Appeal No 82 of 1957
Appeal from the judgment and decree dated April 4 1955 of the Calcutta High Court in Appeal from Appellate Decree No 1224 of 1953
G section Pathak and D N Mukherjee for the appellant
H N Sanyal Additional Solicitor General of India and P K Chatterjee for the respondents
February 10
The Judgment of the Court was delivered by SHAH J
Of the premises relating to which this dispute arises No 5 Raja Rajkissen Street Calcutta the respondents are the owners and the appellant was a contractual tenant from June 15 1917 till June 15 1947 under three successive tenancies for 10 years each
Under the first tenancy the appellant paid rent at the rate of Rs 84150per month under the second tenancy at the rate of Rs 180 per month 815 and under the third tenancy at the rate of Rs 225 per month
The tenancy was in respect of buildings used for manufacturing  tin canisters  and open land
On September 30 1946 the Governor of Bengal issued the Calcutta Rent Ordinance V of 1946 making certain provisions for control of rent of premises in the town of Calcutta
By section 12 of the Ordinance it was provided in so far as it is material that notwithstanding anything contained in the Transfer of Property Act the Presidency Small Cause Courts Act or the Indian Contract Act no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy
By the proviso the landlord was notwithstanding the protection granted entitled if the conditions specified therein were fulfilled to obtain possession of the premises
This Ordinance was replaced by Act I of 1947 which contained substantially the same provisions
By the West Bengal Act V of 1948 the provisions of Ordinance V of 1946 and Act I of 1948 were continued
Thereafter on December 1 1948 the West Bengal Premises Rent Control Temporary Provisions Act XXXVIII of 1948 was brought into operation and by this Act the West Bengal Act V of 1948 was repealed but the protection granted to the tenants was con tinued
This Act was repealed by the West Bengal Premises Rent Control Act 1950 and by section 12 of the latter Act protection to tenants including tenants whose tenancies had expired against eviction was granted by prohibiting courts from passing decrees or orders for recovery of possession of any premises in favour of landlords
It was provided by that Act that the landlord shall be entitled to obtain a decree in ejectment inter alia where the premises are reasonably required by him either 1 for the purpose of building or rebuilding or for his own occupation
By letter dated May 15 1957 the respondents called upon the appellant
to vacate and deliver possession on the expiry of the period of tenancy
Possession was however not delivered by the appellant 816 and he continued to pay the stipulated amount and the same was accepted by the respondents
In an application under section 9 of the West Bengal Premises Rent Control Temporary Provisions Act 1948 the Controller fixed the standard rent of the premises at Rs 455 per month
After the enactment of the West Bengal Premises Rent Control Act 1950 another application was submitted by the appellant and the standard rent was reduced to Rs 24780
On October 10 1950 the respondents served a notice upon the appellant requiring him  to quit vacate and deliver possession of the premises occupied  which the appellant was described as holding as  monthly tenant  on the expiry of the 31st of Chaitra 1357 B section ie April 14 1951
The ground for eviction it was claimed was that the premises were reasonably required by the landlords for putting up now buildings thereon
The appellant having failed to vacate the premises the respondents sued in the Court of Small Causes Calcutta for a decree in ejectment
The Court of Small Causes decreed the suit filed by the respondents
In appeal to the Special Bench Court of Small Causes the decree passed by the court of first instance was reversed
The appellate court held that by acceptance of rent after determination of the tenancy in June 1947 the appellant continued to be  a tenant holding over  and as the purpose of the tenancy was manufacturing it could be determined only by a notice of six months expiring with the year of tenancy and as no such notice was served the tenancy was not determined and the suit was liable to fail
In appeal to the High Court of Judicature at Calcutta the decree passed by the Special Bench was reversed and the decree passed by the court of first instance was restored
With certificate of fitness under article 1331c of the Constitution this appeal is preferred by the appellant against the order of the High Court
The contractual tenancy in favour of the appellant was determined by efflux of time on June 15 1947 and since that date there has been between the parties no fresh contractual tenancy
The respondents were 817 it appears anxious to obtain possession of the premises let out to the appellant but they were unable to obtain assistance of the court in view of the protection afforded to the appellant by the successive rent control Acts
In the meanwhile the appellant continued to pay every month amounts equal to the contractual rent and later the rent declared to be the statutory rent
Does the acceptance of the amounts paid by the appellant confer upon him the right of a tenant holding over within the meaning of section 116 of the Transfer of Property Act Section 116 of the Transfer of Property Act in so far as it is material provides that if a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession the lease is in the absence of an agreement to the contrary renewed from year to year or from month to month according to the purpose for which the property is leased as specified in section 106
It is however well settled that where a con tractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the tenant continues in possession of the premises acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy
It was observed by B K Mukherjee J as he then was in Kai Khushroo vs Bai Jerbai 1  On the determination of a lease it is the duty of the lessee to deliver up possession of the demised premises to the lessor
If the lessee or a sub lessee under him continues in possession even after the determination of the lease the landlord undoubtedly has the right to eject him forthwith but if he does not and there is neither assent or dissent on his part to the continuance of occupation of such person the latter becomes in the language of English law a tenant on sufferance who has no lawful title to 1  270273
818 the land but holds it merely through the laches of the landlord
If now the landlord accepts rent from such person or otherwise expresses assent to the continuance of his possession a new tenancy comes into existence as is contemplated by section 116 Transfer of Property Act and unless there is an agreement to the contrary such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of section 106 of the Act
 It was further observed    in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply the tenant may enjoy a statutory immunity from eviction even after the lease has expired
The landlord cannot eject him except on specified grounds mentioned in the Acts themselves
In such circumstances acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit
 Under the Calcutta Rent Ordinance 1946 and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act 1950 in the expression tenant was included any person who continued in possession after termination of his tenancy
Section 12 of the West Bengal Premises Rent Control Act 1950 expressly protects a tenant whose lease has expired
By the Rent Restriction Statutes  at the material time statutory immunity was granted to the appellant against eviction and acceptance of the amounts from him which were equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of section 116 Transfer of Property Act
Failure to take action which was consequent upon a statutory prohibition 819 imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to  otherwise assenting to the lessee continuing in possession
 Of course there is no prohibition against a landlord entering into a fresh contract of tenancy with a tenant whose right of occupation is determined and who remains in occupation by virtue of the statutory immunity
Apart from art express contract conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy the landlord had entered into a fresh contract with the tenant but whether the conduct justifies such an inference must always depend upon the facts of each case
Occupation of premises by a tenant whose tenancy is determined is by virtue of the protection granted by the statute and not because of any right arising from the contract which is determined
The statute protects his possession so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist
Once the prohibition against the exercise of jurisdiction by the court is removed the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of
the lessor s right to evict the tenant will not unless the statute provides otherwise be conditioned
The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him the appellant did not acquire the rights of a tenant holding over
It is true that in the notice dated October 10 1950 the appellant is described as a  monthly tenant  but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence
Within the meaning of the West Bengal Premises Rent Control Act 1950 the appellant was a  tenant  and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant
The use of the adjective monthly  also was not indicative of a contractual relation
The tenancy of the appellant was determined by efflux of time an subsequent occupation by him 820 was not in pursuance of any contract express or implied but was by virtue of the protection given by the successive statutes
This occupation did not confer any rights upon the appellant and was not required to be determined by a notice prescribed by is
106 of the Transfer of Property Act
In that view of the case this appeal fails and is dismissed with costs
Appeal dismissed


Summary:
The 1st appellant in the first batch of appeals had filed a writ petition in this Court challenging the notices calling upon him to pay the tax of 9 pies per ton on coal including coal despatched outside the State of Madhya Pradesh on two grounds namely that the levy of the tax by the Independent Mining Board was invalid at the date of its initial imposition and 173 therefore the respondent Sabha which was the successor of the Mining Board could not continue the levy and also that on a proper construction of section 51 of the Act the levy could not be made
Another point namely the increase in the rate of tax from the original 3 pies to the 9 pies per ton at which the tax was demanded was illegal was sought to be canvassed but was not allowed to be argued by the Court as it had not been raised in the petition
The writ petition was rejected
The appellant challenged the levy of the tax for the further periods byway of a writ petition before the High Court of Madhya Pradesh on grounds distinct and separate from those which had been rejected by this Court
The High Court dis missed the writ petition on the ground that it was barred by res judicata by reason of the earlier judgment by this Court
In the case of the other appellants the High Court held that the matter was also concluded on the authority of the decision of this Court
The appellants in the first batch of appeals came by special leave and also filed writ petitions challenging the validity of the levy
Held that while the general principle of res judicata applies to writ petitions under article 32 and article 226 of the Constitution in its application to article 32 of the Constitution the doctrine only regulates the manner in which the fundamental rights could be successfully asserted and does not in any way impair or affect the content of the fundamental rights
Pandit MSM Sharma vs Dr Shree Krishna Sinha 1961 1 section 0
R 96 Raj Lakshmi Dasi vs Banamali Sen 1953 section C R 154 and Daryao vs State of UP   referred to
Constructive res judicata was a creature of statute and its application could not be extended to other proceedings particularly those questioning tax liability for different years
Held further that the law declared by the Supreme Court which is binding under article 141 of the Constitution of India is that which has been expressly declared and any implied declaration though binding was subject to revision by this Court when the point was subsequently directly and expressly raised before this Court
Held further that the procedure of assessment of tax authorised by the relevant statutory provisions and the Rules could not be said to be a capricious administrative or executive affair so as to violate article 191 f of the Constitution
174 Kunnathat Thathunni Moopil Nair vs State of Kerala   distinguished
As the Rule which prescribed the maximum rate had itself been deleted it could not be said that there had been a levy in excess of the maximum prescribed
As neither the Act nor the Rules prescribed a ceiling on the levy the expression first impositions occurring in section 512 would include every increase of the levy after its initial imposition and the increased levy would require the previous sanction of the Local Government and such sanction not being there the levy at the rate of 9 pies per ton was illegal
Considering the nature of the tax and the periods for which it was assessed and in the absence of any provision the assessment once made by r 10 was final and there could be no re assessment