Appeal No 891 of 1963
Appeal by special leave from the judgment and decree dated June 26 1959 of the Assam High Court in Letter Patent Appeal No 1 of 1959
N C Chatterjee and D N Mukherjee for the appellants
Sarjoo Prasad and K P Gupta for respondents
The Judgment of the Court was delivered by Shah J
Biswambar Roy predecessor interest of the appellants was Granted on February 20 1928 a lease for ten 115 years 1335 BS to 1344 BS at an annual rental of Rs 75 in respect of a plot of land part of Dag No 3615 in the town of Silchar District Cachar in the State of Assam
Biswambar Roy constructed on the land buildings some for residential use and others as warehouses
On the expiry of the period of the original lease Biswambar Roy obtained a fresh lease in respect of a part of the land for ten years Baisakh 1345 BS to Chaitra a 1354 BS at an annual rental of Rs 70 under an instrument dated February 22 1938
The respondents purchased the interest of the landlords the land and instituted on August 3 1951 an action in the Court of the Sadar Munsiff Silchar against Biswambar Roy for a decree for vacant possession of the land
The suit was decreed by the Munsiff
Biswambar Roy appealed to the Subordinate Judge Silchar
During the pendency of the appeal the Non agricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam Legislature was brought into force
Biswambar Roy claimed protection from eviction under section 3 of Act 12 of 1955
The Subordinate Judge held that Biswambar Roy had acquired under section 51a of the Act the rights of a permanent tenant since he had constructed within the period prescribed permanent structures for residential or business purposes
He accordingly reversed the decree passed by the Trial Court and dismissed the suit
Against that decree an appeal was preferred to the High Court of Assam
Deka J held that Biswambar Roy could not claim the protection of section 51 a of the Act since he had let out to tenants the buildings constructed on the land
In the view of the learned Judge by the use of the expression for residential or business purposes in section 51a it is intended that buildings constructed by the tenant should be utilized by the tenant himself for his own residence or for carrying on business and that it is not the intention of the Legislature that third persons should be protected by section 5 from eviction from those structures
An appeal under the Letters Patent from that judgment was heard by C P Sinha C J and Mehrotra J
The learned Judges differed
Sinha C J was of the view that permanent structures constructed by Biswambar Roy conformed to the descripticon residential or business purposes and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non payment of rent
With that view Mehrotra J did not agree
He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build a permanent structure on the land of the tenancy for residential or business purposes
and may not claim protec tion under section 51a
Since there was no majority concurring in the judgment agreeing or reversing the decree appealed from under section 982 of the Code of Civil Procedure the appeal was ordered to be dismissed
Against the decree passed by the High Court with special leave this appeal is preferred
116 This Court has held that section 5 of Assam Act 12 of 1955 has retrospective operation Refiquennessa vs Lal Bahadur Chetri  Others1 and the only question to be determined in this appeal is whether a tenant qualifies for protection under section 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes
The material part of the section reads 1 Notwith tanding anything in any contract or in any law for the time being in force a Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act a tenant is entitled to build and has in pursuance of such terms actually built within the period of five years from the date of such contract a permanent structure on the land of the tenancy for residential or business purposes or where a tenant not being so entitled to build has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord the tenant shall not be ejected by the landlord from the tenancy except on the ground of non payment of rent Protection under the first part of section 51a may be claimed by a tenant if three conditions co exist i under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy ii that pursuant to such liberty he has actually built within the period of five years from the date of the contract a permanent structure on the land of the tenancy and iii that the permanent structure is for residential or business purposes
The first two conditions are fulfilled in this case
But the learned Judges of the High Court disagreed on the fulfillment of the third condition they differed as to the true meaning of the expression a permanent structure  for residential or business purposes
In the view of Sinha C J under the Act the character of the structure is determinative and not personal use by the ten ant
Mehrotra J held that the permanent structure must be for residential or business purposes of the tenant
We are unable to agree with the view taken by Mehrotra J because the Legislature has not in conferring rights of permanent tenancy either expressly or by implication enacted any such qualification as is suggested by the learned Judge
The section merely requires that the permanent structure must be one adapted for residential or business purposes
If the structure is not adapted to such purposes the protection of section 51a will not be available
To read the expression permanent 1  117 structure on the land of the tenancy for residential or business purposes as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section
It was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by section 51a protection upon sub tenants
It was said that a sub tenant is not a tenant within the meaning of section 3g of the Act and he cannot claim protection from eviction under section 51a
In our judgment the argument is wholly misconceived
Protection is conferred in terms by section 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land
It is not necessary in this case to consider whether by virtue of the definition of tenant in section 3g of the Act which includes a person who derives his title from a tenant a sub tenant of the land is entitled to protection of section 51a
In the present case the tenant of the land has claimed protection
By merely letting the premises constructed on the land obtained by him on lease the tenant does not cease to be in possession of the land
The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined
Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes when it is let out
We therefore agree with the view taken by Sinha C J that the protection of section 51a extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute
The appeal is therefore allowed and the decree passed by the High Court vacated and the plaintiffs  suit dismissed
The appellants who are the representatives of the tenant will be entitled to their costs in this Court
There will be no order as to costs in the High Court
Appeal allowed


Summary:
Certain structures for residential and business purposes were raised by a tenant of land in the term of Silchar in Assam
The landlord secured a decree for ejectment against the tenant
During the pendency of the appeal the Non Agricultural Urban Areas Tenancy Act Assam Act 12 of 1955 was brought into force
The tenant claimed protection from eviction under section
The Subordinate Judge held that the tenant had acquired units section 51 a of the Act the right of a permanent tenant since he had constructed within the pres cribed period structures for residential or business purposes
He accordingly dismissed the suit
The High Court in further appeal held that the protection under section 51a was not available to the tenant since he had let out to tenants the buildings constructed on the land
The tenant by special leave appealed to this Court
HELDi The section merely requires that the permanent structure must be one adapted for residential or business purposes
If the structure is not adapted to such purposes
the protection of section 5 1 a will not be available
To read the expression permanent structure on the land of the tenancy for residential or business purposes as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section
116 H
ii Protection is conferred in terms by section 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land
By letting out the structures the tenant of land does not lose the protection given by the statute
117 C