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PETITIONER: V. DHANAPAL CHETTIAR

       Vs.

RESPONDENT: YESODAI AMMAL

DATE OF JUDGMENT23/08/1979

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. CHANDRACHUD, Y.V. ((CJ) SARKARIA, RANJIT SINGH SHINGAL, P.N. KAILASAM, P.S. VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR 1745            1980 SCR  (1) 334  1979 SCC  (4) 214  CITATOR INFO :  F          1980 SC1214  (12)  RF         1980 SC1709  (3)  F          1980 SC1756  (7)  R          1982 SC 783  ((1)2)  RF         1982 SC1043  (14)  RF         1985 SC 136  (5)  F          1985 SC 796  (2,12,29,31,35)  E&R        1987 SC 117  (40,52)  RF         1987 SC1823  (5)  R          1988 SC1708  (19)  R          1989 SC 758  (1,5,7,10)  D          1989 SC1110  (15)  E&D        1989 SC2187  (5)  D          1990 SC 879  (5)  F          1991 SC 855  (42,46,66)  RF         1991 SC2053  (16)

ACT:      Rent Control  Acts-Provide conditions  for eviction  of tenants-Notice under  s. 106  Transfer of  Property  Act  if necessary after decree for eviction passed by Court.

HEADNOTE:      A lease  between a  lessor  and  a  lessee  comes  into existence by  way  of  contract  when  the  parties  to  the contract agree  on the  rent, duration  of tenancy and other relevant terms.  Section 111 of the transfer of Property Act provides various  methods by  which  a  lease  of  immovable property can  be determined.  Under clause  (h) of  s. 111 a lease determines  on the expiry of a notice to determine the lease given by the landlord to the tenant. Once the lease is determined by  notice the  lessor can  enforce his  right of recovery of  possession of  the property.  But if  the lease does not  stand determined  under any  of the clauses (a) to (g) of  s. 111 notice under s. 106, Transfer of Property Act to determine  the lease  is necessary. But this section does not impose  an obligation  on the  landlord to spell out the

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grounds on which the landlord wishes to evict the tenant.      During the  postwar years  all the  State  Legislatures passed Building  and Rent Control Acts to give protection to tenants against  unreasonable eviction  by the  landlords as well as to prevent the landlords from exploiting the tenants by way  of exorbitant  rents. As  in the  case of all social legislation which  is designed  for the  protection  of  the needy, the  Rent  Control  Acts  have  brought  considerable inroad on the landlord’s freedom of contract. Many Acts have brought  about   considerable  changes  in  the  rights  and liabilities of the lessor and the lessee and the tilt of the law is  largely in  favour of  the lessee.  The landlord  is bound to  let out  his premises  on rent  to a  person  even against his  wishes when  the concerned  authority allots  a particular premises  to a person. When once the premises are so allotted,  the landlord  is bound to give the premises to that  person   and  at  the  rent  fixed  by  the  authority concerned.      In the matter of determination of the tenancy the State Rent Acts  do not permit a landlord to snap his relationship with the tenant merely by serving on him a notice to quit as is the  position under  the Transfer  of Property  Act.  The landlord can  recover possession of the property only on one or more  of the  grounds enacted  in the relevant section of the Rent Acts. Even after the termination of the contractual tenancy the  landlord, under the definitions of landlord and tenant contained  in the Rent Acts, remains a landlord and a tenant remains  a tenant  because of  the express  provision made in  the  enactments  that  a  tenant  means  "a  person continuing  in  possession  after  the  termination  of  the tenancy his  favour." It  is also  provided that no landlord can  treat   a  building  to  have  been  vacant  by  merely terminating the contractual tenancy 335 as the  tenant still lawfully continues in possession of the premises. Yet  another important feature of the Rent Acts is that either  by way of a non-obstante clause or by necessary implication these  enactments have  done away  with the  law contained in s. 108 of the T. P. Act dealing with rights and liabilities of the lessor and the lessee.      The difference between the position obtaining under the Transfer of  Property Act and the Rent Acts in the matter of determination of  a lease  is that  under the  former Act to recover possession  of the  property  determination  of  the lease is  necessary because  during the  continuance of  the lease the landlord cannot recover possession of the premises while under  the Rent  Acts the landlord becomes entitled to recover possession only on the fulfillment of the conditions laid down  in  the  relevant  sections.  He  cannot  recover possession merely  by determining the tenancy. Nor can he be stopped from  doing  so  on  the  ground  that  he  has  not terminated the contractual tenancy.      In the  instant case the appellant filed an application against the  tenant under  s. 10(3)(ii)  of the  Tamil  Nadu Building (Lease and Rent Control) Act, 1970 calling upon him to quit  on the  ground  of  personal  necessity.  The  Rent Controller rejected  her application.  The Appellate  Court, while holding that the respondent required the premises bona fide for  her personal  necessity, dismissed the application on the  ground that  a notice to quit was necessary and that the notice  given by  her was not in accordance with law. In revision the  High Court  held that  notice to quit under s. 106, T.P. Act was not necessary.      Dismissing the appeal, ^

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    HELD: (1)  The High Court was right in its view that no notice to quit was necessary under s. 106 of the T.P. Act to enable the  landlord to get an order of eviction against the tenant. On  the question  of requirement  of notice under s. 106, T.P.  Act there  is no scope for taking different views on the  basis of  difference in  phraseology of  the various Rent Acts.  The difference  in the  language does  not bring about any distinction. [353F; 342C-D]      2. In  the case  of a  landlord wishing  to  evict  his tenant under  the Rent  Acts determination  of the  lease in accordance with the Transfer of Property Act is unnecessary. It is  a mere  surplusage because  the landlord  cannot  get eviction of  the tenant  even after  such determination. The tenant continues  to be a tenant even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by  itself is  sufficient and it is not obligatory to found the  proceeding on  the basis  of determination of the lease by  issue of  notice in  accordance with  s. 106, T.P. Act. [353D-E]      3. Although the Rent Acts restrict the rights which the landlord possesses  either for  charging excessive  rents or for  evicting   tenants,  if   within  the  ambit  of  those restricted rights  the landlord  makes out his case, it is a mere empty  formality, a  mere surplusage,  to  ask  him  to determine the  contractual tenancy before the institution of a suit  for eviction.  Such a  notice under  the T.P. Act is necessary because mere determination of the lease entitles a landlord to  recover possession.  But under the Rent Control Acts it  becomes an  unnecessary technicality to insist that the landlord must also determine the contractual tenancy. It is of  no practical  use to insist again upon a notice under s. 106, after placing 336 so many  restrictions under  the Rent Acts on the landlord’s right to evict the tenant. [344H-345AB]      4. But where a landlord, by way of abundant caution, to butteress his  case, gives  a notice  to the  tenant that he intends to  file a  suit for eviction, it is not open to the tenant to say that such a notice is compulsory or obligatory or that  it must fulfil all the technical requirements of s. 106 of  the Transfer  of Property Act. Once the liability to be evicted  is incurred  by the tenant, he cannot turn round and say  that the contractual lease has not been determined. The action  of the  landlord in  instituting  the  suit  for eviction on  the grounds  mentioned in  any State  Rent Acts will amount  to an  expression of his intention that he does not want  the tenant to continue as his lessee and the jural relationship of  lessor and  lessee would  come to an end on the passing of an order or a decree for eviction. [340B-D]      5. The  restricted area  under the  various State  Rent Acts has  done away  to a large extent, with the requirement of the  law of  contract and  the Transfer  of Property Act. This being  so there  is no  reason to impose an unnecessary and unjustifiable  formality of  terminating the contractual lease. [345C]      6. Secondly,  if protection  from eviction is claimable by the  tenant even  after determination  of the contractual tenancy under  the Rent  Acts there is no reason why the law of contract engrafted in the Transfer of Property Act should again be imported for seeking eviction of the tenant. [346B]      7. If  the termination  of the  contractual tenancy  by notice does  not entitle  the landlord to recover possession of  the   premises  and   he  becomes  entitled  to  recover possession only  if he  makes out  a case  under the special provisions of  the State  Rent Acts  then termination of the

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contractual  relationship   by  notice   is  not  necessary. Termination comes  into effect  when a  case is successfully made out  for eviction  of the  tenant under  the State Rent Acts. [347A-B]      Bhaiya  Punjalal   Bhagwanddin  v.  Dave  Bhagwatprasad Prabhuprasad [1963]  3 SCR 312, Mangilal v. Suganchand Rathi [1964] 5  SCR, 239,  Manujendra Dutt  v. Purendu  Prosad Roy Chowdhury &  ors. [1967]  1 S.C.R.  475, Isha  Valimohamad & Anr. v.  Haji Gulam  Mohamad & Haji Dada Trust [1975] 1 SCR, 720, P.  J. Gupta  & Co.  v. K.  Venkatesan Merchant  & ors. [1975]  2   SCR.  401,  Dattanpant  Gopalyarao  Devakate  v. Vithabrao Maruthirao  Janagavai [1975] Suppl. SCR. 67, Ratan Lal v.  Vardesh  Chander  &  ors.  [1976]  2  SCR.  906  and Sardarilal Vishwanath and Ors. v. Pritam Singh [1978] 1 SCR. 111 not approved.      8. Where,  on  the  other  hand,  over  and  above  the protection under the relevant Act a clause in the lease deed gives an  extra protection  of getting  notice to  quit  and vacate the  premises, such  a clause not being unlawful, the extra protection  given to  the tenant against eviction must be adhered  to. But for this reason it is not correct to say that s. 106 of the T.P. Act gives an extra protection to the tenant against  eviction. The  purpose of  this provision is merely to  terminate the contract which the over-riding Rent Acts do not permit to be terminated. [348 A-B]      M/s. Raval  and Co.  v. K.  G. Ramachandran and others. [1974] 2  SCR 629, Raj Krishna and another v. S. K. Shaw and Brothers [1951] SCR 145 and 337 Puwada Venkaeswara  Rao v. Chidamana Venkata Ramana [1976] 3 SCR. 551 Approved.      Shri Hem  Chand  v.  Shrimati  Sham  Devi  I.L.R.  1955 Punjab, 36 approved.

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of 1977.      Appeal by  Special Leave  from the  Judgment and  Order dated 10-12-1976  of the  Madras High  Court in  C.R.P.  No. 836/76.      K. Jayaram and K. Ramkumar for the Appellant.      M. N. Padmanabhan, T. A. Ramachandran, M. N. Tandon and Mrs. Ramachandran for the Respondent.      The Judgment of the Court was delivered by      UNTWALIA  J.  This  appeal  by  special  leave  at  the instance of  the tenant  of certain  premises in the town of Vellore was heard by a larger Bench of this Court consisting of seven  Judges to  resolve the cleavage of opinion between the various  High Courts  in India  as also  between several decisions of  this Court,  on the  question as to whether in order to get a decree or order for eviction against a tenant under any  State Rent  Control Act it is necessary to give a notice under Section 106 of the Transfer of Property Act. We proceed to do so in this Judgment.      The  respondent   filed  an   application  against  the appellant under  section 10(3)(a)(iii)  of  the  Tamil  Nadu Building (Lease  and Rent  Control) Act,  1960,  hereinafter referred to  as the  Tamil Nadu  Rent Act,  on the ground of personal  necessity.  The  Rent  Controller  held  that  the requirement  of  the  respondent  was  not  genuine  and  he accordingly  dismissed   her  petition.  On  appeal  by  the landlady the Appellate Court held in her favour on the point of her  requiring the  premises bona  fide for  her personal

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necessity but maintained the dismissal of her application on the ground  that a  notice to quit was necessary and the one given by  her was  not in  accordance with law. The landlady took up  the matter  in revision to the Madras High Court. A learned single  Judge of  that Court  following his  earlier decision in K. Sukumaran Nair etc. v. S. Neelakantan Nair by constituted attorney  P. Raman  Nair  etc.  etc.  held  that notice to quit under section 106 of the Transfer of Property Act was  not necessary  for seeking  an eviction of a tenant under The  Tamil Nadu  Rent Act.  Hence this  appeal by  the tenant. 338      We do  not think  it necessary to decide in this appeal whether the  notice to  quit given  to the  appellant was  a valid notice  in accordance with section 106 of the Transfer of Property  Act. The  controversy before  us centered round the question  whether such  a notice was at all necessary to be given.      We shall  presently refer  to the  various decisions of the High  Courts and  this Court  taking contrary views. But before we do so we may make some general observations. It is well-known  that   after  the   second  world  war  to  give protection  to   a  tenant  against  unnecessary,  undue  or unreasonable eviction  and in  the matter of being exploited for payment  of exorbitant  rent all  States in India at one time or  the other  passed Building  and Rent  Control Acts. Amendments in them were brought about from time to time. The language and the scheme of the Acts varied and differed from State  to   State.  Even   though  there  was  no  basic  or fundamental difference in regard to the law of eviction of a tenant in any of the State Statutes, different constructions were put in regard to them and principles were culled out in varying manners  to arrive  at the conclusions in some cases that a  notice to quit in accordance with section 106 of the Transfer of  Property Act  was necessary  and in some it was held  that  it  was  not  necessary.  The  gravamen  of  the underlying principles seems to have been over-looked in many cases.      Under the  Transfer of  Property  Act  the  subject  of "Leases of  Immovable Property"  is dealt with in Chapter V. Section 105  defines the  lease, the  lessor, the lessee and the rent. Purely as a matter of contract, a lease comes into existence under  the Transfer  of Property  Act. But  in all social legislations  meant for  the protection of the needy, not necessarily  the so-called weaker section of the society as is  commonly and  popularly called,  there is appreciable inroad on  the freedom  of contract  and a  person becomes a tenant  of  a  landlord  even  against  his  wishes  on  the allotment of  a particular  premises to him by the authority concerned. Under section 107 of the Transfer of Property Act a lease  of immovable property from year to year, or for any term exceeding  one year, or reserving a yearly rent, can be made only by a registered instrument. None of the State Rent Acts has  abrogated or  affected this provision. Section 108 deals  with  the  rights  and  liabilities  of  lessors  and lessees.  Many   State  Rent   Acts   have   brought   about considerable changes  in the  rights and  liabilities  of  a lessor and  a lessee,  largely  in  favour  of  the  latter, although not wholly. The topic of Transfer of Property other than agricultural  land is covered by Entry 6 of List III in the Seventh  Schedule to the Constitution. The subject being in the Concurrent List, many State Rent 339 Acts have  by necessary  implication and  many  of  them  by starting certain  provisions with  non-obstante clause  have

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done away  with the  law engrafted  in section  108  of  the Transfer of  Property Act  except in  regard to  any  matter which is  not provided for in the State Act either expressly or by necessary implication.      Section III deals with the question of determination of a lease,  and in  various clauses  (a)  to  (h)  methods  of determination of a lease of immovable property are provided. Clause (g)  deals with the forfeiture of lease under certain circumstances and at the end are added the words "and in any of these  cases the lessor or his transferee gives notice in writing to  the lessee  of his  intention to  determine  the lease." The  notice spoken  of in  clause (g) is a different kind  of  notice  and  even  without  the  State  Rent  Acts different views  have been  expressed as  to whether  such a notice in  all cases  is necessary  or not.  We only observe here that  when the  State  Rent  Acts  provide  under  what circumstances and  on what  grounds a tenant can be evicted, it does provide that a tenant forfeits his right to continue in occupation of the property and makes himself liable to be evicted on  fulfillment of  those conditions.  Only in those State Acts  where a specific provision has been made for the giving of  any notice requiring the tenant either to pay the arrears of  rent within  the specified  period or  to do any other thing,  such as the Bombay Rent Act or the West Bengal Rent Act,  no  notice  in  accordance  with  clause  (g)  is necessary. A  lease of  immovable property  determines under clause (h):-           "On the  expiration of  a notice  to determine the      lease, or  to  quit,  or  of  intention  to  quit,  the      property leased, duly given by one party to the other."      It is  this clause  which  brings  into  operation  the requirement of  section 106 of the Transfer of Property Act. Without adverting to the effect and the details of waiver of forfeiture,  waiver   of  notice  to  quit,  relief  against forfeiture for  non-payment of  rent etc. as provided for in sections 112  to 114A  of  the  Transfer  of  Property  Act, suffice it  to say  that under  the said  Act no  ground  of eviction of  a tenant  has to be made out once a contractual tenancy is  put to an end by service of a valid notice under section 106  of the  Transfer of  Property  Act.  Until  and unless the  lease is  determined, the  lessee is entitled to continue in  possession. Once  it is  determined it  becomes open to  the lessor  to enforce  his right  of  recovery  of possession of  the property against him. In such a situation it was  plain and  clear that  if the lease of the immovable property did  not stand  determined under any of the clauses (a) to (g) of section 111, a notice to determine it un- 340 der section  106 was  necessary. But  when under the various State Rent Acts, either in one language or the other, it has been provided  that a  tenant can  be evicted on the grounds mentioned in  certain sections  of the  said Acts,  then how does the  question of  determination of  a tenancy by notice arise? If  the State  Rent Act  requires  the  giving  of  a particular type  of notice in order to get a particular kind of relief,  such a  notice will have to be given. Or, it may be, that  a landlord will be well advised by way of abundant precaution and  in order  to lend  additional support to his case, to  give a  notice to  his tenant  intimating that  he intended to  file a suit against him for his eviction on the ground mentioned  in the notice. But that is not to say that such a  notice is  compulsory or  obligatory or that it must fulfil all  the technical requirements of section 106 of the Transfer of  Property Act.  Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that

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the contractual lease has not been determined. The action of the landlord  in instituting  a suit  for  eviction  on  the ground mentioned in any State Rent Act will be tantamount to an expression  of his  intention that  he does  not want the tenant to  continue as his lessee and the jural relationship of lessor  and lessee  will come to an end on the passing of an order  or a  decree for  eviction. Until  then, under the extended definition  of the  word ’tenant’ under the various State Rent  Acts, the  tenant continues  to be a tenant even though the contractual tenancy has been determined by giving a valid notice under section 106 of the Transfer of Property Act. In  many cases  the distinction  between a  contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular  case.   That  led   to  the  criticism  of  that expression in  some  of  the  decisions.  Without  detaining ourselves on  this aspect  of the  matter by  any  elaborate discussion, in  our opinion, it will suffice to say that the various State  Rent Control Acts make a serious encroachment in the  field of freedom of contract. It does not permit the landlord to  snap his relationship with the tenant merely by his act  of serving  a notice to quit on him. Inspite of the notice, the law says that he continues to be a tenant and he does so  enjoying all  the rights  of a lessee and is at the same time  deemed to  be under  all the  liabilities such as payment of rent etc. in accordance with the law.      In Sukumaran  Nair’s case (supra) the learned Judge has pointed out  the difference  of  opinion  expressed  in  the various decisions of the Madras High Court from time to time in regard  to notice  to  quit  under  section  106  of  the Transfer of  Property Act.  In Parthasarthy  and another  v. Krishnamoorthy and another a learned single Judge of 341 that Court  held that  a notice  to quit  was  necessary.  A contrary view  was expressed by a Division Bench of the High Court in  R. Krishnamurthy  v. S.  Parthasarthy and another. Difference of opinion in Madras High Court continued in many other cases  and then  came the  Full Bench  decision in the case of  M/s Raval and Co. v. K. G. Ramachandran and others. This decision  was approved in the majority decision of this Court in  Raval &  Co. v.  K. G. Ramachandran & Ors. Raval’s case was  not directly  a case in relation to section 106 of the Transfer  of Property  Act but  some  observations  made therein did tend to show that notice would not be necessary. In spite of the Full Bench decision of the Madras High Court in Raval’s  case a  Division  Bench  of  that  Court  in  B. Kalyanasundaram v.  A. R.  Nataraian stuck  to the view that notice was  necessary. The  Punjab High  Court in  Shri  Hem Chand v.  Shrimati Sham  Devi had  expressed the  view  that notice was  not necessary.  The Full Bench of the Punjab and Haryana High  Court in  Bhaiya  Ram  Haroo  Lal  v.  Mahavir Parshad Murari  Lal Mahajan  took a contrary view. After the majority view  of the  Full Bench of the Patna High Court in Niranjan Pal  and another  v. Chaitanyalal Ghosh and another it has been consistently held in the Patna High Court that a notice is  necessary. A  Special Bench  of the Calcutta High Court  in   Surya  Properties  Private  Ltd.  and  other  v. Bimalendu Nath  Sarkar and  others has  taken the  view that over and  above the  notice required  to be  given under the State Act  a notice  under section  106 of  the Transfer  of Property Act  is also  necessary. To  the same effect is the view expressed  in Chhotelal Banshidhar v. Abdullabhai Abdul Gaffor; Shambhooram  & another  v. Mangal  Singh  &  another Siddappa Adivappa  v. Venkatesh  Raghavendra Hubballi  Batoo Mal v.  Rameshwar Nath  and  others  and  Parshotam  Lal  v.

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Kalayan Singh  and another.  As against  this, and specially after some  decisions of  this Court,  the preponderance  of recent view in the High 342 Courts of  Andhra Pradesh,  Madras,  Kerala,  Karnataka  and Punjab and  Haryana is  that no  notice under section 106 of the Transfer  of Property  Act is necessary. These cases are Ulligappa etc. v. S. Mohan Rao, minor by guardian Changamma, etc.; K.  Sukumaran Nair  and others  v. S. Neelakantan Nair and  others;   Lalitha  v.  Avissumma;  Govindaswamy  R.  v. Pannalal C. S. and Vinod Kumar v. Harbans Singh Azad. Such a cleavage of  opinion cropped  up in  the various High Courts because of some observations of this Court in some decisions which will  be  presently  alluded  to.  It  was  so  on  an erroneous assumption,  if we  may say so with great respect, that the  difference in  the phraseology  of  the  different State Rent  Acts justifies  this difference of views. In our considered judgment  on the  question of  a requirement of a notice under  section 106  of the  transfer of  Property Act there is no scope for taking different views on the basis of the difference  in the phraseology of the various Rent Acts. In this regard the difference in the language does not bring about any  distinction. In  all the States the law should be uniform viz. that either a notice is necessary or it is not. It was  high time,  therefore, that  this larger  Bench  was constituted to  lay down a uniform law for the governance of the whole  country and  not permit the unjustified different trend of decisions to continue.      Before we embark upon a review of some of the decisions of this Court we think it necessary and advisable to briefly refer to  the provisions  of some  of the State Rent Acts in support of  the observations  made by  us above  that on the question of  notice no  different result  is possible on the language of any State Act. Section 10 of The Tamil Nadu Rent Act says  :- "A  tenant shall  not  be  evicted  whether  in execution of a decree or otherwise except in accordance with the provisions  of this  section or  sections 14  to 16." In other words  if a  case is  made out  for  his  eviction  in accordance with the provisions aforesaid, he can be evicted. Even after  the termination of the contractual tenancy under the definition  of the  landlord in  clause (6)  and of  the tenant under  clause (8) of section 2 the landlord remains a landlord and  the tenant  remains a  tenant  as  clause  (8) expressly says  that tenant  means "a  person continuing  in possession after  the termination  of  the  tenancy  in  his favour." Section  3 indicated that no landlord can treat the building to have become vacant by 343 merely terminating  the contractual  tenancy as  the  tenant still lawfully  continues in possession of the premises. The tenancy actually  terminates on  the passing of the order or decree for  eviction and  the building  falls vacant  by his actual eviction.  The giving  of the notice, therefore, is a mere surplusage  and unlike  the law  under the  Transfer of Property Act  it does  not entitle the landlord to evict the tenant.      Adverting to the provisions of the Bombay Rents, Hotels and Lodging  House Rents Control Act, 1947 it would be found from the  definition section  5 that any person remaining in the building  after the  determination of  the  lease  is  a tenant within  the meaning of clause (11). Section 12 of the Bombay Act  says that  the landlord shall not be entitled to the recovery  of possession  of any  premises so long as the conditions mentioned  in sub-section  (1) are  fulfilled nor any suit for recovery of possession shall be instituted by a

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landlord against  a tenant  on the  happening of  the events mentioned in  sub-section (2)  until the  expiration of  one month next  after the  notice is served on the tenant in the manner provided  in section  106 of the Transfer of Property Act,  as  required  by  the  said  sub-section.  Section  13 provides that  a landlord  may recover possession on certain grounds. Is  it not  plain then that on the happening of the events or  on the fulfillment of the conditions mentioned in sections 12  and 13  etc. the  landlord becomes  entitled to recover possession  from the  tenant, otherwise not. It will bear repetition  to say  that under the Transfer of Property Act in  order to  entitle the landlord to recover possession determination of  the  lease  is  necessary  as  during  its continuance he could not recover possession, while under the State Rent  Act the  landlord becomes  entitled  to  recover possession only  on the  fulfillment of  the rigour  of  law provided  therein.   Otherwise  not.   He   cannot   recover possession merely by determination of tenancy. Nor can he be stopped from  doing  so  on  the  ground  that  he  has  not terminated the  contractual tenancy.  Under the  State  Rent Control Acts the concept of the contractual tenancy has lost much  of  its  significance  and  force.  Identical  is  the position under the Bihar Act. The definition section permits the  tenant   to  continue   as  a  tenant  even  after  the determination of  the contractual  tenancy. Section 11 gives him protection  against eviction  by starting  with  a  non- obstante clause  and providing  further that he shall not be liable to  eviction from any building except in execution of a decree  passed by  the  Court  for  one  or  more  grounds mentioned in  section 11. Does it not stand to reason to say that a  decree can  be passed  if one or more of the grounds exist and  such a  decree can  be passed against an existing tenant within  the meaning of the State Rent Act? Similar is the position  under the  Kerala Lease  and Rent Control Act, 1965 and the East Punjab Urban 344 Rent Restriction Act, 1949. We shall refer to the provisions of the  Madhya Pradesh  and Andhra  Pradesh State  Rent Acts when we  come to  review the  decisions  of  this  Court  in relation to those Acts.      A Constitution  Bench of  this Court  in Rai  Brij  Raj Krishna and  another  v.  S.  K.  Shaw  and  Brothers  in  a different context  dealing with section 11 of the Bihar Rent Act observed at page 150:-           "Section 11 is a self-contained section, and it is      wholly  unnecessary   to  go   outside  the   Act   for      determining whether a tenant is liable to be evicted or      not, and  under what  conditions he  can be evicted. It      clearly provides  that a  tenant is  not liable  to  be      evicted except  on certain  conditions, and  one of the      conditions laid  down for  the eviction  of a  month to      month       tenant        is       non-payment       of      rent..................The Act  thus sets  up a complete      machinery for  the investigation  of those matters upon      which the  jurisdiction  of  the  Controller  to  order      eviction of  a tenant  depends, and  it expressly makes      his order final and subject only to the decision of the      Commissioner."      It was  on that  account held  that the decision of the Controlling authority  was final  and it was not open to the Civil Court  to take  a different  view of the matter on the question of  non-payment of  rent. It was not a case where a question of notice arose for determination.      The first  decision of this Court which is necessary to be noticed  on the  point of  notice is  the case  of Bhaiya

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Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad. The case related  to Bombay Rent Act. Raghubar Dayal J. speaking on behalf  of the Division Bench of this Court expressed the view at page 318 thus:-           "We are  therefore of  opinion that where a tenant      is in possession under a lease from the landlord, he is      not to  be evicted for a cause which would give rise to      a suit  for recovery  of possession  under s. 12 if his      tenancy has  not been  determined already.  It  follows      that whenever a tenant acts in a way which would remove      the bar  on the  landlord’s right  to evict  him it  is      necessary for  the landlord  to serve him with a notice      determining his  tenancy and  also  serve  him  with  a      notice under sub-s.(2) of s.12 of the Act."      It is  true that  the Rent  Act is intended to restrict the rights  which the landlord possessed either for charging excessive rents  or for  evicting tenants. But if within the ambit of those restricted rights he makes out 345 his case  it is  a  mere  empty  formality  to  ask  him  to determine the  contractual tenancy  before institution  of a suit for  eviction. As  we have  pointed out above, this was necessary  under  the  Transfer  of  Property  Act  as  mere termination of  the lease  entitled the  landlord to recover possession. But  under the  Rent Control  Acts it becomes an unnecessary technicality  to insist  that the  landlord must determine the contractual tenancy. It is of no practical use after so  many restrictions on his right to evict the tenant have been  put. The  restricted area under the various State Rent Acts  has done  away to a large extent with requirement of the  law of contract and the Transfer of Property Act. If this be  so why unnecessarily, illogically and unjustifiably a formality  of terminating  the contractual lease should be insisted upon?  In Bhaiya  Punjalal’s case, if we may say so with very  great respect,  the principle of law laid down by this Court in Rai Brij Raj Krishna’s case (supra) and by the Punjab  High   Court  in   Hem  Chand’s   case  was  wrongly distinguished. After  quoting the passage from the former it was said at page 322:-           "In  the   present  case,   s.12  of  the  Act  is      differently worded and cannot therefore be said to be a      complete Code  in itself.  There is nothing in it which      overrides the  provisions of  the Transfer  of Property      Act."      The difference  in the  wordings of  section 11  of the Bihar Act  and section 12 of the Bombay Act does not justify the conclusion  that  the  provisions  of  the  Transfer  of Property Act  have not  been overridden by section 12 of the Bombay Act  reading it  with section  13 etc.  This was  the ground given  for distinguishing  Hem Chand’s  case also  by erroneously pointing  out the  distinction  between  section 13(1) of  the Delhi and Ajmer Merwara Rent Control Act, 1952 and the  Bombay  Act.  In  our  considered  judgment  Bhaiya Punjalal’s case was not correctly decided.      In another decision of this Court in Vora Abbasbhai Ali Mohamed v.  Haji Gulamnabi Haji Safibhai, in relation to the Bombay Rent  Act again  there are  some lines  at  page  162 wherein it has been observed thus:-           "The clause  applies to  a tenant who continues to      remain in  occupation after  the contractual tenancy is      determined: it  does not  grant  a  right  to  evict  a      contractual  tenant   without  determination   of   the      contractual tenancy."      But the above observation is followed by the words:-           "Protection from  eviction  is  claimable  by  the

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    tenant even  after  determination  of  the  contractual      tenancy so long as he 346      pays or  is ready  and willing to pay the amount of the      standard rent  and permitted increases and observes and      performs the other conditions of the tenancy consistent      with the provisions of the Act."      In our  view if  "protection from eviction is claimable by the  tenant even  after, determination of the contractual tenancy" then  why import  the contractual  law engrafted in the Transfer  of Property  Act for  seeking eviction  of the tenant?      The decision  of this  Court in the case of Mangilal v. Suganchand Rathi,  being a  decision of a Constitution Bench consisting of  five learned and eminent Judges of this Court requires careful  consideration. Therein it was held at page 244 with  reference to  section  4  of  the  Madhya  Pradesh Accommodation Control Act, 1955 thus:-           "The  Accommodation   Act  does  not  in  any  way      abrogate Ch.  V of  the Transfer  of Property Act which      deals  with   leases   of   immovable   property.   The      requirement of  s. 106  of the Transfer of Property Act      is that  a lease  from month to month can be terminated      only after  giving fifteen  days’ notice  expiring with      the end  of a  month  of  the  tenancy  either  by  the      landlord  to  the  tenant  or  by  the  tenant  to  the      landlord. Such a notice is essential for bringing to an      end the relationship of landlord and tenant. Unless the      relationship is  validly terminated  the landlord  does      not get  the right to obtain possession of the premises      by evicting  the tenant. Section 106 of the Transfer of      Property Act  does not  provide for the satisfaction of      any Additional  requirements. But  then, s.  4  of  the      Accommodation Act steps in and provides that unless one      of the  several grounds  set out therein is established      or exists, the landlord cannot evict the tenant."      Section 4 of the Madhya Pradesh Rent Act, 1955 provided that no  suit could  be filed  in any  Civil Court against a tenant for  his eviction for any accommodation except on one or more  grounds set  out in that section. The corresponding provision in  Madhya Pradesh  Accommodation Act  of 1961  is contained in  Section 12  which starts  with a  non-obstante clause also  but the  definition of  the tenant  as in other State Acts  includes "any  person continuing  in  possession after the  termination of  his  tenancy".  How  then  is  it correct to say that a notice is essential for bringing to an end the  relationship between  the landlord  and the tenant? The notice  does not  bring to  an end  such a  relationship because of the protection given to the tenant under the Rent Act. If that be so then it is not necessary for the landlord to terminate the 347 contractual  relationship   to  obtain   possession  of  the premises for  evicting the tenant. If the termination of the contractual tenancy  by notice does not, because of the Rent Act provisions,  entitle the  landlord to recover possession and he  becomes entitled,  only if he makes out a case under the special  provision of  the State  Rent Act, then, in our opinion, termination  of the  contractual relationship  by a notice is  not necessary.  The termination comes into effect when a  case is  successfully made  out for  eviction of the tenant under  the State Rent Act. We say with utmost respect that on  the point  of requirement of a notice under section 106 of  the Transfer of Property Act Mangilal’s case was not correctly decided.

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    In Manujendra  Dutt v.  Purendu Prasad  Roy Chowdhury & Ors., the  question of  notice came  to be  considered  with reference to  the Calcutta  Thika Tenancy  Act, 1949  and in that connection it was said at page 480:-           "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  safe-guard  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 land-lord 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."      For the  reasons already stated we do not agree, and we say so with respect, with the above enunciation of law. This apart there  is scope  for distinguishing  Manujendra’s case because clause 7 of the lease deed therein ran as follows:-           "Provided always  and  it  is  hereby  agreed  and      declared that  if it be required that the lessee should      vacate the said 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."      Over and  above the  protection under the Thika Tenancy Act clause  7 of  the lease deed gave an extra protection of getting six months 348 notice to  quit and  vacate the  premises. In that event one can say  that such a clause being not unlawful and giving an extra protection to the tenant against eviction must also be adhered to. But it is not correct to say that section 106 of the  Transfer   of  Property   Act  merely   providing   for termination of a lease either by the lessor or the lessee by giving the  requisite notice  is an extra protection against eviction.  The  purpose  of  this  provision  is  merely  to terminate the contract which the overriding Rent Acts do not permit to be terminated.      In Raval’s  case (supra) the question for consideration was whether  section 4  of the Tamil Nadu Rent Act providing for an  application for  fixation of fair rent was available both to  the tenant  and the landlord. The majority speaking through Alagiriswami  J. took  the view  that it  was so.  A contrary view  was expressed by Bhagwati J. speaking for the minority.  While   discussing  this  question  the  relevant passage from  the decision  of this  Court in  Rai Brij  Raj Krishna’s case was quoted at page 634 and reference was made to the  decision of  the Punjab  High Court  in Hem  Chand’s case. Thereafter  the observation  of this  Court in  Bhaiya Punjalal’s case  to the  effect  that  "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," were held not to apply to all  Rent Acts  irrespective of  the scheme of those Acts and their  provisions. This observation given with reference to the  dictum of  this  Court  in  Bhaiya  Punjalal’s  case concerned with  the question of notice under section 106. It enabled certain  High Courts  to make  a firm  departure and take  the  view  with  reference  to  the  scheme  of  their

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respective  State   Acts  to  say  that  a  notice  was  not necessary. This  happened in Madras, Andhra Pradesh, Kerala, Karnataka and  Punjab & Haryana. Alagiriswami J. at page 635 after having  made that observation with reference to Bhaiya Punjalal’s case  has said-"Be  that as  it may,  we are  now concerned with  the question of fixation of a fair rent." In our opinion  the majority  decision with regard to section 4 was undoubtedly  correct and the minority stretched the law, if we  may say so with respect, too far to hold that section 4  was   not  available   to  the  landlord.  It  should  be remembered, as we have said above, that the field of freedom of contract  was encroached  upon to  a very large extent by the State  Rent Acts.  The encroachment was not entirely and wholly one  sided. Some  encroachment was  envisaged in  the interest  of  the  landlord  also  and  equity  and  justice demanded a  fair play  on the part of the legislature not to completely ignore the helpless situation of 349 many landlords  who are  also compared  to some  big tenants sometimes weaker  section of  the society.  As for example a widow or  a minor  lets out  a family  house in  a  helpless situation to  tide over  the financial  difficulty and later wants a  fair rent  to  be  determined.  Again  suppose  for instance in  a city  there is  an apprehension  of  external aggression,  severe   internal  disturbances  or  spread  of epidemics. A  man in  possession of  his  house  may  go  to another  town   letting  out   his  premises   to  a  tenant financially  strong   and  of   strong  nerves   at  a  rate comparatively much  lower than  the prevailing market rates. Later on,  on the  normalization of the situation as against the  agreed   rate  of   rent  he  approaches  the  Building Controller for  fixing a  fair rent  in  accordance  with  a particular State  Rent Act. Why should she or he be debarred from doing  so. The  statute gives  him the  protection  and enables the  Controller to  intervene to  fix a fair rent as against the term of contract between the parties. In a large number of  cases it  is the tenant who gets this protection. But in  some as  in the case of Raval the landlord needs and gets the  protection. But  this is not a direct authority on the point of notice.      In Isha Valimohmmad & Anr. v. Haji Gulam Mohamad & Haji Dada Trust,  Mathew J. speaking for a Division Bench of this Court had  to consider  the question  with reference  to the Saurashtra Rent Control Act, 1951. In that connection it was observed at  page 726  that the  High Court was right in the assumption that  a notice under the Transfer of Property Act was necessary  to terminate  the tenancy  on the ground that the appellants  had sublet  the premises.  Says the  learned Judge further  that the  landlord could  not have  issued  a notice under  any of  the  provisions  of  the  Transfer  of Property Act  to determine the tenancy on the ground of sub- letting by  the tenant.  It is  not correct to assume that a notice under  section 106 of the Transfer of Property Act as required by  clause (h)  of section 111 needs a ground to be made out  for the  termination of  the tenancy.  Such a view could be  taken only under clause (g). Beg J. as he then was in P.  J. Gupta  & Co.  v. K.  Venkatesan  Merchant  &  Ors. speaking for  himself and  Krishna Iyer J. following Raval’s case observed at page 403:-           "In other words, the special procedure provided by      the Act displaces the requirements of the procedure for      eviction under  the Transfer  of Property Act and by an      ordinary civil  suit. Therefore,  we need  not  concern      ourselves with  the provisions  of Transfer of Property      Act.....A tenancy is

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350      essentially based  on and  governed by  an agreement or      contract even  when a  statute intervenes  to limit the      area with  in which  an agreement or contract operates,      or, subjects contractual rights to statutory rights and      obligations."      In   Dattopant   Gopalyarao   Devakate   v.   Vithabrao Maruthirao Janagavai  one of  us (Untwalia  J.) speaking  on behalf of himself and Krishna Iyer J. said at page 71:-           "We do not think that the alternative argument put      for ward  by Mr.  Chitaley that no notice was necessary      in  this   case  is   correct.  The   appellant  was  a      contractual tenant  who would  have become  a statutory      tenant within the meaning of clause (r) of section 2 of      the Act  if he would have continued in possession after      the termination of the tenancy in his favour. Otherwise      not. Without  termination of the contractual tenancy by      a valid  notice or  other mode  set out  in Section 111      T.P. Act  it was  not open to the landlord to treat the      appellant as  a statutory  tenant and seek his eviction      without service of a notice to quit."      On a  careful consideration  and approach of the matter in the  instant case  we think that we cannot approve of the view expressed  in the passage extracted above. In Ratan Lal v. Vardesh  Chander &  Ors Krishna  Iyer  J.  delivered  the Judgment on  behalf of  a Bench  of this Court consisting of himself, Chandrachud  J., as  he then  was and  Gupta J. The case related to a building in Delhi. The Court was concerned with clause  (g) of  section 111 of the Transfer of Property Act. Tracing  the history  of the legislation it was pointed out by  the Court  at page  918 that  the requirement  as to written notice  provided in section 111(g) cannot be said to be based  on  any  general  rule  of  equity  and  therefore forfeiture of lease brought about in terms of section 111(g) of the  Transfer of  Property Act  not by  notice but on the application of  justice, equity and good conscience was held to  be   good  determination  of  the  lease.  Quoting  from Manujendra’s case it was said at page 911:-           "We are  inclined to hold that the landlord in the      present  case  cannot  secure  an  order  for  eviction      without  first   establishing  that   he  has   validly      determined the lease under the T.P. Act."      Why  this  dual  requirement?  Even  if  the  lease  is determined by  a forfeiture  under the  Transfer of Property Act the  tenant continues  to be  a tenant,  that is to say, there is no ferfeiture in the eye of law. 351 The tenant becomes liable to be evicted and forfeiture comes into play  only if  he has  incurred  the  liability  to  be evicted under  the State  Rent Act,  not otherwise.  In many State statutes different provisions have been made as to the grounds on  which a tenant can be evicted and in relation to his  incurring   the  liability   to  be  so  evicted.  Some provisions overlap  those of  the Transfer  of Property Act. Some are  new which  are mostly in favour of the tenants but some are  in favour  of the landlord also. That being so the dictum of  this Court in Raj Brij’s case comes into play and one has  to look to the provisions law contained in the four corners of  any State  Rent Act to find out whether a tenant can be  evicted or  not. The  theory of double protection or additional protection,  it seems  to us,  has been stretched too far  and without  a proper  and due consideration of all its remifications.      Beg J.,  as he  then was, speaking for the Court in the case of  puwada Venkateswara Rao v. Chidamana Venkata Ramana

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had to deal with the question as to whether a notice to quit was necessary  for seeking  an order  for eviction under the Andhra Pradesh  Building (Lease,  Rent and Eviction) Control Act, 1960. The Andhra Pradesh High Court had relied upon the decision of that Court in Ulligamma & Ors. v. S. Mohan Rao & Ors for  taking the  view that a notice under section 106 of the Transfer  of Property  Act was  not necessary. Gopal Rao Ekbote J.,  delivering the  judgment on behalf of a Bench of the Andhra  Pradesh High  Court in Ulligappa’s case reviewed several decisions  of the  High Courts  and this  Court  and considered the  special provisions  of the  Andhra   Pradesh Rent Act.  The view  expressed by  him that  no  notice  was necessary under  section 106 of the Transfer of Property Act was approved  by this  Court. We  find no  justification for saying that  because of some special provisions contained in the Andhra  Act a  different view  was possible to be taken. This is  exactly the  reason why  we have  thought it fit to review all  the decisions and lay down a uniform law for all the States.  Section  10  (1)  of  the  Andhra  Pradesh  Act provided that  "A tenant  shall not  be evicted  whether  in execution of a decree or otherwise except in accordance with the provisions  of this  section or  sections 12  and 13." A special provision in the Andhra Act was contained in section 10(7) which says:-           "Where an  application under  sub-section  (2)  or      sub-section (3) for evicting a tenant has been rejected      by the  Controller, the  tenancy shall,  subject to the      provisions of  this Act,  be deemed  to continue on the      same terms and 352      conditions as before and shall not be terminable by the      landlord except on one or more of the grounds mentioned      in sub-section (2) or sub-section (3)."      This special  provision is  provided by way of abundant precaution only.  Even without  this a  tenant continuing in possession after  the termination of the contractual tenancy and until  an eviction order is passed against him continues on the  same terms and conditions as before and he cannot be evicted unless  a  ground  is  made  out  for  his  eviction according to  the State  Rent Act.  The  said  provision  by itself did  not justify  a departure from the view expressed by this  Court in  Mangilal’s case.  Beg  J.,  followed  the decision of  this Court  in Raval’s  case and  of the Punjab High Court  in Hem  Chand’s case.  For the reasons stated by us, we approve of his view not on the ground that the Andhra Pradesh State  Act is a different one but because in respect of any State Act that is the correct view to take.      Lastly our  attention was drawn to the decision of this Court in Firm Sardarilal Vishwanath and Ors v. Pritam Singh. The lease in that case had come to an end by efflux of time. A tenant  continued in  possession and  became  a  so-called statutory tenant. The argument put forward before this Court that a  fresh notice  under section  106 of  the Transfer of Property Act was necessary was rejected on the ground:-           "Having  examined  the  matter  on  authority  and      precedent it  must be  frankly confessed  that no other      conclusion is possible on the first principle. Lease of      urban immovable  property represents a contract between      the lessor and the lessee. If the contract is to be put      to an  end it  has to be terminated by a notice to quit      as envisaged  under s.  106 of the Transfer of Property      Act. But  it is  equally clear as provided by s. 111 of      the  Transfer   of  Property  Act  that  the  lease  of      immovable property  determines by various modes therein      prescribed. Now,  if the  lease of  immovable  property

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    determines in  any one of the modes prescribed under s.      111 the  contract of  lease comes  to an  end, and  the      landlord can exercise his right of re-entry. This right      of re-entry  is further  restricted and fettered by the      provisions of the Rent Restriction Act. Nonetheless the      contract of  lease had  expired and  the tenant  lessee      continues in  possession under  the protective  wing of      the  Rent   Restriction  Act  until  the  lessee  loses      protection. But there is no question of terminating the      contract because the contract comes to an end 353      once the  lease determines  in any  one  of  the  modes      prescribed  under  s.  111.  There  is,  therefore,  no      question of  giving a  notice to  quit to such a lessee      who continued  in possession after the determination of      the lease, i.e. after the contract came to an end under      the protection  of the  Rent Restriction  Act.  If  the      contract once  came to  an end there was no question of      terminating the contract over again by a fresh notice."      If we were to agree with the view that determination of lease in  accordance with  the Transfer of Property Act is a condition precedent  to the  starting of  a proceeding under the State Rent Act for eviction of the tenant, we could have said so  with respect  that the  view expressed in the above passage is  quite correct  because there  was no question of determination of  the lease  again once it was determined by efflux of  time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that  determination  of  a  lease  in  accordance  with  the Transfer  of   Property  Act   is  unnecessary  and  a  mere surplusage because  the landlord  cannot get eviction of the tenant even  after such  determination. The tenant continues to be  so even  thereafter. That being so, making out a case under the  Rent Act  for eviction of the tenant by itself is sufficient and  it is not obligatory to found the proceeding on the  basis of  the determination of the lease by issue of notice in  accordance with  section 106  of the  Transfer of Property Act.      For the  reasons stated  above we  hold that  the  High Court was  right in  its view  that no  notice to  quit  was necessary under  section 106 of the Transfer of Property Act in order  to enable  the landlady-respondent to get an order of eviction  against the  tenant-appellant. But we were told by learned  counsel for  the appellant that he had some more points to  urge before the High Court to challenge the order of eviction.  We do  not find  from the judgment of the High Court that  the appellant  was prevented from supporting the orders of the courts below in his favour by urging any other point. No  point of  substance could  be indicated before us which was  worth consideration  after a  clear and  definite finding by  the Appellate Court that the respondent required the premises  bona fide  for a personal necessity. We do not think it  advisable to  delay the proceeding any further and send back  the case  to the  High Court  on this account. We accordingly dismiss  the appeal  but  in  the  circumstances direct the parties to bear their own costs throughout. P.B.R.                                     Appeal dismissed. 354