RAVAL & CO. versus K. C. RAMACHANDRAN & ORS.

r I 629 l I II RAVAL & CO. v. , K. C. RAMACHANDRAN & ORS. 11 December 11. 1973 [A.N. RAY, C.J., H.R. KHANNA, K.K. MATIIEW, A. AlAvlRISWAM! AND P.N. BHAGWATT, JJ.j · ltnandtr Definition Tttmil Nadu Buildingt and of Sltl.luiory .. landlord'' t~u(Leau auci~s-Ft:-ration and .. and t~nant" R<nl und~r Co/1/ro/) of fair -Appl,cability re11t-LonJ/ord Act (IS of J 900). h·~rMr-10 S. controctuol 4(1), ~nit:kd ?-to opp/y lnltrpre tar/an /ur fixation of sta!ut~s. of folr rent tlltting suhsisttnce of COJI/ractua/ ttnanc;-Cuurl · ConstitJJtio, deciJiorr-BindinK of /Mia, tl(Jtu,·e Art. 141-Aud of pr~c~dt'ttls-G~n~ta/ ohunalton.r in Suprmte .0 Ora/ tridnrce rrlatdutK Erldtnu Act, 1972. & <. l'tll ku/on 92- Vttr/atiun in barr~d. P<"•miJsion of ugister~ le= dud-On lhe lcnants' appeal, the Full !lcnch of the Madrns High C"ourt held that the Act COntrols both contmctual und Sl:ttutory tenancies and II enables borh land-<:irne lords and tenants up bdore to Sioltlo seck Judge I he be""lit of the of High lixalion Court of fair r<nt. who applying There:~ftcr, the prOVISions ~e. matre~ ~~ :E; • h.aauory qiJ<Siion. kav~ the •un. Act .. the tenants mainly uoc C'!f to The I eontrJc"t fair he facts rent Division IJench reversed this decision. of of nt I !<nancy. he contended figure case higher held th~t that than landlord the the Act contr:~ctu:did h;~S not no In apply tl right rthe nppeal by entto , to where the apply P"'mJSC:S then: for spcoa ' :.he .a5 101 Dismi>sioa the appeal, fiELD : (!>Cr majorily-Mathcw and Oh•s"-ati, JJ. Contm) The Pre.tnt Act which replaces lhc 1949 Act adopts co~1pletcly new ";fJ"'::J" "!_it\ o .... o and provi<ks for every conlingcncy, iJ;.,i~t~e "'t~~'is'b~':e ~~l~,a~cly r . r~IOQ Pt<>Cttt!OO. 1a Pl~d •n.Jior.ds ... kn.lnl u Of on The well tellOIDis the Tho provisions QJ assumplion basis to Js that the not tenfWarrant«! by tbe Jiof lhat anls, r U1e rent tho and Aclshow wa• Act that_ lobe hke only that prOVISIOnS ft.raJJ wluch lhe !".nt poor~~ :u:ts. 1a of ms wa~ :f.hie during lhe ci~~e~n~~ly . 10 Acl be • ~ ir both It ts COfllrJCt u nc«<<d for to clear the the <fort, tha1 lhe fair rent under lhe present Acl !' pay~ Fj i'trtOd .u "<If as afr<r the expiry of the conlract pcnod. [63~ -I :!;:: 10 . The Pro\oJ<le o_f ~nalysis the term compl<le of "landJonJ" the code <I sh?wl rn respc.;t o and that'"tenant" show th;Jt _ 11 · hft,a 1 · 5Chc co ,"l1 ,e rJc[1 ]of lual tan:mcc.:s.. ~heir its Act own ~tdlonls.. , p lies and lo it is intended contractual On the detini-some r bol ~f'J<ccl iOn JICIOI can "' l!l'll<rul principles aovcmcng only well be as for to I Citses he benefit of statuof the tall ory ten'!nts. R~nt l<nants [10 ]~:n•:he and • nnol Act t dearly be urauC\1 dose Jays dowa ~dmg that such that of II Ill. J~oolords and lenunls can apply for lu~ro~~.J"~~r :."n~ ·it is payable by who--:u:t•howa that Ute fair rent is ti.xcd for [1 ]e 1 tenant What is fixed f:<' 1$ lb,: lcn<~nt whether coolra<lual tenanl or •[1]·~~[10]:/ who opplies for fix I ion .,.~!he '-".rent fair bur "'at fair payable rent for by the the bu•ldmJ •~na.nr or so to met tll<h10. 1an 1 ,.r~ 1 an incident of the tenure '•&ardmc the buildine. [637FJ;-;; 630 SUPREME COURT Ri>PORTS [1974] 2 s.c.R. 1 The general observations to the contrary in Bhai)'D Punja/e~l Bhac>rancfd;n v Dave Bha_rrNat Pra~lmprasad (1963)3 S.C.R. 312 nnd Manuj~nclra v. Purtnd,; Ptosad [1967] 1 S.C.R. 475, held obrter. Sri Brij Raj Krishna v. S. K. Shaw and Bros. [19511 S.C.R. 145, Hem Chand v. Sham D~vl, !.L.R. ( 1955] Punj, 36, R. Kris/mamttrtlly v. Parthasarath.•• A.I.R. 19~9 M1d. 780, dis,inguished. Abb:ultal's case ( 19641 S S.C.R. 157 and Mangift1l v. Sngar~flallll Rat hi [1964] S S.C.R, 239, referred to. P~r l>fathew and Dhagwati, JJ : Two basic consi.<lcrations must guide O:Jr :lpj>:O~Ch to th: q~:stjon wh:ther landlord can, durmg the sub;istcnce Of the c~3tractt1llt:'lli\Cf apply ror fi<ation or fair rent under section 4(t) of the Act Tn: fi:n i; thu th:'lg.-::j r~nt w:-tich is th: result of contract b:twccn the parli~ mJit cJ~tinu: to bind th:m so long as th: contract sub;ists, unless there is ~ny. thing in th: statute which expressly or by nCCC".ssary implicarion over-rides the con. tra~t. It is to cJunteract th: inju>ricc resulting from inequality in bargaining (lOwer ~3d t3 b~ing abJut s~cial or disrrlburivcjustic.: that socinllesislalion interferes with s1nctily of c)ntrnct. O;din~rily, we do not find and indeed it would be strange, and rath:r incom~r<h:nsible ph!nomcnon, that legislation intervenes to disturb the stnetity of cJntract for ch: b:nefit of stronger party who does nor need rhc p:at::tiv~ 1nd of th: legislature. S:condly the Act has been enacted illlcr alia. with th: obj:ct of cJntrolling renls of rcsidontial and non-residential buildings an~ preve1ting u~rets)nab~" CliC!ion of tenants. Tamil Nadu Act 18 of 1960 js in its ,~; llti 11 ~-un~.er as t)s) in its object and purpososimilar to what may conveniently be l:s;:ib!d rent control legislation, in other States, such as Mnharashrra, GJjtrat, W!st B:nga) and Mldhya Pradesh.Tbegenernl purpose nod intendment of re3t c~ntrollc&islarion and its positive thrust and emphasis on the prorection of th: t:nant ctnnot bo lost sight of when we are construing sin~ilar legislation like the Tamil Nadu Act 18 of 1960. [642C] 81,2/ya PuJt}alal B~agwanddbt v. Da>·t Bhal(watprasad Prabhuprasad (19631 3 S.C.R. 3t2, ManiJ/ La/ v. Suqar~iland Roth/, [1%4] 5 S.C.R. 239, and Manujtndra v, Purelliu P11>sa:J (t967] 1 S.C.R. 475, referred to, Htving rcJ;prd to the b~,ic character of the statute as n rent coutrollegislation [1 ]~nd th: sch:m: of 1ts provisions and reading sec. 4{1) in its conrcxtual setting and iR rho light of th: oth:r Provisions of the stalute, the conclusion is incs~apnble that the w;~rd "landlord" in sec. 4(1) is used in limted sense and it does not include con· tractutllandlord. The landlord docs not have the right to apply for fixation of fair rent during the subustcnce of the contractual tenancy, lt is only when tho con-tract of t:n~ncy isilwfully determined that he becomes en tilled tO apply (Or fi.<SiiOD of fair rent, for it is only then that he can rea>ver fair rent higher than the agreed reO! t from the sea tutory tenant, there beinl no contract of tenancy to bind him down co the agreed rent. [6460) • (2) Pn m~jority : G:neral obscmlliolli in earlier decisions of this Court should b: C>llfil:d to the facts or tho;e case. Any general obscrvntion cannot aPplY in lnt:'t"!linc th• P.-ovisions of an Act unles• this Court hns applied irs mind to and an~)VI:d th: p:ovi,ions or that plrticular Act. Thcrdore, the observations _In (1967) I S.C.R. 415, that rent act! •~= '>Jt 1C'Jin~rily inrend~d to tnrcrefcre w,ch c~ntr~ctu~l l:~ses and are Actt for the proteclion of tenauts and are cons.:quenrly (; r~urictiveand not enabling conferring no new right but resrricting the existing rishl< erth!r under the c~ntract or under rh: g:nerallaw should not be held to applY to Mil rent Act1 irt!lp;ctive of tho s.::h:m: o( th01C nets nnd their provi~ioDs. The '""~"I '\.~! ·Ji'J ~'l pr~c::d on th: b1sis tltar tl\c lc!!i>latlon regarding; rent control wu only for tltc b:nefil of the tenmnts. It wanted the JeaisJarion to be fair both to the landlord and thctenant.t8HB] (P4r Mathew and llhaJWati.JJJ, The mea oinK of the term 'landlord' muit_not be cn'i1:;J I? thlliiV!n in th, d:finition or to tu oruinury etymological mealll[0]1 bu; II m lSI b!. u1-J;nCQOd In the cJnte1t of the JettinJI in which it occurs, and the •ch•';j)' a~d .~bJ.~t of the ACI, The PrOvi\ions Of the A~t. parti,.ularl:( of J<C. 7, aro clca 10 r.;.c>vr,r r .ltro;h\4 th:fJlrrc:tt ln c'lltactcr w~:rc and it Is not hi&henhanthcacnabhnll provisions 11reed cmpowcrlllll rent. This is thoonlyrattoua the 1•[0]<110~d 1

~onstruction which can be placed on the relevant Provisions of the Act relatir.& to control ofrent and such construction is not only compelled bY 8Hn·mar ar.d Jananase but aJso accords with the broad ge'fieral consideratic11s in intctPJctirg tl"e rent control legislation. (646Bl

Cot v. Ho'kts (1890) A.C. 15, and Whtthtrtd v. Call'utta (1842) 5 Scrtt. N. R. 409 ,referred to.

(3) Any variation of rent reserved by registered tease deed must be made bY anothe; registered instrument. The agreement between the landlord and the ter.2111 by" hich the rent was increased being in variation of written contrrct, evidence of that wa~ barred under section 92 of the Evidence Act.

CiVIL APPELLATE JURISDICTION: Civil Appeals Nos. 50 of 1968 and 1201 of 1970.

From the judgment and Order dated the 20th January 1966, and 26th November 1968 of the Madras High Court in Writ Appeals Nos. 1124 of 1963 and 153 of 1966.

K.S. Ramamurtlry and S. Gopalakrishnan, for the appellant (in both the appeals).

S. V. Gupte and A.S. Nambiar, for respondent Nos. 1-3 (in both the appeals).

S. Govindaswaminathan, A. V. Rang am, N.S. SiPam and A.. Sttbsha-shini, for respondent No. 5 (in both the appeals).

B.R. Agrawala, for inter~ener (in C.A. 50/68).

. The Judgrnent of A.N. Ray, C.J., H.R. Khanna and A. Ala.jirl-· swami, JJ. was delivered by Alagiriswami, J, The dissenting Opinion of K.K. Mathew and P.N. Bhagwati JJ. was delivered by Bhagwati, J.

ALAGIRISW;..Ml, J. The appellants are the tenants of property bearing door Nos. 16 and 17 on the Poonama\lee High Road in the city of Madras. They became tenants of this building in May 1929• when the property was with one of the predecessors in title of the present landlords, who are the respondents in these appeals. Though the appellants became tenants in 1929 registered lease <ieed- came into existence only in 1935 tmder which the lease was to run upto 1-5-1969. The lessee was entitled to renewal on the same terms and conditions for another period of fifteen years. The monthly rent agreed upon was Rs. 225/- and sum of Rs. 225/- was payable <lS \ln annual contribution towards repairs and Rs. 220/- towards public charges and taxes. In 1949 the parties mutually agreed that the tenants were to pay 25 per cent increase in rent and also certain other amounts. The present landlords purchased the property in 1962 and soon after filed an application under Section 4 of the Madras (now Tamil Nadu) Buildings (Lease and Rent Control) Act, 1960 for fixation of fair r.ent. Thereupon the tenants filed writ Petition No. 1124 of 1963 seeking to restrain the landlords from proceeding with that petition. , The learned Single Judse who heard the petition felt that in view of long series of decisions of Madras High Court under the various Rent Control Acts in force in Madras that they applied also to contractual:

[1974] 2 s.c.a.

tenancies in the matter of payment ofre~lt a~ well as evictio.n, the matter -court ~hould in be Rent considered Control by cases Full from Bench certain m VIeW other of States. the dec1sions of th· 15

The Full Bench after an elabo~ate consideration came to the con-clusion that the Act controls both contractual as well as statutory tenancies that it is complete Code, and enables both landlords and tenants t~ seek the benefit of fixation of fair rent. whether contrac-fair rent. whether contrac-rent. whether contrac-whether contrac-·tual tenancy prevails or it bas been dctcrmi!lcd. Thereafter the matter or it bas been dctcrmi!lcd. Thereafter the matter it bas been dctcrmi!lcd. Thereafter the matter been dctcrmi!lcd. Thereafter the matter dctcrmi!lcd. Thereafter the matter . again came up before the same learned S111glc Judge who, applying the provisions of the Act to the facts of the case held that the Act did provisions of the Act to the facts of the case held that the Act did of the Act to the facts of the case held that the Act did the Act to the facts of the case held that the Act did Act to the facts of the case held that the Act did to the facts of the case held that the Act did the facts of the case held that the Act did facts of the case held that the Act did of the case held that the Act did the case held that the Act did case held that the Act did that the Act did the Act did did ·not not apply to the to the the premises in question. in question. question. On appeal appeal by the landlords the landlords . Division Bench of the High Court held that the premises were not ·exempted from the provisions c.,f the Act and the Rent Controller has therefore jurisdiction to entertain and dispose of on merits the applica-· tion for fixation of fair rent filed by the landlords. These two appeals :are against the judgments of the Full Dcnch (reported in 1966 ·z MLJ 68) and the Division Bench. respectively.

seek the benefit of fixation of fixation fixation of fair rent. whether contrac-fair rent. whether contrac-rent. whether contrac-whether contrac-B ·tual tenancy prevails or it bas been dctcrmi!lcd. Thereafter the matter or it bas been dctcrmi!lcd. Thereafter the matter it bas been dctcrmi!lcd. Thereafter the matter been dctcrmi!lcd. Thereafter the matter dctcrmi!lcd. Thereafter the matter . again came up before the same learned S111glc Judge who, applying _ the provisions of the Act to the facts of the case held that the Act did provisions of the Act to the facts of the case held that the Act did of the Act to the facts of the case held that the Act did the Act to the facts of the case held that the Act did Act to the facts of the case held that the Act did to the facts of the case held that the Act did the facts of the case held that the Act did facts of the case held that the Act did of the case held that the Act did the case held that the Act did case held that the Act did that the Act did the Act did did ·not not apply to the to the the premises in question. in question. question. On appeal appeal by the landlords the landlords j

Defore we go further into discussion of the questions that ari>c it is necessary to look into certain relevant provisions of the Act.

·Clause (6) of section 2 of the Act dclines landlord thus :

"Landlord" indudcs the person who is receiving or is entitled to receive the rent of building, whetlter on his own account -or on behalf of another or on behalf of himself and others or as an agent, trustee, e~ecutor, administrator, recd"cr. or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to tenant:"

Clause 8, in so far as it is n:levant, defines t~nant os follows :

"tenant" means any person by whom or on whose account Tent is payable for building and includes tbe surviving spouse. -or any son, or daushter, or the legal representative of dec~a~d tenant who had been Jiving with the tcn;!Ot in the bu1ldwg as member of the tenant's family up to the death oft he t_enant and person continuing in possession afler the termination of the tenancy in his favour .••. "

Section 4 provides for an application for lixation of fair _re nt~~ the. l~nan~ as well as the landlord. The fair rent for any resldent;~l ~u~llltng Js t~ ~e s_ix. per cent gross return per unnurn ?~. th:. t~n­<:05_t of ~he bu!h.lmg 1f ll is residential aml nin~ per cent 1t 11 [1]~ [0 ]of rcsJdcnlla_l. The total cost has to be cakulatt:d t>y taking the cost ~onstru~tlon at Prescribed rates less depredation at pr~s.:~ibcd r~~~ a~ .well ~s the market value of the site on which the buJI~IItg st~~res It IS lo _IOclude ~llowanc;e$ for such considerations as locahty, fea ·tal. ·of arclutecturaiJnterest, ;tcces~ibi!ity to market dispensary or bOSP[1 ]·h -other nearnes~ ~tmen111es I~. the railway as may be prescribed. station or educ41tion;;l institution and sue

Section 5 pro~dcs that when the fair rent of building has been fixed no f~rtltc~ tncreasc shall be per:nissible except in cases where some addttlon, tmprovement or alterahon has been carried out at the landlord's ex~en_sc ~nd !lt the tenant's request. Similarly, if there is: decrease or dmllllUIIon 10 the accommodation or amenities provided thetellllnt may claim reduction in the fair rent. '•

Section 6 provides for payment of additional sums in cases where; the taxes and ccsscs payable to local authorities arc increased. Section 7 prohibits the landlord fr~m claiming or receiving or stipulating for the pny~1cnt of any premtum or anything in excess of fair rent. It also provtdcs that when: fair rent has not been fixed the landlord shall not claim anything in exress of the agreed rent. Section 10 deals with the eviction of tenants and lays down the cOnditions under which an eviction could be asked for. One of those cOnditions mentioned in'sub-scction (3) is when the Landlord requires resi<lential building for his own occupation or non-rcsickntial building for the purpose of his busin~ss. Clause. (d) of s_ub-scction (3) provides that where the tenancy IS for spectficd penod agreed upon between the landlonl and the tenant, the landlord shall not be entitled to apply under that sub-section before the expiry of such, period. Sections 12 and !4 provide for recovery of possession by landlord for repairs or for reconstruction.

Section 17 provides that the landlord is not to interfere with the , amenities enjoyed by the tenant. Section 30 exempts from the provisions of the Act (I) any building. the construction of which was completed after the cof!~mencement of" the Act and (2) any residential building in respect ofwbtch the monthly rent payable exceeds two hundred and fifty rupees. We shall refer to other details ns and when they become relevant. \'Ides . The for above every s 1 contingency tort ~na 1 YSI$ [·. ][0 ]th.tt [f the ]• . IS [Act ]J'k 1 1 [would show ]Y to arise in [that ]the [the Act ]relationshiP .. [pro-][ . ]of landlord and tcnunt. ·• Iiane~ is placed upon two decisions ·. 0~ behalf of the ~ppe\lantl rr Blta wollddin v. Dare Bltagwatprasatf. or lh1s Court, Bltmya I un;a a?) 11[~ ][1\fanujewfra ][v. ][Purendr1 ][Prasad· ]Prablruprasad (1963 3 SCR 31- l'ng with 1 e,·iction In those (1967 1 SCR 475). They arJcases k~r~gthat the provisions of the two cases it was held! broa 1 Y ~~: i~ addition to and not in dcro· Acts there under cons1dcrauon Yid ·f< of Property Act. There nre .\ gatio_n of the provision~ of !he Tr~"tw~ decisions upon which reliance t, ' II ttrt;un general obscrvatl<lliStll those ~$placed to cont.:nd th:•t.tbey ag~hl 1 in to cases thos.: cases of fixation that the of rent also. Acts did \ not Providlf under argument his contract the was landltlt or ord at tcn~~ncy, as w1th ;t wa~ nd~tttT smu . : ur' Jal ri 1" !here hts which he ther.: was did subsistinl: · not possess . . -

--[~][ ·.][: ]

·contract of tenancy it is not open to the landlord to take adva11tage of the provisions of the Act to apply for fixation of fair rent at figure higher than the contract rent. We are not called upon in this case to consider whether those two cases were correctly decided. But we must point out that the general observations therein should be confined to the facts of those cases. Any general observatiO!l cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act. We may also point out.that in both thos.: cases the contract of tena11cy was not subsisting. In senqe, therefore, the observa-tions therein were not rea\ly necessary for deciding those cases. We may also point out that in Rai Bri; Raj Krishna v. S.K. Shaw Bro.r. (1951 SCR 145) dealing with the Bihar Buildings (Lease, Rent and Eviction) Control Act. 1947 and interpreting section II of that Act this Court observed as follows :

"Section II begins with the words 'Notwithstanding anything contained in any agreement or law to the contrary'. and hence any attempt to import the provisions relating to the 1aw of transfer of property for the interpretation of the section would seem to be out of place. Section II is self-contained section, and it is wholly unnecessary to go outside the Act for determining whether tenant is liable to be evicted or not, and under what conditions he can be evicted. It clearly provides that tenant is not liable to be evicted except on certain condi-tions, and one of the conditions laid down for the eviction of month to month tenant is non-payment of rent."

Similarly in Slrri Hem Chand v. Slrrimati Shant De1·i (rLR 1955 Pu1~. 36) which dealt with the Delhi and Ajmer Merwara Rent Control Act, section 13(i) of which provided that no decree or order for the reeovery of possession of any rremises shall be passed by any court in favour of the landlord against tenant, notwithstanding anytbi ng to the contrary contained in any other lnw or any contract. it was held that the Act provided the procedure for obtaining the relief of cject-1nent and that being so the provisions of s. 106 of the Transfer of Property Act had no relevance. Both these cases were referred to in the decision in Bhaiya Pm!ialal Blragwmufdin v. Dare Blragu·atprasad Prablwprasad. Therefore, the following observations in Mmwjendrct v. Purendu Prasad that

"Rent Acts are not ordinarily intet1ded to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights cit her under the contract or under the general law."

should not be held to apply to all Rent Acts irrespective of the schem~ ~f those Acts and their provisions. The decision of the Madras High court in R. Kr·ishnanwrthy v. Parthasaratlry (AlR 1949 Mad. 780--1949 1 MLJ 412) where it was held that section 7 _of the Madras Buildin~s (Lease and Rent Control) Act of 1946 had tts own scheme

of procedure ~nd therefore th~e was no question of an attempt to re(:Oncil~ that Act with the Transfer of Property Act and that an application for eviction could be m.ade to the Rent Controller even before the contractual tenanc:y was terminattd by notice to quit, should not have been summarily dismissed on the grounds that it was contrary to the decisions of this Court in Abbasb!tat'~ Case (1964 5 SCR 157) and Mangilal's Case (1964 5 S.CR 239) and therefore was not correct law, without examining the provisions of that Act.

Be that as it may, we are now concerned with the question of fixa-tion of fair rent. The legislation regarding control of rents started ·during the Second World War. Jn Madras first two orders under the Defence of India Rules were issued as the Madras House Rent Control Orders, 1941 and the Madras Godown Rent Control Order, 1942. Jn 1945 these orders were re-issued with slight changes, as the Madras House Rent Control Order, 1945 and the Madras Non-Residential Buildings Rent Control Order. 1945. These were replaced by the Madras Buildings (Lease and Rent Control) Act, 1946, Under that Act for the first time both the tenant as well as the landlord were given the right to apply for fixation of fair rent. This Act was later replaced by the M-adras Buildings· (Lease and Rent Control) Act, 1949, which again had similar provision.· But the important thing to note about the fixation of fair rent under both these Acts is that the fair rent was related to the rents prevailing in April1940 and only fixed per-centage of increase from 8 1{3 to 5C per. cent depending upon the rent payable was allowed. ~- The 1960 A:ot which replaced the 1949 Ad adopted completely new scheme of its own. It provided for the fixation of fair rent on the basis of the cost of construction and the cost of land and after allowing for depreciation provided for retur~ of 6 per cent in the case of residential builings and 9 per cent in the case of non-residential buidings. It also provided' for increase in rent for such factors as locality, nearness to rajlway 'station, market, hQspital, _ school etc. Another significant fact is that all new buildings constructed after 1960 were exempt from the scope of the Act. Still another departure was that the Act applies, in the case of residential buildings, only if the monthly ·rent dOeil not exceed Rs. 250. The Act also provides for fixation of fair rent under the new provisions even though fair rent for the building might have been fixed under the earlier repealed enact-ments. All these show that the Madras Legislature had applied its mind to1the problem of housi!)g and control of rents and provided scheme, of its own. It did not proceed on the basis that the legislation regarding rent control was only for the benefit of the tenant$. It wanted it to be fair both to the landlord as well as the tenant. Appar-t:ntly it realiSed that the pegging of the rents at the 1940 rates had discourased building construction activity which ultimately is likely to affect every body and therefore in order to encourage new construe· tioDS·exemi!ted them altogether from the provisions of the Act. It dicl not pr~d on the basis that all tenants belo~ged to the weaker sectio!J. of the oommunity an~ needed protection and that all landlords

belonged to the better ?ff clas~es. It confined the protection of th . therefore, Act to the that weaker ~he scctton Madras paymg Legislature rents below ~elibcrately Rs. 250. procecdc~ It is 1 e~~ the basis that fa1r rent was to be fixed whtch was to be fair both 1 the landlords as well as to the tenants and that only the poorer clas o. of tenants needed protection. The facile nssumption on the basis se~ which an argument was adva~ced before this Court that all Rent Ae~ arc intended for the prot.ectJOn of tenants and, therefore, this Act also should be held to be Jlltcndc.d. only for the protection of tenants breaks down when. ~he provJstons of the Act .arc examined in detail. The provJsJon that both the tenant as well as the landlord can apply for fixation of fair rent would become meaningless if fixation of fair rent can only be downwards from the contracted rent and the contract rent was not to be increased. Of course, it has happened over the last few years that rents have increased enormously and that is why it is argued on behalf 9f the tenants that t~e co.ntract rents should not be changed. If we could contemplate Situation where rents and prices are coming down this argument will break down. Jt is realisation of the fact that prices and rents ha\'C enormously increased and there· fore if the rents are pegged at 1940 rates there would be no new con-struction and the community as whole would suffer that led the Madras Lcgisb.ture to exempt new buildings from the scope of the Act. realised apparently how dangerous was the feeling that only/ "fools build houses for wise men to live in''. At the time the !960 Act was passed the Madras Legislature had before it the precedent of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956. That Act provides for fixation of fair rent. It also provtdes th:lt .the contract rent, if lower, will be payable during the contract penod. Even if the contract rent is hightr only the fair rent will be payable. After the contract period is over only the fair rent is payable. ~e Madras Legislature having this Act in mind still made only the fa1r rent payable and not the contract rent if it happens to be lower. It is clear, therefore, that the fair rent under the present Act is payable during the conuact period as well as after the expiry of the contract ptriod.

It was argued that the basis of the decisions fn Rai Brij Raj Krislw(s Case and Shri Hem Cham/'s Case wa~ the. non-obstont~ clause 10 those two Acts. But it is well settled that the mtcnuon tllfl ~cgi~lation should take cff~ct notwithstanding any earlier Icg;s-. latH?~ on. the subject can be both explicit and implicit and that IS .~:r posmon Jfl the present case. We do not also f..:cl c:~llcd upon to j to the deci~ions in G/os.wp v. Ash/q (1921 2 K 0 450), New(/ ~ Cruyfurd Cuttuge Society (1922 1 KB 656) and Kerr v. IJryde (19, AC 16), nor to the various statements regarding the law in M~S'1~{,;1} work on the Rent Acts relied upon by Sri K. s. R::unamur.tl}Y on ~tile of th.e nppella!lts. 11Jcy arc ba~d on the relevant prov1s1ons . of Act 10 fur.:e 10 England particularly section 3(1) of the )nc~e~se Rent & ~ortgage lnh:rcst (Rc\trictions) Act, 1920 which read> •

"Nothing in this Act shall be taken to authorise any increase of rent except in respect of period during which but for this Act the landlord would be entitled to obtain possession.''

The provlSlons of the Act under consideration show that they are to take effect notwithstanding any contract even during the Sub-sistence of the contract. We have already referred to the definition of the terms 'landlord' and 'tenant' which applies both to subsisting tenancies as well as tenancies which mi$nt have come to an end. We may also refer to the provision in sect•on 7(2) which lays down that where the fair rent of building has not been fixed the landlord shall not .claim anything in addition to the agreed rent, thus showing that. the fair rent can be fixed even where there is an agreed rent. That is why we have earlier pointed out that the various EngliSh decisions which provide for. fixation of rent only where the contractual tenancy has come to an end do not apply here. We may also refer to sub-section (3) of.section 10 which deals with cases where landlord requires residential or non-residential building for his own use. Clause (d) of that sub-section provides that where the tenancy is for term the landlord cannot get possession before the expiry of the term, thus showing that in other eases of eviction covered by section 10 evicti~n is permissible even during the continuance of the contractual tenancy if the conditions laid down in section 10 are satisfied.

The Madras High Court reviewed all the decisions of this Court except the latest one in Manujendra v. Purendu Prosad. We have already pointed out that the criticism made in that decision regarding Krishnamurthy's Case was not justified. We are in agreement with the view of the Full Bench of the Madras High Court that the various decisions of this Court were based upon particular provisions of the Acts which were under cons'deration, mainly the Bombay Act which-is vitally different from the Madras Act. close analysis of the Madras Act shows that it has scheme of its own and . it is intended to provide complete c0de in respect of 'both contractual tenancies as well as what are popularly called statutory tenancies. As noticed earlier the definition of the term 'landlord' as well as the term 'tenant' shows that the Act applies to contractual tenancies as well as cases of "statutory tenants" and their landlords. On some supposed general principles governing all Rent ~cts it cannot be argued that such fixation can only be for the benefit of the tenants when the Act clearly lays down that bot·h landlords and· tenants can apply for fixation of fair rent. close reading of the Act shows that the 'fair rent is fiXed for the building and it is payable by whoever is the tenant whether contractual tenant or statutory tenant. What is fixed is not the fair rent payable by the tenant or to the landlord who applies for fixation of fair rent but fair rent for the· building, something like an incident of the tenure regarding the building.-

We have the'n to .deal with Civil Appeal N<'. ol201 of 197(). The learned Single Judge considering that as the total amount payable annually in respect of these premises was Rs. 5032/·, which makes the rent payable to exceed Rs. 400/- month, the building was outside 15-M602Sup. CI 74

the scope of the Act and therefore the petition for fixation of fair rent does not lie. (This provision was removed by an Amending Act of 1964). The learned Judges ofthe Division Bench on the other hand held that the agreement of the year 1949 between the landlord and the tenant by which the rent was increased was one in variation of written contract and therefore evidence of it is barred under section 92 of the Evidence Act. Clearly any variation of rent reserved by registered lease deed must be made by another registered instrument. We are not able to accept the argument of Sri K. S. Ramamurthy on behalf of the tenants that the agreement of 1949 was one by the landlord to give up his right to apply for fixation of fair rent in consi-deration of the additional rent agreed to be paid by the tenant and is, therefore, not covered by section 92 of the Evidence Act. The correspondence between the parties makes it clear beyond doubt that the agreement was to pay increased rent. If this agreement is left out of acc:>unt the rent payble is below Rs. 400/- month, and, therefore, the decision of the Division Bench is correct.

Before concluding we must refer to one other argument on behalf of the appellants. Under section 30 of the Act, as originally enacted, any residential building the rent of which exceeded Rs. 250/- per month and any non-residential building whose rent exceeded Rs. 400/- month were outside the scope of the Act. In 1964 the Act was amend-ed so as to provide thai all non-residential buildings would be within the scope of the Act. This amendment was attacked on the ground that it contravened the provisions of Art. 19(1) of the Constitution. In view of our finding earlier that this case should be decided on the basis of the monthly rent being below Rs. 400/· this argument does not fall to be considered.

In the result the appeals are dismissed. The appellants will pay the respondents' costs.

BHAGWATl J. We have had the advantage of reading the judgment prepared by our brother Alagiriswami, J., and though we agree with him in regard to the decision in Civil Appeal No. 1201 of 1970, we we find it difficult to a!lsent to the view taken by him in Civil Appeal No. 50 of 1968. The facts giving rise to the two appeals have been stated clearly and succinctly in the judgment given by our learned brother and we think it would be futile exercise to reiterate them. We may straight aw'J..y proceed to examine the question which arises for· consideration in Civil Appeal No. 50 of 1968. The question is whether landlord can, during the subsistence of the CO!!tractual tenancy, apply for fixation of fair rent under s. 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as the Tamil Nadu Act 18 of 1960). The determination of this question depends on the true interpretation of certain provisions of the Tamil Nadu Act 18 of 1960 and we may, therefore, refer to those provisions a.nd see what is their proper meanih~ and effect.

· The Ion~ title and the preamble of the Tamil Nadu Act 18 of 1960 show that it is enacted "to amend and consolidate the law relating to the regulation of the letting of residential and non-re,idential buildings and the control of rents of such buildiDJS and the preven-

t1on or unreasonable eviction· of tenants therefrom in the State of Tamil Nadu". See. 2, cl. (6) gives an inclusive definition of 'landlord' and according to this definition, 'landlord' includes "the person who is receiving or is entitled to receive rent of building, whether on his own account or on behalf of another or on behalf of himself and others or as an aient, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to tenant". Thus the owner of building whica becomes va~nt would be 'landlord' within the meaning of that expression as defined in s. 2, cl. (6) and so also would be the landlord during the subsistence of the contractual tenancy as also after the termination of the contractual" tenancy where the tenant continues to remain in possession of the building. 'Tenant' is defined in s. 2, ct (8) to mean "any person by whom or on whose account rent is payable for building and includes the surviving spouse, or any son, or daughter, or the legal representative of deceased tenant who had been living with the tenant in the building as member of the tenant's family up to the death of the tenant and person continuing in posses-sion after the termination of the tenancy in his favour". This defi-nition is wide enough to include not only contractual tenant but also tenant remaining in possession of the building aftet the termi-nation of the contractual tenancy. Section 3 enacts detailed provisions regulating the letting of residential and non-residential buildings. The broad scheme of this section is that when building becomes vacant, the landlord is required to give notice of the vacancy to the authori~ officer and if the building is required "for the purposes of the State or Central Government or of any )gcal authority or of any public institution under the control of any such Government or for the ocoupation of any officer of such Government", the authorised officer may give necessary intimation in that behalf to the landlord and on receipt of such intimation, the landlord would be bound to deliver possession of the building to the authorised officer or to the allottee named by the authorised officer, as the case may be, and the Government would be deemed to ·be the tenant of the landlord on such terms as may be agreed upon between the landlord and the Govern-ment, or in default of agreement, determined by the Contrdller. The rent payable by the Government to the landlord would be the "fair rent, if any, fixed for the building under the provisions of this Act and if no fair rent has been so fixed, such reasonable rent as the s authorised officer may determine", but "the reasonable rent _fixed by the authorised officer-shall be subject to such fair rent as mS¥ be fixed by the Controller". Section 4 provides for fixation of fair rent of building on the application of the tenant or the landlord. Sub-s. (1) or the section is material and it says that "The Controller shall, on application by the tenant or the landlord of building and after holding such inquiry as the Controller thinks fit, fix the fair rent for such building in accordance with the principles set out in' sub-section (2) or in sub-section (3) as the case may be, and such other principles as may be prescribed". Sub-s. (2) lays down the principles for fixation of fair rent of residential building and sub-s. (3), for fixation of fair rent of non~residential building. The fiar rent is to be such as would provide 6% gross return. per annum on

[1974] 2 s.c.Jl.

the total cost of the building, if it is residential and 9% gross return per annum on the total cost of the building, if it is non-residential. The total cost of the building is to be computed by taking the cost of construction as calculated according to the prescribed rates less depreciation also at the prescribed rates and adding to it the market value of that portion of the site on which the building is constructed and making allowances for such considerations as locality in which the building is situated, featuxes of architectural interest, accessibility to market, dispensary or hospital, nearness to the railway station or educational institution and such other amenities as may be prescribed. It may be pointed out that under the Madras Buildings (Lease and Rent Control) Act, 1946 and the Madras Buildings (Lease and Rent Control) Act, 1949, which preceded the .Tamil Nadu Act 18 of 1960, the scb.eme of fixation of fair rent was different, in that the. fair rent was related "to the prevailing rate of rent in the locality for the same or similar accommodation in similar circumstances during the twelve months perior to 1st April, 1940" and only fixed percentage of in-crease varying from 8 I /3% to 50% was allowed on such rate ofr'ent, depending upon whether it exceeded or did not exceed ~rtain limit. But the Legislature while enacting the Tamil Nadu Act 18 of 1960 made departure from that scheme pcrsumably because it felt that in view of the staggering and disproportionately heavy fall in the purchasing power of the rupee over the last 30 years, it was most unrealistic to peg the fair rent to the level of rents prevailing during the period of 12 months prior to 1st April, 1940 and allow only an ad !zoe percentage of increase, arid therefore, in s. 4, sub-ss. (2) and (3), it adopted different basis for fixation of fair rent which would not unduly depreciate the yield permissible to the landlord and at the same time, be not extortionate or exploitative of the tenant. Now once the fair rent of building is fixed under s. 4, sub-s. (1), no further increase in such fair rent is permissible except in cases where some addition, improvement or alteration has been carried otit at the expense of the landlord and if the building is then in the occupation of tenant, at his request and similarly, if there is decrease or dimi-nution in the accommodation or amenities, the tenant may claim reduction in such fair rent. Vide s. S. Section 6 provides that where the amount of the t~es and cesses payable in respect of buHding to local authority for any half year commencing on 1-st April, 1950 or on any later date exceeds the amount of taxes and ~sses payable for the half year commencing on 30th September, 1946 or for the first complete half year after the date on which the building was first let out, whichever is later, the landlord shall be entitled to claim such excess from the tenant in addition to the rent payable for the building. The consequences of fixation of fair rent are set out ins. 7, sub-s (I) and (3). Sub-section (I) says that where the Controller has fixed the fair rent of buildin8-

"(a) the landlord shall not claim, receive or stipulate for the ·payment of (i) any premium or other like sum ~n addition to such fair rent, or (ii) save as provided In section 5 or section 6, anything in excess of such fair rent

. ... ··.

(b) ...... any premium or other like sum or any rent paid in addition to, or in excess of, such fair rent whether before or after the date of the commencement of this Act, in consideration of the grant, continuance or re-newal of the tenancy of the building after the date of such commencement, shall be refunded by the landlord to the person by whom it was paid or at the option of such person, shaH be otherwise adjusted by the land-lord; ·

Provided that where before the fixation of the fair rent, rent has been paid in excess thereof, the refund or adjustment shall be limited to the amount paid in excess for the period commencing on the date of appli-cation by the tenant or landlord under sub-section (I) of section 4 and ending with the date of such fixation."

Sub-sec. (3) declares that any stipulation in. contravention of sub-s. (1) shall be null and void. These are the only provisions of the Tamil Nadu Act 18 of 1960 which have direct bearing on the determina-tion of the question before us, but reference was also made to certain other provisions of that Act dealing with eviction of tenants for the purpose of drawing support by way of analogical reasoning from the decisions of this Court interpreting those provisions and we must, therefore, briefly advert to them. Section 10 confers protection on the tenant against eviction "in execution of decree or otherwise" by providing that 4e shall not be evicted except in accordance with the provisions of that section or sections 14 to 16. Sub-ss. (2) and (3) of s. 10 set out the grounds on which the tenant my be evicted by the landlord. One of the grounds-that set out incl. (a) of sub-s. (3)-is that the landlord requires the building, if residential, for his own occupation or for the occupation of his son, and if non-residen-tial, for business which he N his son is carrying on, but in respect of this ground, there is limitation imposed by cl. (d) of sub-s. (3) that when the tenancy is for specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to app!J for possession under sub-s. (3) before the expiry of such period. Sec· -· tions 12 to 14 provide for recovery of possession of the building by the landlord for repairs or -reconstruction. These provisions are not material and we need not refer to them in detail. Then we go straight to s. 30 which exempfs certain buildings from the operation of the Act. Every new building the construction of which is com-pleted after the commencement of the Act is exempted under cl. (i). The reason obviously is that th~ legislature wanted to encourage cons· truction of new buildings so thM more and more buildings would be· come available for residential as well as non-residential purposes and that would help relieve shortage of accommodation. Cl. · (ii) exempts any residential building or part thereof occupied by any tenant, if the monthly rent paid by him exceeds Rs. 250/-Here the object of the Legislature clearly was that the the protection of the beneficent provisions of the Act should be available only to small tenants paying rent not exceeding Rs. 250/- per month, as they

belong to the weaker sections of the community and really need pro· tection against exploitation by rapacious landlords. Those who can afford to pay higher rent would ordinarily be well-to-do people and they would not be so much in need of protection and can, with~ out much difficulty, look after thelll9Clves.

It is in the light of these provisions of the Tamil Nadu Act 18 of 1960, that we have to consider wheth~:r landlord can, during the subsistence of the contractual tenancy, apply for fixation of fair rent under s. 4, sub-s. (1), Two basic cons.idCrations must guide our ap. proacb to this question. The first is that the agreed rent which is the result of contract between the parties must continue to bind them ao long as the contract subsists, unless there is anything in the statute which expressly or by necessary implication overrides the contract, It is true that· with the decline of the doctrine of latsstz fatre and the assumption by the State of more dynamic and activists role, the pri· nciple of sanctity of contract which isoneofthepillanofafree market economy, has in number of cases been eroded by legislation. But if we examine such legislation it will be apparent that this has happened invariably in aid of the weaker party to the contract. Where there is unequal bargaining power between the parties, freedom of contract is bound to produce injustice and social legislation therefore steps in and overrides the contract, with view to protacting the weaker pany from the baneful consequences of the contract. It is to cont-ract the injustice resulting from inequality in bargaining power and to bring about social or distributive justice that social legislation inter· feres with sanctity of contract. It seeks to restore the bafance in the scales which are othewise weighted in favour of t.he stronger party which has larger bargaining power. Ordinarily we do not find, and jndeed it would be strange and rather incomprehensible phenomenon, that legislation intervenes to disturb the sanctity of contract for the benefit of stronger party who does not need the protective hand of the legislature. This consideration we must constantly keep before us while construing the relevant provisions of the Tamil Nadu Act 18 of 1960.

Secondly the Tamil Nadu Act 18 of 1960, as its long title and preamble show, has been enacted inter alia with the object of con-trolling rents of residential and non-residential buildings and pre-venting unreasonable eviction of tenants. Now, there can be no doubt that in so far as it is calculated to prevent unreasonable eviction of tenants, the Tamil Nadu Act 18 of 1960 is protective measure intended to safeguard tenants against indiscriminate eviction by land-lords. Equally, by controlling the rents by keeping them within fair and reasonable limits, the Tamil Nadu Act 18 of 1960 seeks to pro-tect tenants against greedy and rapacious landlords who taking advan-tage of the great scarcity of housing accommodation which prevails in almost all urban areas;, may extract excessive and unconscionable rent from tenants. The Tamil Nadu Act 18 of 1960 is in its essential character as also in its object and purpose similar to what may con~ veniently be described as rent control legislation, in other States, such as Maharashtra, Gujarat, West Bengal and Madhya Pradesh.

P.AV.AL & CO. V. IC. C. RAMACHANDRAN (Bhagwati, ],)

Now it is well settled by decisions of this Court that rent control Acts are ~·not ordinarily intended to interfere witb contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enablina or conferring any rights of action but restricting the existing riahts either under the contract or under the general law.,. That is what this Court said in Manuiendra Dutt v. Purendu Prosad Roy Chowdhury & Ors.(l), while dealin; with the .Caicutta: Thika Tenancy Act, 1949. The same view was taken by this Court in Bhaiya Punjala/ Bhagwanddln v. Dal't Bhagwat Prasad Prabhuprasad(2) in relation to Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which prevails in Maharashtra and Gujarat and which has long title and preamble in almost the same terms as the Tamil Nadu Act 18 of 1960. This Court said in that case: "the Act,", that is the Bombay Rent Act "intended therefore to restrict the rights which the landlords possessed either for charging excessive rents or for evicting tenants". The Madhya Pradesh Accommodation Control Act, 19SS was also construed in the same way by this Cotfrt in Mangl/al v. Sugarchand Bath/.([3]) This seneral purpose and intendment of rent control legislation and its positive thrust and emphasis on the protection of the tenant cannot be lost sight of when we are construing similar legislation like the Tamil Nadu Act 18 of 1960.

We may now turn to examine the relevant provisions of the Tamil Nadu Act 18 of 1960 against the background of these general con-siderations. Section 4, sub-s. (1) contemplates that an application for fixation of fair rent. of building may be made by the tenant or the landlord. The definition of "tenant", as we have pointed out above, includes contractual tenant as well as tenant remaining in possession of the. building after determination of the contractual tenancy, that is, statutory tenant, and both contractual tenant and statutory tenant can, therefore, apply for fixation of fair rent under s-: 4, sub-s. (1). The Government, who is deemed to be the tenant of the landlord under s. 3, sub-s. (5), can also similarly avail of the provisionfor1ixation of fair rent ins. 4, sub-s. (1). The question is as to who are the persons comprehended within the expression 'landlord' who can apply for fixation of fair rent under s. 4, sub-s. (1). The landlord, where the Government is deemed to be the tenant under. s. 3, sub-s. (5), would certainly be entitled to make such application and, having regard to the wide definition of the expression 'landlord', which includes not only contractual landlord but also statutory landlord, if one may use that expression to describe the counterpart of statutory tenant, it was common ground between the parties that the statutory landlord can also avail of this provision, but the dispute was whether the contractual landlord is within the ambit of this provision. Can he apply for fixation of fair t:ent ltnder s. 4, sub·s. (l)p? Now prima facie according to the definition as also according to its plain natural connotation, the expression 'landlord' includes contractual landlord and it might, therefore, appear at first blush, on purely literal construction, that the contractual landlord can make an application for fixation of fair rent under s. 4, sub-s. (1). But is is well settled that definition clause

(I) !1967) 1 S.C:R. 475. (2) [1963] 3 S.C.R, 312.

(3) [1964] 5 S.C.R. 239.

is not to be taken as substituting one set of words for another or as strictly defining what the meaning of term must be under all circum· stanc!s, but as m!rely declaring what may be comprehended within the term, when the circumstances require that it should be so comprehended. It would. therefore, always be matter of interpreta-tion whether or not particular m~aning given in the definition clause .applies to the word as. used in the statutory proriety. That would depend on the subject and the context. Mor-eover, it is equally well established that the meaning of words used in statute is to be found, not so. much in strict etymological propriety of language, nor even in popular use, as in the subject or occasion on which they are used and the obj:!ct which is intended to be achieved. The context, the collocation and the obj !Ct of the words may show that they are not intended to be used in the sense which they ordinarily bear, but are meant to be used in narrow and limited sense. Lord Herschel! pointed out in Cox v. Hakes (1): "It cannot, I think, be denied that, for the purpose of construing any enactment, it is right to look, not only at the provisi@n immediately under construction, but at any others found in conn~ction with it which may throw light upon it, and afford an indication that general words employed in it w.!re not intended to be applied without some limitation." However wide in the abstract, general words must be understood as used with reference to the subject-matter in the mind of the legislature and limited to it. Thus, in Whethered v. Calcutta(2) statute which, reciting the inconveniences arising from churchwarden!! and overseers making clandestine rates. enacted that those officers should permit "every inhabitant'' of the parish to inspect the rates under penalty for refusal, was held not to apply to refusal to one of the churchwardens, who was also an inhabitant. As the object of the &tatute was to protect those inhabitants who had previously no acc·!Ss to the rates (which the churchwardens had, the meaning of the term 'inhabitants' was limitl'd to them. The same approach in interpretation must be adopted by us in the present case. We must not allow ourselves to be unduly obsessed by the meaning Qf 'landlord' given in the definition or by its ordinary etymological meaning but we must examine the scheme of the relevant provisions. Qf the statute, the contextual setting in which s. 4, sub-s. (l) occurs and the object which the legislation is intended to achieve, in order to determine what is the sense in which the word 'landlord' is used ins. 4, sub-9. (l)_;_whether it is intended to include contractual landlord.

It is necessary for this purpose to consider what are the conse-~u~nces of fixation of fair rent, for that furnishes the key to the solu-tion of the problem before us. The fair· rent, when fixed, becomes an ~tt~ibute or ~nciden~e of the building and there can be no change In It except m the cucumstances set out in s. 5. When the fair rent is fixed, three possibilities may arise. The fair rent may be the same as the agreed rent in which case no difficulty arises. Or the fair rent may b<l less than the agreed rent. Where that happens, s. 7, sub-s. (i), cl. (a) operates and it provides that the landlord shall not be entitled ·to claim, receive or stipulate for payment of anything in excess of the

(2) [1842] S Scott. N.R. 409.

fair rent. The landlord, can, in such case, claim, receive or recover only the fair- rent and nothing more, despite the contract of tenancy which provides for payment of higher rent. To that extent sanctity of contract is interfere<;! with by the legislation in order to protect the tenant against exploitation by the landlord so that the landlord may not take undue advantage of shortage of housing accommodation and extract excessive rent from needy and helpless tenant. The stipulation in the contract of tenancy for payment of higher rent would in such case be clearly in contravention of sub-s. (1) of s. 7 and would be nuli and void under s. 7, sub-s. (3). But what happens if the fair rent fixed is higher than .the agreed rent? Can the landlord claim to recover such fair rent from the tenant, overriding the con-tract of tenancy which provides for payment of lesser rent? We do not think so. There is nothing in s. 7 or in any other provision of the Tamil Nadu Act 18 of 1960 which can by any process of construc-tion be read as' authorising the landlord to override the contract of tenancy and claim fair rent higher than the agreed rent from the tenant. If the legislative intent were that, even though the contract of tenancy is1subsisting, the landlord should be entitled to recover fair rent higher than the agreed rent, we should have expected the Legislature to say so in so many terms, as it has done in s. 7, sub-s. (1), cL (a) when it wanted the landlord not to be able to recover the agreed rent where it is in excess of the fair rent. It may no noted that whenever the Legislature intended to confer on the landlord right to recover any amount which he would not otherwise have under the contract or the general law, the Legislature has done so in clear and specific language as in s. 6 of the Act. But here we do not find any such provision, either express or necessarily implied. We may also profitably com-pare the language of the provision in s. 3, sub-s. (5). There it is pro-vided that "the reasonable rent fixed by the authorised officer-shall be subject to such fair rent as may be fixed hy the Controller". The words "subject to" clearly take in both kinds of cases, where the fair rent fixed is higher as well as lower than the reasonable rent. In s. 7, sub-s. (1), cl. (a), however tli.e Legislature has departed from this phra- · seology and instead of saying that the agreed rent shall be subject to the fair rent or the rent payable by the tenant shall be the fair rent, t~e Legislature has merely laid an embargo on the landlord prohibiting h.1m ~rom recover!ng anything in excess of the fair rent. This provi-SlOn 1s clearly, Without doubt, restrictive in character. It is not an enabling provision empowering the landlord to recover the fair rent wher:e it i~ higher th~n .the agreed .rent. But quite apart from these co_nsideratiOns~ there IS Inherent ev1dence in s. 7 itself which strongly remforc~s our mterpretation and that is to be-found in sub-s. (3). That sub-sectiOn says th~t any stipulation in contravention of sub-s. (1) shall be null and vo1d. If, therefore, there is stipulation in the con- · tra~t of ~enancy'for payment of rent higher than the fair rent, it would be mvalt~. Such sttpulation would not be enforceable by the land-, lord agamst the tenant. Onfy the fair rent would be payable by the ~enant. If, howe~er, ther~ is stipulation for payment of rent which IS less than the fatr rent, 1t would not be in contravention of sub-sec. (I) and hence would not be invalidated by sub-s. (3) but would remain

[1974] 2 s.c.R.

enforceable and binding on the parties and if that be so, the landlord would not be entitled to claim the fair rent in breach of such stipula-tion. Section 7, sub-s. (3) clearly indicates that the stipulation in the contract of tenancy as regards rent is overridden only where the fair rent is less than the agreed rent and not where it is higher than the agreed rent. This is the only rational construction which, in our opinion, can be placed on the relevant provisions of the Act relating to control of rent. It is not only compelled by grammar and language, but also accords with the broad general considerations we have already discussed. It is difficult to believe that the Legislature should have chosen to interfere with contractual rights and obligations in favour of the landlord who is ordinarly, in view ofthe acute shortage of housing accomthodation, in stronger and more dominating position than the tenant qua bargaining power. The Legislature while enacting social legislation could not have intended to confer on the landlord new right of action-a ri~# to override the contract of tenancy and to impose greater burden on the tenant than that permitted under the contract of tenancy. It would be startling proposition to assume that the Tamil Nadu Legislature was so solicitous of the' welfare of ·the landlord, who is admittedly, as class, stronger party and much more favourably situate-' in respect of bargaining power than the tenant, that it enacted provision in the Act for relieving the land-lord against the consequences of an unwise contract entered into by him with open eyes; To take such view would be to pervert the legitimate end of socialle&islation and proselytise its true object and purpose. ·

These considerations impel us to the conclusion that the Legis-lature could not have intended that the landlord should have the right to apply for fixation of fair rent during the subsistence of the contrac-tual tenancy. If it was not the intention of the Legislature to bene-fit the landlord by giving him right to override the contract of tenancy and claim fair rent higher than the agreed rent from the tenant during the subsistence of the contractual tenancy, it must follow fortiorari that it could not have been intended by the Legislature that the land-lord should have the right to apply for fixation of fair rent whilst the contract of tenancy is subsisting. Having regard to the basic charac-ter of the statute as rent control legislation and the scheme of its provisions and reading s. 4, sub-s. (I) in its contextual setting and in the light of the other provisions of the statute, the conclusion is in-escapable that the word 'landlord' in s. 4, sub-s. (1) is used in limited sense and it does riot include contractual landlord. The landlord is not given the right to apply for fixation of fair rent during the sub-sistence of the contractual tenancy. It is only when the contract of tenancy is lawfully determined that he becomes entitled to apply for fixation of fair rent, for it is only then that he can recover fair rent higher than the agreed rent from the statutory tenant, there being no contract of tenancy to bind him down to the agreed rent.

We were referred to certain decisions of this Court relating to the interpretation of the provisions of various Rent Control Acts dealing with the . eviction of tenants. Some of these decisions have

already been noticed by us earlier while discussing the general object and intendment of Rent Control Acts. They have no direct bearing on the determination of the question before us, but they do lend 50me support to the view we are taking as to the interpretation of the word 'landlord' jn s. 4, sub-s. (1). These decisions which are given in re-ference to Rent Control Acts of Maharashtra, Gujarat, West Bengal and Madhya Pradesh, clearly establish that the Rent Control Acts do not give right to the landlord to evict contractual tenant with-out first determining the contractual tenancy. So long as the con-tractual tenancy subsists, the tenant does not need protection because he cannot be evicted in breach of the contract of tenancy. It is only after the contract of tenancy is determined and the landlord becomes entitled to the possession of the premises, that the tenant requires protection and it is there that the Rent Control Acts step in and pre-c vent the landlord from enforcing his right to possession except under certain conditions. The Rent Control Acts do not confer on the land-lord new right of eviction, but merely restrict his existing rig~t to recover possession under the contract or the general law. 1he land-lord cannot, therefore, sue for recovery of possession on any of the grounds recognised as valid by the Rent Control Acts unless he has first determined the contractual tenancy of the tenant. This view. which has been taken by the decisions of this Court in regard to the Rent Control Acts of Maharashtra, Gujarat, West Bengal and Madhya Pradesh, applies equally in regard to the Tamil Nadu Act 18 of 196~. It is true that the High Court of Madras took different v.ie~ m R. Krishnamurti v. Perthasarthi (1) in regard to the Madras BU1ld1ngs (Lease and Rent Control) Act, 1945 which was in material respects in almost identical terms as the Tamil Nadu Act 18 of 1960 and held that s. 7 of that Act, corresponding to s. 10 of the present Act, 1-.l'.d · its own scheme of procedure and there was no question of any attem~t to reconcile that Act with the Transfer of Property Act and an apph· cation for eviction could, therefore, be made under that .Act With-. out terminating the contractual tenancy of the tenant. But in Manuj-endra Dutt. v. Purendu Prosad Roy Choudhury & Ors.(2) this decision of the Madras High Court was expressly overruled and held not to be correct Jaw by this Court. The argument on behalf of the respon-dents was that the obsetvation of this Court disapproving the view taken by the Madras High Court was casual observation made without examining the scheme of the Madras Act and no validity could attach to it. We fail to see how such an argument can possibly be advanced with any degree of plausibility. It is clear from the dis-G cussion of the Madras decision which we find in the judgment of Court that the attention of this Court was specifically directed to · the reasoning of the Madras decision which proceeded on the basis that s. 7 of the Madras Act had its own self-containfd scheme which excluded the Transfer of Property Act and it was because this Court found the reasoning . to be incorrect, that it held that the Madras decision was not good law. It would not be fair to presume that R !his. Com:t cavalierly. overruled t_he Madras decision without apply-. mg 1ts mmd and carmg to exanune the scheme of the Madras Act.

(1) A.J.R. 1949 Mad. 780.

(2) [1967] 1 S.C.R. 47S

Such charge cannot be made merely because this Court did not elab:m.tely discuss the merits of the Madras decision but disposed it of in few W.Jrds. The brevity of the discussion does not signify casu:llness or lack of prop~r consideration. We must, in the circum-tan~!S, hold that the observation of this Court that the Madras decision cannot be regarded as good law was deliberate and considered pro-nouncem~nt and the view taken by this Court in regard to the ·Rent Control Acts of Maharashtra, Gujarat, West Bengal and Madhya Pradesh must equally prevail in regard to the Tamil Nadu Act 18 of of 1960.

We mly p:>int out that in any event we do not find any cogent reason to question the validity of the observation made by this Court disapproving of the Madras decision. We are wholly in agreement with that observation as we do not see any material difference between the language and the scheme of s. 10 of the Tamil Nadu Act 18 of 1960 and the language and scheme of the corresponding provisions of the other Rent Control Acts which came to be construed by this Court. The only distinctive feature which could be pointed out on behalf of the respondents was the provision ins. 10, sub-s. (3), cl. (d). But that provision does not make any material difference because all that it provides is that though, in case where the tenancy is for specified period and it is determined by forfeiture before the expiration of the term, the landlord would have been, but for c1. (d), entitled to recover pmession of the building under cis. (a), (b) or (c), he shall be precluded from doing so until the expiration of the period for which the tenancy wa~ created. If there is any other ground available to him for claiming possession, for example, ground specified in s. 10, sub- s. (2), he can seek to recover possession on that ground and cl. (d) would not afford the tenant any protection. But cl. (d) would stand in the way of the landlord, if p::>ssession is sought on any of the grounds set out in cis. {a), (b) and (c). The object of cl. (d) clearly is that even though the tenancy has come to an end by forfeiture and the landlord has b~com! entitled to the possession of the building under the general law., the tenant shall be protected from eviction on any of the grounds set out in cis. (a), (b) and (c) so long as the period for which the tenancy was created in his favour has not expired. This construction receives ·considerable support from the fact that the Legislature has used the words "before the expiry of such period" and not the words "before the determination of the tenancy" to it1dicate the Jangth of time for which protection is given to the tenant under cl. (d). We do not therefore think that it would be right to infer from cl. (d) that, save in cases falling within that provision, the landlord would be entitled to apply for possession under sub-s. (2) or sub-cl. (3) of s. 10 without determining the tenancy of the tenant. There can be no doubt, having regard to the judicial pronouncements of this Court, that th~ w:>rd 'landlord' in s. 10 of the Tamil Nadu Act 18 of 1960 is used in limited sense to refer only to landlord who has terminated the tenancy of the tenant and does not include contractual landlord. If the word 'landlord' in s. 10 is found subjected to limitation ex-cluding contractual landlord, it for·ms strong argument for sub-je;:ting the word 'landlord' ins. 4., sub-s. (I) also to the like limitation.

It may also be noted that, whatever be the correct interpretation or-the word 'landlord' ins. 10, it is clear from the decisions of this Court in regard to the other Rent Control Acts that it is not at all unusual, having regard to the object and purpose of Rent Control legislation, to read the word 'landlord' in limited sense so as to exclude contra· ctual landlord and we are therefore not doing anything startling or extraordinary but merely following the path eked out by the decisions of this Court when we place limited meaning on the word 'landlord' in s. 4, sub-s. (1) which would exclude contractual landlord. That is in fact in conformity with the object and purpose of the Tamil Nadu Act 18 of 1960, which, to quote the words used by this Court in P.J. Irani v. State of Madras (l) in reference to the earlier Tamil Nadu Act 25 of 1949 wh.ich was in material respects in identical terms as the present Act, is intended to proctect " the rights of tenants in occupation of buildings from being charged unreasonable rates of rent" and not to benefit landlords by conferring on them new right against tenants. which they did not possess before.

Since we are of the view that it is not competent to the landlord to apply for fixation of fair rent under s. 4, sub-s. (1) during the subsi-stence of the contractual tenancy, we set aside the decision of the High Court of Tamil Nadu which has taken the view that the Con-troller has jurisdiction to entertain the application of the respondents and allow Civil Appeal No. 50 of 1968. There will be no order as to costs all throughout.

ORDER

In accordance with the opinion of the majority, the appeal is dis- . missed. The appellant will pay the respondents costs. S.B.W.