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PETITIONER: GANGA DUTT MURARKA

       Vs.

RESPONDENT: KARTIK CHANDRA DAS AND OTHERS.

DATE OF JUDGMENT: 10/02/1961

BENCH: SHAH, J.C. BENCH: SHAH, J.C. KAPUR, J.L. HIDAYATULLAH, M.

CITATION:  1961 AIR 1067            1961 SCR  (3) 813  CITATOR INFO :  RF         1969 SC1187  (8)  R          1972 SC 819  (7,8,12)  RF         1975 SC1111  (12)  RF         1977 SC2262  (11)  RF         1978 SC1518  (6,7,13)

ACT: Tenant,  Eviction  of-Determination of lease  by  efflux  of time-Tenant  continuing  in Possession on  Payment  of  rent fixed  by rent control Acts-Landlord accepting the  same-New tenancy,  if  created-Transfer of Property Act, 1882  (4  of 1882), ss. 106, 116.

HEADNOTE: The  appellant was a contractual tenant of certain  premises in  the town of Calcutta of which the respondents  were  the owners.  The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration  of the  period of tenancy but possession was not delivered  and the respondents were unable to obtain possession in view  of the  protection  afforded to the tenants by  the  successive rent control Acts passed by the State.  In the meantime the 814 appellant continued to pay every month amounts equal to  the contractual  rent,  and later the rent declared  to  be  the statutory  rent and the respondent accepted the  same.   The question arising for decision was whether the acceptance  of the amounts by the respondents conferred upon the  appellant the right of a tenant holding over within the meaning of  s. 116 of the Transfer of Property Act. Held,  that  where a contractual tenancy to which  the  rent control  legislation applied, had expired by efflux of  time or  by  determination  by  notice to  quit  and  the  tenant continued in possession of the premises, acceptance of  rent from  the  tenant by the landlord after  the  expiration  or determination  of  the contractual tenancy will  not  afford ground  for holding that the landlord had assented to a  new contractual tenancy. Kai Khushroo v. Bai Jerbai [1949] F.C.R. 262, followed. Acceptance  by  the  landlord from  the  tenant  of  amounts equivalent to rent after the contractual tenancy had expired

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or amounts which were fixed as standard rent did not  amount to acceptance of rent from a lessee within the meaning of s. 116 of the Transfer of Property Act.   Occupation  of  the appellant after the  determination  of tenancy  was  not in pursuance of any  contract  express  or implied  but  was  by virtue of protection  granted  by  the successive statutes and such occupation was not required  to be  determined  in the manner prescribed by s.  106  of  the Transfer of Property Act.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 82 of 1957. Appeal from the judgment and decree dated April 4, 1955,  of the Calcutta High Court in Appeal from Appellate Decree  No. 1224 of 1953. G.   S. Pathak and D. N. Mukherjee, for the appellant. H.   N. Sanyal, Additional Solicitor-General of India and P. K. Chatterjee, for the respondents. 1961.  February 10.  The Judgment of the Court was delivered by SHAH,  J.---Of the premises relating to which  this  dispute arises   No.  5,  Raja  Rajkissen  Street,   Calcutta   -the respondents   are  the  owners  and  the  appellant  was   a contractual  tenant from June 15, 1917, till June 15,  1947, under  three successive tenancies for 10 years each.   Under the  first tenancy, the appellant paid rent at the  rate  of Rs. 84,15,0,per month, under the second-tenancy at the  rate of Rs. 180 per month 815 and  under  the  third tenancy at the rate of  Rs.  225  per month.   The  tenancy was in respect of buildings  used  for manufacturing " tin canisters " and open land.  On September 30,  1946, the Governor of Bengal issued the  Calcutta  Rent Ordinance, V of 1946, making certain provisions for  control of  rent of premises in the town of Calcutta.  By s.  12  of the  Ordinance, it was provided in so far as it is  material that notwithstanding, anything contained in the Transfer  of Property  Act, the Presidency Small Cause Courts Act or  the Indian Contract Act, no order or decree for the recovery  of possession  of  any premises shall be made as  long  as  the tenant  pays  rent  to  the full  extent  allowable  by  the Ordinance  and performs the conditions of the  tenancy.   By the   proviso,   the  landlord  was,   notwithstanding   the protection  granted  entitled, if the  conditions  specified therein   were  fulfilled,  to  obtain  possession  of   the premises.   This  Ordinance was replaced by Act  I  of  1947 which  contained substantially the same provisions.  By  the West Bengal Act V of 1948, the provisions of Ordinance V  of 1946  and  Act  I of 1948, were  continued.   Thereafter  on December  1,  1948  the West Bengal  Premises  Rent  Control (Temporary Provisions) Act XXXVIII of 1948 was brought  into operation and by this Act, the West Bengal Act V of 1948 was repealed, but the protection granted to the tenants was con- tinued.   This Act was repealed by the West Bengal  Premises Rent  Control  Act,  1950, and by s. 12 of  the  latter  Act protection to tenants, including tenants whose tenancies had expired, against eviction was granted by prohibiting  courts from passing decrees or orders for recovery of possession of any  premises  in favour of landlords.  It was  provided  by that  Act  that the landlord shall be entitled to  obtain  a decree  in  ejectment, inter alia, where  the  premises  are reasonably  required  by, him either 1 for  the  purpose  of building or rebuilding or for his own occupation.

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By  letter dated May 15, 1957, the respondents  called  upon the  appellant.  to  vacate and deliver  possession  on  the expiry of the period of tenancy.  Possession was however not delivered by the appellant 816 and  he continued to pay the stipulated amount and the  same was accepted by the respondents.  In an application under s. 9  of  the  West Bengal  Premises  Rent  Control  (Temporary Provisions)  Act,  1948, the Controller fixed  the  standard rent  of  the  premises at Rs. 455  per  month.   After  the enactment  of  the West Bengal Premises  Rent  Control  Act, 1950, another application was submitted by the appellant and the  standard rent was reduced to Rs. 247,8,0.   On  October 10, 1950, the respondents served a notice upon the appellant requiring  him " to quit, vacate and deliver  possession  of the  premises occupied ", which the appellant was  described as holding as " monthly tenant ", on the expiry of the  31st of  Chaitra, 1357 B. S., i.e., April 14, 1951.   The  ground for  eviction,  it was claimed, was that the  premises  were reasonably  required  by the landlords for  putting  up  now buildings  thereon.  The appellant having failed  to  vacate the  premises,  the respondents sued in the Court  of  Small Causes,  Calcutta, for a decree in ejectment.  The Court  of Small Causes decreed the suit filed by the respondents.   In appeal  to  the Special Bench, Court of  Small  Causes,  the decree  passed by the court of first instance was  reversed. The  appellate court held that by acceptance of  rent  after determination  of the tenancy in June, 1947,  the  appellant continued to be " a tenant holding over " and as the purpose of  the  tenancy was manufacturing, it could  be  determined only  by a notice of six months, expiring with the  year  of tenancy  and as no such notice was served, the  tenancy  was not  determined and the suit was liable to fail.  In  appeal to  the  High Court of Judicature at  Calcutta,  the  decree passed  by  the -Special Bench was reversed and  the  decree passed  by the court of first instance was  restored.   With certificate   of  fitness  under  Art.  133(1)(c)   of   the Constitution  this  appeal  is preferred  by  the  appellant against the order of the High Court. The  contractual  tenancy  in favour of  the  appellant  was determined  by  efflux of time on June 15, 1947,  and  since that  date  there  has been between  the  parties  no  fresh contractual tenancy.  The respondents were, 817 it appears, anxious to obtain possession of the premises let out  to  the  appellant,  but they  were  unable  to  obtain assistance  of the court in view of the protection  afforded to  the appellant by the successive rent control  Acts.   In the  meanwhile, the appellant continued to pay  every  month amounts  equal to the contractual rent, and later  the  rent declared  to be the statutory rent.  Does the acceptance  of the amounts paid by the appellant confer upon him the  right of a tenant holding over within the meaning of s. 116 of the Transfer of Property Act? Section 116 of the Transfer of Property Act in so far as  it is material provides that if a lessee of property remains in possession  thereof  after the determination  of  the  lease granted  to him and the lessor accepts rent from the  lessee or  otherwise assents to his continuing in  possession,  the lease  is, in the absence of an agreement to  the  contrary, renewed  from year to year or from month to month  according to the purpose for which the property is leased as specified in  s. 106.  It is, however, well settled that where a  con- tractual  tenancy  to  which the  rent  control  legislation applies has expired by efflux of time or by determination by

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notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after  the  expiration or determination of  the  contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.  It was  observed by B. K. Mukherjee, J. (as he then was), in Kai Khushroo  v. Bai Jerbai (1):               "  On the determination of a lease, it is  the               duty of the lessee to deliver up possession of               the  demised premises to the lessor.   If  the               lessee or a sub-lessee under him continues  in               possession even after the determination of the               lease, the landlord undoubtedly has the  right               to  eject him forthwith; but if he  does  not,               and there is neither assent or dissent on  his               part to the continuance of occupation of  such               person, the latter becomes in the language  of               English law a tenant on sufferance who has -no               lawful title to               (1)   [1949] F.C.R. 262, 270,273.               818               the  land  but  holds it  merely  through  the               laches  of the landlord.  If now the  landlord               accepts  rent  from such person  or  otherwise               expresses  assent  to the continuance  of  his               possession, a new tenancy comes into existence               as  is  contemplated by s.  116,  Transfer  of               Property Act, and unless there is an agreement               to   the  contrary,  such  tenancy  would   be               regarded  as  one from year to  year  or  from               month   to  month  in  accordance   with   the               provisions of s. 106 of the Act."               It was further observed               "..................  in  cases  of   tenancies               relating to dwelling houses to which the  Rent               Restriction Acts apply, the tenant may enjoy a               statutory  immunity from eviction  even  after               the  lease has expired.  The  landlord  cannot               eject   him   except  on   specified   grounds               mentioned  in  the Acts themselves.   In  such               circumstances,  acceptance  of  rent  by   the               landlord  from a statutory tenant whose  lease               has  already expired could not be regarded  as               evidence of a new agreement of tenancy, and it               would not be open to such a tenant to urge, by               way  of  defence,  in  a  suit  for  ejectment               brought  against him, under the provisions  of               Rent  Restriction  Act that by  acceptance  of               rent a fresh tenancy was created which had  to               be determined by a fresh notice to quit.  " Under the Calcutta Rent Ordinance, 1946, and the  subsequent legislation  which  culminated in the West  Bengal  Premises Rent  Control  Act,  1950, in the  expression  "tenant"  was included  any  person  who  continued  in  possession  after termination  of his tenancy.  Section 12 of the West  Bengal Premises Rent Control Act, 1950, expressly protects a tenant whose lease has expired.  By the Rent Restriction  Statutes’ at the material time, statutory immunity was granted to  the appellant  against eviction, and acceptance of  the  amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not  amount to acceptance of rent from a lessee  within  the meaning  of  s. 116, Transfer of Property Act.   Failure  to take   action   which  was  consequent  upon   a   statutory prohibition

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819 imposed upon the courts and not the result of any  voluntary conduct on the part of the appellant did not also amount  to "   otherwise   assenting  to  the  lessee   continuing   in possession.  " Of course, there is no prohibition against  a landlord  entering into a fresh contract of tenancy  with  a tenant  whose  right  of occupation is  determined  and  who remains  in occupation by virtue of the statutory  immunity. Apart from art express contract, conduct of the parties  may undoubtedly justify an inference that after determination of the  contractual  tenancy, the landlord had entered  into  a fresh  contract  with the tenant, but  whether  the  conduct justifies  such  an inference must always  depend  upon  the facts  of  each case.  Occupation of premises  by  a  tenant whose  tenancy is determined is by virtue of the  protection granted by the statute and not because of any right  arising from the contract which is determined.  The statute protects his  possession  so long as the conditions which  justify  a lessor in obtaining an order of eviction against him do  not exist.   Once  the  prohibition  against  the  exercise   of jurisdiction  by the court is removed, the right  to  obtain possession by the lessor under the ordinary law springs into action and the exercise of. the lessor’s right to evict  the tenant  will not unless the statute provides  otherwise,  be conditioned. The High Court was in our judgment right in holding that  by merely  accepting rent from the appellant and by failing  to take  action against him, the appellant did not acquire  the rights  of  a tenant holding over.  It is true that  in  the notice dated October 10, 1950, the appellant is described as a " monthly tenant ", but that is not indicative of  conduct justifying an inference that a fresh contractual tenancy had come into existence.  Within the meaning of the West  Bengal Premises  Rent  Control  Act, 1950, the appellant  was  a  " tenant  "  and  by  calling  the  appellant  a  tenant   the respondents  did not evince an intention to treat him  as  a contractual tenant.  The use of the adjective monthly " also was  not indicative of a contractual relation.  The  tenancy of  the  appellant  was  determined by  efflux  of  time  an subsequent occupation by him 820 was not in pursuance of any contract express or implied, but was  by  virtue of the protection given  by  the  successive statutes.   This occupation did not confer any  rights  upon the  appellant  and was not required to be determined  by  a notice  prescribed  by is. 106 of the Transfer  of  Property Act. In that view of the case, this appeal fails and is dismissed with costs. Appeal dismissed.