Case: Indian Iron &amp; Steel Co. Ltd Vs. Biswanath Sonar

1. This appeal by special leave against the judgment and order of the High Court of Calcutta. December 5, 1961, arises from a suit between landlord and tenant. The Indian Iron and Steel Co. Ltd. (appellant) is the landlord and Biswanath Sonar (respondent) is the tenant and the tenancy is in respect of a piece of land with a rent of Rs. 4 per month. According to the Company the tenancy commenced in December 1938 and according to the tenant in the beginning of 1935. The two court of fact have found in favour of the Company on this point and the High Court has very properly accepted this concurrent finding but has held that tenancy began on the 1st of December, 1938, but more of that later. The suit was commenced in the Court of the Munsif at Asansol by the Company after serving a notice dated June 28, 1950, terminating the alleged monthly tenancy of the respondent with the expiry of December 1950. The notice was served on June 29, 1950. The Company asked for the relief of khas possession by evicting the tenant and reserved the relief of compensation for wrongful occupation after January 1, 1951, for a separate suit. The Company offered to pay such reasonable compensation for structures on the land as the court might determine. The respondent claimed benefit of S. 9 (1) (iii) of the Bengal Non Agricultural Tenancy Act under which, he submitted, his tenancy could not be determined except by service of six months notice in writing expiring with the year of tenancy. He contended that the notice served on the 29th of June terminating the tenancy at the end of December 1950, was not in accordance with the provisions of the Act as the tenancy commenced in the beginning of 1935, and therefore the suit was not maintainable. The learned Munsif held the notice to be proper and decreed the suit. On appeal the Additional District Judge, Asansol confirmed the decree passed by the Munsif. On second appeal a learned single Judge in the High Court reversed the decision of the two courts below and ordered the dismissal of the suit. He followed a decision of a Special Bench of his Court reported in the Indian Iron and Steel Co. Ltd. v. Baker Ali, AIR 1961 Cal 515  (SB) which had approved of two unreported decisions of the same Court reported in Sudhindra Nath Roy v. Haran Chandra Mistry, (S. A. No. 879 of 1950, D/- 25-1-1955 (Cal), and Narayan Chandra Sen v. Sripati Charan Kumar, (S. A. No. 425 of 1952, D/- 9-8-1955 (Cal). The learned single Judge refused leave to file an appeal under the Letters Patent but the appellant was granted special leave by this Court to appeal against the judgment of the learned single Judge.

Reasoning: 6. A bare perusal of these enactment is sufficient to show that the word "term" used for the first time in (3) indicates that the period of occupation must not be less than 12 years. It cannot-mean an agreed period because the latter part says that this applies where "no term" is specified in the lease and in this part the word "term" must obviously mean an agreed period. (4) shows that if land is held beyond the period specified in the lease in writing and if the total period then becomes not less than 12 years, the protection is again obtained. The word "term" thus may indicate a period specified in a lease or a period of occupation according as the context requires. This diversity of meaning is also illustrated by Ss. 7 (2), 8 (1) and 8 (3)7. We now come to S. 9 which we have already quoted. It begins by excluding any other law or contract of lease from consideration and speaks in the opening part of land held for a term of more than one year but not less than twelve years thereby distinguishing between tenancies on the basis of the length of occupation. As the marginal note says, the section deals with tenancies held for less than twelve years. Clauses (a), (b) and (c) also establish the above meaning because (a) applies to leases in writing for a term of more than one year but less than twelve years, (b) refers to cases in which the occupation is without a lease in writing and (c) refers to cases in which there is a lease in writing but no term is specified. In those cases in which there is no written lease or in which no term is specified in the lease in writing, the opening portion must obviously mean that the land must be held, that is, occupied for more than one year. The difference between Ss 7 and on the one hand and S. 9 on the other lies in the kind of protection afforded. A tenant who has held the land under lease for more than 12 years cannot be ejected at all unless he has used such land in a manner which renders it unfit for use for the purpose of the tenancy, and his interest becomes heritable, transferable and devisable like any other immovable property. A tenant who has held land in occupation for less than 12 years but more than one year can only be ejected by a notice of six months expiring with the end of a year of the tenancy. It is argued that the words "end of a year of tenancy" are inappropriate where the tenancy is from month to month because there is no year of tenancy. Those words no doubt are indicative of a tenancy from year to year but they are not such as to be altogether inapplicable to a tenancy from month to month. What the section contemplates is occupation for more than one year and it says that a tenant who has held the land for more than a year albeit on a tenancy from month to month, shall only be evicted on the anniversary of the day on which his tenancy commences. Where the tenancy is from month to month, "year" means a period of twelve months and the tenant may only be required to quit at the expiry of the whole year that is to say. on the anniversary of the commencement of the lease8. It is argued that this would have the effect of converting the tenancy from month to month into a tenancy from year to year. This is perhaps true. In the matter of certain rights of the tenants, particularly in the matter of termination of their tenancy by notice, it appears that this legislation intends to bring even a monthly tenant, who has occupied land for more than a year, within the protection of six months notice before he is evicted. A different protection is given to a tenant who occupies land for 12 years and in that case he cannot be evicted even by notice unless he uses the land in a manner which renders it unfit for the purposes of the tenancy or his other property goes to Government and his interest in the land is extinguished9. Section 9 (1) (iii) was interpreted in much the same way in the three decisions of the High Court of Calcutta above referred to and in our judgment those cases took the right view of the matter. The Company itself served a notice in June expiring with the end of the year alleging that the tenancy had commenced in December 1938 indicating quite plainly that it also considered that a notice of 15 days expiring with the end of the month of the tenancy would not be sufficient. In its view also the notice to be a valid notice had to be of six months expiring with the end of the year of tenancy. Therefore, the notice was despatched on the 28th of June, 1950 and was served on the following day. It asked the tenant to quit at the end of December, 1950. The High Court held that the tenancy must be deemed to have commenced on December 1, 1938 and the notice fell short of six months. Intact, the notice would fall short of the necessary period unless the tenancy had commenced on a date between the 29th and 31st December, 1938. There is no proof when the tenancy really commenced and the Company has not cared to give evidence on this part of the case. Even if we reject the finding of the High Court that the tenancy commenced on the 1st of December, we are not in a position to say that it commenced on any particular date. We are, however, relieved of the trouble to make the effort because the account books of the Company show that the tenant was on the land even in November and had paid rent. In view of this and in view of the construction we have placed on S. 9 (1) (iii) it is quite plain that the notice must fall short of the statutory six mouths. It was therefore, quite ineffective and the High Court was right in holding that it was invalid although our reasons are different3. The construction of the first phrase is rendered difficult because the Act does not use the words strictly in the same sense throughout. Sometimes the word "term" is used to indicate a period of time without any reference to a contract determining it and sometimes to a period settled, agreed or determined by a contract. In S. 9 (1) (iii) the word "term" is used and the question arises whether it indicates a period of occupation or a period agreed upon in a contract. To determine the right meaning we shall first analyse the provisions of the Act generally and then consider what is the true meaning of the two expressions in S. 9 on which there has been a difference of opinion between the High Court and the two courts below.