.M.Transports case, held as follows:
'From this it is clear that the tenant's right is not property and there is no deprivation of property consequent upon the amendment and thepresumption against retrospective operation of the statute will not apply to such a right, which merely stems from the statute.'
44. The learned Judges referred to the decision of the Supreme Court in Kavulaparai Kottarathil Kochunni v. State of Madras and Kerala, where in paragraph 29 it was held that there can be a law which deprives a person of his property provided it amounts to a reasonable restriction in the interest of the general public and for the protection of the interests of Scheduled Tribes. The amendments introduced in the (Madras) City Tenants' Protection Act from time to time are undoubtedly for regulation of right of landlord and tenant and are in the interests of the general public and clearly satisfy the conditions of Article 19(1)(f). This decision is clear authority and it is no longer open to argument that the amendments to the principal Act 3 of 1922 granting exemption to some category of tenancies from the purview of the said Act offend Article 14 or Article 19 or Article 31.
45. The Division Bench in Varadaraja Pillai's case further held that the right under Sections 3 and 9 of the principal Act was not an accrued right on the tenant and it is merely a stage of expectation and hope that as and when the landlord took proceedings in ejectment, the tenant can take advantage of these statutory provisions. While dealing with this the Division Bench held as follows:(at page 882)
'We do not think it necessary to refer to all the decisions relied upon by learned counsel for the tenant, no useful purpose will be served thereby because those cases are easily distinguishable turning upon the particular provisions of the statute. We must, however, advert to one aspect which was repeatedly stressed in the course of the argument that the decision of the Supreme Court in S.M.Transports (P) Ltd. v. Sankaraswamigal Mutt, already referred to does not conclude the matters as in that case, the Supreme Court dealt with only the rights of the tenant under Section 9. It is true that the Supreme Court stated that it was not expressing any opinion on the vires of Act XIII of 1960 in so far as it deprived the tenant's right under Section 3. Based upon this reservation, learned counsel urged that there are certain differences between the right under Section 3 and the right under Section 9 and the deprivation of the tenant's right under Section 3 would be unconstitutional as offending Article 19. Learned counsel urged that under Section 3 the superstructure belongs to the tenant, that there was no need for the tenant to file any application for conveyance under Section 9, that the moment the tenant put up the building he became the owner of it, but his right to claim compensation was postponed till an action in ejectment was filed by the landlord. Learned counsel further urged that under Section 9 the tenant is to acquire the landlord's land and that right, even if taken away, is different from the right under Section 3 and the extinguishment of the tenants right to his own property which he had put up with his own money. We are not impressed with this argument and we are not prepared to hold that there is any difference in the principle so far as the effect of the repeal is concerned, whether it is a right under Section 3 or a right under Section 9.
'Let us examine what the rights of the tenant are in relation to superstructure and where an unconstitutional deprivation of property or rights to property comes in. In the instant case, the lease deed expressly provides that on the termination of the leasee the lessee will remove the superstructure without any right to claim compensation and in default to do so, the lessor would be entitled to take the superstructure again, without any liability for compensation. Till 1956, under the general law taken along with the express bargain embodied in the lease deed, the tenant had no right to claim compensation. It is only in September 1956, as a result of the notification extending the Act to Salem Municipal town that the tenant became entitled to the right to claim compensation. In other words, it is the right created under the statute by which alone the tenant became entitled to claim compensation. It is beyond question and well established law that nobody has got any vested right in a statute and the Legislature has undoubted power to repeal a statute, however beneficial it may be and whatever rights it may have conferred. Again the power of the Legislature to enact such a repealing statute with retrospective operation cannot be questioned. The only condition is that it must satisfy the condition in Article 19(1)(f) as amounting to reasonable restriction in the interests of the general public. After the Constitution that is the only limitation. Prior to the Constitution, the right of repeal with retrospective operation was unqualified like the original power to enact a particular legislation. Again, the power to extend by notification carried with it the power to cancel the notification. Here again, no subject has a right to claim that the notification issued by the Government could be enforced all time and should never be cancelled. This cancellation can be in part or in whole. For instance, instead of introducing this provision in the main enactment by Act XIII of 1960, the Government could well have issued a notification cancelling the applicability of the Act to lands owned by municipal councils in the fifteen towns. That power to issue a cancellation in that modified form cannot be questioned. The position is a fortiori where it takes place in the form of a legislative enactment. We have already emphasized that the (Madras) City Tenant's Protection Act (the Original Act of 1922 and the amendments from time to time) notifies the conditions of Article 19(1)(f) as a legislation to regulate the rights between the landlord and tenant clearly conceived in the interests of the general public. These are all rights conferred and obligations created under the special statute. If the Legislature is satisfied, by experience of the working of the Act, that certain provisions do not serve the public interests and do not serve the purposes of the Act, it is open to the Legislature to amend the Act to achieve the object and to prevent the mischief of the original enactment which was detrimental to the interests of the public in so far as it went. Thus, it will be seen that the amendment itself easily satisfies the conditions in Article 19(1)(f). The inclusion of tenancies of lands in Salem town within the purview of the Act in September, 1956 is, in the sense, (virtually) an exemption of tenancies of lands in Salem Town from the purview of the general provisions of the Transfer of Property Act and from the express stipulation which the parties entered into. The power to introduce such exemptioncarries with it the power to cancel that exemption. The original Actand the extension to Salem are clear infringements of the rights of theLandlord, serious inroad and curtailment of his rights. The Act isjustified as being in the public interests and as satisfying the test laiddown in Article 19. The same test has been satisfied when theLegislature introduces an amendment cancelling the extension in partor in whole. From the forgoing it will be seen that the tenant cannotcomplain of an unlawful deprivation of property when it is noticedthat prior to the notification he had no such property right and it is theLegislature that gave him some rights, and it is open to theLegislature to take away those rights.' (Italics supplied)
46. From the principles laid down by the Apex Court in S.M.Transports' case, it is clear that the tenant has no vested right under Section 9 of the principal Act. The Division Bench of this Court in Varadaraja Pillai's case held that neither Section 3 nor Section 9 would confer a vested right on the tenants to claim compensation and to purchase the site respectively. When that be so, we are unable to agree with the contention of the learned counsel for the petitioners in respect of the contention of violation of Article 14 and 19(1)(g) of the Constitution of India.
47. From the above discussion, it is clear that the right of the tenant under Section 9 of Principal Act 3 of 1922 being not a vested right, virtually no right of the tenant in respect of the property arises for consideration in relation to any of the constitutional provisions. The Division Bench in the order of reference also clearly agreed with such proposition.
48. Coming to the question referred to the Full Bench as to whether the right of the tenant under Section 3 of the principal Act to receive compensation in respect of the superstructure is taken away by amending Act 2 of 1996 is to be considered.
49. In our view, Section 3 of the principal Act confers a right on the tenant to receive compensation for the value of any building at the time of ejectment. By virtue of the amending Act, none of the provisions of the Act will be applicable to the religious institutions or religious chanties belonging to the Hindu, Muslim, Christian or other religions. Hence the benefit of Section 3 conferred on the tenant is also taken away by virtue of the amending Act.
50. But the question is what is the right conferred on the tenant under Section 3 of the principal Act. If the right to compensation for the tenant in respect of the value of the building is conferred only under the principal Act, then it has to be construed as a right conferred under the statute. As the rights of the land owner and tenant are to be governed by the special enactment notwithstanding any agreement between them, the tenant's right to compensation must be provided in the special Act. If Section 3 was included in the principal Act on the principle that the special law excluded the general one, then by repealing of the same under the Amending Act whether thetenant loses his right for the compensation for the superstructure under the general law?
51. A Division Bench of this Court in Swaminathan v. Sundara Vandayar 1961 (2) MLJ 435 while dealing with the exemption granted in respect of the non residential building under the same principal Act held as follows:
'Section 9 of Madras Act XIII of 1960 set out earlier in this judgment was challenged as offending Article 19(1)(f) and Article 31 of the Constitution. The contention urged was that deprivation of rights under the Act which enured in favour of tenants in respect of non-residential buildings in the Tanjore municipal area amounted to deprivation of property and that such deprivation cannot be made arbitrarily without providing for adequate compensation as provided for under Article 31 of the Constitution. The Legislature has an undoubted right to modify, amend or repeal its enactments. Vested rights accruing in favour of the subject under repealed enactments may also be taken by the legislature if it so chooses. A deprivation of a statutory right from a subject cannot be said to amount to taking property or deprivation of property. Section 9 of Madras Act XIII of 1960 has only given retrospective operation to the new enactment and is certainly not expropriatory in character. We are clearly of opinion that Section 9 of Madras Act XIII of 1960 is not obnoxious to any of the fundamental rights guaranteed under the Constitution.'
52. In fact Section 9 of Madras Act 13 of 1960 deals with the abatement of the pending proceeding. The same principle has been laid by the Apex Court in Kandaswamy Chettiar v. State of Tamil Nadu, : that the benefits granted to some of the categories of persons under a statute can be withdrawn by the State. In fact in the said case, Article 14 of the Constitution of India was also considered and found that there is no violation of the same in the following terms:
'We have already stated that the respondents have contended that the question of constitutional validity of granting exemption to buildings belonging to charities religious or secular from rent control legislation as offending the equal protection clause of Article 14 has been concluded by the observations made by this Court in P.J. Irani's case (supra) while counsel for the petitioners and the appellants on the other hand have urged that it is not; according to counsel for the petitioners and the appellants all that the observations made by this Court in that case decide is that the classification of buildings belonging to Hindu, Christian and Muslim religious public trusts as also to public charitable trusts could be regarded as a reasonable classification based on intelligible differentia but that test of nexus which is also required to be satisfied for purposes of Article 14 has not been pronounced upon by this Court and this aspect is still open to argument. We shall proceed on the basis that the question is res integra and consider whether the respondents particularly the StateGovernment have furnished proper material on the basis of which the exemption granted can be justified.'
53. In this case, the Supreme Court dealt with the exemption granted to the buildings owned by the religious institutions from the purview of the Tamil Nadu Buildings (Lease and Rent Control) Act. With regard to the reasonableness of the classification the Supreme Court upheld in the following terms:
'In our view there is no Substance in the contention. It cannot be disputed that the two objectives of the enactment, namely, to control rents and to prevent reasonable eviction are interrelated and the provisions which subserve these objectives supplement each other. In P.J. Irani's case (supra), Sarkar, J. has also observed at page 193 of the Report that 'the purpose of the Act, quite clearly, is to prevent unreasonable eviction and also to control rent. These two purposes are interwined.' It is obvious that if the trustees of the public religious trusts and public charities are to be given freedom to charge the normal market rent then to make that freedom effective it will be necessary to arm the trustees with the right to evict the tenants for non-payment of such market rent. The State Government on material before it came to the conclusion that the 'fair rent' fixed under the Act was unjust in case of such buildings and it was necessary to permit the trustees of such buildings to recover from their tenants reasonable market rent and if that be so non-eviction when reasonable market rent is not paid would be unreasonable and if the market rent is paid by the tenants no trustee is going to evict them. It is therefore clear that granting total exemption cannot be regarded as excessive or unwarranted.
Apart from this aspect of the matter it is conceivable that trustees ofbuildings belonging to such public religious institutions of publiccharities may desire eviction of their tenants for the purpose of carryingout major or substantial repairs or for the purpose of demolition andreconstruction and the State Government may have felt that the trustees ofsuch buildings should be able to effect evictions without being required tofulfill other onerous conditions which must be complied with by privatelandlords when they seek evictions for such purposes. In our view,therefore, the total exemption granted to such buildings under theimpugned notification is perfectly justified.' (Italics supplied)
54. In the case of D.C. Bhatia v. Union of India, the Supreme Court had an occasion to deal with the exemption from the purview of the Delhi Rent Act in respect of the building whose monthly rent exceeds Rs.3,500. While considering the validity of the amending provision granting exemption to a particular group of building, the Apex Court held as follows:
'However, we need not go too deeply into this aspect of the controversy, as in our opinion, it is for the legislature to decide whether or not any section of the people should be protected in any way by law. For this purpose, the legislature can identify the sectionof the people who need protection and decide how the classification will be done or what will be the cut-off point for the purpose of making such classification. The classification may be done on income basis or rental basis or some other basis. The Court can only consider whether the classification has been done on an understandable basis having regard to the object of the statute. The Court will not question its validity on the ground of lack of legislative wisdom.
More over, the classification cannot be done with mathematical precision. The legislature must have considerable latitude for making the classification having regard to the surrounding circumstances and facts. The Court cannot act as a super-legislature and decide whether cut-off point for the classification on the basis of monthly rent should be Rs.3500 or Rs.4000 or Rs.5000. If the classification is totally irrational and has no nexus with the object sought to be achieved by the statute, then only will the Court strike down such classification.'
55. So far as the effect of amendment as to whether it takes away the rights of tenant is concerned, the Apex Court has discussed and found that the amendment would amount to repealing of the beneficial legislation so far as that particular group of individuals is concerned. Once the beneficial legislation is repealed by virtue of the amendment, it cannot be construed as if it interfered with the right of the individual in the following terms:
'We are unable to uphold this contention for a number of reasons. Prior to the enactment of the Rent Control Act by the various State Legislatures, the legal relationship between the landlord and tenant was governed by the provisions of the Transfer of Property Act. Delhi Rent Control Act provided protection to the tenants from drastic enhancement of rent by the landlord as well as eviction, except on certain specific grounds. The legislature by the Amendment Act No.57 of 1988 has partially repealed the Delhi Rent Control Act. This is a case of express repeal. By Amending Act the legislature has withdrawn the protection hitherto enjoyed by the tenants who were paying Rs.3500 or above as monthly rent. If the tenants were sought to be evicted prior to the amendment of the Act, they could have taken advantage of the provisions of the Act to resist such eviction by the landlord. But this was nothing more than a right to take advantage of the enactment. The tenant enjoyed statutory protection as long as the statute remained in force and was applicable to him. If the statute ceases to be operative, the tenant cannot claim to continue to have the old statutory protection. It was observed by Tindal, C.J., in the case of Kay v. Goodwin 130 AER 1403 '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.'
56. In Parripati Chandrasekharrao v. Alapati Jalaiah, the Apex Court had an occasion to consider similar exemption from the operation of the Rent Control Act in respect of the buildings whose monthly rent exceeded Rs. 1,000 under the Andhra Pradesh Rent Control Act and held that when the benefits under the beneficial enactment is withdrawn those rights of the parties would continue to govern under the general law in the following terms:
'According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlord's normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special protective legislation in the case of the tenant, the protective shield extended to him survives only so long as and to the extent the special legislation operates. In the case of the tenant, therefore, the protection does not create any vested right which can operate beyond the period of protection or during the period the protection is not in existence. When the protection does not exist, the normal relations of the landlord and tenant come into operation. Hence the theory of the vested right which may validly be pleaded to support the landlord's case is not available to the tenant. It is for this reason that the analogy sought to be drawn by Shri Subbarao between the landlord's and the tenant's rights relying upon the decision of this Court in Atma Ram Mittal, : is misplaced. In that case the landlord's normal right to evict the tenant from the premises was not interfered with for the first ten years of the construction of the premises by an exemption specifically incorporated in the protective rent legislation in question. The normal right was obviously the vested right under the general law and once accrued it continued to operate. The protection given to the tenant by the rent legislation came into operation after the expiry of the period of ten years. Hence, notwithstanding the coming into operation of the protection and in the absence of the provisions to the contrary, the proceedings already commenced on the basis of the vested right could not be defeated by mere passage of time consumed by the said proceedings. It is for this reason that the Court there held that the right which had accrued to the landlord being a vested right could not be denied to him by the efflux of time. That is not the situation in the present case where the tenant who undoubtedly had the rights and remedies under the Act to claim reliefs against the landlord, lost the same the moment the protection was taken away, the rights and remedies being not vested ones.'
In this case also the Apex Court has held that the right of the tenant under the beneficial enactment is not a vested right.
57. While dealing with the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 whereby the rents were pecked down by the legislation and when an amendment was brought in, while considering the validity of the same, in the case of Malpe Vishwanath Acharya v. State of Maharashtra, the Apex Court has held as follows:
'Insofar as social legislation, like the Rent Control Act is concerned, the law must strike a balance between rival interest and it should try to be just to all. The law ought not to be unjust to one and give a disproportionte benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, may, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the Government does not take remedial measures to try and offset the effects of inflation. In order to provide fair wage to the salaried employees the Government provides for payment of dearness and other allowances from time to time. Surprisingly this principle is lost sight of while providing for increase in the standard rent - the increase made even in 1987 are not adequate, fair or just and the provisions continue to be arbitrary in today's context.
When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or short-sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislative authority. Social legislation is treated with deference by the Courts not merely because the legislature represents the people but also because in representing them the entire spectrum of view is expected to be taken into account. The legislature is not shackled by the same constraints as the Courts of law. But its power is coupled with a responsibility. It is also the responsibility of the Courts to look at legislation from the altar of Article 14 of the Constitution. This article is intended, as is obvious from its words, to check thistendency; giving undue preference to some over others.'
58. From the above principles laid down by the Apex Court it could be seen that wherever the rights have been conferred on an individual under the statute or beneficial legislation, there is no vested right on the beneficiary. It is always open to the legislature depending upon the exigencies to amend the Act either by extending the benefits or withdrawing the benefits conferred under the statute. In such cases, the withdrawal of those benefits by way of amendment would amount to repealing of the beneficial enactment. Then the right granted under the statute can be taken by way of amendment. When such withdrawal is made, whatever the benefits are conferred on the individuals under the beneficial law will be taken away. The beneficial law being for particular period and for particular area and particular tenancies, it is for the legislature either to extend the same to the area or not. Because of the beneficial legislation the general lawgoverning the rights and obligations of the parties is kept in abeyance. Once such benefit is withdrawn by way of amendment either fully or partially, then so far as those who are not covered under the beneficial legislation are concerned, their rights will be governed under the general law. Hence in our considered view, by virtue of the exemption granted under amended Act 2 of 1996 in respect of the tenancies relating to the religious institutions, the right of the tenant to get the compensation under the Principal Act is taken away. But, however, the rights of the tenants in respect of the compensation would be governed by virtue of the general law and as per the terms of the agreement.
59.There is no dispute that the tenant is the owner of the building. When the tenant is the owner of the building by virtue of the amending provision neither his title nor his ownership in respect of the superstructure is taken away. So long as the beneficial legislation is in force, the rights and obligations of the parties are governed under the beneficial legislation notwithstanding any contract between the parties. Once such beneficial legislation is withdrawn, the parties will be reverted back to their original position as if the beneficial legislation is not in existence. In such circumstance, the rights and obligations of the parties would naturally be governed by the terms of the agreement and in accordance with the general law.
60. As already found when there is no vested right on the tenants by virtue of the beneficial legislation and the right of compensation under Section 3 though taken away by virtue of the amending Act, the right of compensation under the general law is available to the petitioners.
61. For these reasons, we concur with the judgment of the Division Bench in Varadaraja Pillai's case. When once the leases in respect of the particular category are exempted from the purview of the principal Act, then the benefits conferred on the tenants under the principal Act is being taken away and in such view we hold that the rights of the tenants under Section 3 of the Principal Act 3 of 1922 is also taken away by virtue of amending Act 2 of 1996.
62.The learned counsel for the petitioners further contended that Amendment Act 2 of 1996 violates Article 14 of the Constitution of India on the ground that the legislature has failed to classify the temples which are entitled for such exemption from the purview of the Act. Virtually a blanket exemption has been granted which would establish that the legislature has failed to take into consideration the distinction between the tenants under the temples which are having good income and the temples which do not have any income at all or a meagre income. The temples which are having good income otherwise can afford to extend the benefit of the principal Act to the tenants and as such there is no need for the grant of exemption in respect of the tenancies of those temples from the purview of the Act.
63. It is unnecessary for us to elaborate our discussion on this contention, taking into consideration of principles laid down by the Apex Court in Bhatia's case, : where the learned Judges of the Apex Court has held that the legislature can identify the section of the people who need protection and decide how the classification will be done or what will be the cut-off point for the purpose of making such classification. The classification cannot be done with mathematical precision. If the classification is totally irrational and has no nexus with the object sought to be achieved by the statute, then only the Court can interfere. The Court will not question its validity on the ground of lack of legislative wisdom. When that be so, it is not for the Court to decide as to what the legislature should do. It is for the Court to consider whether the action of the legislature is within its bounds. It is the province of the legislature to decide as to which of the tenancies are to be exempted from the purview of the principal Act.
64. When the legislature has taken a decision to exclude all the tenancies in respect of the religious institutions from the purview of the Act without any distinction that itself shows that the legislature has acted without any bias or favour and adopted uniformity in respect of the tenancies under the religious institutions. Hence we do not find any merit in the contention of the learned counsel for the petitioners.
65. Issue No.4: Coming to the last question of the validity of Section 3 of amending Act 2 of 1996, it is clear that 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 provision deals with the pending proceedings under the principal Act and causes them to be abated in order to give effect to the amending Act. The proviso to Section 3 of amending Act further makes it clear that nothing contained in this Section shall be deemed to invalidate any suit any decree or order passed has been executed or satisfied in full before the said date. The language of the proviso is very simple and clear. The proviso explicitly excluded the cases where the tenants had obtained the benefits of the principal Act by virtue of the execution of the Court decree, then such of those acts are duly safeguarded.
66. However, the contention of the various counsel are that by virtue of Section 3 the tenants' right under the decree of the Court has been taken away wherever the decree has not been executed or some procedural formality has to be complied with. In such cases it will amount to taking away the vested right of the tenant under the decree and that would violate Article 14 and 300A of the Constitution of India. Further it was contendedthat it is not open to the legislature to take away the rights of the individual which accrued under the Court decree and this would amount to interference with the Court proceeding.
67. There is no much discussion needed on this issue in view of our findings given above that whatever be the right conferred on the party under the beneficial legislation, it is not a vested right.
68. In fact in the recent judgment the Supreme Court had an occasion to deal with the rights of the parties to continue the proceeding under the repealed Act in the case of Ambal Sasrabhyai Enterprises Ltd. v. Amrit Lal & Co., : and held as follows:
'Thus the question for our consideration is, whether proceedings which were initiated before the Rent Controller having jurisdiction could continue before it even after the said amendment. Submission for the tenant is, since the tenant has no vested right on the date when the amendment came into force and the amendment is not retrospective in operation, hence it is only the civil Court which would have jurisdiction. On the other hand, submission on behalf of the landlord is, even if it could be said the tenant has no vested right, the landlord has vested right under the Rent Act and further, in view of Section 6 of the General Clauses Act, the pending proceedings would continue before the Rent Controller as if the amending provision has not come into play. Further it is submitted, Section 6 spells out, where this Act or any Central Act repeals any enactment then unless a different intention appears, the repeal shall not affect any right, privilege accrued or incurred under any such enactment so repealed. Since the landlord in addition to his vested right under the Rent Act, by virtue of this Section 6 has in any case right under the repealing provision, hence the pending proceedings would continue, as there is nothing in the amending Act showing any different intention. So the case of the appellant tenant is that the amendment covers pending cases while the respondent landlord's case is it does not cover, hence it would not apply to the pending cases.'
69. Further it is pertinent to note the principles laid down by the Apex Court in Parripati Chandrasekhar Rao & Sons v. Alapati Jalaiah, where in the learned Judges held as follows:
'According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act, In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said rights and remedies remain suspended till the protective legislation continues in operation. Hence while it can legitimately be said that the landlord's normal rights vested in him by the general law continue to exist till and so long asthey are not abridged by a special protective legislation in the case ofthe tenant, the protective shield extended to him survives only so longas and to the extent the special legislation operates. In the case of thetenant, therefore, the protection does not create any vested right whichcan operate beyond the period of protection or during the period theprotection is not in existence.' (Italics supplied)
70. From the above principles it is clear that the protective shield under the beneficial law can be extended so long as the said legislation operates. When once by way of amendment the special legislation stands repealed and in the absence of any vested right on the tenant, definitely the pending proceeding cannot be continued.
71. In fact in Bhatia's case the learned Judges 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) Bin 576 :130 AER 1403
'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 concludedwhilst 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 takeaway the protection of the Delhi Rent Control Act from a section ofthe tenants. The tenants had not acquired any vested right under theDelhi Rent Control Act, but had a right to take advantage of theprovisions of the repealed Act so long as that law remained in force.'
72. From the above extracted passage, there is no doubt that once the benefits conferred under the beneficial legislation on the tenant had been taken away by way of amendment, then it is not open to the tenant to claim any right under the beneficial legislation except such of those accrued rights. The English decision made it clear as to what is the accrued right viz., only the rights obtained by initiating, prosecuting and finally concluded.
73. Now if we consider the case on hand on the above principles, none of the tenants pleaded that the proceedings initiated by the landlord as well as the proceedings initiated by the tenants had concluded fully. If such plea is there, then those rights of the tenants had been duly safeguarded by the proviso to Section 3 of Amending Act 2 of 1996. Section 3 of amendingAct envisages the abatement of the pending proceeding. Either 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.
75. Similarly for the determination of the compensation also Section 3 of the principal Act contemplates the payment of compensation in respect of the superstructure on the ejectment of the tenant. If such compensation had been determined and paid to the tenant and the proceedings is completed, such of those proceedings were safeguarded under the proviso to Section (3).
76. It may be pertinent to note that there is no provision in the principal Act to compel the landlord to pay the compensation as determined by the Court. The landlord may pay the compensation and take the superstructure. In case if he is unable to pay, he has got a right under Section 6 to move the Court for the determination of fair rent. When that be so, the mere determination of compensation alone would not amount to any accrued right in favour of the tenant.
77. It can be seen that the determination of the compensation is not a vested right also as there is no obligation on the part of the landlord to pay such compensation. In such circumstance, we have no hesitation to hold that Section 3 of amending Act 2 of 1996 does not affect any of the rights of the tenants by virtue of the abatement of the pending proceedings. Hence the said provision is also valid.
78. Mr. Ram Mohan, the learned senior counsel for some of the petitioners vehemently argued that the amendment offends Article 15 of the Constitution of India. Article 15 of the Constitution of India is as follows:
'15.(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to apply disability, liability, restriction or condition with regard to-
(a) access to shops, public restaurants hotels and place of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
(4) Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.'
79. It is contended that Article 15 specifies that there should not be any discrimination on the basis of religion. In this case, amendment Act 2 of 1996 granting exemption from the purview of the principal Act 3 of 1922 in respect of the tenancies of the lands owned by the religious institution or religious charity is only based on the religion and this will not amount to discrimination on the ground of religion.
80. We are of the opinion that the argument is totally misconceived. First of all Article 15 of the Constitution of India contemplates that the State shall not discriminate against any citizen on grounds only of religion, race etc. Article 15(2) equally specifies that no citizen shall, on grounds only of religion, race etc. be subject to any disability, liability, restriction or condition with regard to the places mentioned in Sub-clause (a) and (b) thereunder. So what is contemplated under Article 15 is that there should not be any discrimination against the citizen on the ground of religion or otherwise.
81. In this case, the amendment does not discriminate between citizen on the basis of the religions they belong to. The exemption from the purview of the principal Act by way of amendment Act II of 1996 is only in respect of the tenancy of the lands belonging to all the religious institutions. Hence this contention is rejected as of no merit.
82. As all the cases are concerned with the constitutional validity of the amending Act, no independent controversy/point arises for consideration in any of the writ petitions individually. In view of our above findings all the writ petitions are dismissed. Consequently connected pending WMPs are closed.