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Judgment
Venkatadri, J.—These two appeals arise out of the suits filed by the appellant in each of the appeals for an injunction restraining the respondent (landlord) from letting or agreeing to let the portions set out in the plaint schedule to any tenant contrary to their rights and also for an injunction directing the respondent to relinquish the said portions to the appellants within the time to be fixed by the Court for the appellants'' occupation on fair rent basis and for costs. The respondent is the owner of the building facing Perumal Mudali Street on the east and China Bazar Road on the south, bearing Municipal Door No. 1, Perumal Mudali St., and 193 and 194, China Bazar Road. The appellants in the second appeals were the tenants in portions of the building. The respondent-landlord wanted to reconstruct the entire premises, and he was trying to get vacant possession of the portions occupied by these tenants. Finally, he applied to the Government to exempt the premises under S. 13 of the Madras Buildings (Lease and Rent Control) Act, 1949, from all the provisions of the said Act, in order to enable the landlord to carry out the reconstruction of the premises. After a lengthy correspondence between the Government, the landlord and the tenants, the Government by their Order dated 9th November, 1955, exempted the premises in question from all the provisions of the Act subject however to two conditions, viz., that the landlord should complete the reconstruction of the premises within 4 months from the date the premises were vacated by the tenants and that he should take back the old tenants into the reconstructed building at the rents demanded by the landlord subject to the fixation of fair rent. The landlord approached the tenants seeking their co-operation for the purpose of vacating the premises to enable him to carry out the repairs and reconstruction. In spite of the order passed by the Government, the tenants disputed the right of the Government to grant exemption and also challenged the necessity for effecting alterations and repairs. The landlord filed ejectment suits against the tenants. In the meantime, the tenants filed a writ petition, W.P. No. 67 of 1956, in this Court, to quash the Order of the Government dated 9th November 1955, and also obtained stay of trial of the ejectment suits pending disposal of the writ petition. Finally the writ petition came up for hearing before Rajagopala Iyengar, J. The learned Judge dismissed the petition, as there was no ground for interference with the order of the Government exempting the building under S. 13 from the operation of the Rent Control Act. The learned Judge did not see any impropriety or illegality in the order of exemption for enabling a building to be reconstructed. The tenants filed a writ appeal against the orders of Rajagopala Iyengar, J. When the matter came up before the Bench consisting of Rajamannar, C.J., and Panchapakesa Aiyar, J., the learned Judges observed that the order of exemption passed by the Government was neither perverse nor illegal. The writ appeal also was dismissed. After the dismissal of the writ appeal, the ejectment suits were taken up for disposal, and by consent, the appellants (tenants) agreed to vacate the premises on 15th March, 1957. While giving possession, the tenants wrote a letter Ex P. 29 requiring the landlord to complete the reconstruction within the period mentioned in the Government Order and to give the tenants the portions which were in their occupation, as per order of the Government dated 9th November, 1955. The respondent-landlord replied to this notice contending that, as the appellants-tenants did not vacate as per the Government Order, they had no rights for re-occupation under the said Government Order. Again, while the reconstruction of the building was in progress, the appellants issued a notice Ex. B-33 through their Counsel, requiring the respondent-landlord to intimate to them as to when the building would be ready for occupation, what portions would be assigned to them and at what rates. To this, the landlord replied that the tenants had no right of re-occupation. This reply provoked the tenants and they filed the suits above mentioned for injunction restraining the respondent landlord from letting out or agreeing to let the portions previously occupied by them to any other person contrary to their rights. Along with the suits, the tenants filed a petition for an interim injunction restraining the respondent from letting out the portions to third parties. In spite of it, the landlord had let out the portions to different tenants and that necessitated the appellants-tenants amending the plaint by adding another relief by way of a mandatory injunction directing the landlord to relinquish the respective portions to them.
The respondent-landlord took up a definite stand stating that the appellants-tenants, having questioned the validity of the Government Order, exempting the building from the provisions of the Rent Control Act, were no longer entitled to the benefits conferred under the Government Order, that the appellants, not having vacated the premises in pursuance of the Government Order, had lost the benefits under the Government Order, that the portions which were occupied by the appellants before the reconstruction were no longer in existence after reconstruction, that as such the appellants were not entitled to enforce their rights, if any, in respect of the portions in the reconstructed building and that the declaration and injunction asked for by the appellants were discretionary remedies and they were therefore not entitled to seek any equitable relief. On these pleadings, the parties went to trial before the IV Assistant Judge, City Civil Court.
The learned Judge held that it was not open to the respondent-landlord to escape the obligations imposed on him under the Government Order on the ground that the appellants-tenants were not parties to the said order, that it was not open to him to say that the old portions in the occupation of the appellants were no longer in existence and that the building having been exempted from the operation of the Rent Control Act for the time being for the purpose of enabling the landlord to effect the necessary repairs and reconstruction, the provisions of the Act would automatically apply to the building after reconstruction. In the result, the suits were decreed as prayed for.
But on appeal, the learned Principal Judge, City Civil Court, held that the suits were not maintainable, as the tenants did not ask for possession of the suit premises after reconstruction, and as there was no identity in the portions occupied by the tenants, they could not ask the landlord to relinquish the portions to them. On these findings he dismissed the suits of the tenants. Against the dismissal of their suits, the tenants have now preferred the second appeals.
The important points for consideration are whether the Order of the Government dated 9th November, 1955, directing the landlord to take back the old tenants into the reconstructed building subject to the fixation of fair rent is mandatory or obligatory or merely directory, and whether there is any change in the identity of the portions after the reconstruction of the building and if so whether the tenants are entitled to call upon the landlord to give them back the portions previously occupied by them.
Taking the first point, I have to consider whether it is an order or rule of regulation imposed by the Government on the landlord at the time of the passing of the order. Rules and regulations are usually intended to be of general application throughout the State, whereas the orders will have limited application to specific places, persons or class of persons. Sometimes the order may be in the form of a direction. The distinction between an order and a direction has been well brought out in the case of Simms Motor Units v. Minister of Labour (1946) 2 A.E.R. 201. In that case, which arose under the Essential Works Orders, the Minister had issued general instructions to National Service Officers about the conditions on which they were to reinstate employees who had been dismissed for serious misconduct. But Defence Regulation 58-A which concerned the control of employment, provided that the Minister should exercise his powers "by order" and the Court held that a mere direction did not satisfy that requirement. Lynskey J., delivering the judgment of the Court, held:
In our view, the Minister cannot by instructions limit the duties or limit the discretion of his National Service Officer, but he must carry out his orders, as distinct from his instructions.....
I cannot say that the order passed by the Government is a statutory order. In his book, Law and Orders, Sir Allen says at page 10:
Today, besides rules, regulations and orders we have to reckon with a multitude of directions, circulars, pamphlets, letters and other departmental communications, even telephone talks...... The legal status and effect of all this official literature is most obscure. Sometimes it is obviously administrative ; sometimes it is merely informative or advisory ; sometimes it conveys individual decisions which are not necessarily binding and can be repudiated at will; and sometimes it is of such wide extension that it appears to be a form of legislation of general effect. The clearest distinction which seems to emerge is that a rule, regulation or order frequently, though not invariably, involves some kind of Parliamentary process, or at least cognisance, whereas ''directions'' and all their kindred emanate solely from Whitehall and are never seen in Westminster ; but this will not always hold good as a test,.......
Now the order passed by the Government may be a mere direction or instruction involving no invalidating consequences in its disregard. If the order is disobeyed, it is only nullified. It is true that by such disobedience it may cause inconvenience or injustice to innocent persons or advantage to those guilty of neglect. But the order must be in consonance with the scope and object of the enactment. Parker in his book on Administrative Law says at page 215 :
A decision, to be binding to at least some extent, must be issued pursuant to law by the agency or organ to which the making of decisions has been lawfully assigned or validly delegated.
The order is a jumble of provisions, legislative or administrative or directional in character. It is not expressed in precise language of the Act, but by mere colloquial language of the correspondence. It says that the building is exempted, but, at the same time, a direction has been given to the landlord that he should take back the old tenants after reconstruction of the building. There is nothing in the Act, Madras Buildings (Lease and Rent Control) Act, 1949, to direct the landlord to give back the portions occupied by the tenants after its reconstruction. The landlord applied to the Government to exempt the building from the provisions of the Act. It is only in the present Act that there is a provision in that the landlord, after reconstruction and repairs, must give back to the tenants the portions occupied by the tenants. Only in the case of absolute demolition the Act will cease to apply. Therefore the order passed by the Home Department directing the landlord to take back the old tenants into the reconstructed building is not binding on the landlord.
The next question that arises for consideration is whether the tenants are entitled to get the portions occupied by them previously after reconstruction of the building ; in other words, are they entitled to get back the portions of the premises even though the portions are not in the same condition as they were before reconstruction ? To answer this question, I have to consider the material on the evidence to see whether there is any radical change in the portions after reconstruction. The learned Principal Judge has observed in paragraphs 10 and 11 as follows:
The plaintiff in O.S. 2237 of 1957 was occupying No. 1 shop facing Perumal Mudali St. That shop measured 17'', 3" south to north and 10'' east to west. Immediately to the north of his shop, was a staircase and below the staircase was the shop of one Muthukrishna, another tenant. To the north of Muthukrishua''s shop there were other tenants in the same building. The plaintiff in O.S. 2258 of 1957 was occupying the easternmost shop bearing door No. 194 abutting China Bazar Road. That shop measured 9'' by 10''. There was another shop to the west of it bearing door No. 193. After reconstruction, instead of two shops Nos. 193 and 194, facing China Bazar Road, there was only one shop measuring 17'' west to east and 21'' 9" south to north. At the eastern end a staircase has come into existence and it occupied a space of 3'' 5". There is a wall between the staircase and the shop... More than 1/3rd area of previous door No. 194 is now occupied by a Staircase, and it is not now possible for the appellant to grant any lease for the former portion occupied by the plaintiff in O.S. 2238 of 1957, By extension of the China Bazar Road shop further north, a portion of the shop which was in occupation of plaintiff in O.S. 2237 of 1957 ceased to exist. All the dividing walls in the shop abutting Perumal Mudali Street have been removed and in the total area facing Perumal Mudali St., there are now four shops each measuring 9'' 3" south to north and 22'' 9" west to east. Former portions of the premises as such ceased to exist......
Now on these materials, can the tenants ask the landlord to give them back the portions occupied by them previously. There may be such alterations in the premises by reason of reconstruction or structural alteration that the original premises may lose their identity. In deciding this question, the Court must take into account the nature of the premises, the cost of the alterations, the nature, extent, and effect of the alterations and improvements made and then ask itself whether having regard to those considerations, the premises let to the tenant now constitute substantially the same premises as they were let before reconstruction. Many cases have been decided on this aspect of the matter in the Court of Appeal from time to time and principles have been laid down. For instance, in Philips v. Barnett (1922) 1 K.B. 222 there were three adjoining dwelling houses to each of which the Rent (Restriction) Act, 1915, applied. The owner converted the houses into a factory in such a way that the three houses ceased to exist. The question arose whether it was a new building or an old building. Bankes L.J. held :�
......so long as they remained identifiable they continued subject to the provisions of that Statute, but when they lost their identity the statute no longer applied any more than it would apply if instead, of being structurally altered the three houses had been pulled down and a new building had been created on their site......the identity of the three houses can no longer be maintained; the building which has replaced them is a new building......
In the same case Atkin L.J. observed at page 227 as follows:
It is said that this question whether the original houses have lost their identity is a question of fact which must have been answered by the County Court Judge in favour of the appellants. In my opinion the question involves matter of law. As matters of law the only inference that can properly be drawn from the facts is that this building first came into existence when it was let to the appellants and is not identical with the houses......
In Sinclair v. Powel (1922) 1 K.B. 393 a dwelling house was converted into three separate self-contained flats. Bankes L.J., following the principles laid down in the previous case, observed:
The Court, whenever called upon to consider the question must be astute to see that a landlord is not evading the restriction upon increases of rent imposed by the statute by some mere alteration in the character of the letting, or by small, and possibly colourable, alterations of the structure, or by a mere sub-dividing of the tenement.
In Marchbank v. Campbell (1923) 1 K.B. 245 the upper part of a dwelling house was converted into a separate flat by means of structural alterations. The question was whether it was a new building. Salter, J., who delivered the judgment of the Court, made the following observations:
In my opinion, this is a question of fact and depends on the nature and extent of the structural alteration. It is a question of the physical identity of the appellant''s dwelling house. To justify a Judge in finding that the part was first let when it was first let separately there must be, in his first opinion, not merely a new and separate dwelling house in law, by virtue of a new and separate letting, but a new and separate dwelling house in fact, by virtue of substantial structural alteration.... When a landlord, by enterprise and expenditure in altering and adopting a large house, has provided two or three decent and separate houses where only one existed before, it seems reasonable that he should be allowed to get what rent he can for the new dwelling houses thus created. But if, with little or no preparation, by mere separate letting, ha houses two or three families in a building designed to accommodate one, it is clear that the Act would be defeated if he could claim to base the standard rents on the actual rent thus obtained.
In all these cases, the question arose whether the landlord, by such alterations or reconstruction, was evading the standard rent as fixed by the Government. If the building is a newly constructed one, the tenant cannot insist on payment of the standard rent.
In Stockhaw v. Enston (1924) 1 K.B. 52 the owner of a house made substantial structural alterations to his building which rendered it suitable for occupation in separate parts and in consequence of these alterations the identity of the house as a whole was destroyed. The tenants insisted on payment of the standard rent but the landlord insisted that he was entitled to claim his own rent. The Bench held:
In this case the landlord has reconstructed the house as a whole, making it available for several tenants, and has affected great improvements in it, even indirectly upon the first floor, and if we were to hold that notwithstanding the benefits which this floor has derived from the improvements in the house he is still bound by the proportion of the old rent which this floor bore, it would tend very much to discourage a landlord from undertaking work of this kind. To hold that a landlord who has spent a large sum on reconstruction must be left to get his remuneration from the particular floor or floors that he has structurally altered and is not allowed to get it also from a floor which has derived benefit from the alterations, merely because the alterations in that floor itself are trifling, would, I think, deter landlords from effecting such improvements, and so far from furthering the policy of the Act would really hamper it.
Now, in Chapsi v. Keshavji 23 B.L.R. 133 the whole building was practically re-walled, re-floored and re-roofed, and a new Chowok to bring in more light and air was made. Free ventilation had been provided and access to the street had been given. Most of the old beams and joints were removed and new ones put in and one could fairly say that there was a new building. It was held that the building was a new building. In Ibrahim v. Jan Mahomed 20 B.L.R. 1439 where a landlord entirely reconstructed a wall which had fallen down and made extensive structural alterations in the house at considerable cost, it was held that the identity of the premises had changed. In Gopalji v. Devji 31 B.L.R. 387 it was held that when a whole building had been remodelled and modernised and provided with better amenities, the reconstruction amounted practically to a rebuilding of the whole house.
The principle, therefore, seems to be that there must be such alterations in the premises by reason of the reconstruction or structural alterations that the original premises must lose its identity. On a review of the case law and the facts of this case. I am inclined to agree with the Principal Judge of the City Civil Court, that there is a change in the identity of the premises and that the tenants are not entitled to claim back the portions occupied by them previous to the reconstruction.
Further the tenants filed the suits for an injunction restraining the landlord from letting or agreeing to let any portions set out in the plaint schedule to any tenant contrary to their rights. They based their rights on the order of the Home Department dated 9th November, 1955. They filed the present suits for injunction in the year 1957. The question is whether they will be entitled to come to Court seeking an injunction after a delay of about two years. Fry, in his book on Specific Performance of Contracts 6th Edn. 7 observes at page 515, paragraph 1102:
A party cannot call upon a Court of Equity for specific performance, said Lord Alvanley M.R. ''unless he has shown himself ready, desirous, prompt and eager'' or, to use the words of Lord Cranworth ''specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit.
Here, the tenants did not co-operate with the landlord in giving him possession of the portions promptly, that is, as soon as the order was passed by the Government. They questioned on the other hand, the propriety of the order passed by the Government, by enunciating writ proceedings, in this Court. They used all torts of obstructive tactics and prevented the landlord from carrying out the reconstruction of the building. They also put the landlord into considerable expenses by postponing the construction of the building. Their conduct does not deserve any sympathy, to enable them to get any equitable relief. The delay, which is due to the tenants only is by itself a sufficient reason for the Court to refuse the relief of injunction. It is not a case where substantial injury would be caused to the tenants, on the other hand, the tenants who are now in occupation of the premises would be put to hardship and inconvenience, if they are asked to vacate. In the result the second appeals are dismissed, but there will be no order as to costs. No leave.