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Judgment
S. Jagadeesan, J.—The petitioners in all these writ petitions are the tenants in the properties belonging to the religious institutions, such as temple, mutt, mosque and church. The lands belonging to such religious institutions had been leased out to the petitioners herein with an option to construct the superstructure at their cost. The petitioners have put up the construction in such lands. In some cases, the religious institutions filed the suit for recovery of possession of the land and the suits had been decreed and the appeals are pending. In some cases, either suits are pending or no suit had been laid by the religious institutions for recovery of possession of the lands. In some cases, after finality of the decree, the proceedings are pending at the execution stage. Wherever the suits or appeals are pending, in most of the cases, the tenants have filed application u/s 9 of the Madras City Tenants Protection Act, 1921 (hereinafter referred to as Act III of 1922). When such proceedings were pending, the said Tamil Nadu Act III of 1922 was amended under the Madras City Tenants Protection (Amendment) Act. 1994 (Tamil Nadu Act II of 1996) (hereinafter referred to as Act II of 1996). Sub-section (3) of Section 1 of Act III of 1922 not only deals with the applicability of the said Act to certain tenancies of land but also deals with the exemption of certain tenancies of land from the purview of the Act. 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).
By way of amendment under the Act II of 1996 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 institutions 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"
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.
These writ petitions were heard by the Division Bench consisting of Hon''ble Mr. Justice K.A. Swami, Chief Justice and Mr. Justice AR. Lakshmanan (as they were then). When the matter was heard by the learned Judges, the Government Pleader relied upon the decision of the Division Bench of this Court in Varadaraja Pillai v. Salem Municipal Council (85 LAV. 760) and advanced argument that the amendment now introduced is identical to an earlier amendment introduced in Section 2 of Act 13 of 1960 wherein the first proviso to subsection (3) of Section 1 of Act III of 1922 was added. u/s 3 of Act 13 of 1960, exemption from the purview of the Act was granted in respect of the buildings owned by municipalities etc., and a new definition of ''Building'' was substituted and the effect of the Amending Act of 1960 is that ''Building'' will include a building of residential or non-residential purpose in the City of Madras etc. The Government Pleader contended before the Bench that those amendments were considered by the earlier Division Bench in the case reported in Varadaraja Pillai v. Salem Municipal Council 85 L.W. 760) and the learned Judges have upheld the validity of those amended provisions. Hence the said judgment would squarely cover the issue involved in these writ petitions regarding the validity of the Amending Act II of 1996.
(4-A) While considering the arguments of the Government Pleader and the said judgment, the Division Bench felt some difficulty in accepting the principles laid down therein that the Amending Act 13 of 1960 has repealed the right of the tenant to claim compensation u/s 3 of the Act which is in pari materia with the present Amending Act 11 of 1996. Hence, by order dated 15.10.1996 the Division Bench has referred the matter to a larger Bench. The Order of Reference is reported in Shanmughavel v. The State of Tamil Nadu (1997-I-L.W.55, J.S).
It is unnecessary to refer the Order of Reference in its entirety. It is suffice to quote the relevant portions of the order of reference.
"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 (85.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 u/s 3 the superstructure belongs to the tenant, that there was no need for the tenant to file any application for conveyance u/s 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 u/s 9 the tenant is to acquire the landlord''s land and that right, even if taken away, is different from the right u/s 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 u/s 3 or a right u/s 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 u/s 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 u/s 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 3 of 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. u/s 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 him 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 u/s 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, u/s 3 of the Act, cannot be held to have been taken away, because the proviso to subsection (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 (AIR 1963 SC 864), their Lordships of the Supreme Court have held that they were not concerned, in that case, with the rights conferred u/s 3 of the Act. This is made clear in Para 30 of the said judgment which is follows:
".... We are not concerned here with the rights conferred u/s 3 of the Act, for the simple reason that neither of the appellants claimed a right thereunder. Both of them have taken proceedings only u/s 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 u/s 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, u/s 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 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. AIR 1962 SC 821, 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 u/s 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 u/s 9 of the principal Act could not be granted.
(Emphasis supplied)
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 (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 (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."
A perusal of the Order of Reference makes it clear that the Division Bench was of the view that the judgment reported in Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) does not reveal that different rights u/s 3 and Section 9 of the principal Act distinctly discussed by the Supreme Court in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt (AIR 1963 SC 864) had been taken note of. According to the Order of Reference without considering the distinct rights under the two provisions of Section 3 and Section 9 of the principal Act, the Division Bench in the case reported in Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) has held that it is not open 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 u/s 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 (AIR 1963 SC 864), the judgment in Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) is to be reconsidered.
We also perused the judgment in S.M. Transports (P) Ltd. v. Sankaraswamigal Mutt (AIR 1963 SC 864). In the said case, the Supreme Court dealt with the validity of Section 3 introduced by the Amending Act 13 of 1960, granting exemption for the nonresidential building from the purview of the Act. It is made clear that on the date of publication of the Act 13 of 1960 in the Fort St. George Gazette, the proceedings instituted under the provisions of the principal Act shall so far as such proceedings relates to non-residential buildings abate. The result of the said Amending Act, in respect of non-residential building in places other than the City of Madras and the other specified Municipal Towns, is that all 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 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 u/s 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 u/s 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 u/s 9 of the principal Act and ultimately held that neither 1955 Act conferred any right as to superstructure nor 1960 Act take that right away and the relief u/s 9 of the principal Act could not be granted. Even though the distinction has been kept between the right to compensation u/s 3 and the right of purchase by the tenant u/s 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 u/s 3 in the said case.
Coming to the case of Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) the Division Bench considered the question of the validity of the amendment under Act 13 of 1960 wherein the first proviso to sub-section (3) of Section 1 was introduced, granting exemption to the tenancies of the building owned by the Corporation of Madras, by the Municipalities and by the Local Panchayat and other public bodies like the Madras City Improvement Trust etc. Here also the vires of the amending Act was challenged on the ground that the right of the tenants to purchase the property as provided u/s 9 of the principal Act is taken away and as such the same is offending Article 19(1)(f) and Article 31 of the Constitution of India and also Article 14 in as much as the exemption of the tenancies of lands belonging to the Municipality from the operation of the Madras City Tenants Protection Act is arbitrary and discriminatory.
It is worthwhile to refer to the amendment introduced by Act 13 of 1960 which is as follows:
"By Section 3 of that Act the following amendments were made in Section 2 of the principal Act:
"for clause (1), the following clause shall be substituted, namely:-
(1) ''Building'' means any buildings, hut or other structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever used?
(i) for residential or non-residential purposes, in the City of Madras, in the municipal towns of Coimbatore, Madurai, Salem and Tiruchirappalli and in any village within five miles of the City of Madras or of the municipal towns aforesaid and
(ii) for residential purposes only, in any other area, and includes the appurtenance thereto.
Section 9, Every proceeding pending before any Court, other than a proceeding relating to any property situated in-
(i) the City of Madras,
(ii) the Municipal towns of Coimbatore, Madurai, Salem and Tiruchirappalli, and
(iii) any village within five miles of the City of Madras or of the municipal towns aforesaid,
on the date of the publication of this Act in the Fort St. George Gazette, and instituted under the provisions of the principal Act, shall in so far as such proceeding relates to nonresidential buildings, abate, and all rights and privileges which may have accrued immediately before such date to any person in respect of any property situated in any area other than the areas referred to above by virtue of the principal Act, shall, in so far they relate to non-residential buildings, cease and determine and shall not be enforceable;
Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been executed or satisfied in full before the date mentioned in this section."
In fact the very same provision which was considered by the Supreme Court in the case of Swami Motor Transport (P) Ltd. and Another Vs. Sri Sankaraswamigal Mutt and Another, where the exemption with regard to the nonresidential building in respect of certain areas alone was considered on the question of discrimination.
The Division Bench of this court in Varadaraja Pillai''s case also referred to the said judgment at page 776 along with other judgments. After considering the various judgments, the Division Bench at page 777 has found as follows: (85 L.W. 760)
"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 the presumption against retrospective operation of the statute will not apply to such a right, which merely stems from the statute."
For coming to such conclusion reliance was placed by the Division Bench on the judgment reported in the case of Kavalappara Kottarathil Kochunni v. States of Madras and Kerala (AIR 1960 SC 1080) wherein it has been held that 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.
In fact the Division Bench in Varadaraja Pillai''s case (85 L.W. 760) is cautious enough to mention that the judgment of the Supreme Court in S.M. Transport case (AIR 1963 SC 864) does not conclude the matter, as in the said case Supreme Court dealt with only the rights of the tenant u/s 9. While dealing with the argument of the learned counsel with regard to the difference between the right u/s 3 and the right u/s 9 of the principal Act and the deprivation of the tenant''s right u/s 3 would be unconstitutional as offending the Article 19 of the Constitution of India, the learned Judges of the Division Bench held that they were not prepared to hold that there was any difference in the principle so far as the effect of the repeal was concerned, whether it was a right u/s 3 or a right u/s 9.
From this it is clear that even though the Apex Court in the case of S.M. Transport (AIR 1963 SC 864) did not consider the question with regard to the validity of the deprivation of the tenant''s right u/s 3, the Division Bench of this court in Varadaraja Pillai''s case held that the principles laid down to uphold the validity of Section 9 depriving the tenants the right of purchase of the land would hold good for the deprivation of his right for the payment of compensation u/s 3 also.
This is because the Division Bench is of the view that the Legislature has an undoubted competence to notify, amend or repeal its enactments and that the deprivation of a statutory right from a subject cannot be said to amount to taking the property or deprivation of property as held by the Apex Court in S.M. Transports Case (AIR 1963 SC 864).
Hence on a thorough reading of the judgment of the Division Bench in Varadaraja Pillai case {85 L.W. 760) we are of the opinion that the Division Bench is conscious of the difference between the rights of the tenant u/s 3 and Section 9 of the principal Act and has held that the deprivation of such rights by way of amendment by the legislature is valid. As already pointed out the Supreme Court in the case of S.M. Transports (AIR 1963 SC 864) declined to go into the question of deprivation of the right u/s 3 of the principal Act on the ground that the appellants therein did not claim any right under the said provision.
Similarly in Varadaraja Pillai case (85 L.W. 760) the Division Bench even though discussed so much; ultimately at page 791 said that the tenant did not file any application u/s 9 for the conveyance of the land and also did not raise any specific plea asking for the payment of compensation expressing his willingness that the superstructure may be taken by the Municipal Council.
Now the Division Bench in the case of Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) according to us, has clearly held that the legislature has got power to take away, by way of amendment, the right granted to an individual in a particular statute and in that view the deprivation of the right of the tenant u/s 3 for the payment of compensation as well as the deprivation of the right to purchase the land u/s 9 of the principal Act is valid.
This judgment of the Division Bench was taken on appeal to the apex Court in Civil Appeal Nos. 187 & 273 of 1973. The Apex Court by order dated 10.9.1986 had dismissed the said appeals as follows:
"The constitutional validity of Act 13 of 1960 amending the Madras City Tenants'' Protection Act, 1922 is under challenge in these appeals. The State of Tamil Nadu was not made a party before the trial Court. However, the state was impleaded as a supplemental respondent in appeal as per orders of the High Court. When the appellants lost the appeal, they sought leave to appeal to this Court. The State of Tamilnadu was not made a party in the said leave petition. In the SLP before this court also the State of Tamilnadu was not made a party. A challenge to the constitutional validity of the Act cannot be considered or determined, in the absence of the concerned State. The learned counsel now prays for time to implead the State of Tamilnadu. This appeal is of the year 1973. In our view it is neither necessary nor proper to allow this prayer at this distance of time. No other point survives in these appeals. Therefore, we dismiss these appeals but without any order as to costs."
Now the fact remains that the appeals against the judgment of the Division Bench of this Court in the case of Varadaraja Pillai (85 L.W. 760) had been dismissed on merits by the Supreme Court, even though on technical ground. The dismissal of the appeals by the Supreme Court would amount to the confirmation of the judgment of the Division Bench in Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) and as such the judgment of this court merges with the order of the Apex Court.
19.When once the judgment of this court is merged with the judgment of the Apex Court, it is not open to this court either to reconsider or review the earlier judgment. Now that the Division Bench judgment in Varadaraja Pillai v. Salem Municipal Council (85 L.W. 760) has merged with the order of the Apex Court in Civil Appeal Nos. 187 & 273 of 1973 that will hold the field..
The Apex Court in V.M. Salgaocar and Bros Pvt. Ltd. v. I.T. Commr. (AIR 2000 SC 1623) has held as follows:
"Different considerations apply when a SLP under Article 136 of the Constitution of simply dismissed by saying ''dismissed'' and an appeal provided under Article 133 is dismissed also with the words'' the appeal is dismissed. In the former case it has been laid by this court that when SLP is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Hence the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal from which the appeal is provided under clause (3) of Article 133. This doctrine of merger does not apply in the case of dismissal of SLP under Article 136. When appeal is dismissed order of the High Court is merged with that of the Supreme Court."
The Apex Court, after referring to the case of V.M. Salgaocar and Bros Pvt., Ltd., v. I.T. Commr. (AIR 2000 SC 1623), in a recent judgment reported in Kunhayammed v. State of Kerala (2000 (5) Scale 167) has elaborately dealt with the different situations where the order of the Apex Court will be binding. After discussing the position elaborately, the Court has held as follows:
"In our opinion, the legal position which emerges is as under: -
While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal the petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave.
If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out.
If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, inspite of having granted leave to appeal, the court may dismiss the appeal without noticing the respondent.
Inspite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge."
Then at paragraph 22 it is stated as follows;
"We may refer to a recent decision, by Two-Judges Bench, of this Court in V.M. Salgaocar & Bros. Pvt. Ltd. v. Commissioner of Income Tax (2000 SC 1623) holding that when a SLP is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of SLP under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.
In paragraph 32 of the judgment, the learned Judges have concluded thus:
"It may be that in spite of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal."
In view of the principles of merger, we are of the opinion that the judgment of this Court in Varadaraja Pillai''s case (85 L.W. 760) as affirmed by the Apex Court would cover the issue regarding the power of the Legislature in taking away the right of the tenant for payment of compensation as per Section 3 of the principal Act.
In the order of reference in paragraph 7, the learned Judges have said that they find it difficult to agree with the decision in the case of Varadaraja Pillai (85 L.W. 760) 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 3 of Act II of 1996.
As already held by us that the said judgment in the case of Varadaraja Pillai (85 L.W. 760) having been confirmed by the Apex Court and under the principles of merger, as held by the apex Court in the case of Kunhayammed v. State of Kerala (2000 (5) Scale 167) and V.M. Salgaocar v. I.T. Commr ( AIR 2000 SC.1623 ), the said judgment is binding on this court. Hence no reconsideration or review of the principles laid down therein is permissible.
From the order of reference, we are satisfied that the Division Bench, in other respects agrees with the principles laid down in the case of Varadaraja Pillai (85 L.W. 760) wherein the validity of the Amending Act 13 of 1960 granting exemption from the purview of the Act in respect of the tenancies of the land owned by the Corporation of Madras, District Municipalities, Local Boards had been upheld, finding that it does not offend Article 14 of the Constitution of India and taking away the right of purchase provided u/s 9 also does not amount to taking away any right of the tenant. This is clear from the following passage of the order of reference:
"According to this decision, Act 13 of 1960 has repealed the right of the tenant to claim compensation u/s 3 of the Act. As the present Act is in pari materia, the reasons stated therein would be equally applicable."
Even otherwise, we are of the opinion that granting exemption under the Amending Act II of 1996 in respect of the tenancies of the land owned by the religious institutions is in pari materia with the Amending Act 13 of 1960, granting exemption to the tenancies of the land owned by the Corporation of Madras, District Municipalities and the local authorities, including Panchayats. As the validity of the said Amending Act 13 of 1960 had been upheld in the judgment of Varadaraja Pillai''s case (85 L.W. 760) and affirmed by the Apex Court in Civil Appeals 187 & 273 of 1973, on the same principles, here also the validity of the Amending Act II of 1996 granting exemption to the tenancies of the land owned by the religious institutions has to be upheld. Hence the deprivation of the right of the tenants u/s 3 as well as u/s 9 of the principal Act will not offend Article 14 or any other Article of the Constitution of India, Hence, we hold that the Amending Act II of 1996 is valid.
Even though there is no need to consider any of the contentions of the learned counsel for the petitioners, on this ground, but still two contentions raised by Mr. A. Shanmugavel, in our opinion, are necessarily to be dealt with.
The first contention of the learned counsel is that the right of compensation is not conferred under the statute i.e., u/s 3 of the principal Act III of 1922. It is a right already existing with the tenant and that is why Section 11 of the principal Act contemplates the issue of notice before the institution of suit or application against the tenants, offering the tenant to pay compensation for the building and trees, if any, and stating the amount thereof. Section 11 is extracted below:
"11 Notice before Institution of suits or applications against tenants.- No suits in ejectment or applications u/s 41 of the Presidency Small Cause Courts Act, 1882, shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building, and offering to pay compensation for the building and trees, if any, and stating the amount thereof.
A copy of such notice shall at the same time be sent, in the case of property situated in the City of Madras, to the Commissioner of the Corporation of Madras, or, in the case of property situated in any municipal town, township or village to which this Act is extended to the executive authority of the municipality or township or the executive officer of the Panchayat, as the case may be or any other authority as may be notified by the Government."
So when once the landlord wants to evict the tenant from the land wherein any superstructure had been put up by the tenant or the trees had been grown by the tenant, it is the duty of the landlord to pay compensation and as per Section 11, it is for the landlord to offer the same.
Section 3 of the principal Act prescribes that every tenant shall on ejectment be entitled for the compensation, the value of any building which may have been erected by him or otherwise; a tenant is entitled for the compensation for the value of any building shall also be paid the value of trees which may have been planted by him on the land.
Hence it is contended that if Section 11 and Section 3 of the principal Act are conjointly taken into consideration, Section 3 is only an enabling provision in respect of the right of compensation to be paid to the tenant. Hence the principles laid down in Varadaraja Pillai''s case (85 L.W.760) by the Division Bench of this court, treating the right of compensation u/s 3 of the principal Act also as a statutory right and hence the legislature has got power to take away the same is not correct.
We are unable to agree with the said contention of the learned counsel. As already observed, that the said judgment of the Division Bench of this court having been confirmed by the Apex court by dismissing the appeal, it is not possible to sustain any such contention.
More over, Section 11 contemplates the issue of notice prior to the filing of the suit for ejectment of the tenant. It should be remembered that the condition precedent of the issue of notice to the tenant prior to the filing of the suit for ejectment, giving him three months time and also offering the compensation is imposed only under the Act.
Amending Act II of 1996 which is in pari materia to the earlier amending Act 13 of 1960 makes it clear that the pending proceedings shall in so far as the proceedings relate to any matter falling within the scope of the principal Act, as amended by the amending Act in respect of such land abate and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the said date cease and shall not be enforceable. This is clear from the amending Section 3 of Act II of 1996 which is as follows:
"3. Certain pending proceedings to abate:-Every proceeding, instituted by a tenant in respect of any land owned by any religious institution or religious charity belonging to Hindu, Muslim, Christian or other religious and pending before any Court or other authority or officer on the date of the publication of this Act in the Tamil Nadu Government Gazette, shall, in so far as the proceeding relates to any matter falling within the scope of the Principal Act, as amended by this Act, in respect of such land abate and all rights and privileges which may have accrued to that tenant in respect of any such land and subsisting immediately before the said date 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, cease and determine and shall not be enforceable;
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."
When once the amending Act takes away all the rights provided under the statute, then it is needless to say that the right for previous notice prior to the filing of the suit for ejectment also goes. Hence, in our view, if at all the right of compensation in respect of the superstructure of the tenant is there, it should be on the terms and conditions of the agreement of lease or any other agreement between the parties. That is why the Supreme Court in S.M. Transports case (AIR 1963 SC 864) directed the suit to be proceeded with on the basis the tenant has no right to purchase the land.
So far as the other contention is concerned, the learned counsel 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 any 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."
It is contended that Article 15 specifies that there should not be any discrimination on the basis of religion. In this case, the amendment granting exemption from the purview of the Act in respect of the tenancies of the lands owned by the religious institution is only based on the religion and this will amount to discrimination on the ground of religion.
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.
In this case, the amendment does not discriminate any citizen on the basis of the religion he belongs 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.
So far as W.P. 4814 of 1997 is concerned, Mr. Mohan Parasaran, the learned counsel for the petitioner contended that the deprivation of the tenant from the compensation for the superstructure is bad.
On the contrary, the learned Senior Counsel Mr. R. Krishnamoorty appearing for the landlord fairly represented that the landlord is agreeable to pay the compensation for the superstructure and already expressed their willingness to the tenant to that effect.
As we have already held that the payment of compensation for the superstructure would depend upon the terms and conditions of the agreement between the parties and now that the landlord herein has offered to pay the compensation for the superstructure erected by the tenant, namely the petitioner herein, we are of the opinion that the petitioner''s right is not at all affected and on this ground also this writ petition is liable to be dismissed.
In all these cases, since the validity of the amending Act II of 1996 is being challenged and now that we uphold the competence of the Legislature in passing the amending Act, on the basis of Varadaraja Pillai''s case (85 L.W. 760) as confirmed by the Apex Court, we do not think that there is any other issue to be gone into individually in any of the writ petitions. When the validity of the amendment alone is being questioned and the same has been upheld herein, we do not think it necessary to send back the matter either to the Division Bench or to the learned Single Judge for further consideration. Accordingly all the writ petitions stand dismissed.