R. GOVINDASWAMY Vs. BHOOPALAN AND ORS.

JUDGEMENT

(1.) THE first defendant in the suit is the appellant as also the petitioner in the civil revision petition. The respondents filed a suit for a declaration of their title and for recovery of possession. Their case was that the suit site originally belonged to one Subramani, the father of the respondents and after him the site was leased by his wife Amirthammal in favour of the appellant. The lease was stated to be some time in the year 1956 on a monthly rent of] Rs. 5. Later on, it is stated that it was increased gradually upto Rs. 20. On the ground that the appellant failed to pay the rent, the respondents issued a notice terminating the tenancy and called upon the appellant to surrender possession. Of course, at the time when the notice was issued, the respondents claimed that the superstructure also was put up by them and it belonged to them. But when they filed the suit, they gave up their claim to the superstructure and contended that they are entitled to recover possession of the vacant site after removal of the superstructure. The appellant's case was that about 20 years prior to the suit, he purchased the property under an oral sale from Amirthammal and that he was not holding that property as a tenant under the said Amirthammal or the plaintiffs. He also contended that subsequent to his purchase, he had put up the superstructures costing over Rs. 15,000. He filed an additional written statement in which he raised a plea that there was no valid notice as required under Section 11 of the Madras City Tenants' Protection Act and that, therefore, the suit is liable to be dismissed on that ground. The appellant filed a separate application I.A. No. 1212 of 1972 under Section 9(i)(a) of the Madras City Tenants' Protection Act of 1922 praying to direct the respondents to sell the suit land to him for a price to be fixed by the Court in the event of finding against the Appellant on the question of oral sale and giving a finding that he is a tenant. Both the suit and the application under Section 9 were tried together. The trial Court held that the oral sale pleaded by the first defendant was not true and that he was a tenant of the suit site. The trial Court also held that since the Madras City Tenants' Protection, as extended to the Vellore City within which the suit property is located, did not apply to non -residential buildings, the appellant was not entitled to any order for sale under Section 9 of that Act. Accordingly, the suit was decreed as prayed for and I.A. No. 1212 of 1972 was dismissed. The appellant preferred appeals before the lower appellate Court both against the decree as also against the order in I.A. No. 1212 of 1972, but without success. The result of it is there is a finding that the relationship between the appellant and the respondents is landlord and tenant, but the tenant -appellant is not entitled to a direction for sale under Section 9 of the Act as the Act, as extended to Vellore City, did not apply to non -residential buildings. The second appeal and the civil revision petition have been filed respectively against the decree in the suit and the order in the application filed under Section 9 of the Act. When the Second Appeal was pending, G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 was published in the Fort St. George Gazette on 28th June, 1975 extending the City Tenants' Protection Act for non -residential buildings also in respect of the Municipal Town of Vellore. Taking advantage of this notification, the appellant filed C.M.P. No. 12098 of 1975 on 7th October, 1975 under Section 9 praying for a direction to the respondents to sell to the petitioner the suit site for a price to be fixed by the Court. Since this application was not filed within a period of one month from 25th June, 1975, as required in Section 9, the petitioner has filed C.M.P. No. 11277 of 1976 for excusing the delay in filing C.M.P. No. 12098 of 1975. Though the appellant has filed an appeal against the decree in the suit holding that there was no oral sale in his favour, the learned Counsel for the appellant did not press that issue and argued the matter accepting the finding that the appellant is a tenant under the respondents.

(2.) THE respondents have filed counter -affidavits both in the petition under Section 9 and in the petition to excuse the delay, filed in this Court. It was contended by the learned Counsel for the respondents that the notification in, G.O. Ms. No. 1285, Revenue, dated 31st May, 1975 had not been shown to have been placed before the Legislature as required in Section 1(6) of the Act and unless the said notification was placed before the Legislature, it will not be of any effect and will not confer any right on the petitioner to invoke the provisions of Section 9 of the Act. Under subsection (6) of Section 1, every notification issued under Sub -section (2) or Sub -section (4) of that section shall be laid before the Legislature, if it is sitting, as soon as may be after the issue of the notification, and if it is not sitting within seven days of its re -assembly, and the State Government shall seek the approval of the Legislature to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before it. As seen from this provision, this requirement relating to the placing before the Legislature is required only with reference to the notifications issued under Sub -section (2) or Sub -section (4). The Act, as originally enacted, was made applicable by the Legislature to the City of Madras. But Sub -section (2) enabled the State Government, by notification in the Fort St. George Gazette to extends the. Act to any other municipal town. Sub -section (4) authorised the Government by notification in the Fort St. George Gazette to cancel any notification issued under Sub -section (2). These provisions show that only when the Act is extended or a notification under Sub -section (2) is cancelled, it had to be placed before the Legislature. The Act was extended to the municipal town of Vellore by notification dated 8th January, 1973 which was published in the Fort St. George Gazette on 31st January, 1973. Section 2(1) defined 'building' as meaning a building used for residential or non -residential purposes in the City of Madras and for residential purposes only, in any other area. Thus when the Act was extended to the municipal town of Vellore, it applied only for residential buildings. But Section 2(1)(i) also empowered the Government by notification to make the definition of "building" as including residential or non -residential building even in cases of any other municipal town. In exercise of the power under the said G.O. Ms. No. 1285, Revenue, dated 31st May, 1975, the Government specified the municipal town of Vellore as a municipal town for the purposes of Section2(1)(i) from the date of publication of the notification in the Tamil Nadu Government Gazette. This notification under Section 2(1)(i) is not required to be placed on the table of the Legislature. The learned Counsel for the respondents is, therefore, not well -founded in his contention that the notification had not taken effect in this case. It should not be assumed that even in the case of a notification under Section 1(2) that the notification will take effect only after it is laid before the Legislature. In fact, that question does not arise for consideration as I have said that Sub -section (6) of Section 1 is not applicable to notification issued under Section 2(1)(i).

(3.) SECTION 9(1)(i) applied to a case where a suit in ejectment has been instituted or proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882 is taken by the landlord in which case the application under that section will have to be filed within one month after service on him of summons in the suit. If the Act was extended during the pendency of the suit, the application will have to be filed within one month of the date with effect from which the Act was extended to the said municipal town or village in which the land is situate. Thus though the right to file the application under Section 9(1)(i) arises after the filing of a suit, the period of one month prescribed could not be considered to be a condition, but it is a period of limitation. It may be seen from Section 9(1)(ii) that the Act, as amended by Madras Act, XXIV of 1973, gives right to a tenant even in a case where no suit in ejectment has been filed or pending. In such a case, the application under Section 9 will have to be filed within a period of two months from the date of publication of the amending Act. Thus in a case where an Act was extended for the first time, the right to file arises by reason of the extension of the Act to the municipal town and in other cases on receipt of the summons and if we test it with reference to such cause of action, certainly it would be a period of limitation from the date when the cause of action arose and it could not be said that it is a condition for the applicability of Section 9. Therefore, even in a case where the application is filed after receipt of the summons, it would be a case of limitation and not a condition for invoking Section 9. I am, therefore, of the opinion that it will be a period of limitation prescribed by Section 9. Under Section 29(2) of the Limitation Act, 1963 where any special or local law prescribes for any application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 of that Act shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for such application, the provisions contained in sections 4 to 24 shall apply, unless the applicability of any of those provisions is excluded or modified. Section 5 of the Limitation Act is, therefore, clearly applicable to an application under Section 9 of the Act. I may add that this was also the view taken by Kailasam, J. (as he then was) in C.R.P. Nos. 1762 and 1763 of 1973 dated 2nd January, 1976.