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PETITIONER: INDIAN IRON & STEEL CO.  LTD.

       Vs.

RESPONDENT: BISWANATH SONAR

DATE OF JUDGMENT: 22/03/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. WANCHOO, K.N. SHAH, J.C.

CITATION:  1967 AIR   77            1966 SCR  (1)  15

ACT: Bengal  Non-Agricultural Tenancy Act,  s.  9(1)(iii)-Benefit under section whether available in case of monthly  tenancy- Term’  in  section whether means agreed term  or  period  of occupation.

HEADNOTE: The  appellant company gave on lease a piece of land to  the respondent  in  1938.   On June 28, 1950  the  company  gave notice  to  the  respondent terminating  the  tenancy.   The period  mentioned in the notice, which was received  by  the respondent  on June 29, 1950 was six months ending with  the expiry of December 1950.  Later the company filed a suit for the eviction of the respondent.  The latter claimed  benefit of s. 9(1) (iii) of the Bengal Non-Agricultural Tenancy Act. The  trial  court decreed the suit and the  first  appellate Court upheld the decree, but the High Court set it aside and dismissed  the suit. By special leave, the company  appealed to this Court contending that since the respondent’s tenancy was  from month to month s. 9 (1) (iii) did not  apply.   It was urged: (i) the phrase "for a term of more than one  year but less than twelve years" in the first part of the section contemplated tenancies in which the agreed duration under  a contract was more than one year but less than 12 years; (ii) the  phrase "six months’ notice expiring with the end  of  a year of the tenancy" in the latter part of the section meant that  the notice in writing must expire with the end of  the year  of the tenancy when the tenancy was from year to  year and  with  the  end of the term when it was  more  than  one year’s duration. HELD:(i) The Act uses the word "term" both in the sense of a period  of  occupation  and of a period agreed,  upon  in  a contract.  The context must determine the sense in which  it is to be understood.  In the opening words of s. 9(1)  (iii) it means that the land must be held, that is, occupied,  for more  than one year.  It does not signify that there  should be an agreed term of more than one year. [18 C-D; 19C; 20E] (ii) The words "end of a year of tenancy" in the latter part of  s. 9(1) (iii) are no doubt indicative of a tenancy  from year to year but they are not such as to be inapplicable  to a   tenancy   from  month  to  month.   What   the   section

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contemplates  is  occupation for more than one year  and  it says  that a tenant who has held the, land for more  than  a year,  albeit, on a tenancy from month to month. shall  only be  evicted  on  the anniversary of the  day  on  which  his tenancy commences. [20 F-H]. (iii) The tenancy having commenced as held by the High Court on  December 1, 1938 the notice given by the company in  the present case fell short of the statutory six months and  was therefore in valid. [21 E-G].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1090 of 1963. Appeal  by special leave from the judgment and decree  dated June  2,  1961  of the Calcutta High Court  in  Appeal  from Appellate Decree No. 786 of 1956. M.   C. Setalvad and D. N. Mukherjee, for the appellant. A.   K. Sen and P. K. Chatterjee, for the respondent. 16 The Judgment of the Court was delivered by Hidyatulla,  J.  This appeal by special  leave  against  the judgment  and order of the High Court of Calcutta,  December 5,  1961,  arises from a suit between landlord  and  tenant. The Indian Iron & Steel Co. Ltd. (appellant) is the landlord and  Biswanath  Sonar (respondent) is the  tenant,  and  the tenancy is in respect of a piece of land with a rent of  Rs. 4/-  per  month.   According  to  the  Company  the  tenancy commenced  in December 1938 and according to the  tenant  in the beginning of 1935.  The two courts of fact have found in favour  of the Company on this point and the High Court  has very properly accepted this concurrent finding but has  held that tenancy began on the 1st of December, 1938, but more of that  later.   The suit was commenced in the  Court  of  the Munsif  at  Asansol by the Company after  serving  a  notice dated June 28, 1950 terminating the alleged monthly  tenancy of  the respondent with the expiry of December,  1950.   The notice  was served on June 29, 1950.  The Company asked  for the  relief  of khas possession by evicting the  tenant  and reserved the relief of compensation for wrongful  occupation after  January  1, 1951, for a separate suit.   The  Company offered  to pay such reasonable compensation for  structures on  the land as the court might determine.   The  respondent claimed   benefit  of  s.  9(1)(iii)  of  the  Bengal   Non- AgricuItural  Tenancy  Act under which,  he  submitted,  his tenancy  could  not be determined except by service  of  six months’ notice in writing expiring with the year of tenancy. He  contended  that the notice served on the  29th  of  June terminating  the tenancy at the end of December,  1950,  was not  in  accordance with the provisions of the  Act  as  the tenancy commenced in the beginning of 1935, and,  therefore, the suit was not maintainable.  The learned Munsif held  the notice  to be proper and dec. reed the suit.  On appeal  the Additional  District  Judge, Asansol  confirmed  the  decree passed  by  the Munsif.  On second appeal a  learned  single Judge  in  the High Court reversed the decision of  the  two courts  below  and ordered the dismissal of  the  suit.   He followed a decision of a special Bench of his Court reported in the Indian Iron and Steel Co. Ltd. v. Baker Ali(1)  which had  approved of two unreported decisions of the same  Court reported in Sudhindra Nath Roy v. Haran Chandra Mistry (S.A. No. 879 of 1950 dated 25-1-1955) and Narayan Chandra Sen  v. Sripati Charan Kumar (S.A. No. 425 of 1952 dated  9-8-1955). The  learned  single Judge refused leave to file  an  appeal under  the  Letters  Patent but the  appellant  was  granted

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special  leave by this Court to appeal against the  judgment of the learned single Judge. In this appeal two questions arise, namely, (i) whether  the provisions  of s. 9(1)(iii) of the Non-Agricultural  Tenancy Act  apply  to  the present tenancy, and  (ii)  whether  the notice served upon the respondent compiled with the terms of the Act.  In so far as the A.I.B. 1961 Cal. 515. 17 first question is concerned no further facts are  necessary. This  question should have given no difficulty but  for  the fact  that the language of the enactment is far from  clear. Section 9(1)(iii) reads as follows:               "9.  Incidents of  non-agricultural  tenancies               held for less than twelve years.               (1)   Notwithstanding  anything  contained  in               any  other law for the time being in force  or               in any contract, if any non-agricultural  land               has been held for a term of more than one year               but less than twelve years-               (a)   under  a lease in writing for a term  of               more than one year but less than twelve  years               to  which  the  provisions of  clause  (5)  of               section 7 do not apply, or               (b)   without a lease in writing, or               (c)   under a lease in writing but no term  is               specified in such lease, then the tenant holding such non-agricultural land shall  be liable to ejectment on one or more of the following  grounds and not otherwise, namely:               (i)               (ii)               (iii) on the ground that the tenancy has  been               terminated  by  the landlord  by  six  months"               notice  in writing expiring with the end of  a               year  of the tenancy served on the  tenant  in               the prescribed manner in clause (b):               Provided that a tenant shall not be liable  to               ejectment  on the ground specified  in  clause               (iii)  except  on payment of  such  reasonable               compensation as may be agreed upon between the               landlord  and  the tenant or if  they  do  not               agree,  as may be determined by the  Court  on               the  application  of  the  laodlord  or   such               tenant.                .       .       .        .       .                .       .        .        .       . Difficulties  arise  in connection with two  expressions  in this  section.  Firstly what is meant by the phrase  "for  a term  of more than one year but less than twelve  years"  in the opening part, and, secondly, what is meant by the phrase "six months’ notice in writing expiring with the end of  the year  of the tenancy" The appellant contends that the  first phrase  contemplates tenancies in which the agreed  duration under  a  contract is more than one year but  less  than  12 years and the second phrase means that the notice in writing must expire with the end of the year of the tenancy when the tenancy is 18 from  year to year and with the end of the term when, it  is more than one year’s duration.  The respondent contends that the two phrases respectively describe the duration for which non-agricultural  land  must actually be held and  that  the notice  of  six months must end on the  anniversary  of  the commencement  of the tenancy.  The  appellant’s  contention,

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shortly  stated,  is that a monthly tenancy cannot  get  the benefit  of s. 9(1)(iii) however long the occupation of  the land.   Both sides agree that this is non-agricultural  land and  that the tenancy is from month to month.  It  has  also been found that it is a monthly tenancy.  If the  provisions of s. 9(1)(iii) apply also to a monthly tenant who has  been in  possession  of  land  for more than  a  year,  then  the respondent  will be protected from eviction, otherwise  not. This  depends  on what is meant by the two phrases  we  have referred to earlier. The  construction of the first phrase is rendered  difficult because the Act does not use the words strictly in the  same sense  throughout.   Sometimes the word "term"  is  used  to indicate  a  period  of  time without  any  reference  to  a contract  determining it and sometimes to a period  settled, agreed  or  determined by a contract.  In s.  9(1)(iii)  the word  "term"  is  used and the question  arises  whether  it indicates a period of occupation or a period agreed upon  in a: contract.  To determine the right meaning we shall  first analyse  the  provisions  of  the  Act  generally  and  then consider what is the true meaning of the two expressions  in s. 9 on which there has been a difference of opinion between the High Court and the two courts below. The Act was passed to make comprehensive provisions relating to  the  law  of  landlord and tenant  in  respect  of  non- agricultural  tenancies  in  West Bengal and is  a  part  of protection  given  in modern times by law  to  tenancies  of various  kinds  of  which the Rent  Control  Acts  and  Acts relating  to  agricultural tenancies  represent  some  other aspects.   After  defining the terms such as  ’land’,  ’non- agricultural land’ and ’non-agricultural tenants’ (to  which definition  pointed reference here is unnecessary), the  Act classifies non-agricultural tenants into tenants and  under- tenants,  and  then it makes separate provisions  for  their protection.   The Third Chapter (ss. 6 to 15)  provides  for tenants  and  the  Fourth Chapter  for  under-tenants.   The remaining  Chapters providing for the manner of transfer  of non-agricultural  tenancies’,  preparation  of  records   of rights, settlement, rents, etc. do not presently concern us. We shall, therefore, confine our attention to the chapter on tenants.   Section  6 lays down the manner of  use  of  non- agricultural lands.  It states generally that the tenant may use land in any manner not inconsistent with the purpose  of the tenancy but so as not to impair its value.  The  section goes on to state that the tenants to whom ss, 7 and 8  apply may erect any structure including a pucca structure, dig any tank,  plant and enjoy the flowers and fruits and  fell  and utilise  or dispose of timber of any tree on such land,  but the tenants to whom 19 s.   9  applies may only erect structures other  than  pucca structures  and may  not dig tank,  or  fell,  utilise  or dispose of, trees not planted by :them.  Sections 7, 8 and 9 lay down the incidents of two different kinds of  tenancies: (a) those held for a term of not less than 12 ,years and (b) those  held for a term of less than 12 years but  more  than one  year and the question which we have stated  earlier  is whether  by  the word "term" is meant the  duration  of  the least agreed upon or merely the period of occupation of  the non-agricultural land. A close study of the Act shows that the word "term" is  used in both senses and the context must determine in which sense it is to be understood.  We need not reproduce here all  the sections or clauses in which the word "term" is used in  one sense or the other because sub-sections (3) and (4) of s.  7

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between  them illustrate adequately this  two-fold  meaning. We may reproduce them here:               "7. Incidents of certain tenancies.               Notwithstanding  anything  contained  in   any               other  law for the time being in force  or  in               any contract                (1) .        .         .          .               (2)   .        .          .          .               (3)   If  any non-agricultural land  has  been               held for a term of not less than twelve  years               under  a  lease  in writing  but  no  term  is               specified in such lease, or               (4)   if any non-agricultural land held  under               a  lease  in writing for  a  period  specified               therein continues to be held with the  express               or  implied consent of the landlord after  the               expiration  of the time limited by such  lease               and the total period for which such land is so               held is not less than twelve years, or               (5) .          .        .          .               then-               (i)   the tenant holding the  non-agricultural               comprised in such tenancy shall not be  eject.               ed  by his landlord from such land  except  on               the  ground that he has used such land,  in  a               manner which renders it unfit for use for  the               purposes of tenancy,               (ii)  the  interest of the tenant in the  non-               agricultural  land comprised in  such  tenancy               shall,  in  the case where  such  tenant  dies               intestate  in  respect of  such  interest.  be               transmitted by inheritance in the same  manner               as his other immovable property:                 .      .        .          .      ." 20 A  bare ’perusal of these enactments is sufficient  to  show that  the  word  "term"  used for  the  first  time  in  (3) indicates  that  the period of occupation must not  be  less than 12 years.  It cannot mean an agreed period because  the latter  part  says  that this applies  where  "no  term"  is specified in the lease and in this part the word "term" must obviously  mean an agreed period. (4) shows that if land  is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection  is  again obtained.  The word  "term"  thus  may indicate  a  period  specified in a lease  or  a  period  of occupation   according  as  the  context   requires.    This diversity  of meaning is also illustrated by ss. 7(2),  8(1) and 8(3). We now come to S. 9 which we have already quoted.  It begins by  excluding  any  other  law or  contract  of  lease  from consideration  and speaks in the opening part of  land  held for  a term of more than one year but not less  than  twelve years thereby distinguishing between tenancies on the  basis of the length of occupation.  As the marginal note says, the section  deals  with  tenancies held for  less  than  twelve years.   Clauses (a), (b) and (c) also establish  the  above meaning because (a) applies to leases in writing for a  term of more than one year but less than twelve years, (b) refers to  cases  in  which the occupation Is without  a  lease  in writing and (c) refers to cases in which there Is a lease in writing  but no term is specified.  In those cases in  which there  is no written lease or in which no term is  specified in the lease in writing, the opening portion must  obviously mean that the land must be held, that is, occupied for  more

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than  one year.  The difference between ss. 7 and 8  on  the one  hand and S. 9 on the other lies in the kind of  protec- tion  afforded.  A tenant who has held the land under  lease for  more than 12 years cannot be ejected at all  unless  he has  used such land in a manner which renders it  unfit  for use for the purpose of the tenancy, and his interest becomes heritable,   transferable  and  devisable  like  any   other immovable   property.   A  tenant  who  has  held  land   in occupation  for  less than 12 years but more than  one  year can,only be ejected by a notice of six months expiring  with the  end of a year of the tenan It is argued that the  words "end  of  a  year of tenancy" are  inappropriate  where  the tenancy  is from month to month because there is no year  of tenancy.  Those words no doubt are indicative of, a  tenancy from year to year but they are not such as to be  altogether inapplicable  to  a tenancy from month to month.   What  the section  contemplates is occupation for more than  one  year and  it  says that a tenant who has held the land  for  more than a year, albeit, on a tenancy from month to month, shall only  be evicted on the anniversary of the day on which  his tenancy commences.  Where the tenancy is from month to month "  year" means a period of twelve months and the tenant  may only  be required to quit at the expiry of the  whole  year, that  is to say, on the anniversary of the  commencement  of the lease. 21 it  is argued that this would have the effect of  converting the, tenancy from month to month into a tenancy from year to year.   This  is  perhaps true.  In the  matter  of  certain rights  of  the  tenants,  particularly  in  the  matter  of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who  has occupied land for more than a year, within the protection of six  months’  notice  before he  is  evicted.   A  different protection  is  given to a tenant who occupies land  for  12 years  and in that case he cannot be evicted even by  notice unless  he uses the land in a manner which renders it  unfit for  the purposes of the tenancy or his other property  goes to Government and his interest in the land is extinguished. Section  9(1)(iii) was interpreted in much the same  way  in the  three  decisions of the High Court  of  Calcutta  above referred  to and in our judgment those cases took the  right view  of the matter.  The Company itself served a notice  in June  expiring  with the end of the year alleging  that  the tenancy  had  commenced in December  1938  indicating  quite plainly  that it also. considered that a notice of  15  days expiring with the end of the month of the tenancy would  not be  sufficient.  In its view also, the notice to be a  valid notice had to be of six months expiring with the end of  the year  of tenancy.  Therefore, the notice was  despatched  on the 28th of June, 1950 and was served on the following  day. It  asked the tenant to quit at the end of  December,  1950. The High Court held that the tenancy must be deemed to  have commenced  on December 1, 1938 and the notice fell short  of six  months.   In fact, the notice would fall short  of  the necessary period unless the tenancy had commenced on a  date between the 29th and 31st December, 1938.  There is no proof when  the tenancy really commenced and the Company  has  not cared to give evidence on this part of the case.  Even if we reject  the  finding  of the High  Court  that  the  tenancy commenced  on the 1st of December, we are not in a  position to  say that it commenced on any particular date.   We  are, however, relieved of the trouble to make the effort  because the account books of the Company show that the tenant was on the  land  even in November and had paid rent.  In  view  of

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this  and in view of the construction we have placed  on  s. 9(1)(iii) it is quite plain that the notice must fall  short of  the  statutory  six months.  It  was,  therefore,  quite ineffective and the High Court was right in holding that  it was invalid although our reasons are different. The  appeal  has  thus  no force.   If  fails  and  will  be dismissed with costs. Appeal dismissed. 22