JUDGMENT
Bhagabati Prasad Banerjee, J.
1. This is an appeal against the judgment and decree dated 17th May, 1990 passed in Suit No. 514 of 1984 by the learned trial Judge P.K. Majumdar, J. whereby the learned trial Judge decreed the suit for recovery of vacant possession of the premises No. 76/3, Bidhan Sarani, Calcutta.
2. That fact of this case in short is that one Kumar Dhirendra Krishna Deb Sehadur was the absolute owner of premises No. 76/3, Bidhan Sarani, Calcutta-700 006 on which stands a cinema hall and the area of the land is about I Bigha 8 Cottahs. By registered deed of lease the said Kumar Dhirendra Krishna Deb Sahadur let out the premises No. 76/3, Bidhan Sarani, Calcutta in favour of Prakash Chandra Nan and Sudhir Chandra Nan for a period of 21 years commencing from 2nd March, 1963 at a monthly lease rental of 2,800/-. Under the said lease the lessor was given right to sub-let the premises in question. On 28th February, 1968 the said Dhirendra Krishna Deb Bahadur died leaving behind his last will and testament dt. 2nd March 1964 whereby the said lessor devised and bequeathed undivided i (Half) share in the said premises No. 76/3, Bidhan Sarani, Calcutta in favour of Biswanath Deb and the other undivided i (half) share in favour of Debasis Deb and Subhasis Deb. In 1968 Prakash Chandra Nan who was one of the lessess died leaving behind him surviving Sri Amar Nath, Defendant No. 1, as his sole heir. In 1970 the Calcutta High Court granted probate of the last will and testament of the said lessor, Kumar Dhirendra Krishna Deb Bahadur to its executors. The other lessee, Sudhir Chandra Nan died leaving behind his surviving widow and daughters who are defendants Nos. 2 to 7. On 26th May, 1977 the executors of the last will of the said Lessor duly assented to the legacies in favour of Biswanath, Debasis and Subhasis who were the plaintiff-opposite parties. On 16th February, 1981 the appellant requested the plaintiffs landlords to issue rent receipts in favour of the appellant instead of P.C. Nan and S.C. Nan as both of them have died long before. In such letter it was also stated that “we like to mention here that you are accepting rent by A/C payee cheques from Screen Corporation (1938) P. Ltd. As such, we think there should not be any difficulty in issuing receipts to the company.” On 16th February, 1983 the appellants wrote letter to Kamal Krishna Deb who was the father of the plaintiff Nos. 2 and 3, Debashis Kumar Deb and Subhasis. Deb. In the said letter the appellants confirmed to have received a letter sent by Kamal Krishna Deb addressed to Sudhir Ch. Nan and Prakash Ch. Nan who were the original lessees.
3. By the notice dated 31st January, 1984 the plaintiff opposite parties called upon the defendants appellants to quit and vacate and make over peaceful possession of the demised premises upon termination of lease on 1st March, 84. It was also alleged by the plaintiff opposite parties that notwithstanding the termination of the said lease the defendant Nos. 1 to 7 were in wrongful possession of the said premises as a trespasser therein. The plaintiff-opposite parties’ further case was that the appellant, who was defendant in the suit. The Screen Corpn. (1938) Pvt. Ltd. is said to be in the possession of the premises under the defendant Nos. 1 to 7 and therefore defendant No. 8 also was not entitled to remain in possession after the expiry of the said lease. In the suit the plaintiff also claimed damages for a sum of Rs. 1,05,358/-. The said suit was not contested by the defendant Nos. 1 to 7 but was contested by defendant No. 8. The case of the defendant No. 8 who is the appellant in this appeal is that after the death of Prakash Chandra Nan who died in the year of 1972 the plaintiff-opposite parties predecessorin-interest by mutual agreement accepted the appellant as its tenant in place and stead of the original lesses Prokash Chandra Nan and Sudhir Chandra Nan deceased and it was also the case of the appellant that since death of Prokash, the appellant alone became responsible for making payment in respect of the suit premises to the plaintiff-opposite parties who were the owner of the property. It was also alleged by the appellant that from November, 1973 rents were paid by cheques and each of such payment was duly accepted by the plaintiff-opposite parties. Appellant’s further case was that from the dealings and transaction with the parties and/or contract it was understood by all concerned that the original lesses and/or their heirs and legal representatives surrendered the said leasehold interest which was a created under the lease deed dated 28th June, 1963 and the appellant continued to occupy the said premises since then as a monthly tenant governed under the provision of West Bengal Premises Tenancy Act, 1956 and not as a sub-lessee governed under the provision of the Transfer of Property Act. In the said suit several issues were framed including the issue whether the original lessees or the heirs and legal representatives had surrendered their respective interest under the lease dated 28th June, 1963 and whether the plaintiff-opposite party accepted the appellant as a monthly tenant as claimed. Further the issue was whether the plaintiff opposite parties were estopped from denying the tenancy of the apellant in respect of the suit premises. Several witnesses were examined by the learned trial Judge and the learned trial Judge on consideration of the evidence and documents before the court below held that there was no surrender of the lease by the original lessee or their heirs and legal representatives as claimed by the appellant. It was further held that the appellant were never accepted as a monthly tenant by the plaintiffopposite parties that there was no basis for making such a claim. The learned trial Judge also found on the basis of the evidence on record that there was no question of any estoppel in the matter and that there was circumstances which suggested creation or acceptance of tenancy of the appellant by the plaintiff-opposite parties.
4. Mr. M.P. Banerjee, learned advocate appearing on behalf of the appellant contended that in view of the Rent Legislation by West Bengal Premises Tenancy Act, 1956 the contractual tenancy entered into under the Transfer of Property Act has been seriously encroached in the field of freedom of contract and thus the concept of contractual tenancy has lost much of its significance and force, irrespective of the fact that the lease is for more than 20 years or not. It was further submitted that the preamble of West Bengal Premises Tenancy Act provides for the regulation of certain incidents of tenancy of premises in Calcutta and in some other areas in West Bengal and in view of the said regulation, the tenancy would be governed by Premises Tenancy Act and not by Transfer of Property Act. It was next submitted that Section 1(3) of the West Bengal Premises Tenancy Act of 1956 makes it clear that the Act applies to whole of Calcutta and other areas mentioned therein and Section 1 also specifically mention in which of the premises, the Act shall not apply as such Section 1 of the said Act is clear in specifying in which of the premises the Act would apply and in which of the premises the Act shall not apply. Reference was made to the provisions of Section 3 of the said Act which had given an overriding effect. It was submitted that even assuming that Section 3 of the said Act is an exception but it only relates to a premises for residential purpose and the registered lease is for the purpose of Section 3(1) (a) and (b) only and it has got no application for any other lease which is not residential Section 13 of the West Bengal Premises Tenancy Act by using the non-obstante Clause namely -“Notwithstanding anything to the contrary in any other law no order or decree for recovery of possession of any premises shall be made by any court in favour of the Landlord against a tenant except on one or more of the following grounds, “Specifically mentions that whatever may be the source of the tenancy either under the T.P. Act or under Premises Tenancy Act the Landlord can get a decree for eviction of the tenant only under Section 13 of the Act and makes any remedy under the T.P. Act as non-applicable by using the expression” anything contrary in any other law and Section 13 is a later section and is independent of Section 3 of the Act. It was submitted that the suit premises is a cinema hall, which is known as ‘Rupbani’ is situated in the city of Calcutta where the provision of West Bengal Premises Act, 1956 had been made applicable and in the instant case no decree for eviction could not be passed as passed by the learned trial Judge in accordance with the provisions of Transfer of Property Act but the only remedy available to the plaintiff-opposite parties was to file a suit for eviction strictly in accordance with the provision of West Bengal Premises Tenancy Act, 1956 and in particular after observing the provision of Section 13 of the West Bengal Premises Tenancy Act, 1956. Mr. Banerjee submitted that Section 13 of the W.B.P.T. Act, 1956 has been given overriding effect and as such it must be held that Section 13 of the said Act overrides the provision of the Transfer of Property Act and that Section 13(1) of the West Bengal Premises Tenancy Act, 1956 provides that “notwithstanding anything to the contrary in any other law, no order or decree for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except one or more of the following grounds, namely……..” It was further submitted by Mr. Banerjee that Section 13 of the W.B.P.T. Act of 1956 only provides that certain provisions of the said Act will not apply to certain leases and accordingly on proper construction of Section 3 of the said Act it must be held that save and except those leases, tenancies should be governed under the West Bengal Premises Tenancy Act of 1956. Next it was submitted that Section 3(2) of the said Act of the W.B.P.T. Act of 1956 is violative of Article 14 inasmuch as Section 3(1) of the said Act applied the provisions of this Act to leases which have been entered into on and after 1st December, 1948 and that such lease was not more than 20 years and save as aforesaid nothing in the said Act should apply to any premises held under a lease for a period of not less than 15 years. It was submitted that sub-section (2) of Section 3 of the said Act provides.that “notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of Section 1 of this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965” and under the proviso it was provided that “if any such lease is for a period not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and provision of Sections 31 and 36, shall apply to any premises held under such lease” had discriminated within the lease below 21 years and above 21 years and that such classifications according to Mr. Banerjee is not based on any rational basis and in support of this contention reliance was placed to a decision of the Supreme Court in the case of Ratan Arya v. State of Tamil Nadu, reported in (1986)3 Supreme Court Cases 385 wherein the Supreme Court has declared the provision of Section 30(ii) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as violative of Article 14 of the Constitution on the ground that there is no justification at all for picking out of the class of tenants of-residential buildings paying a rent of more than four hundred rupees per month to deny them the rights conferred generally on all tenants of buildings residential or nonresidential buildings cannot be said to be in a disadvantageous position as compared with tenants of residential buildings and therefore they need greater protection. The argument based on greater protection of the weaker section of the community is entirely inconsistent with the protection given to tenants of non-residential buildmgs who are in a position to pay much higher rents than the rents which those who are in occupation of residential buildings can ever pay. Reference also was made to another decision or Supreme Court in the case of Motor General Traders and Anr. v. State of Andhra Pradesh and Ors., wherein the Supreme Court held that “in order to pass the test of permissible classification two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. While the classification may be founded on different bases what is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration.” In this case Supreme Court held that Section Control Act, 1960 was violative of Article 14 of the Constitution being per se discriminatory because while there may be some justification for exempting new buildings which are five, seven or ten years old from the Act, in order to provide an incentive to builders of new buildings, there cannot be any justification to allow buildings within which were constructed more than ten years ago to remain outside the scope of the Act. It was held that classification of the buildings into two classes for purposes of Section 32 (b) of the Act, therefore, does not any longer bear any relationship to the object, since the buildings which are exempted have already come into existence and their owners have realised a major part of their investment. It was. further held that even if at the commencement of the Act, Section 32 (b) was valid, it is open to challenge thereafter on the ground of unconstitution and can be struck down on that basis what was once a non-discriminatory piece of legislation may in course of time become discriminatory and be exposed to a successful challenge on the ground that it violates Article 14. It is not necessary for us to go into details as to the vires of the provision of Section 3(2) of the said Act in view of the fact that the said point was neighter taken or agitated before the learned trial Judge nor the State is a party and that there was no prayer for giving notice to the learned Advocate-General of the State as required under the provision of Code of Civil Procedure before a question of vires of the provision of this Act could be decided by the Court. Further it is also a settled and established principle of law that in order to challenge a piece of legislation as violative of Article 14 there must be a proper pleading and the burden of proof is very heavy upon the petitioners who challenge the vires of the provision of an Act. It was only from the Bar such a contention was raised but without being technical and even assuming that the State was a party and a point was taken, we cannot hold that the provision of Section 3 of the said Act is ultra vires in view of the fact that the lease below 21 years and above 21 years are two distinct classes and that such classification is based as reasonable and it satisfied the test of vires as laid down by the Supreme Court in the case of Ram Krishna Dalmia v. Tendolkar, reported in AIR 1956 SC 538. Section 3 of the Act excluded certain types of leases on the purview of the Act in question. The types of leases which were excluded and the types of leases which were brought under the purview of the Act are two different distinct classes and that the leases which were excluded belong to ‘well defined class’. It is well settled that if the legislature takes care to reasonably classified person for legislative purpose and if it deals with classified person for legislative purpose and if it deals equally with all persons belonging to a ‘Well defined Class’ it is not open to charge on denial of equal protection on the ground that law does not apply to other person. See State of West Bengal v. Anawar Ali, reported in 1952 SCR 284. In the instant case, the types of leased excluded from the operation of the Act the types of Act included under the purview of the Act belongs to two different and distinct classes. Article 14 prohibits class legislation and not reasonable classification for the purpose of legislation. This is a case where the legislature has made a reasonable classification and that the classification is found to be on an intelligible differentia which distinguished person or thing that grouped together from other left of the group and that differentia have rational relation to the object sought to. be achieved by Statute in question. Accordingly, applying this principle it cannot be held that Section 3 of such Act as ultra vires. In the instant case after the lease period has expired and a property which is a cinema hall standing on I Bigha 8 Cottahs of land reserving a monthly rent of Rs. 2,800/fixed in the year of 1963, the appellants have come up with a case of creation of a monthly tenant under the Rent Control Act of the State for the purpose of avoiding eviction. Mr. Banerjee next submitted this case shall be governed by the provision of West Bengal Premises Tenancy Act, 1956 and not under the Transfer of Property Act. Transfer of Property Act is a general law whereas W.B.P.T. Act is a special Act applicable in respect of cases and certain areas. Mr. Banerjee has referred to the decision of the Supreme Court in the case of M. Subbarao v. P.V.K. Krishna Rao, AIR SC 2187 in support of his contention that there should not be any difficulty for eviction under the provision of Transfer of Property Act simplicitor and
that in order to obtain decree for possession one has to resort to the provision of Section 13 of the W.B. Act, 1956. In this case, admittedly the parties were governed by the provision of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and in the connection the Supreme Court observed that in connection with eviction of a tenant governed and controlled by the State Rent Control Act in the matter of determination of tenancy the State Rent Act do not permit a landlord to snap his relationship with the tenant merely by serving on him a property Act and that in such a case he cannot recover possession merely by determining tenancy as is available under the Transfer of Property Act or in other words, when there is a State Rent Control Act in that event there was no requirement of service of notice under Section 106 of the T.P. Act and that for the purpose of Eviction a notice under the provision of State Rent Act must be served and proceedings for recovery of possession should be started strictly in accordance with the provision and after complying with the provisions of State Rent Control Act. This case has nowhere laid down that in a State where there is a State Rent Control Act in all cases eviction has to be made under the State Act and not under the T.P. Act. If a lease under the T.P. Act which is not expressly included under the purview of the State Rent Act, there is no requirement save and except service of notice under Section 106 of T.P. Act and filing a suit for recovery of possession as has been done in the instant case. We do not find any substance in the submission in this regard made by Mr. Banerjee. Special Act will prevail in the field of its operation overriding general provision of T.P. Act but where the special Act did not intend to curtail and take away the rights, duties and obligation of the parties governed under the General Alt, the provision of the General Act must prevail and must be allowed to take its effect in its own way. Accordingly, we are unable to hold that the suit was not maintainable and we are of the view that in the facts and circumstances of the case there was no requirement at all under the law to resort to the very of possession after efflux of the period of lease entered into by and between the parties. We are of the view that the relationship between the parties are not and could not be governed by the provision of W.B.P.T. Act and accordingly we do not find any substance in the submission made Mr. Banerjee in this regard.
5. It was next submitted by Mr. Banerjee learned counsel for the appellants that the learned trial Judge was wrong in not holding in the facts and circumstances of the case that the appellants were tenant under the landlord in view of the implied surrender of tenancy by leasee-Nuns and that the appellants were in possession of the property with the full knowledge and consent of the landlord. It was further submitted that the rents were paid by the appellants which was accepted by the landlord. In support of the case of implied surrender it was submitted that the appellants have paid the rents in account-payee-cheque and that the appellants were carrying on a cinema hall in the said premises. In this connection, learned counsel appearing on behalf of the respondents relied on the Director’s Report of the appellants company to the shareholders for the year ended on 31st December, 1973. The correctness of such report was not in dispute. In the said report of the directors of the appellants company and it was stated to the shareholders by said annual report in the annual general meeting that “you are aware that sometime past on termination of the original lease agreement the ownership of the companies buildings was vested in the hands of the landlords. The company now enjoys the buildings only against payment of monthly rents for the balance period of renewed lease agreement, i.e. only up to 2nd March, 1994”. The landlord exhibited rent receipt during the period in which the appellants claimed to be a direct tenant under the landlord to show that the rent receipts were although. issued in the name of the lessee and not in the name of the appellants! who were occupying under the lessee. In this connection Mr. Banerjee submitted that the said counter parts of the rent receipts were issued in the name of dead person and accordingly, the same was invalid. Further, it was submitted by Mr. Banerjee that the counter parts of the rent receipts do not conclusively prove that the rent receipts were issued and exhibited by the parties. In this case admittedly the lease had expired but before expiry of the lease both the lessees died and that the lessees had their heirs and legal representatives who automatically stepped into the shoes of the lessees. The heirs and legal representatives of the deceased lessees are parties on record. In the instant case, the heirs and legal representatives of the deceased lessees had not contested the suit. We are of the view that as because the heirs and legal representatives of the lessees had not contested, the suit must fail and none of the heirs and legal representatives of the deceased lessees had deposed, we are unable to hold that in the absence of giving deposition for an on behalf of the heirs and legal representatives of the deceased lessees, the case of the plaintiffs-opposite parties could fall automatically.
6. In this case there was no evidence or materials on record to show or to suggest that lease had prematurely came to an end on the death of original lessees and that further the appellants have become a direct tenant under plaintiff-opposite Parties who were the landlords. In a suit for recovery of possession after the expiry of the lease period if any party claims that he was a tenant in respect of the suit premises and were not liable to be evicted in that event such a party has to prove the case by adducing evidence. In the instant case admittedly the plaintiff-opposite parties had not inducted the appellants as a tenant or otherwise in the premises in question. It is an admitted case that the appellants were inducted in the premises by lessees. It could not be established that there is any privity of contract between the appellants and the plaintiff-opposite parties. There was no evidence of creation of any tenancy. There was no evidence on the basis of which it could be shown or suggested that there had been implied surrender of the leasehold property. In any event the surrender of the lease ipso facto does not prove the case of the appellants that the appellants had become a direct tenant under the landlord when the appellants were inducted in the premises by the lessee who was a sub-lessee under the lease and that it is well settled principle that when the lease expired and after the expiry of the lease the right, title and interest of the sub-lease also expires and the sub-lessee cannot have any better title than that of lessee. Evidence on record clearly shows and which was admitted by the appellants, which is a company, before their own shareholders, who are owners of the company that the appellant was occupying a cinema hall at the lease rent only for the period of unexpired portion of the lease. Such a unilateral declaration given by the appellant to its shareholders in the facts and circumstances of the case clearly creates and estoppel on the part of the appellant who is debarred from coming with an inconsistent case and that the appellant is not entitled to take contrary stand. On the basis of the evidence on record we are unable to hold that on the death of the lessees there was surrender of the lease-hold interest and that a monthly tenancy was created by and between the plaintiff-opposite parties and the appellant. If the leasehold interest was surrendered or expired and a tenancy was created in that event it is not expected that the tenancy would be at the old rate which was determined as a lease rent in the year 1963. The rate of rent and in the absence of any evidence in this behalf we do not find any substance in the contention of the appellant that the appellant became a tenant governed by provision of W.B. Premises Tenancy Act. The learned trial Judge has considered the case in the light of the evidence and came to the conclusion that no monthly tenancy was created in favour of the appellant and on the expiry of the lease- period the plaintiff opposite parties were entitled to recover possession of the appellant and on the expiry of the lease period the plaintiff opposite parties were entitled to recover possession of the property. We are of the view that the learned trial Judge was right in passing a decree for vacant possession of the premises No. 76/3, Bidhan Sarani Calcutta and the decree for the sum paid by the appellants; to the Rent Controller and to the Receiver after institution of the suit as mesne profit for occupation of the premises by the appellants after the expiry on the said lease. We do not find any reason to interfere with any of the findings made by the learned trial Judge Accordingly, we do not find any merit in this appeal. The appeal is accordingly dismissed with costs assessed at 300 C.Ms.
7. With regard to the cross-objection for mesne profits by an interim order we have already directed the appellant to pay a sum of Rs. 10,000/as monthly damages. Accordingly, the mesne profits should stand determined at the rate of Rs. 10,000/- per month from 2-3-1984. This means profit is determined taking into consideration of the area of the land, structure in question and the fact that a running cinema hall is standing there and the market rate would be much more than that and having regard to the fact that the appellant is in possession for a long time, we are of the view that the same amount would be reasonable amount.
In view of this order the respondents would be at liberty to withdraw the money which was deposited in terms of our interim order.
Cross-objection is thus disposed of in the manner as indicated above. Let the decree be drawn up expeditiously.
On the prayer of Mr. Banerjee, let there be a stay of operation of the judgment and order for a period of two months from date excepting the withdrawal of the money.
During the period of stay of the operation of the judgment and order, the appellant will pay at the rate already fixed by way of damages directly to Mr. A.K. Banerjee, Advocate-on-Record for the respondents for the next period of two months.
All parties and the Registrar, Original side to act on a signed copy of the minutes of the operative portion of this judgment on usual undertaking.
A.K. Chakravarty, J.
I agree.