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PETITIONER: JNAN RANJAN SEN GUPTA & ORS.

       Vs.

RESPONDENT: ARUN KUMAR BOSE

DATE OF JUDGMENT24/07/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. ALAGIRISWAMI, A. UNTWALIA, N.L.

CITATION:  1975 AIR 1994            1975 SCC  (2) 523

ACT:      Transfer  of   property  Act-Section  108(a)-  S.  2(S) Calcutta Thika  Tenancy Act,  1949-Thika tenant Construction of a beneficial legislation.

HEADNOTE:      In 1956,  the landlord let out for one year the land in question to the tenant on a monthly rent of Rs. 75/-. One of the conditions  of the  tenancy was that the promises should not be  used for  any purpose  other than the keeping of the lorries as  garage. The  landlord asked the tenant to vacate by a  not to  quit. the  landlord filed  a suit for eviction which was resisted by the tenant on the ground that he was a Thika tenant  under Calcutta  Thika Tenant,  1949. The  High Court  held   that  the  tenant  was  a  Thika  tenant.  The definition of  a Thika tenant is a tenant who has erected or acquired by  purchase or  gift any  - structure on such land for  residential,  manufacturing  or  business  purpose  and includes  the   successors  in   interest  of  such  person. Admittedly, in  the present  case the  tenant has  erected a structure. The  counsel for  the appellant landlord contents that since  the structure  was erected by the tenant without the permission  or the  landlord it is not a lawful erection of structure.  The Thika Tenancy Act does not talk about the consent of  the landlord. The Court, therefore, must look "t the Transfer  of Property Act where section 108(o) prohibits the premises  to be  used for any purpose other than the one for which  it is  let out.  According to  the appellant, the premises were let out for garage and, therefore the erection of’ structures for the purpose of running the workshop would attract section 108(o) of the Transfer of Property Act. ^      HELD: Negativing the contention of the appellant,      The tenancy  in question  does not militate against the construction of  structures and  use of  the  land  for  the purpose of  workshop  for  maintenance  of  lorries  by  the tenant. A  garage is  a building  where motor  vehicles  are housed. The  tenant has  not used the land for purpose other than the  purpose for which it was leased. S.2(5) of the Act does not  require a  Thika Tenant to secure prior permission of the  landlord for  erection of structures on the land. As the preamble  shows the  Act is  for making better provision

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relating to  the law  of land  lord and tenant in respect of Thika tenancies.  It is  a piece  of beneficial  legislation Conferring certain  rights upon the tenants. in dealing with such a  provision of  law we cannot read into the definition something which is not already there and the introduction of which will lead to imposing a restriction upon the rights of this class  of tenants  by judicial interpretation. Besides, there is  no vagueness  or  uncertainty  in  the  definition clause. [108 E-H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 185 of 1973.      Appeal by  special leave  from the  judgment and  order dated the  25th April,  1972 of  the Calcutta  High Court in Second Appeal being appeal-No. 859 of 1969.      Sachendra Chowdhary,  S. K.  Dholakia and  R. C. Bhatia for the appellant.      P. Chatterjee and Rathim Das, for the respondent.      The Judgment of the Court was delivered by      Goswami, J.-In  this appeal  by special  leave directed against the  Judgment of  the Calcutta  High Court  the only question that arises for 106 consideration is  whether the  respondent is  a thika tenant under section  2(5) of the Calcutta Thika Tenancy Act 1949.      On June  1, 1956,  the predecessor-in-interest  of  the appellants (the  latter, hereinafter  to be described as the landlord) gave  the land with which we are concerned in this appeal to the respondent (hereinafter to be described as the tenant) for  occupation as a tenant on a monthly rent of Rs. 75/- for  one year. One of the conditions of the tenancy was that "the  premises shall  not be used for any purpose other than keeping of the lorries as garage." Another condition of the tenancy  was that  "the lessee will on the expiration of one year peacefully surrender and yield up vacant possession to the  lessor." on  July 29,  1958, the landlord’s advocate sent a  notice of  eviction to  the  tenant  to  vacate  and deliver possession of the land on the expire of August 1958. The tenant  through his  advocate by  a letter of August 29, 1958, denied liability for eviction asserting that there was no violation  of any terms and conditions of the tenancy and since there  was refusal  to accept the rent by the landlord the tenant  had been  depositing the  rent every  month from March 1958  under  the  provisions  of  the  Calcutta  Thika Tenancy Act  1949 (briefly the Act) by which the tenancy was claimed to  be governed.  Thereafter a suit was filed by the landlord in  the court  of the  4th  Munsif  at  Alipore  on January 15, 1959.      It is  not  necessary  to  trace  the  history  of  the litigation covering  this long  period. it  is sufficient to state that the High Court by its judgment on April 25, 1972, allowed the  tenant’s second  appeal holding  that he  is  a thika tenant  within the meaning of section 2(5) of the Act. According to  the High Court the tenant does not require any consent of  the landlord  to erect  a structure on the land. The result  was that the court of Munsif had no jurisdiction to  entertain   the  suit,   the  matter  being  within  the cognizance of the Controller appointed under the Act:      Mr.  Sachin   Chowdhary  appearing  on  behalf  of  the appellants fairly  and, if  we may  say so, rightly confined his argument  to the  principal question  of law  as set out above-

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Is the  tenant a  thika tenant under the Act ? If the answer is yes, the landlord is out of court.      Before we  proceed further we may briefly note that the tenant constructed  certain structures  on the land prior to the institution of the suit in 1959. Mr. Chowdhary, however, drew our  attention to an observation in the judgment of the High Court  to the  effect that  "admittedly  the  defendant (respondent herein)  at his  own cost  constructed  in  1962 structures upon  the bare land which he took for the purpose of his  business." Since  the year  of construction  had not been particularly  agitated in the courts below and there is evidence to  show that  the construction  had commenced from 1957, we  are not  prepared to give undue importance to this observation about  the year of construction mentioned in the judgment. This  is particularly  so in view of the fact that the tenant  through his  lawyer in  reply to  the notice  of eviction asserted in August 1958 that- 107           "my client  has constructed the structures and has      done such  other things  as are needful for the purpose      of the  keep in  lorries  and  other  vehicles  in  the      garages and  making of necessary repairs of the same as      well as  upkeep  and  main  tenance  of  the  same  for      carrying on his business in transport service ." Further, even  so, although  there is  a reference  to  this reply of  the advocate  of August 29, 1958, in para 8 of the plaint, there  is no  denial  of  the  construction  of  the structures as  asserted in the said reply. Being: faced with this factual  position Mr.  Chowdhary strenuously  contended that under section 2(5) of the Act erection of structures by the tenant  must be  with the permission of the landlord. In other words,  says Mr.  Chowdhary  the  erection  should  be lawfully  done   and  if   the  tenant  does  not  establish permission or consent of the landlord in the matter there is no erection in the eye of law within the meaning of section: 2(5) .      We will, therefore, read that section.           2(5): "’thika  tenant’ means  any person who holds      whether under  a written lease or otherwise, land under      another person,  and is  or but  for a special contract      would be  liable to  pay rent,  at a  monthly or at any      other periodical  rate, for  that land  to that another      person and  has erected or acquired by purchase or gift      any  structure   on  such   land  for   a  residential,      manufacturing or  business  purpose  and  includes  the      successors in  interest of  such person,  but does  not      include a person ... "      As the definition shows-           (1)  a thika  tenant must  be a  person who  holds                land under another person;           (2)  it may be under a written lease or otherwise;           (3)  there is  a liability  to  pay  rent  to  the                landlord but  for a  special contract  to the                contrary; and           (4)  he has  erected or  acquired by  purchase  or                gift  any   structure  on  such  land  for  a                residential,   manufacturing    or   business                purpose. The tenant  here fulfils  the requisite  ingredients of  the above definition clause.      There is  no  reference  to  landlord’s  permission  or consent for  erection of  structure by  the  tenant  in  the definition clause. Mr. Chowdhary submits that it is implicit in the  definition that  in order  to be  lawful erection of structure the  tenant must  take prior  permission from  the

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landlord. Counsel further submits that whatever is silent in the Act  should be supplemented by reference to the Transfer of Property 108 Act (briefly  the T.P.  Act). In  this context Mr. Chowdhary draws  our attention to section 108(0) of the T.P. Act which may be set. Out:           "the lessee  may use the property and its products      (if any)  as a  person of  ordinary prudence  would use      them if  they were  his own;  but he  must not  use, or      permit another to use, the property for a purpose other      than that  for which  it was  leased, or  fell or  sell      timber, pull  down or damage buildings belonging to the      lessor or  work mines  or quarries  not open  when  the      lease was  granted, or  commit any  other act  which is      destructive or permanently injurious thereto." According to  Mr. Chowdhary the purpose of the tenancy being that the  premises shall  not be  used for any purpose other than  keeping   of  lorries   as  garage,   construction  of structures for  the purpose  of running a workshop, which is the admitted  factual position, would attract section 108(0) of the  T.P. Act.  He, therefore,  submits that  the case is squarely governed  by the  provisions  of  the  Transfer  of Property Act  and the  court of  Munsif had  jurisdiction to entertain and  decree the  suit. We  may, however,  note  in passing that  one of the grounds on which a thika tenant may be ejected  under unmended  section 3(ii) is that the tenant has used the land in a manner which renders it unfit for any of the purposes mentioned in clause (5) of section 2 or that he has broken a condition consistent with this Act on breach of which  he is under the terms of the contract liable to be ejected.      We are unable to agree that the particular condition of the tenancy  referred to  by Mr. Chowdhary militates against the construction  of structures  and the use of the land for the purpose  of workshop  for maintenance  of the lorries by the‘ tenant.  Without being  too hypertechnical,  ordinarily keeping of  lorries as  garage would  connote the concept of construction of  some structures  for garaging  the lorries. The Chambers  Dictionary gives the meaning of garage as "the building where  motor-vehicles are  housed or  tended."  The Shorter oxford  English  Dictionary  gives  the  meaning  of garage as  "a building for the storage or refitting of motor vehicles."  We   are,  therefore,   unable  to   accept  the submission that even on the terms of the tenancy, as pointed out, the  tenant has  used the land for a purpose other than that for  which it  was leased  to attract the inhibition of section 108(0) of the T.P. Act. We are also unable to accede to the  contention that  section 2(5)  of the Act requires a thika tenant under the law to secure prior permission of the landlord for  erection of  structures on  the land.  As  the preamble shows  the  Act  is  for  making  better  provision relating to  the law  of landlord  and tenant  in respect of thika tenancies  in Calcutta.  it is  a piece  of beneficial legislative conferring  certain rights  upon the tenants. In dealing with  such provision  of law we cannot read into the definition some  thing which  is not  already there  and the introduction of  which will  lead to  imposing a restriction upon the  rights  of  this  class  of  tenants  by  judicial interpretation.  This  is  not  permissible  in  absence  of express  words   to  that   effect  or   necessary  manifest intendment.  Besides,  we  do  not  find  any  vagueness  or uncertainty. in  the definition  clause. The  submission is, therefore, of no avail. 109

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    We are  not required  to deal with the question whether the structures  which stand on the land are permanent or not as this point had not been agitated in the courts below. But we may  in passing  notice that in view of section 108(p) of the T.P. Act since the lessee must not, without the lessor’s consent, erect  on the  property  any  permanent  structure, except for  agricultural purposes, the State Legislature has by amending  the Act  by Act No. 29 of 1969 inserted section 10A conferring  a right upon a thika tenant to erect a pucca structure  for  a  residential  purpose  with  the  previous permission of  the Controller. We are, however, not required to consider such a question in this appeal.      Mr. Chowdhary also relied upon a contemporaneous letter written by the landlord to the tenant on June 1, 1956, which was found  by the  courts below  to contain interpolation by the tenant  with regard  to the  according of  permission to construct structures  on the  land. We however, do not think that this  would have  any bearing on our. interpretation of section 2(5) .      In the  result the  appeal fails  and is dismissed with costs. P.H.P.                                     Appeal dismissed. 110