Case: Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury &amp; Ors

Bhushan (1949) 53 Cal WN 859). In Monmatha Nath v. Banarasi. (1959) 63 Cal WN 824 at p. 831 the High Court at Calcutta while dealing with the present Act held that in matters not dealt with by the Act it would 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, AIR 1949 Mad 780 where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) 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 Abasbhais Case, AIR 1964 SC 1341 and Mangilals Case, AIR 1965 SC 101 (Supra) and therefore is not correct law. 6. 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 Section106 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 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 was that of a trespasser and therefore there was that 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 lessor at a valuation to be fixed by the lessors 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 then 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 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. 7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary 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 the grounds 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. 8. 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 i question.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Though Section 26 was deleted by the Amendment Act 1953 the deletion would 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 Section 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 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 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 himTherefore, 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 landlords 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 irremovability, 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 evictedIt 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, AIR 1949 Mad 780   where it was held that Section 7 of the Madras Buildings (Lease and Rent Contro1) 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 Abasbhais Case, AIR 1964 SC 1341   and Mangilals Case, AIR 1965 SC 101   (Supra) and therefore is not correct lawAs 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 lessor at a valuation to be fixed by the lessors 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 then 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 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 respondents7. To summarise the position: The Thika Tenancy Act does not confer any additional rights on a landlord but on the contrary 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 the grounds 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 succeed8. 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 i question.