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PETITIONER: MANEKSHA ARDESHIR IRANI & ANR.

       Vs.

RESPONDENT: MANEKJI EDULJI MISTRY & ORS.

DATE OF JUDGMENT04/10/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A.

CITATION:  1974 AIR 2123            1975 SCR  (2) 341  1974 SCC  (2) 621

ACT: Bombay Tenancy and Agricultural Lands Act (Bom. 55 of 1948). ss. 4B and 88B (2)-Scope of

HEADNOTE: (1)Under  s.  4B of the Bombay  Tenancy  and  Agricultural Lands Act, 1948, no tenancy of any land shall be  terminated merely on the ground that the period, fixed by agreement  or usage, for its duration, has expired. The appellant became a tenant under the respondent  and  the period  of tenancy was for 5 years ending on Feb. 28,  1948. Under  S. 23(1) of the Act, 1939 the lease was deemed to  be for  10 years and the appellant tested tenant by  virtue  of the  Bombay  Tenancy  and Agricultural  But  the  effect  of introduction  of  s. 88B it in the 1948 Act  Bombay  Tenancy became a protect Act, 1948. was that the appellant no longer remained a protected tenant.  After the appellant ceased  to be  a  protected tenant on Aug. 1, 1956,  and  the  original contractual  tenancy  had  ceased,  the  appellant  was   in occupation  of the lands only on sufferance.  If  a  tenant, after termination of the lease, is in possession without the consent  of the landlord, he is a tenant by sufferance.   It is  only  where a tenant continues in  possession  with  the consent  of  the  landlord that he can be  called  a  tenant holding  over  or a tenant at will.  The appellant  did  not have  any consent and the respondent never gave any  consent to  him  to  hold over.  He gave a  notice  terminating  the tenancy in 1955 and another notice in 1958, calling upon the appellant to deliver possession.  Tenancy being a matter  of privity  of parties there was no tenancy and  the  appellant was  a  trespasser.  Therefore, s. 4B  has  no  application. [343G-344B] (2)Under s. 88B (2) of the Bombay Tenancy and Agricultural Lands  Act,  1948,the Collector grants a  certificate  after holding an enquiry that the conditions in the proviso to  s. 88B(1)  are satisfied by any trust.  The enquiry is  between the Collector and the Trust. Therefore,  the  appellant, who wag a tenant  by  sufferance under  the respondent, and who, at no stage denied the  fact that  the  lands  are  the properties of  a  trust  was  not entitled  to  a notice when the Collector  held  an  enquiry

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under  s. 88B(2) for the ’purpose of granting a  certificate to the respondent. [344B-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1013  of 1973. From  the Judgement and Order dated the 7th September,  1972 of the Bombay High Court at Bombay in Appeal No. 453/60 from Original Decree. M. C. Bhandare and K. Rajendra Choudhary for the appellant. V.S.  Desai  R.G. Samant; P. C. Bhartari; K. J.  John,  J.B. Dadachanji, O.   C. Mathur and Ravinder Narain for the respondents. The Judgment of the Court was delivered by-,.’ RAY,  C.  J. The question in this appeal by  certificate  is whether  the appellant is entitled to protection of  section 4B  of the Bombay Tenancy and Agricultural Lands  Act,  1948 hereinafter referred to as the 1948 Act. Section  4B  states  that no tenancy of any  land  shall  be terminated  "merely on the ground that the period  fixed  by agreement or usage for  its duration has expired. 342 The appellant became a tenant of the respondent for a period of  five years with effect from 1 March, 1943.  The  tenancy was  in respect of certain agricultural lands  belonging  to the  respondent.  The lease contained a clause  for  renewal for  five years.  The appellant did not exercise the  option of renewal.  The lease expired on 28 February, 1948. The respondent by a notice dated 25 October, 1955 terminated the tenancy with effect from 1 April, 1957.  The  respondent gave  another  notice  to the appellant  on  10  June,  1958 without prejudice to the earlier notice and called upon  the appellant   to  deliver  possession  within  7  days.    The respondent  on 14 September, 1959 filed a suit  against  the appellant  for possession.  The trial Court did not grant  a decree  for possession.  On appeal the High Court also  held that the appellant was not liable to be evicted.  On appeal, this  Court  remanded  the matter to the High  Court  for  a report on two questions.  First, whether the appellant was a protected tenant on 1 March, 1953.  Second, if the appellant was  a  protected  tenant  on  1  March,  1953  whether  the appellant  could claim benefit of Section 5 of the  Amending Act, 1952.  The High Court submitted the report holding that the  appellant was a protected tenant on 1 March,  1953  but that the appellant was not entitled to claim the benefit  of section  5  of  the Amending Act; 1952.  Section  5  of  the Amending  Act  gave  certain relief to  tenants  other  than protected tenants. This Court affirmed both the findings of the High Court  and set-,  aside  the judgment of the High Court from  which  an appeal  had  been taken to this Court. (See  Manekji  Edulji Mistry  &  Ors. v. Manekshe Ardeshir Irani & Anr.  [1972]  1 S.C.R.  334).  This Court at the invitation of  the  parties directed  the  High Court to determine whether there  was  a valid  termination of tenancy because there were two  issues as to damages yet to be decided. The High Court on remand has held that the appellant was not entitled  to any notice and that the appellant was a  tenant on sufferance,, The issues as to damages are not yet heard. in this appeal, the appellant contends that the appellant is entitled  to  protection under section 4B of  the  1948  Act because the appellant is holding over and the tenancy cannot be terminated by efflux of time.

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The contract of tenancy commenced on 1 March, 1943.  It  was for  a  period of five years ending on  28  February,  1948. Under section 23(1)(b) of the Bombay Tenancy Act, 1939 as it stood  amended in 1946, every lease subsisting on  the  date when that section came into force became deemed to be for  a period  of  not  less than ten years.   The  effect  of  the statutory  provision  was that the appellants’  lease  which would  have  expired  on 28 February,  1948  expired  on  28 February, 1953 by reason of the deeming provision of section 23(1)(b) of the 1031 Act; 34 3 The 1948 Act while repealing the 1939 Act did not repeal but modified sections 3, 3A and 4 of the 1939 Act.  These  three sections  of the 1939 Act deal with protected tenants.   The relevant section for the purposes of this appeal is  section 3A  as  modified by the 1948 Act.  Section  3A  states  that every  tenant shall, from the eighth day of  November,  1947 redeemed  to be a protected tenant for the purposes of  this Act  and  his  rights  as such  protected  tenant  shall  be recorded  in the Record of Rights, unless his  landlord  has prior  to  the  aforesaid date made an  application  to  the Mamlatdar  for  a  declaration  that the  tenant  is  not  a protected tenant.  The landlord in the present case did  not make  any application as contemplated in section 3A  of  the 1939  Act as modified by the 1948 Act.  The result was  that the  appellant  became a protected tenant by virtue  of  the 1948 Act read with section 3A of the 1939 Act. From  1  March,  1953  until 31  July,  1956  the  appellant remained a protected tenant under the 1948 Act until section 88B  was introduced in the 1948 Act by Act 13 of 1956.   The effect  of introduction of section 88B in the 1948  Act  was that  the appellant no longer remained a  protected  tenant. Along  with section 88B was introduced section 4A.   Section 4A  states  that  a  person shall  be  recognised  to  be  a protected tenant if such person has been deemed to be a pro- tected  tenant  under  section 3, 3A, and 4  of  the  Bombay Tenancy Act, 1939 referred to in Schedule 1 of the 1948 Act. Section  4A does not apply to tenancies governed by  section 88B(1) of the Act.  After  the  appellant ceased to be protected  tenant  on  1 August, 1956 and the original contractual tenancy had ceased On 28 February, 1948 the appellant was in occupation of  the lands on sufferance.  It cannot be said that the  respondent assented  to the appellant continuing in possession  on  the same terms and conditions as in the original tenancy.   When the  protection was withdrawn on 1 August, 1956 there  could be  no  question  of  holding  over  because  there  was  no contractual tenancy. In  the present case, it is not necessary for us to  express any  opinion  as to whether section 84 of  the  Bombay  Land Revenue Code or section 106 of the Transfer of Property  Act would apply with regard to notice to quit. The  respondent-landlord gave a notice to quit in 1955.   At that time, there was no contractual tenancy.  The  appellant was  a  protected tenant.  Immediately  the  protection  was taken away by section 88B of the 1948 Act the only  question is whether the appellant could claim to remain in occupation on  the  plea  of  holding over.  If  a  lessee  remains  in possession after determination of the term, he is under  the common law a tenant on sufferance.  The expression  "holding over"  is used in the sense of retaining possession.   If  a tenant  after the termination of the lease is in  possession without  the  consent  of the landlord, he is  a  tenant  by sufferance.   It  is only where a tenant  will  continue  in possession  with the consent of the landlord that he can  be

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called  a tenant holding over or a tenant at will.   In  the present case, 344 there  is  no  doubt that the appellant  did  not  have  any consent  and the respondent never gave any consent  to  hold over.   The appellant remained in possession on  sufferance. Therefore  section 4B of the Act has no application  because there  is  no tenancy.  Tenancy is a matter  of  privity  of parties.   If there is no consent, the appellant is a  tres- passer. A  contention was advanced on behalf of the  appellant  that ’he  appellant was entitled to a notice when  the  Collector held  an  inquiry under section 88B(2) of the  Act  for  the purpose  of granting a certificate to the  respondent.   The Collector   under  section  88B(2)  of  the  Act  grants   a certificate after holding an inquiry that the conditions  in the  proviso to section 88B(1) are satisfied by  any  Trust. The  Trust has to satisfy two conditions.  First, the  Trust is  registered  under  the Bombay Public  Trust  Act,  1950. Second,  the  entire  income  of the  lands  which  are  the property  of the Trust is appropriated for the  purposes  of such Trust.  The certificate granted by the Collector  shall be   conclusive   evidence.   The  appellant   raised   this contention in the High Court that the appellant was entitled to a notice.  The High Court did not accept the  contention. The  High Court held that the appellant at no  stage  denied the  fact that the lands are the property of a  Trust.   The inquiry  is  between  the  Collector  and  the  Trust.   The conclusive evidence clause in the section means that it is a rule of evidence which would not render it necessary for  it to prove again the compliance with the requirements. For  those reasons, the appeal is dismissed.   Parties  will pay and bear their own costs. V.P.S. Appeal dismissed. 34 5