http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: MANUJENDRA DUTT

       Vs.

RESPONDENT: PURENDU PROSAD ROY CHOWDHURY & ORS.

DATE OF JUDGMENT: 22/09/1966

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ)

CITATION:  1967 AIR 1419            1967 SCR  (1) 475  CITATOR INFO :  RF         1972 SC 819  (11)  HO         1974 SC 818  (15,19,26,30)  D          1976 SC 588  (8)  E&D        1978 SC1518  (9,10,11,17)  O          1979 SC1745  (14,16)  RF         1980 SC1214  (12)

ACT: Calcutta Thika Tenancy Act, 1949, ss. 3 and 29-S. 3  whether over-rides  provision in lease agreement requiring  landlord to  give  six months’ notice to tenant  for  termination  of lease-Suit for eviction of tenants transferred to Controller of  Thika Tenancy under s. 29-Section repealed  by  Amending Act 6 of 1953-Controller’s jurisdiction to try suit  whether continues.

HEADNOTE: The  appellant was the tenant of the respondents on a  piece of  land.   According to the lease agreement the  period  of lease was fixed at ten years but the lessee was entitled  to renew the lease after that period under certain  conditions. The  lease  agreement further provided that  if  the  lessor required  the lessee to vacate the premises whether  at  the time  of the expiry of the lease or thereafter (in case  the lessee exercised his option to renew the lease), six months’ notice  to the lessee was necessary.  The  lessee  exercised his option to continue the lease and offered to fulfill  the conditions  therefor.  The Court of Wards on behalf  of  the respondents,  sought  to impose further conditions  for  the renewal  of  the lease which the appellant did  not  accept. The  Court of Wards thereupon filed a suit in the  Court  of the First Subordinate Judge, Alipore for the eviction of the appellant  on the ground that he was a trespasser.   In  the meanwhile the Calcutta Thika Tenancy Act, 1949 was passed by the  West Bengal Legislature.  As Provided in s. 29  of  the Act  the  suit  was transferred  to  the  Thika  Controller. Thereafter Amendment Act 6 of 1963 was passed which  deleted s. 29 and the appellant urged before the Controller that  he no  longer  had jurisdiction to try the matter.   This  con- tention  was  rejected  and on  the  merits  the  Controller decided  against the appellant holding that in view of s.  3 of  the  Act the six months’ notice required  by  the  lease

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

agreement  for  the  eviction  of  the  appellant  was   not necessary.    The  High  Court  also  decided  against   the appellant who thereupon came to this Court with certificate. HELD : (i) Though s. 29 was deleted by the Amendment Act  of 1953  the deletion could not affect pending proceedings  and would not deprive the Controller of his jurisdiction to  try such  proceedings  pending before him at the date  when  the Amendment Act came into force.  Though the Amendment Act did not  contain  any saving clause, under s. 8  of  the  Bengal General  Clauses Act, 1899 the transfer of the  suit  having been lawfully made under s. 29 of the Act its deletion would not  have the effect of altering the law applicable  to  the claim  in the litigation.  There is nothing in s. 8  of  the Amending  Act,  1953 suggesting a  different  intention  and therefore  the  deletion  would  not  affect  the   previous operation of s. 5 of the Calcutta Thika Tenancy Act, or  the transfer of the uit to the Controller or anything duly  done under  s.  29.   That  being the  correct  position  in  law the’High  Court  was right in holding that in spite  of  the deletion of s. 29 the Controller still had the  jurisdiction to proceed with the said suit transferred to him. [479 G] (ii)  The Thika Tenancy Act does not confer  any  additional rights  on  a landlord but on the contrary  imposes  certain restrictions on his right o evict a tenant under the general law or under the contract of lease. 476 The Thika Act like other Rent Acts enacted in various States imposes  certain  further restrictions on the right  of  the landlord  to evict his tenant and lays down that the  status of irremovability of a tenant cannot be got rid of except on specified  grounds  set out in s. 3. The right  of  the  ap- pellant  therefore to have a notice as provided for  by  the proviso to cl. 7 of the lease was not in any manner affected by  s. 3 of the Thika Act.  The effect of  the  non-obstante clause  was that even where a landlord had  duly  terminated the  contractual tenancy or is otherwise entitled  to  evict his  tenant  he  would  still be entitled  to  a  decree  of eviction  provided his claim for possession falls under  any one  or  more of the grounds in s. 3. Before  therefore  the respondents  could  be said to be entitled to a  decree  for eviction  they  had  first to give  six  months’  notice  as required  by  the proviso to cl. 7 of the  lease  and  such- notice  not  having  been admittedly given  their  suit  for eviction could not succeed. [482 G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 586 of 1964. Appeal  from the judgment and order dated April 1,  1960  of the Calcutta High Court in Civil Revision No. 2612 of 1957. C. B. Agarwala, and Sukumar Ghosh, for the appellant. Sarjoo Prasad and D. N. Mukherjee, for the respondent. The Judgment of the Court was delivered by Shelat, J. Two questions arise in this appeal by certificate granted  by the High Court at Calcutta, (1) as  regards  the jurisdiction  of  the Controller -under the  Calcutta  Thika Tenancy Act, 1949 after the deletion therefrom of section 29 by  Amendment  Act  VI of 1953  in  respect  of  proceedings pending before him on that date and (2) the right of a Thika Tenant as defined by the Act to a notice provided under  the Deed of Lease. By a registered lease dated December 4, 1934, the  appellant entered into possession of the land demised thereunder  from the  Bhowanipore  Wards Estate which was then  managing  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

said property at a monthly, rent of Rs. 47-0-3P.  The  lease was for a fixed term of 10 years and it inter alia gave  the tenant  option  of  renewal of the said  lease  provided  he offered the maximum rent which might be offered by intending tenants on expiry of the said term.  Clause 7 of the Deed of Lease  provided  that  the  lessee shall  be  bound  on  the termination or sooner determination of the lease to  restore to   the  lessors  the  land  demised  after  removing   the structures with drains, privies water taps etc., leaving the land  in the same state as it was at the date of the  lease. It also provided that the lessee would be bound to sell  the said structures, privies, drains etc. to the lessors if  the lessors so desired at a valuation to be fixed by a qualified Engineer  specified  therein.   Clause 7  then  provided  as follows:-               "Provided  always and it is hereby agreed  and               declared  that  if  it be  required  that  the               lessee should vacate the said 477               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." It  is  clear that the lessee was entitled to a  six  months notice  in  the  following two events  before  he  could  be required to vacate: (1) If the lessors desired the lessee to vacate  at the end of ten years and not to renew the  lease, they  were bound to give six months notice ending  with  the expiry  of the term of 10 years and (2) if on the expiry  of the  term  the  lease was not renewed  but  the  lessee  was allowed to hold over the lessors were bound to give him  six months’  notice  before  being asked  to  quit.   After  the execution  of  the said lease the  appellant  built  certain structures on some portion of the said land and let out  the remaining portion as permitted under the said lease.   Since the  said period of ten years was to expire on  December  1, 1944 the ,appellant by his letter dated November 30, 1944 to the  Bhawanipore  Wards  Estate  expressed  his  desire   to exercise his option of renewal stating therein that he  ’Was prepared to pay such higher rent as the lessors had by  that time received.  According to the appellant, since he did not receive  any reply to the said offer he continued to  be  in possession  of  the  demised land and as  was  the  practice between the parties, continued to deposit the aforesaid rent from  time to time in the treasury of Alipore  collectorate. On May 26, 1945 the Manager of the Wards Estate intimated to the  appellant  that the renewal of the said lease  was  not sanctioned  and asked the appellant if he was  agreeable  to pay rent at the rate of Rs. 12/- per month per Cottah and  a Selami  equivalent to one year’s rent.  The appellant  wrote back  to say that he had already exercised his option,  that he had been regularly depositing the said rent and that  the said demand was excessive and he was therefore not bound  to pay the same.  Considerable correspondence thereafter ensued between the parties ending with the notice dated October 14, 1946 by the said Wards Estate stating that as the  appellant did  not agree to pay the rent as demanded by them  and  the said  lease was not renewed he was a trespasser and was  not entitled to any notice under the said lease and required him to deliver vacant possession of the said land after removing the structures within two weeks from the date of the receipt

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

of  the  notice.   On  July 11,  1947  the  Court  of  Wards instituted  a  suit in the First Court  of  the  Subordinate Judge  at Alipore for ejectment and for mesne  profits.   In his  written statement the appellant maintained that he  had lawfully exercised his option of renewal, that after receipt of his said letter the Wards Estate had continued to  accept the rent as agreed under the said lease, that the demand  of Rs. 12/- per cottah was not a bona fide one and that the 478 said  notice  was illegal.  While the suit was  pending  the Calcutta  Thika  Tenancy Act, 1949 was enacted  and  brought into force.  On both the parties agreeing that the appellant was  a  Thika  Tenant as defined by the said  Act  and  that therefore the suit would be governed by that.  Act the Court transferred  it  to the Thika Controller under s.29  of  the Act.  The suit thus stood transferred to the Fourth Court of the  Munsiff at Alipore who was the Thika  Controller  under the  Act.  While the suit was still pending the West  Bengal legislature  passed the said Amendment Act VI of 1953  which came  into  force on April 21, 1953 by section  8  of  which sections  28 and 29 of the Act were deleted.   On  September 12,  1953,  the appellant filed an  application  before  the Thika Controller that as a result of the deletion of section 29  he  lost jurisdiction over the said suit.   That  appli- cation was however rejected and the suit continued to be  on the  file  of  the Controller.  On  January  24,  1954,  the respondents  applied for amendment of the plaint  contending that  they  were entitled to a decree for ejectment  on  the grounds (a) the at the appellant had failed to use or occupy himself  a major portion of the said land (b) that the  said land was required by the landlords for constructing a build- ing  on and developing the said land and (c) that  the  said lease  had expired by efflux of time, thus seeking to  bring their suit within the grounds (iv), (v) and (vi) in  section 3  of the Act.  The aforesaid amendment was allowed and  the suit  was  proceeded  with  on the cause  of  action  as  so amended.  By a supplementary written statement the appellant denied  the  aforesaid allegations.  On June 24,  1955,  the names  of the present respondents were substituted  for  the said Court of Wards, as management of the said property  was released  as  and from April 15, 1955.  By  a  judgment  and order  dated  August 11, 1956 the  Controller  directed  the eviction of the appellant subject to the respondents  paying compensation  either as agreed to between the parties or  as may be determined by him on an application made therefor  by either  of  the parties.  The Controller held  that  on  the expiry  of the said term the appellant became  a  trespasser and  was not entitled to a six months notice as provided  by the  said lease and upheld the respondents’ contention  that they’ had satisfied the grounds as set out in cls. (iv), (v) and  (vi)  of  s. 3 of the Act.   An  appeal  was  preferred against  the said judgment and order before the  Subordinate Judge at Alipore who dismissed it holding that the suit  was governed  by s. 5 of the Act, that after the expiry  of  the said  term there was no holding over by the appellant,  that in  spite  of  the deletion of  section  29  the  Controller continued  to have jurisdiction over matters transferred  to him  and pending at the date when the Amending Act  of  1953 came  into  force.  He, however, held that  the  respondents were not entitled to evict the appellant on the ground  that they  required  the said land either for building on  it  or otherwise  developing  it but upheld their  contention  that they  were entitled to an order of eviction under  cls.  (v) and (vi) of s. 3. The appellant took,the matter to the  High Court under Art. 227

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

479 challenging  the correctness of the said judgment and  order which application was converted into Civil Revision No. 2612 of 1957. Before  the  High  Court two questions  were  canvassed  (1) regarding the jurisdiction of the Controller after s. 29  of the  Act was deleted and (2) regarding the notice which  the appellant  claimed he was entitled to under the  said  lease before   the  respondents  could.  exercise  any  right   of eviction.   The High Court was of the view that in spite  of the   deletion  of  section  29  the  jurisdiction  of   the Controller  in respect of matters pending before him at  the date  of the coming into force of the said Amending Act  was saved  and  also rejected the appellant’s contention  as  to notice on the ground that the non-obstante provision in s. 3 of  the Act entitled the landlords to a decree for  eviction without  first  terminating  the contractual  tenancy  by  a notice  as provided for by the said proviso to cl. 7 of  the said Deed of Lease. Mr. Agarwal for the appellant, at first raised four  conten- tions before us, viz., (1) whether s. 3 of the Act  deprived a  tenant  of his rights under the lease,  (2)  whether  the Controller  had jurisdiction to proceed with the case  after the deletion of s. 29 from the Act; (3) whether there was  a renewal  of  the said lease and (4)  whether  the  appellant could  be evicted on the ground of sub-letting  even  though the said lease expressly permitted him to sub-let.  However, in  view  of the fact that only two  of  these  contentions, viz.,  regarding  jurisdiction and notice had  been  pressed before he High Court he confined his arguments on those  two questions  only.   The contention of Mr.  Agarwal  was  that since it was only by reason of s. 29 that the suit had  been transferred  to the Controler the deletion of  that  section from  the Act by section 8 of the Amendment Act of 1953  had the effect of depriving the Controler of his jurisdiction to try the suit and therefore the judgment and order passed  by him  though confirmed by the learned Subordinate  Judge  and the  High Court was without jurisdiction and therefore  bad. In  our view, this contention has no force.  Though  section 29  was  deleted by the Amendment Act of 1953  the  deletion would  not affect pending proceedings and would not  deprive he  Controller of his jurisdiction to try  such  proceedings pending  before him at the date when the Amendment Act  came into  force.  though the Amendment Act did not  contain  any saving clause, under s. 8 of the Bengal General Clauses Act, 1899  the  transfer of the suit having  been  lawfully  made under  section 9 of the Act its deletion would not have  the effect  of altering the law applicable to the claim  in  the litigation.   There is nothing in section 8 of the  Amending Act  of 1953 suggesting a different intention and  therefore the  deletion  would not affect the  previous  operation  of section 5 of the Calcutta Thika Tenancy Act or the 480 transfer of the suit to the Controller or anything duly done under  section 29.  That being the correct position  in  law the  High  Court was right in holding that in spite  of  the deletion  of  section  29  the  Controller  still  had   the jurisdiction  to proceed with the said suit  transferred  to him. The  second  contention  of Mr. Agarwal  regarding  the  six months’  notice  as provided for in the lease  was  that  in spite of the non-obstante provision in section 3 of the  Act that provision did not have the effect of depriving a tenant of  his  right to have a notice before  termination  of  his tenancy  if  he has such a right either under the  lease  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

under  the Transfer of Property Act.  The argument was  that on  a  true  interpretation  of section 3  of  the  Act  the position  was  that besides not depriving the  rights  of  a tenant  under a contract of lease or under the  general  law the section imposes further restrictions on the right of the landlord  to  evict  a tenant.   Therefore,  a  landlord  is entitled  to a decree for eviction only (a) if he has  first terminated  the  contractual  tenancy  and  (b)  where   the landlord  fulfils  the requirements of one or  more  of  the several  grounds  in section 3. 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  safeguard  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 landlord  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.  The word " notwithstanding" in section 3 on a true  construction therefore  means that even where the contractual tenancy  is properly terminated, notwithstanding the landlord’s right to possession  under  the  Transfer  of  Property  Act  or  the contract  of  lease  he cannot evict the  tenant  unless  he satisfied any One of the grounds set out in section 3.  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.   It is well settled  that  statutory  tenancy normally arises when a tenant under a lease holds over, that is,   he   remains  in  possession  after  the   expiry   or determination  of  the  contractual  tenancy.   A  statutory tenancy, therefore comes into existence where a  contractual tenant  retains  possession  after  the  contract  has  been determined.   The right to hold over, that is, the right  of irrermovability, thus is a right which comes into  existence after  the  expiration of the lease and until the  lease  is terminated or expires by efflux of time the tenant need  not seek protection under the Rent Act.  For, he is protected by his lease in breach of which he cannot be evicted. (See 481 Meghji  Lakshamshi and Bros., v. Furniture  Workship.(1)  In Abasbhai v. Gulamnabi(2), this Court clearly stated that the Rent  Act  did not give a right to the landlord to  evict  a contractual tenant without first determining the contractual tenancy.   In  Mangilal v. Sugan Chand(3)  while  construing section  4 of the Madhya Pradesh Accommodation  Control  Act (XXIII  of  1965),  a section similar to section  3  of  the present Act, this Court held that the provisions of  section 4  of that Act were in addition to those of the Transfer  of Property Act and therefore before a tenant could be  evicted by  a landlord, he must comply with both the  provisions  of section  106  of the Transfer of Property Act and  those  of section  4.  The Court further observed  that  notice  under section   106  was  essential  to  bring  to  an   end   the relationship   of  landlord  and  tenant  and  unless   that relationship  was  validly  terminated by  giving  a  proper notice  under  s. 106 of the Transfer of Property  Act,  the landlord could not get the right to obtain possession of the premises by evicting the tenant. (See also Haji Mohammad  v. Rebati  Bhushan.)(4).  In Monmatha Nath v.  Banarasi(5)  the High  Court at Calcutta while dealing with the present  Act, held  that  in matters not dealt with by the  Act  it  would

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

still  be  the Transfer of Property Act which  would  apply, for, the Thika Tenancy Act is not a complete Code and  deals only  with  some  aspects of Thika  Tenancy.   It  does  not provide  for  the rights and liabilities of the  lessor  and lessee in a Thika tenancy and therefore, for those purposes, one has still to look to the Transfer of Property Act.   The only  decision  which  has  taken  a  contrary  view  is  R. Krishnamurthy  v.  Parthasarathy(6) where it was  held  that secton  7 of the Madras Buildings (Lease and  Rent  Control) Act XV of 1946 had its own scheme of procedure and therefore there  was no question of an attempt to reconcile  that  Act with  the Transfer of Property Act.  On that view, the  High Court held that an application for eviction could be made to the Rent Controller even before the contractual tenancy  was terminated  by a notice to quit.  That decision  is  clearly contrary  to  the  decisions of  this  Court  in  Abasbhai’s Case(1) and Mangilal’s Case (2) and therefore is not correct law. It was, however, argued by Mr. Sarjooprasad on behalf of the respondents  that on the footing that the provisions of  the Thika  Act could only be availed of by a landlord after  the termination  of  the contractual tenancy  no  notice  either under  section 106 of the Transfer of Property Act or  under the  lease  was necessary in the present case as  the  lease expired by efflux of time and no renewal was agreed upon  by the parties.  Therefore, since the lease expired the  lessee in the absence of any such renewal was (1) [1954] A.C. 80 at p. 90. (3) A.I.R. 1965 S.C. 101. (5) 63 C.W.N. 824 at 831. (2) A.I.R. 1964 S.C. 1341. (4) 53 C.W.N. 859. (6) A.I.R. 1949 Mad. 750. 482 bound  to hand over vacant possession to the respondents  as provided  by clause 7 of the said lease.  Mr. Sarjoo  prasad argued  that in the absence of any renewal of the  lease  if the appellant continued to be in possession of the  property in  suit  his  possession  was  that  of  a  trespasser  and therefore  there was no question of any notice having to  be given   to   him.   The  construction   suggested   by   Mr. Sarjooprasad  cannot be upheld as such a construction  would be contrary to the express language of the proviso to clause 7 of the lease.  As already stated clause 7 requires that on the determination of the lease by efflux of time or  earlier termination the lessee has to hand over vacant possession of the  land  in  its  original  position  after  removing  the structures  constructed thereon by him.  If  the  structures are not so removed the lessee has to sell them to the lesser at  a valuation to be fixed by the lessor’s Engineer.   What would happen in a case where the tenant is not informed  and does  not know whether his lease which is for a  fixed  term would be extended by a renewal or otherwise ? If there is no provision  for an option to renew and the landlord does  not extend the term, he has, of course, to vacate on the  expiry of the term.  But where the lease provides for an option and the tenant exercises the option it is but fair and equitable that he must know in good time whether the lessor agrees  to the renewal or not.  It is to provide against a  contingency where  the  lessee  would  have  to  quit  without  a   fair opportunity to dispose of the structures he has put up  that the proviso was added in cl. 7 of the lease and that proviso must  be  given  effect  to.   The  proviso  lays  down  the condition  of six months’ notice ending with the  expiry  of the  term  clearly  to  enable  the  lessee  to  remove  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

structures,  if  need be, if the lease was  not  renewed  or extended.   The object of inserting such a  condition  being clear as aforesaid it would not be right to construe  clause 7   and  its  proviso  in  the  manner  suggested   by   the respondents. To nsummarise the position : The Thika Tenancy Act does  not confer  any additional rights on a landlord but on the  con- trary  imposes certain restrictions on his right to evict  a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various States imposes  certain  further restrictions on the right  of  the landlord  to evict his tenant and lays down that the  status of irremovability of a tenant cannot be got rid of except on specified  grounds  set out in section 3. The right  of  the appellant therefore to have a notice as provided for by  the proviso  to  clause  7 of the Lease was not  in  any  manner affected  by section 3 of the Thika Act.  The effect of  the non-obstante clause was that even where a landlord has  duly terminated the contractual tenancy or is otherwise  entitled to  evict his tenant he would still be entitled to a  decree for  eviction provided that his claim for  possession  falls under any one or more of or the grounds 483 in section 3. Before therefore the respondents could be said to  be entitled to a decree for eviction they had  first  to give six months notice as required by the proviso to  clause 7  of the lease and such notice not having  been  admittedly given their suit for eviction could not succeed. In  our  view the construction placed by the High  Court  on section  3 was not correct and the High Court was  wrong  in holding  that the words "notwithstanding anything  contained in  any  other  law for the time being in force  or  in  any contract" absolved the respondents from their obligation  to give the six months notice to the appellant before  claiming from him vacant possession of the land in question. In  the result, we allow the appeal, set aside the  judgment and  order  passed  by  the  High  Court  and  dismiss   the respondent’s   suit.   The  respondents  will  pay  to   the appellant his costs all throughout. G.C.                              Appeal allowed. 484