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PETITIONER: BISWAMBAR ROY

       Vs.

RESPONDENT: GIRINDRA KUMAR PAUL

DATE OF JUDGMENT: 30/03/1966

BENCH:

ACT: The  Non-agricultural Urban Areas Tenancy Act, Assam Act  12 of  1955,  s. 5(1) (a)-Tenant of  band  building  structures within  prescribed period-Letting out  structures-Protection from  eviction under section whether available to tenant  of land-Construction whether should be for his own use.

HEADNOTE: Certain  structures  for residential and  business  purposes were  raised by a tenant of land in the term of  Silchar  in Assam.  The landlord secured a decree for ejectment  against the  tenant.   During the pendency of the  appeal  the  Non- Agricultural  Urban Areas Tenancy Act, Assam Act 12 of  1955 was brought into force.  The tenant claimed protection  from eviction under s.The Subordinate Judge held that the  tenant had  acquired  units s. 5(1) (a) of the Act the right  of  a permanent  tenant since he had constructed within the  pres- cribed   period  structures  for  residential  or   business purposes.   He  accordingly dismissed the  suit.   The  High Court  in further appeal held that the protection  under  s. 5(1)(a) was not available to the tenant since he had let out to  tenants  the buildings  constructed on  the  land.   The tenant, by special leave, appealed to this Court. HELD:(i)  The  section merely requires  that  the  permanent structure  must be one adapted for residential  or  business purposes.  If the structure is not adapted to such purposes. the  protection of s. 5 (1) (a) will not be  available.   To read the expression "permanent structure on the land of  the tenancy  for  residential or business purposes"  as  meaning permanent structure on the land of the tenancy constructed by the  tenant for his own residential or business purposes  is to add    words which are not found in the section. [116 H]. (ii)  Protection  is  conferred in terms by s.  5  upon  the tenant of the  land and not upon the tenant of the buildings constructed upon the     land.     By   letting   out    the structures  the tenant of land does not lose the  protection given by the statute. [117 C].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 891 of 1963. Appeal  by special leave from the judgment and decree  dated June  26,  1959  of the Assam High Court  in  Letter  Patent Appeal No. 1 of 1959. N. C. Chatterjee and D. N. Mukherjee, for the appellants. Sarjoo Prasad and K. P. Gupta for respondents. The Judgment of the Court was delivered by Shah,   J.   Biswambar   Roy-predecessor-interest   of   the

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appellants--was  Granted on February 20, 1928, a  lease  for ten                             115 years 1335 B.S. to 1344 B.S. at an annual rental of Rs. 75/- in  respect of a plot of land, part of Dag No. 3615  in  the town  of  Silchar, District Cachar in the  State  of  Assam. Biswambar  Roy constructed on the land, buildings, some  for residential use, and others as warehouses.  On the expiry of the  period of the original lease, Biswambar Roy obtained  a fresh lease in respect of a part of the land for ten  years- Baisakh  1345  B.S.  to Chaitra a 1354 B.S. at  an  annual rental  of Rs. 70/- under an instrument dated  February  22, 1938. The respondents purchased the interest of the landlords  the land and instituted on August 3, 1951 an action in the Court of  the Sadar Munsiff, Silchar against Biswambar Roy  for  a decree  for  vacant possession of the land.   The  suit  was decreed  by  the  Munsiff.  Biswambar Roy  appealed  to  the Subordinate  Judge,  Silchar.  During the  pendency  of  the appeal,  the Non-agricultural Urban Areas Tenancy Act 12  of 1955  enacted  by  the Assam Legislature  was  brought  into force.  Biswambar Roy claimed protection from eviction under s.  3  of Act 12 of 1955.  The Subordinate Judge  held  that Biswambar  Roy had acquired under s. 5(1)(a) of the Act  the rights  of  a  permanent tenant, since  he  had  constructed within  the  period  prescribed  permanent  structures   for residential  or business purposes.  He accordingly  reversed the decree passed by the Trial Court and dismissed the suit. Against  that  decree, an appeal was preferred to  the  High Court of Assam.  Deka, J., held that Biswambar Roy could not claim  the  protection of s. 5(1) (a) of the Act,  since  he had-  let  out to tenants the buildings constructed  on  the land.   In the view of the learned Judge, by the use of  the expression  "for  residential or business  purposes"  in  s. 5(1)(a)  it  is intended that buildings constructed  by  the tenant should be utilized by the tenant himself for his  own residence or for carrying on business and that it is not the intention  of the Legislature that third persons  should  be protected  by s. 5 from eviction from those structures.   An appeal under the Letters Patent from that judgment was heard by  C. P. Sinha, C. J., and Mehrotra, J. The learned  Judges differed.   Sinha,  C. J., was of the  view  that  permanent structures  constructed  by Biswambar Roy conformed  to  the descripticon   "residential   or  business   purposes"   and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof  and  was not liable to be evicted except  for  non- payment  of  rent.   With that view Mehrotra,  J.,  did  not agree.  He held that a tenant who obtains land on lease  for erecting a structure thereon not for his own residential  or business  purposes  but for letting out to others  does  not build "a permanent structure on the land of, the tenancy for residential or business purposes". and may not claim protec- tion  under  s.  5(1)(a).   Since  there  was  no   majority concurring in the judgment agreeing or reversing the  decree appealed from, under s. 98(2) of the Code of Civil Procedure the appeal was ordered to be dismissed.  Against the  decree passed by the High Court, with special leave, this appeal is preferred. 116 This  Court has held that s. 5 of Assam Act 12 of  1955  has retrospective operation: Refiquennessa v. Lal Bahadur Chetri & Others,(1) and the only question to be determined in  this appeal is whether a tenant qualifies for protection under s. 5 of the Act only after building permanent structures on the land  of  the  tenancy  if he  occupies  them  for  his  own

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residential or business purposes.  The material part of  the section reads:               "(1) Notwith tanding anything in any  contract               or in any law for the time being in force-               (a)   Where  under  the terms  of  a  contract               entered into between a landlord and his tenant               whether  before or after the  commencement  of               this  Act, a tenant is entitled to build,  and               has in pursuance of such terms actually  built               within the period of five years from the  date               of such contract, a permanent structure on the               land   of  the  tenancy  for  residential   or               business purposes, or where a tenant not being               so  entitled to build, has actually built  any               such structure on the land of the tenancy  for               any   of  the  purposes  aforesaid  with   the               knowledge  and acquiescence of  the  landlord,               the  tenant  shall  not  be  ejected  by               the  landlord from the tenancy except  on  the               ground of non-payment of rent;" Protection under the first part of s. 5(1)(a) may be claimed by  a  tenant if three conditions co-exist:  (i)  under  the terms  of the contract of tenancy the tenant is entitled  to build on the land of the tenancy; (ii) that pursuant to such liberty,  he has actually built, within the period  of  five years from the date of the contract a permanent structure on the  land  of  the tenancy; and  (iii)  that  the  permanent structure  is  for residential or  business  purposes.   The first  two conditions are fulfilled in this case.   But  the learned   Judges  of  the  High  Court  disagreed   on   the fulfillment of the third condition:     they differed as  to the   true   meaning   of  the   expression"   a   permanent structure....... for residential or business purposes".   In the view of Sinha, C. J., under the Act the character of the structure is determinative and not personal use by the  ten. ant.   Mehrotra, J., held that the permanent structure  must be  for residential or business purposes of the tenant.   We are  unable  to agree with the view taken by  Mehrotra,  J., because  the  Legislature has not, in conferring  rights  of permanent  tenancy,  either  expressly  or  by   implication enacted  any  such  qualification as  is  suggested  by  the learned  Judge.   The  section  merely  requires  that   the permanent  structure must be one adapted for residential  or business purposes.  If the structure is not adapted to  such purposes, the protection of s.     5(1)(a)   will   not   be available.  To read the expression "permanent (1) [1964] 6 S.C.R. 876. 117 structure  on  the land of the tenancy  for  residential  or business  purposes"  as meaning permanent structure  on  the land  of the tenancy constructed by the tenant for  his  own residential  or business purposes is to add words which  are not found in the section. It  was urged on behalf of the landlords that it  could  not have  been the intention of the Legislature to confer by  s. 5(1)(a)  protection  upon sub-tenants.  It was said  that  a sub-tenant is not a tenant within the meaning of s. 3(g)  of the Act, and he cannot claim protection from eviction  under s.  5(1)(a).   In  our  judgment,  the  argument  is  wholly misconceived.  Protection is conferred in terms by s. 5 upon the  tenant  of  the land and not upon  the  tenant  of  the buildings constructed upon the land.  It is not necessary in this case to consider whether by virtue of the definition of "tenant"  in s. 3(g) of the Act which includes a person  who derives his title from a tenant, a sub-tenant of the land is

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entitled to protection of s. 5(1)(a).  In the present  case, the  tenant of the land has claimed protection.   By  merely letting the premises constructed on the land obtained by him on  lease, the tenant does not cease to be in possession  of the land.  The relation between the landlord and the  tenant of  the  land  continues to subsist  until  it  is  lawfully determined.  Possession of the land obtained by  the  tenant remains  his  even  after  he  has  let  out  the   building constructed by him, and a building constructed by the tenant for  use as residential or business purposes does not  cease to  be one for residential or business purposes, when it  is let out. We therefore agree with the view taken by Sinha, C. J., that the  protection  of s. 5(1)(a) extends to a tenant  who  has constructed   on  the  land  obtained  on  lease   permanent structures  which  are adapted for use  for  residential  or business  purposes  and by letting out  the  structures  the tenant  does  not forfeit the protection  conferred  by  the statute. The appeal is therefore allowed and the decree passed by the High Court vacated and the plaintiffs’ suit dismissed.   The appellants who are the representatives of the tenant will be entitled  to  their costs in this Court.  There will  be  no order as to costs in the High Court.                       Appeal allowed. 118