PETITIONER: MANUJENDRA DUTT Vs. RESPONDENT: PURENDU PROSAD ROY CHOWDHURY & ORS. DATE OF JUDGMENT: 22/09/1966 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) CITATION: 1967 AIR 1419 1967 SCR (1) 475 CITATOR INFO : RF 1972 SC 819 (11) HO 1974 SC 818 (15,19,26,30) D 1976 SC 588 (8) E&D 1978 SC1518 (9,10,11,17) O 1979 SC1745 (14,16) RF 1980 SC1214 (12) ACT: Calcutta Thika Tenancy Act, 1949, ss. 3 and 29-S. 3 whether over-rides provision in lease agreement requiring landlord to give six months' notice to tenant for termination of lease-Suit for eviction of tenants transferred to Controller of Thika Tenancy under s. 29-Section repealed by Amending Act 6 of 1953-Controller's jurisdiction to try suit whether continues. HEADNOTE: The appellant was the tenant of the respondents on a piece of land. According to the lease agreement the period of lease was fixed at ten years but the lessee was entitled to renew the lease after that period under certain conditions. The lease agreement further provided that if the lessor required the lessee to vacate the premises whether at the time of the expiry of the lease or thereafter (in case the lessee exercised his option to renew the lease), six months' notice to the lessee was necessary. The lessee exercised his option to continue the lease and offered to fulfill the conditions therefor. The Court of Wards on behalf of the respondents, sought to impose further conditions for the renewal of the lease which the appellant did not accept. The Court of Wards thereupon filed a suit in the Court of the First Subordinate Judge, Alipore for the eviction of the appellant on the ground that he was a trespasser. In the meanwhile the Calcutta Thika Tenancy Act, 1949 was passed by the West Bengal Legislature. As Provided in s. 29 of the Act the suit was transferred to the Thika Controller. Thereafter Amendment Act 6 of 1963 was passed which deleted s. 29 and the appellant urged before the Controller that he no longer had jurisdiction to try the matter. This con- tention was rejected and on the merits the Controller decided against the appellant holding that in view of s. 3 of the Act the six months' notice required by the lease agreement for the eviction of the appellant was not necessary. The High Court also decided against the appellant who thereupon came to this Court with certificate. HELD : (i) Though s. 29 was deleted by the Amendment Act of 1953 the deletion could not affect pending proceedings and would not deprive the Controller of his jurisdiction to try such proceedings pending before him at the date when the Amendment Act came into force. Though the Amendment Act did not contain any saving clause, under s. 8 of the Bengal General Clauses Act, 1899 the transfer of the suit having been lawfully made under s. 29 of the Act its deletion would not have the effect of altering the law applicable to the claim in the litigation. There is nothing in s. 8 of the Amending Act, 1953 suggesting a different intention and therefore the deletion would not affect the previous operation of s. 5 of the Calcutta Thika Tenancy Act, or the transfer of the uit to the Controller or anything duly done under s. 29. That being the correct position in law the'High Court was right in holding that in spite of the deletion of s. 29 the Controller still had the jurisdiction to proceed with the said suit transferred to him. [479 G] (ii) The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary imposes certain restrictions on his right o evict a tenant under the general law or under the contract of lease. 476 The Thika Act like other Rent Acts enacted in various States imposes certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specified grounds set out in s. 3. The right of the ap- pellant therefore to have a notice as provided for by the proviso to cl. 7 of the lease was not in any manner affected by s. 3 of the Thika Act. The effect of the non-obstante clause was that even where a landlord had duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree of eviction provided his claim for possession falls under any one or more of the grounds in s. 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months' notice as required by the proviso to cl. 7 of the lease and such- notice not having been admittedly given their suit for eviction could not succeed. [482 G] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 586 of 1964.
Appeal from the judgment and order dated April 1, 1960 of
the Calcutta High Court in Civil Revision No. 2612 of 1957.
C. B. Agarwala, and Sukumar Ghosh, for the appellant.
Sarjoo Prasad and D. N. Mukherjee, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. Two questions arise in this appeal by certificate
granted by the High Court at Calcutta, (1) as regards the
jurisdiction of the Controller -under the Calcutta Thika
Tenancy Act, 1949 after the deletion therefrom of section 29
by Amendment Act VI of 1953 in respect of proceedings
pending before him on that date and (2) the right of a Thika
Tenant as defined by the Act to a notice provided under the
Deed of Lease.
By a registered lease dated December 4, 1934, the appellant
entered into possession of the land demised thereunder from
the Bhowanipore Wards Estate which was then managing the
said property at a monthly, rent of Rs. 47-0-3P. The lease
was for a fixed term of 10 years and it inter alia gave the
tenant option of renewal of the said lease provided he
offered the maximum rent which might be offered by intending
tenants on expiry of the said term. Clause 7 of the Deed of
Lease provided that the lessee shall be bound on the
termination or sooner determination of the lease to restore
to the lessors the land demised after removing the
structures with drains, privies water taps etc., leaving the
land in the same state as it was at the date of the lease.
It also provided that the lessee would be bound to sell the
said structures, privies, drains etc. to the lessors if the
lessors so desired at a valuation to be fixed by a qualified
Engineer specified therein. Clause 7 then provided as
follows:-
“Provided always and it is hereby agreed and
declared that if it be required that the
lessee should vacate the said
477
premises at the end of the said term of 10
years the lessee will be served with a 6
months notice ending with the expiry of the
said term and it is further agreed that if the
lessee is permitted to hold over the land
after the expiry of the said term of 10 years
the lessee will be allowed a six months notice
to quit and vacate the said premises.”
It is clear that the lessee was entitled to a six months
notice in the following two events before he could be
required to vacate: (1) If the lessors desired the lessee to
vacate at the end of ten years and not to renew the lease,
they were bound to give six months notice ending with the
expiry of the term of 10 years and (2) if on the expiry of
the term the lease was not renewed but the lessee was
allowed to hold over the lessors were bound to give him six
months’ notice before being asked to quit. After the
execution of the said lease the appellant built certain
structures on some portion of the said land and let out the
remaining portion as permitted under the said lease. Since
the said period of ten years was to expire on December 1,
1944 the ,appellant by his letter dated November 30, 1944 to
the Bhawanipore Wards Estate expressed his desire to
exercise his option of renewal stating therein that he ‘Was
prepared to pay such higher rent as the lessors had by that
time received. According to the appellant, since he did not
receive any reply to the said offer he continued to be in
possession of the demised land and as was the practice
between the parties, continued to deposit the aforesaid rent
from time to time in the treasury of Alipore collectorate.
On May 26, 1945 the Manager of the Wards Estate intimated to
the appellant that the renewal of the said lease was not
sanctioned and asked the appellant if he was agreeable to
pay rent at the rate of Rs. 12/- per month per Cottah and a
Selami equivalent to one year’s rent. The appellant wrote
back to say that he had already exercised his option, that
he had been regularly depositing the said rent and that the
said demand was excessive and he was therefore not bound to
pay the same. Considerable correspondence thereafter ensued
between the parties ending with the notice dated October 14,
1946 by the said Wards Estate stating that as the appellant
did not agree to pay the rent as demanded by them and the
said lease was not renewed he was a trespasser and was not
entitled to any notice under the said lease and required him
to deliver vacant possession of the said land after removing
the structures within two weeks from the date of the receipt
of the notice. On July 11, 1947 the Court of Wards
instituted a suit in the First Court of the Subordinate
Judge at Alipore for ejectment and for mesne profits. In
his written statement the appellant maintained that he had
lawfully exercised his option of renewal, that after receipt
of his said letter the Wards Estate had continued to accept
the rent as agreed under the said lease, that the demand of
Rs. 12/- per cottah was not a bona fide one and that the
478
said notice was illegal. While the suit was pending the
Calcutta Thika Tenancy Act, 1949 was enacted and brought
into force. On both the parties agreeing that the appellant
was a Thika Tenant as defined by the said Act and that
therefore the suit would be governed by that. Act the Court
transferred it to the Thika Controller under s.29 of the
Act. The suit thus stood transferred to the Fourth Court of
the Munsiff at Alipore who was the Thika Controller under
the Act. While the suit was still pending the West Bengal
legislature passed the said Amendment Act VI of 1953 which
came into force on April 21, 1953 by section 8 of which
sections 28 and 29 of the Act were deleted. On September
12, 1953, the appellant filed an application before the
Thika Controller that as a result of the deletion of section
29 he lost jurisdiction over the said suit. That appli-
cation was however rejected and the suit continued to be on
the file of the Controller. On January 24, 1954, the
respondents applied for amendment of the plaint contending
that they were entitled to a decree for ejectment on the
grounds (a) the at the appellant had failed to use or occupy
himself a major portion of the said land (b) that the said
land was required by the landlords for constructing a build-
ing on and developing the said land and (c) that the said
lease had expired by efflux of time, thus seeking to bring
their suit within the grounds (iv), (v) and (vi) in section
3 of the Act. The aforesaid amendment was allowed and the
suit was proceeded with on the cause of action as so
amended. By a supplementary written statement the appellant
denied the aforesaid allegations. On June 24, 1955, the
names of the present respondents were substituted for the
said Court of Wards, as management of the said property was
released as and from April 15, 1955. By a judgment and
order dated August 11, 1956 the Controller directed the
eviction of the appellant subject to the respondents paying
compensation either as agreed to between the parties or as
may be determined by him on an application made therefor by
either of the parties. The Controller held that on the
expiry of the said term the appellant became a trespasser
and was not entitled to a six months notice as provided by
the said lease and upheld the respondents’ contention that
they’ had satisfied the grounds as set out in cls. (iv), (v)
and (vi) of s. 3 of the Act. An appeal was preferred
against the said judgment and order before the Subordinate
Judge at Alipore who dismissed it holding that the suit was
governed by s. 5 of the Act, that after the expiry of the
said term there was no holding over by the appellant, that
in spite of the deletion of section 29 the Controller
continued to have jurisdiction over matters transferred to
him and pending at the date when the Amending Act of 1953
came into force. He, however, held that the respondents
were not entitled to evict the appellant on the ground that
they required the said land either for building on it or
otherwise developing it but upheld their contention that
they were entitled to an order of eviction under cls. (v)
and (vi) of s. 3. The appellant took,the matter to the High
Court under Art. 227
479
challenging the correctness of the said judgment and order
which application was converted into Civil Revision No. 2612
of 1957.
Before the High Court two questions were canvassed (1)
regarding the jurisdiction of the Controller after s. 29 of
the Act was deleted and (2) regarding the notice which the
appellant claimed he was entitled to under the said lease
before the respondents could. exercise any right of
eviction. The High Court was of the view that in spite of
the deletion of section 29 the jurisdiction of the
Controller in respect of matters pending before him at the
date of the coming into force of the said Amending Act was
saved and also rejected the appellant’s contention as to
notice on the ground that the non-obstante provision in s. 3
of the Act entitled the landlords to a decree for eviction
without first terminating the contractual tenancy by a
notice as provided for by the said proviso to cl. 7 of the
said Deed of Lease.
Mr. Agarwal for the appellant, at first raised four conten-
tions before us, viz., (1) whether s. 3 of the Act deprived
a tenant of his rights under the lease, (2) whether the
Controller had jurisdiction to proceed with the case after
the deletion of s. 29 from the Act; (3) whether there was a
renewal of the said lease and (4) whether the appellant
could be evicted on the ground of sub-letting even though
the said lease expressly permitted him to sub-let. However,
in view of the fact that only two of these contentions,
viz., regarding jurisdiction and notice had been pressed
before he High Court he confined his arguments on those two
questions only. The contention of Mr. Agarwal was that
since it was only by reason of s. 29 that the suit had been
transferred to the Controler the deletion of that section
from the Act by section 8 of the Amendment Act of 1953 had
the effect of depriving the Controler of his jurisdiction to
try the suit and therefore the judgment and order passed by
him though confirmed by the learned Subordinate Judge and
the High Court was without jurisdiction and therefore bad.
In our view, this contention has no force. Though section
29 was deleted by the Amendment Act of 1953 the deletion
would not affect pending proceedings and would not deprive
he Controller of his jurisdiction to try such proceedings
pending before him at the date when the Amendment Act came
into force. though the Amendment Act did not contain any
saving clause, under s. 8 of the Bengal General Clauses Act,
1899 the transfer of the suit having been lawfully made
under section 9 of the Act its deletion would not have the
effect of altering the law applicable to the claim in the
litigation. There is nothing in section 8 of the Amending
Act of 1953 suggesting a different intention and therefore
the deletion would not affect the previous operation of
section 5 of the Calcutta Thika Tenancy Act or the
480
transfer of the suit to the Controller or anything duly done
under section 29. That being the correct position in law
the High Court was right in holding that in spite of the
deletion of section 29 the Controller still had the
jurisdiction to proceed with the said suit transferred to
him.
The second contention of Mr. Agarwal regarding the six
months’ notice as provided for in the lease was that in
spite of the non-obstante provision in section 3 of the Act
that provision did not have the effect of depriving a tenant
of his right to have a notice before termination of his
tenancy if he has such a right either under the lease or
under the Transfer of Property Act. The argument was that
on a true interpretation of section 3 of the Act the
position was that besides not depriving the rights of a
tenant under a contract of lease or under the general law
the section imposes further restrictions on the right of the
landlord to evict a tenant. Therefore, a landlord is
entitled to a decree for eviction only (a) if he has first
terminated the contractual tenancy and (b) where the
landlord fulfils the requirements of one or more of the
several grounds in section 3. The Thika Tenancy Act like
similar Rent Acts passed in different States is intended to
prevent indiscriminate eviction of tenants and is intended
to be a protective statute to safeguard security of
possession of tenants and therefore should be construed in
the light of its being a social legislation. What section 3
therefore does is to provide that even where a landlord has
terminated the contractual tenancy by a proper notice such
landlord can succeed in evicting his tenant provided that he
falls under one or more of the clauses of that section. The
word ” notwithstanding” in section 3 on a true construction
therefore means that even where the contractual tenancy is
properly terminated, notwithstanding the landlord’s right to
possession under the Transfer of Property Act or the
contract of lease he cannot evict the tenant unless he
satisfied any One of the grounds set out in section 3. Rent
Acts are not ordinarily intended 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 either under the contract or under the
general law. It is well settled that statutory tenancy
normally arises when a tenant under a lease holds over, that
is, he remains in possession after the expiry or
determination of the contractual tenancy. A statutory
tenancy, therefore comes into existence where a contractual
tenant retains possession after the contract has been
determined. The right to hold over, that is, the right of
irrermovability, thus is a right which comes into existence
after the expiration of the lease and until the lease is
terminated or expires by efflux of time the tenant need not
seek protection under the Rent Act. For, he is protected by
his lease in breach of which he cannot be evicted. (See
481
Meghji Lakshamshi and Bros., v. Furniture Workship.(1) In
Abasbhai v. Gulamnabi(2), this Court clearly stated that the
Rent Act did not give a right to the landlord to evict a
contractual tenant without first determining the contractual
tenancy. In Mangilal v. Sugan Chand(3) while construing
section 4 of the Madhya Pradesh Accommodation Control Act
(XXIII of 1965), a section similar to section 3 of the
present Act, this Court held that the provisions of section
4 of that Act were in addition to those of the Transfer of
Property Act and therefore before a tenant could be evicted
by a landlord, he must comply with both the provisions of
section 106 of the Transfer of Property Act and those of
section 4. The Court further observed that notice under
section 106 was essential to bring to an end the
relationship of landlord and tenant and unless that
relationship was validly terminated by giving a proper
notice under s. 106 of the Transfer of Property Act, the
landlord could not get the right to obtain possession of the
premises by evicting the tenant. (See also Haji Mohammad v.
Rebati Bhushan.)(4). In Monmatha Nath v. Banarasi(5) the
High Court at Calcutta while dealing with the present Act,
held that in matters not dealt with by the Act it would
still be the Transfer of Property Act which would apply,
for, the Thika Tenancy Act is not a complete Code and deals
only with some aspects of Thika Tenancy. It does not
provide for the rights and liabilities of the lessor and
lessee in a Thika tenancy and therefore, for those purposes,
one has still to look to the Transfer of Property Act. The
only decision which has taken a contrary view is R.
Krishnamurthy v. Parthasarathy(6) where it was held that
secton 7 of the Madras Buildings (Lease and Rent Control)
Act XV of 1946 had its own scheme of procedure and therefore
there was no question of an attempt to reconcile that Act
with the Transfer of Property Act. On that view, the High
Court held that an application for eviction could be made to
the Rent Controller even before the contractual tenancy was
terminated by a notice to quit. That decision is clearly
contrary to the decisions of this Court in Abasbhai’s
Case(1) and Mangilal’s Case (2) and therefore is not correct
law.
It was, however, argued by Mr. Sarjooprasad on behalf of the
respondents that on the footing that the provisions of the
Thika Act could only be availed of by a landlord after the
termination of the contractual tenancy no notice either
under section 106 of the Transfer of Property Act or under
the lease was necessary in the present case as the lease
expired by efflux of time and no renewal was agreed upon by
the parties. Therefore, since the lease expired the lessee
in the absence of any such renewal was
(1) [1954] A.C. 80 at p. 90.
(3) A.I.R. 1965 S.C. 101.
(5) 63 C.W.N. 824 at 831.
(2) A.I.R. 1964 S.C. 1341.
(4) 53 C.W.N. 859.
(6) A.I.R. 1949 Mad. 750.
482
bound to hand over vacant possession to the respondents as
provided by clause 7 of the said lease. Mr. Sarjoo prasad
argued that in the absence of any renewal of the lease if
the appellant continued to be in possession of the property
in suit his possession was that of a trespasser and
therefore there was no question of any notice having to be
given to him. The construction suggested by Mr.
Sarjooprasad cannot be upheld as such a construction would
be contrary to the express language of the proviso to clause
7 of the lease. As already stated clause 7 requires that on
the determination of the lease by efflux of time or earlier
termination the lessee has to hand over vacant possession of
the land in its original position after removing the
structures constructed thereon by him. If the structures
are not so removed the lessee has to sell them to the lesser
at a valuation to be fixed by the lessor’s Engineer. What
would happen in a case where the tenant is not informed and
does not know whether his lease which is for a fixed term
would be extended by a renewal or otherwise ? If there is no
provision for an option to renew and the landlord does not
extend the term, he has, of course, to vacate on the expiry
of the term. But where the lease provides for an option and
the tenant exercises the option it is but fair and equitable
that he must know in good time whether the lessor agrees to
the renewal or not. It is to provide against a contingency
where the lessee would have to quit without a fair
opportunity to dispose of the structures he has put up that
the proviso was added in cl. 7 of the lease and that proviso
must be given effect to. The proviso lays down the
condition of six months’ notice ending with the expiry of
the term clearly to enable the lessee to remove the
structures, if need be, if the lease was not renewed or
extended. The object of inserting such a condition being
clear as aforesaid it would not be right to construe clause
7 and its proviso in the manner suggested by the
respondents.
To nsummarise the position : The Thika Tenancy Act does not
confer any additional rights on a landlord but on the con-
trary imposes certain restrictions on his right to evict a
tenant under the general law or under the contract of lease.
The Thika Act like other Rent Acts enacted in various States
imposes certain further restrictions on the right of the
landlord to evict his tenant and lays down that the status
of irremovability of a tenant cannot be got rid of except on
specified grounds set out in section 3. The right of the
appellant therefore to have a notice as provided for by the
proviso to clause 7 of the Lease was not in any manner
affected by section 3 of the Thika Act. The effect of the
non-obstante clause was that even where a landlord has duly
terminated the contractual tenancy or is otherwise entitled
to evict his tenant he would still be entitled to a decree
for eviction provided that his claim for possession falls
under any one or more of or the grounds
483
in section 3. Before therefore the respondents could be said
to be entitled to a decree for eviction they had first to
give six months notice as required by the proviso to clause
7 of the lease and such notice not having been admittedly
given their suit for eviction could not succeed.
In our view the construction placed by the High Court on
section 3 was not correct and the High Court was wrong in
holding that the words “notwithstanding anything contained
in any other law for the time being in force or in any
contract” absolved the respondents from their obligation to
give the six months notice to the appellant before claiming
from him vacant possession of the land in question.
In the result, we allow the appeal, set aside the judgment
and order passed by the High Court and dismiss the
respondent’s suit. The respondents will pay to the
appellant his costs all throughout.
G.C. Appeal allowed.
484