ivil Appeal No 2977 of 1984
From the Judgment and Order dated 1821982 of the Calcutta High Court in SAT No 87 of 1981
DK Sen Dr Meera Agarwal and RC Mishra for the Appel  lants
AK Sen SK Banerjee and PK Mukerjee for the Re spondents
The Judgment of the Court was delivered by KN SAIKIA J
This defendants  appeal by special leave is from the judgment and order of the High Court of Calcutta dated 18th February 1982 in SAT No 87 of 1981 summarily dismissing the Second Appeal against the appellate order in TA No 381 of 1980 which affirmed the judgment and decree in title suit No 56 of 1966
The instant second respondent Narendra Nath Mukherjee leased out the land measuring 6 cottas 5 chittaks 30 sq
at 512A Russa Road now known as 34A Shyama Prasad Mukher jee Road Calcutta by a registered lease deed dated 26th September 1946 hereinafter referred to as the lease  at the first instance for a period of 10 years from 1st April 1946 but if the lessee did not fail to pay the rent to the lessor and rates and taxes to the municipality during that period the lease would be extended for a further period of 5 years ie upto 31st March 1961 at the rent of Rs250 in place of Rs200 per month and if he continued to do like wise it would be extended for a further period of 5 years that is upto 31st March 1966 at a monthly rent of Rs300 in place of Rs250 and if he continued to do likewise during the period of 20 years he would be entitled to obtain extension for a further maximum period of one year at a rent of Rs500 per month in place of Rs300 per month
405 The instant appellants are stated to have exercised their option of extension at the expiry of 10 years for a period of 5 years ie from 1st April 1956 to 31st March 1961 on increased rental of Rs250 per month and then for the second term of 5 years from 1st April 1961 to 31st March 1966 at the increased rental of Rs300 per month
During the lease on 31st March 1959 the instant second respondent by a registered instrument transferred the land to the first respondent who thereby became the landlord
Alleging that the instant appellants failed to exercise the option of extension for one year at an enhanced rent of Rs 500 and also failed to give peaceful and vacant possession of the land to him the instant first respondent as plain tiff instituted title suit No 56 of 1966 for ejectment khas possession and mesne profits
The instant appellants as defendants contested the suit by filing a joint written statement stating inter alia that they did not exercise option of renewal after the expiry of the original term of 10 years as they became thika tenants from 28th February 1949 ie on the date of commencement of the Calcutta Thika Tenancy Act 1949 as admitted by the plaintiff s predecessor in interest the instant second respondent in Miscellaneous Execution case No 126 of 1953 Thika before the Controller under the Calcutta Thika Tenancy Act 1949 hereinafter referred to as the Act  and by both the respondents in Misc
Judicial Case No 74 of 1958 Thika before the said Controller
It was also stated that they appellants always paid rent at the rate of Rs200 per month and never any enhanced rent and that the first respondent s claim for the differential rent was also rejected in the first respond ent s suit No TS 80 of 1965 and the appeal therefrom was also rejected and ultimately the special leave petition Civil No 1363 80 was also dismissed by the Supreme Court on 10th March 1980
TS No 56 of 1966 was decreed by the Trial Court wherefrom the appeal being TA No 381 of 1980 was also dismissed
The Additional District Judge while dismissing TA 38180 relied on the decision of the Calcutta High Court since reported in  holding that as the lease was for a period of 20 years and not for a period of 12 years sub section 5b of Section 2 of the Act had no application and that the respondents were not barred by waiver estoppel res judicata or principles analogous thereto because of the Misc
case No 74 of 1958 filed by the second respondent under Section 5 of the Act as there could be no question of giving a status under the Act when in the facts of the case such a status was not available
The Second Appeal being SAT 87 of 1981 having also been summarily dismissed by the High Court by the impugned order the appellants have preferred this Appeal by special leave
406 Mr DK Sen the learned counsel for the appellants submits inter alia that there could be no controversy about the appellants  status of thika tenants in view of the fact that the lease was at the first instance for 10 years only and its first and subsequent extensions were contingent on the appellants  regular payment of rents rates and taxes and enhancement of rent that contingency did not happen as they did not pay any enhanced rent but simply were holding over that the second respondent who is the predecessor in interest of the first respondent admitted the Thika Tenants status of the appellants in the earlier proceedings before the Controller and were therefore estopped from questioning that status and that the learned Courts below erred in ignoring these vital pieces of evidence
Mr Shankar Ghosh the learned counsel for the respond ents refuting submits that the lease having clearly been for a period of 20 years the appellants have rightly been held not to be thika tenants under the Act and that there could be no estoppel against a statute
Two questions are therefore to be decided in this appeal namely whether the instant appellants acquired the status of thika tenants in respect of the lease and whether there was estoppel waiver acquiesance or res judicata on the part of the respondents as in earlier proceedings they treated the appellants as thika tenants before the Control ler
The Act was passed in 1949 to make better provisions relating to the law of landlord and tenant in respect of thika tenancies in Calcutta
It came into force on the day on which the Calcutta Thika Tenancy Ordinance 1948 ceased to operate
Section 25 in Chapter I defined thika tenant as follows 5 thika tenant means any person who holds whether under a written lease or other wise 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 a who holds such land under that another person in perpetuity or 407 b who holds such land under that another person under a registered lease in which the duration of the lease is expressly stated to be for a period of not less than twelve years or c who holds such land under that another person and uses or occupies such land as a khattal This new clause 5 was substituted by West Bengal Act 6 of 1953
The crucial words to be noted in clause b are that the dura tion of the lease is expressly stated to be for a period of not less than twelve years
 In other words if the stated period is of less than 12 years the lessee will be a thika tenant and not otherwise
The important fea ture of the provision contained in section 51 of the Act is that the application for ejectment of the thika tenant has to be made to the Controller
We have therefore to ascertain the duration of the lease
Admittedly clauses 9 11 12 and 13 of the lease read as follows 9
If the second party lessee keeps the rent for two months in after at a time or if contravenes or commits any breach in respect of any provision of this deed or does not comply with his duties within 7 days in spite of service of warning notice or does not refrain from doing improper act or if he is declared insolvent then in spite of the tenure of this lease having not expired this lease that is the tenancy of the second party Lessee will be cancelled or extinguished and the first party Lessor will be entitled to take khas possession of the said property
No plea or objection of the second party Lessee will be entertained
The tenure of this lease will be for a period of ten years firstly from the 1st April 1946 AD
But if the second party Lessee performs acts regularly according to provisions within this stipulated period and pays fixed rent to the first party Lessor regularly and pays rates and taxes to the Municipality and does not default in doing his duties then the period will be extended under all the aforesaid terms for a further period of five years ie upto the 31st March 196 1 by fixing the monthly rent of Rs 250 two hundred fifty rupees in place of Rs200 two hundred rupees and the second party Lessee shall be bound absolutely by the aforesaid provisions in paragraphs 1 to 10 during the said enhanced period and all the said terms will remain in force 408 only the rent of Rs250 two hundred fifty in place of Rs200 two hundred will be fixed
If the second party Lessee performs his acts regularly according to the aforesaid terms within last five years and is abide by the rules and pays the fixed monthly rent of Rs250 two hundred fifty rupees to the first party Lessor month by month and pays the rates and tax to the Municipality then on the expiry of the said tenure of five years the tenure of this lease will be enhanced for a further period of five years ie upto 31st March 1966 having fixed the monthly rent of Rs300 three hundred rupees in place of Rs250 two hundred fifty rupees under all the aforesaid terms in paragraphs 1 to 10 and the second party Lessee shall fully remain bound abso lutely by all the aforesaid terms and all the said rules shall fully remain in force only the monthly rent of Rs300 three hundred in place of Rs250 two hundred fifty will be fixed
If the lease is not determined for acting contrary to any provisions within the tenure of the aforesaid term then on the expiry of the said term as mentioned in this deed ie on the 1st April 1966 AD the second party Lessee on paying the entire receivable amount in respect of the Demised premises to the first party Lessor will give khas possession of the said land by treating the houses etc
constructed on the Demised land ie the houses etc
constructed on the land by him ie the second party Lessee by treating the same to be a portion of the Demised land shall vacate the said houses and said land
But if the second party Lessee within the aforesaid 20 years performs acts according to all the aforesaid provisions duly and regularly and abide by all the same duly and regularly pays the fixed rent and rates and taxes at the proper place then the second party Lessee if so desire will be entitled to get the same for a further extended period of maximum one year from 1st April 1966 AD by serving written Notice at least one month prior to the expiry of the aforesaid tenure of 20 years by fixing monthly rent of Rs500 five hundred rupees in place of
Rs300 three hundred under all the provisions of the aforesaid paragraph No 1 to 10 and the first party Lessor shall be bound to grant the said extended period and if the second party Lessee accepts such extended period 409 shall pay the entire dues of the first party Lessor within the last mentioned extended period upto the expiry of the said last ex tended period and upon that by demolishing the houses etc
constructed on the Demised land will remove and replace the same
The first party Lessor shall not have any objec tion to the same nor the same shall be tena ble and shall give khas possession on the Demised Land to the first party Lessor and in that event the first party Lessor shall be bound to give up his claim and contention on the houses etc
of the said second party Lessee and shall only take possession of the demised land that is in such circumstances the houses etc
constructed by the second party Lessee to be a portion of the demised land
But if for any reason the second party Lessee within the extended stipulated period does not give khas possession to the first party Lessor on the Demised land according to the aforesaid manner or if he neglects to do so or is unable then the first party Lessor shall not be bound to give up his claim in respect of the houses etc
constructed by the said second party Lessee
Moreover by treat ing the houses etc
constructed on the demised land to be a portion of the said land shall be entitled to take khas possession of the said Demised land and besides the same the first party Lessor shall also be entitled to get any other remedy or damage or compensation according to law Ex praecedentibus et consequentibus optima fit inter pretatio  The best interpretation is made from the context
Every contract is to be construed with reference to its object and the whole of its terms
The whole context must be considered to ascertain the intention of the parties
It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ex antecedentibus et consequentibus  every part of it may be brought into action in order to collect from the whole one uniform and consistent sense if that is possible
As Lord Davey said in NE Railway vs Hastings 267 The deed must be read as a whole in order to ascertain the true meaning of its several clauses and the words of each clause should be so inter preted as to bring them into harmony with the other provi sions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly
If the words are clear there is 410 very little the Court can do about it
In the construction of a written instrument  it is legitimate in order to ascer tain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circum stances surrounding their creation and the subject matter to which it was designed and intended they should apply The habendum in the lease states Upon the prayer of the second party Lessee to take the said land in arrangement and settlement for a stipulated period for starting factories Lathe works manufacturing and repairing of Motor Car parts manufacturing and repairing Electric Fans and various manufacturing busi ness constructing pucca buildings on the said land or in portion thereof or subletting houses etc
and for constructing shop rooms etc
under the following terms and provisions to which he agreed and upon giving possession of the said land to the second party Lessee the second party Lessee hereby admit and promise that Particulars and four boundaries of the property in Schedule Ka are given as In the District of 24 Parganas within the Police Station Bhowanipore in Mouza Bhowani pore Village within the jurisdiction of the Sub Registry Alipore in Government Khas Mahal in Division 6 Sub Division E E relating to Dihi 55 gram in holding No 224 within the surplus land of scheme No 4 of the Calcutta Improvement Trust a portion of the plot No 62 of the said scheme the rent free land measuring more or less 0 6 5 30 six kathas five chittaks thirty square feet together with foundation of the wall together with all fittings and fixtures and easement and other rights etc
with all rights and entire right is the property whose current Municipal premises No 52A Russa Road and the second party Lessee have taken the said property on lease for a stipulated period of twenty years
underlined by us In clause 9 of the lease it would be seen how and when the rent is to be paid and when the lease would be liable to be cancelled have been stated
Clause 11 stipulates that at the first instance the period of lease was made 10 years and in case the Lessee acted in accordance with what was expect ed of him under clause 9 the period of the lease 411 would be extended for a further period of 5 years upto 31st March 1961 at enhanced rent of Rs250 per month and if the Lessee continued to act in accordance with what was expected of him under clause 9 during this period of 5 years the period of the lease would be extended for a further period of 5 years that is upto 31st March 1966 at a monthly rent of Rs300 and in case the Lessee continued to act during this period as expected of him under clause 9 till the end of the period of 20 years he would be entitled by serving a notice to obtain an extension for a further maximum period of one year at enhanced rent of Rs500 per month
It is pertinent to note that the word used is exten sion  and not renewal 
To extend means to enlarge expand lengthen prolong to carry out further than its original limit
Extension according to Black s La Dictionary means enlargement of the main body addition of something smaller than that to which it is attached to lengthen or prolong
Thus extension ordinarily implies the continued existence of something to be extended
The distinction between exten sion  and renewal  is chiefly that in the case of renewal a new lease is required while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act
In other words the word extension  when used in its proper and usual sense in connection with a lease means a prolongation of the lease
Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole
The purposes of the lease were not expected to last for only 10 years and as Mr AK Sen rightly pointed out the Schedule specifically mentioned the lease as for a stipulated period of twenty years
 As these words are very clear there is very little for the Court to do about it
The learned counsel for the appellants in support of his contention that the appellants were thika tenants refers us to         69CWN 842    In Kanai Lal vs Paramnidhi   the status of the appellants as thika tenant was not in question
The question therein was whether under Section 51 of the Act as amended by the Amending Act of 1953 execution proceedings taken out by the decree holder against the appellant could be entertained only by the Controller and not by the civil Courts
This Court held that Section 51 did not apply to a case where the landlord had already obtained a decree for ejectment against his thika tenant and consequently the civil Court had 412 jurisdiction to entertain the application
It was noted that until 1948 the rights and liabilities of the landlords and their thika tenants were governed by the provisions of the Transfer of Property Act
On October 26 1948 the Calcutta Thika Tenancy Ordinance XI of 1948 was promulgated because it was thought expedient pending the enactment of appropri ate legislation to provide for the temporary stay of the execution of certain decrees and orders of ejectment of thika tenants in Calcutta
The object of the Ordinance was to give protection to the thika tenants in Calcutta and to afford them interim relief by staying execution of certain decrees and orders as mentioned in Section 3 until an appro priate Act was passed by the Legislature in that behalf
The facts of the instant case are entirely different inasmuch as the lease was dated 26th September 1946 and no question of eviction by executing any decree arose until the Act was passed
The only point to be noted is that the tenancy under the lease on the relevant date of creation was governed by the Transfer of Property Act
In Mahadeolal Kanodia vs Administrator General of West Bengal     the question for decision was whether the appellant against whom proceedings for execution of a decree for ejectment was pending who had applied for relief under Section 28 and when that section was in force was entitled to have his application disposed of in accordance with the provisions of Section 28 which had ceased to exist retrospectively though it remained undisposed on the date the Amendment Act 1953 which omitted Section 28 of the Act came into force
This case is there fore of no assistance to the appellants
In Annapuma vs Tincowrie Dutt   it was held on the facts of the case that what was let out was land with structures and it could never come under the operation of the Act inasmuch as the property in suit had a history of 24 years under the registered lease before that claim to become a thika tenant would arise under the Act
It was also held that where there was a covenant for renewal in a lease and the option did not state the terms of the renewal the new lease if created would be for the same period and on the same terms as the original lease in respect of all the essential conditions thereof except as to the covenant for renewal itself
This case therefore is hardly relevant
In Shaffiuddin  Ors
vs GC Banerjee  it was 413 held that the status already acquired by the tenants in Tollygunje under the West Bengal Non Agricultural Tenancy Act 1949 could not be prejudiced and affected by the Act and the landlords were therefore not entitled to any order of ejectment under the Act
This case has therefore no bearing
In Sheikh Gufan vs
SK Ganguli   the question was whether Section 30c of the Act was applicable to land in respect of which betterment fee was levied
It is therefore not relevant for us
We do not find any reason in the above decisions to enable us to hold that the lease in the instant case was for a period of less than 12 years and not for a period of not less than 12 years
The High Court correctly held the lease to be for the less than 12 years
The next question is that of waiver estoppel and res judicata
The appellants urged that there were two previous proceedings namely Misc
Execution case No 126 of 1953 Thika and Misc
Judicial case No 74 of 1958 Thika under the Act before the Controller
Except the implication that the proceedings having been before the Controller the re spondents treated the appellants a thika tenants no partic ular order finally conferring that status has been shown to us
By the order of this Court dated 10th March 1980 in Special Leave Petition Civil 1363 of 1980 which was from the judgment and order dated 1691979 of the High Court of Calcutta in F A No 458 of 1978 the petition was dismissed without going into the question whether the Thika Tenancy Act was applicable or not
 Misc
J case No 74 of 1958 wherein the first respondent prayed for being added as petitioner No 2 ended in a compromise
No status could however be said to have been determined
The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of the relinquishment of such right
It means the forsaking the assertion of a right at the proper opportunity
The first respondent filed suit at the proper opportunity after the land was trans ferred to him and no covenant to treat the appellants as Thika tenants could be shown to have run with the land
Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right while in estoppel such intent is immaterial
The necessary condition is the detriment of the other party by the conduct of the one estopped
An estoppel may result though the party estopped did not intend to lose any exist ing right
Thus voluntary 414 choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquish ment and the conferment of the right in question
Nothing of the kind could be proved in this case to estopp the first respondent
In Shanti Devi vs AK Banerjee  it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom
The Court would only look into the terms of the lease irrespective of the averments in the pleadings
In the instant case as we have already held the lease to have been for twenty years its character could not have been changed by the pleadings if any in the above cases
Nor could the respondents be held to have waived their rights under the lease
We do not find any infirmity in the impugned High Court order on this count also
In the result this appeal fails and is dismissed but without any order as to costs
Stay order if any stands vacated
RSS Appeal dis missed


Summary:
The appellant was detained pursuant to an order of detention passed against him under Section 31 of the  with a view to prevent him from in dulging in activities prejudicial to the augmentation of country s foreign exchange resources
The detaining authori ty on consideration of the material placed before him came to the conclusion that the appellant was indulging in re ceiving and making payments in India unauthorisedly under instructions from a person residing abroad in violation of the provisions of the Foreign Exchange Regulations Act 1973 and that the said unauthorised and illegal transactions carried on by him and affected adversely the foreign ex change resources Of the country and as such his detention was necessary
The appellant assailed his detention before the High Court and being unsuccessful filed this appeal
Before this Court Counsel for the appellant confined his arguments only to the ground of undue delay caused by the Central Government in disposing of the representation made by the detenu which was calculated to be of 40 days
The Respondents explained the delay in the counter affidavit filed by it but still according to the appellant s counsel there has been undue and unexplained delay of 11 days be tween the date of submission of the representation by the detenu to the Superintendent of the Central Prison Bombay for transmission to the Central Government and the date of receipt of the representation by the Ministry of Finance and he argued that this unexplained delay has vitiated the order of detention
416 Allowing the appeal this Court HELD It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of the detenu has to be disposed of within reasonable expedition but it must necessarily depend on the facts and circumstances of each case
419F Rashid SKv
State of West Bengal Sabir Ahmed vs Union of India   Vijay Kumar vs State of Jammu and Kashmir and Others  and Raisuddin alias Babu Tamchi vs State of UP and Anr
   When it is emphasised and re emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition it is imperative on the part of every authority whether in merely transmitting or dealing with it to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness indifference or avoidable delay because the delay caused by slackness on the part of any authority will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Article 225 of the Constitution
420A B In the instant case the supine indifference slackness and callous attitude on the part of the jail Superintendent who had unreasonably delayed in transmitting the representa tion as an intermediary had ultimately caused undue delay in the disposal of the appellant s representation by the Government which received the representation 11 days after it was handed over to the Jail Superintendent by the detenu
This avoidable and unexplained delay has resulted in render ing the continued detention of the appellant illegal and constitutionally impermissible
421D E Abdul Karim and Others vs State of West Bengal  referred to