Case: Jivabhai Purshottam Vs. Chhagan Karson And Others

force. The appellant further contends that the right to terminate a tenancy having arisen when the notice was given, the law to be applied, in case of notices given before the Amending Act came into force, would be the law existing on the date of notice.4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate the tenancy.7. Learned counsel for the appellant has drawn our attention in this connection to Jibankrishna v. Abdul Kader, ILR 60 Cal 1037 : (AIR 1933 Cal 435 ) (SB). In that case, the Bengal Tenancy Act was amended and the amendment provided that a tenant would be liable to ejectment on one years notice by the landlord. The earlier law provided for a notice of ejectment but did not provide that the notice should be for one year; it provided no period of notice, whatsoever and it was sufficient under it to give notice expiring with the end of an agricultural year in order to effect ejectment, howsoever short might be the period of notice. The question, therefore, arose whether the amendment applied to notices given under the old law, and the Calcutta High Court held that it did not. The circumstances under which that decision was given are entirely different from the circumstances of the present case. In that case the contents of notice were changed; while formerly what was required was a notice without any particular period, the amendment required a notice of one year. There was no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.

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

Explanation:
0[ds]4. We are of opinion that there is no force in this contention. If we look at the words of sub-s. (2-A), it provides certain conditions subject to which the right to terminate the tenancy shall be exercised. It may be that S. 34(1) requires one years notice in order to exercise this right to terminate, but sub-s. (2-A) imposes restrictions on the landlords right to terminate the tenancy and does not speak of any notice at all. Therefore, when we have to look to the application of sub-sec. (2-A) it is the date on which the tenancy terminates which determines its application. The restriction by sub-sec. (2-A) is on the right to terminate the tenancy and this restriction would come into play on the day on which the landlords right to terminate the tenancy is perfected, namely, the day, on which the tenancy actually terminates in consequence of the notice given to terminate it. A notice under S. 34(1) is merely a declaration to the tenant of the intention of the landlord to terminate the tenancy; but it is always open to the landlord not to carry out his intention. Therefore, for the application of the restriction under sub-sec. (2-A) on the right of the landlord to terminate the tenancy, the crucial date is not the date of notice but the date on which the right to terminate matures, that is, the date on which the tenancy stands terminated. It is on that date that the court has to enforce the right of the landlord arising out of the notice of termination and, therefore, the court has to see whether the termination is in accordance with the restrictions imposed by sub-sec. (2-A) on the date the right is to be enforced.5. Nor are we impressed by the argument that by applying sub-sec. (2-A) to notices issued before the Amending Act came into force we would be taking away the vested right of the landlord. As we have already pointed out, the notice under S. 34(1) is merely a declaration to the tenant of the landlords intention to terminate the tenancy and no further proceedings may be taken by the landlord in consequence thereof. It is only when the period of notice has expired and the tenancy has terminated that the landlord acquires a vested right to obtain possession of the land. Therefore, the Amending Act did not affect any vested right of the landlords till the tenancy actually stood terminated after the expiry of the notice. Consequently, the provisions of the Amending Act which came into force before the tenancy stood terminated by the notice will have to be taken into consideration in determining the right of the landlord in the matter of the termination of tenancy, for the Amending Act put certain fetters on this right of termination. In the circumstances, we are of opinion that the view taken by the High Court is correct and sub-s. (2-A) would apply to all cases where notices might have been given but where the tenancy had not actually terminated before the coming into force of he Amending Act.6. This view, which appears to us to be plain enough on the words of sub-sec. (2-A), is further enforced by another consideration, even if there is any doubt as to the meaning of sub-sec. (2-A).That consideration is that the Amending Act is a piece of beneficent legislation meant for the protection of tenants. Therefore, if there is any doubt about the meaning of sub-s. (2-A) that doubt should be resolved in favour of the tenant for whose benefit the Amending Act was passed. In this view it is obvious that the legislature could not have intended that the benefit of this beneficent measure should not be extended to tenants in whose cases the tenancy had not yet terminated, though notices had been given, when the further restrictions were being put on the right to terminate thewas no provision in the Amending Act making notices which were in accordance with previous law ineffective. In these circumstances the Calcutta High Court was right in holding that the amendment did not affect notices already given. No such question, however, arises in the present case. The period of notice is the same before and after the amendment in the present case, and what we have to see is whether the crucial date for the application of the new sub-sec. (2-A) is the date of the notice or the date of the termination of the tenancy. We have already held that that date must be the date of the termination of the tenancy.