Case: Manjusree Chakraborty &amp; Other Vs. M/s. M. Ahmed Bhuyan &amp; Co. &amp; Another

Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of non-payment of past rent.9. The question to be determined is, whether the respondent-tenant, factually tendered arrears of rent, from the date due. Having accepted the date of receipt of the demand notice, namely, 17.08.2000, as the date when the rent became due and payable, the same had to be tendered within a fortnight thereof. It is the case of the respondent-tenant, that the same was factually and actually tendered within a fortnight, contemplated under Section 5(1)(e), but the personal tender made by the respondent-tenant, was not accepted by the landlord. It is in the aforesaid circumstances, that the arrears of rent came to be deposited before the trial court on 1.9.2000.10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by the respondent-tenant on 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by the appellant-landlord for non-payment of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.11. Despite our aforesaid conclusion, learned counsel for the respondent-tenant placed reliance on Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (hereinafter referred to as the "1955 Act"), to contend, that the respondent-tenant was a protected tenant, and was not liable to be evicted under the provisions of 1972 Act. Section 5 relied upon by the learned counsel is extracted hereunder :"Section 5 - Protection from eviction(1) Notwithstanding 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 build 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:["Provided that where the tenant having built a permanent structure within the period specified above and for any of the purposes mentioned therein, renews the tenancy on expiration of the original contract he shall always be deemed to have built such permanent structure within the period of five years from the date of the renewed Contract :Provided further that a person having a right, title and interest over a permanent structure by whatever mode of acquisition he may have taken the tenancy from the landlord of the land wherein the said structure stand, shall not be ejected except on the ground of non-payment of rent"] (Added "proviso" in Section 5, by the Assam Act No. XVI of 1968 Section 2 (with effect from 22-6-1968) (Published in the Assam Gazette (Extraordinary), dated 22nd June, 1968).(b) where a tenant has effected improvements on the land of the tenancy under the terms whereof he is not entitled to effect such improvements, the tenant shall not be ejected by the landlord from the land of the tenancy unless compensation for reasonable improvements has been paid to the tenant.(2) No tenant shall be ejected by his landlord from the land of the tenancy except in execution of a decree for ejectment passed by a competent Civil Court.(3) No decree for ejectment passed on the ground of non-payment of rent shall be executed within a period of thirty days from the date of the decree and if the tenant pays into the Court whose duty it is to execute the decree the entire amount payable under the decree within the aforesaid period, the Court shall record the decree as satisfied."12. It is not possible for us to accept the contention, that the respondent-tenant was a protected tenant, with reference to a claim for ejectment on account of non-payment of rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account of non-payment of rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for the respondent-tenant based on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant.

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

Explanation:
1[ds]7. The clear position emerging from the pleadings of the rival parties was, that the rent was payable and became due at the end of the month. It is also the accepted position, that rent was never tendered by thefrom month to month. Rent was paid to theas and when demanded. It is not necessary for us to deal with the oral demands, allegedly made by thein the month of August, 2000 (which pertained to arrears with effect from August, 1999). The only relevant consideration in our considered view is, the issuance of the demand notice on 12.8.2000 (which was served on theon 17.8.2000). Since arrears of rent were payable, with reference to at least the twelve preceding months, which obviously became due at the end of every such month, yet in view of the practise acknowledged between the parties, it has to be accepted, that the same would be due on such demand being raised by theThe aforesaid demand, undoubtedly, must be accepted to have been raised through the demand notice dated 12.8.2000. And the said demand, must be deemed to have become known to theon 17.8.2000 (the date when the notice was served).8. In terms of the provisions of Section 5 of the 1972 Act (extracted herein above), we are satisfied to conclude, that the rent became due and payable, when the aforesaid demand notice, came to be served on theInsofar, as the above inference is concerned, we find nothing to the contrary depicted even in the written statement filed on behalf of theIn response to the averments made on behalf of the landlord (in the suit preferred by him), it was acknowledged, that the tenancy was a monthly tenancy. In paragraph 13 of the written statement (extracted in the earlier part of this order) it stands acknowledged, that the rent became due as per the Bengali Calendar, at the end of the month. In our considered view, it makes little difference, whether the rent became due at the end of the Bengali calender month, or the English calender month because from August 1999 to August 2000, rent became due at the end of each one of the 12 intervening months. And as per the demand notice, last of all when the demand notice was served (on 17.8.2000). In view of the clear depiction in Section 5(1)(e), wherein, from the date due, arrears of rent are to be tendered within a fortnight. That alone, will save a tenant from eviction on the ground of10. The situation where rent tendered by the tenant is not accepted by the landlord, is governed by Section 5(4) of the 1972 Act. By virtue of the liberty available to a tenant under Section 5(4) of the 1972 Act, the period of deposit of arrears of rent, with the concerned Court is also a fortnight from the date when the rent had became due. Since we have already concluded herein above, that the rent had became due and payable on 17.8.2000, we are of the view, that the period of a fortnight to make a deposit of arrears of rent in a Court, would expire on 31.8.2000. The deposit made by theon 1.9.2000 was, therefore, clearly beyond the period contemplated under Section 5(4) of the 1972 Act. It is therefore apparent, that the claim raised by thent of arrears of rent was liable to be accepted, as the arrears were not deposited within the postulated time.It is not possible for us to accept the contention, that thewas a protected tenant, with reference to a claim for ejectment on account ofof rent. The instant conclusion of ours, is drawn from the second proviso to Section 5(1)(a) of the 1955 Act, which excludes the applicability thereof, when the same emerges on account ofof rent. It is therefore, not possible for us to accept the submission canvassed at the hands of the learned counsel for thebased on Section 5 of the 1955 Act. We would have even otherwise not permitted the respondent to raise and canvass, any such claim as has been raised before us for the first time under the 1955 Act, for the simple reason, that it was never the case of the tenant, that he was a protected tenant.