Case: R. Venkataswami Naidu And Another Vs. Narasram Naraindas

and one scope; a process resulting in more than one interpretation and scope is clearly erroneous. 7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition. 8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them. 9. Before Anantanarayanan, J. the argument for the lessor was somewhat different. It was said that S. 3 had to be read in harmony with the general law, that is. S. 108 (h) of the Transfer of Property Act, which gave the tenant a right to build when the lease did not prohibit building and, therefore, the erection under S. 3 must be one permitted by law. The learned Judge rejected this contention, in our opinion rightly, on the ground that S. 3 and S.9 contained no words justifying it and under S. 12 no contract could be made affecting the Sections earlier mentioned. He also pointed out that S. 13 of the Act specifically provided that the Transfer of Property Act must be deemed to have been repealed to the extent necessary to give effect to the Act so that there was no scope for harmonising the Act with the Transfer of Property Act. We entirely agree with the learned Judges views. We must, however, observe that this argument was; not advanced in this Court. 10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention. 11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case. 12. For these reasons we think that the judgment under appeal was erroneous and must be set aside. We agree with Anantanarayanan, J., that the appellants tenants had a right under S. 9 of the Act, to purchase the land leased in spite of the covenant not to build and the breach of it by them. The covenant cannot be used for interpreting S. 3 or S. 9.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. Now when deciding that the covenant did not affect the right of tenants under S. 3 and was, therefore, valid, the learned Judges did not say that a tenant who built in breach of it was not a tenant as contemplated by Section 3 and was not entitled to its benefits; in fact they expressly took a contrary view. They said, and in our view rightly, there is no express provision in the Act, limiting the operation of S. 3 ....... to the tenants who were authorised by the terms of the lease to put up a building. Prima facie, therefore, the term tenant might not exclude one who puts up a superstructure on the land in breach of a covenant not to build. They stated that this was the view to be gathered from a consideration of the entire Act. But clearly there was nothing else they could legitimately consider for interpreting S. 3. It would, therefore, appear that the words prima facie with which they qualified their observation were inapposite. In effect then the learned Judges said this: The contract was valid as it did not affect the right under S. 3 of any tenant as defined in the Act and since the contract was valid, a tenant who had built in breach of it was not entitled to any right under S. 3. This is a wholly untenable proposition8. We think that the word tenant in S. 3 must be understood only in the sense that that word is defined in the Act. We repeat that there is no reason for saying that the word tenant in S. 3 does not include all tenants as defined in the Act. None has been shown apart from that given by the learned Judges which we think is ill founded. Therefore, the appellants are tenants as contemplated by S. 3. Now the covenant says that the tenant shall not build. Either that affects the right of the tenants to claim compensation for the buildings constructed in breach of it at the termination of the lease or it does not. If it does not, then no further question arises; there will then no further question arises; there will then be nothing purporting to disentitle the tenants of their rights under S. 3 and the case will be the same as where there is no covenant at all. If such is the case then, as we have said earlier, there is no dispute that the tenants are entitled to their rights under Ss. 3 and 9. If, however, the covenant not to build affects the right to claim compensation under S. 3, such a covenant would be of no effect, for under S. 12 nothing in any contract shall take away a tenants rights under the Act. The case will then also be the same as if there was no covenant at all.That is why we think that the covenant not to build does not affect the question in hand. The tenants must be held entitled to their rights under Ss. 3 and 9 in spite of the covenant not to build and a breach of it by them10. Before leaving this matter a reference to the preamble of the Act is necessary. It states that the Act was passed to give protection to tenants who have constructed buildings on others lands in the hope that they would not be evicted. The learned Judges of the Division Bench found it to be too vague to be taken as defining a definite ascertained class of tenants.In any case, no resort to the preamble would, we think, be justified in interpreting the definition of tenant in S. 2 (4) as the words used in it are clear and unambiguous.We observe that the language used in Ss. 3 and 9 also admits of no doubt as to the meaning intended. A preamble cannot of course operated to annul a Section. We must here also say that learned counsel for the lessor did not rely on the preamble to support his contention11. We think it right to point out before we conclude that N. Vajrapani Naidu v. New Theatre Carnatic Talkies Ltd., AIR 1964 SC 1440 , to which our attention was drawn, does not touch the point with which we are concerned, for it turned on the proviso to S. 12 and that proviso has no application to the present case.