Case: V. Dhanapal Chettiar Vs. Yesodai Ammal

2. The respondent filed an application against the appellant under Section 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Control) Act, 1960, hereinafter referred to as the Tamil Nadu Rent Act, on the ground of personal necessity. The Rent Controller held that the requirement of the respondent was not genuine and he accordingly dismissed her petition. On appeal by the landlady the Appellate Court held in her favour on the point of her requiring the premises bona fide for her personal necessity but maintained the dismissal of her application on the ground that a notice to quit was necessary and the one given by her was not in accordance with law. The landlady took up the matter in revision to the Madras High Court. A learned Single Judge of that Court following his earlier decision in K. Sukumaran Nair etc. etc. v. S Neelakantan Nair by constituted attorney P. Raman Nair etc. etc. (1) held that notice to quit under Section 106 of the Transfer of Property Act was not necessary for seeking an eviction of a tenant under the Tamil Nadu Rent Act. Hence this appeal by the tenant.

Reasoning: A lease of immovable property determines under clausethe expiration of a notice to determine the lease, or to quit, or of intention to quit, the property lease, duly given by one party to theis this clause, which brings into operation the requirement of Section 106 of the Transfer of Property Act. Without adverting to the effect and the details of waiver of forfeiture, waiver of notice to quit, relief against forfeiture for non-payment of rent etc. as provided for in Section 112 to 114A of the Transfer of Property Act, suffice it to say that under the said Act on ground of eviction of a tenant has to be made out once a contractual tenancy is put to an end by service of a valid notice under Section 106 of the Transfer of Property Act. Until and unless the lease is determined, the lease is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of Section 111, a notice to determine it under Section 106 wasthe State Rent Act requires the giving of a particular type notice in order to get a particular kind of relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to land additional support to his case, to give a notice to his tenant intimating that the intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of Section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tentamount to an expression of his intention that he does not want the tenant to continue as his leasee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the wordunder the various State Rent Act, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the Transfer of Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That laid to the criticism of that expression in some of the decision. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc. in accordance with the law.It is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon? In Bhaiyacase, if we may say so with very great respect, the principle of law laid down by this Court in Rai Brijcase (supra) and by the Punjab High Court in Hemcase was wrongly distinguished. After quoting the passage from the former it was said at pagethe present case, Section 12 of the Act is differently worded and cannot, therefore, be said to be a complete Code in itself. There is nothing in it which overrides the provisions of the Transfer of Propertydifference in the wordings of Section 11 of the Bihar Act and section 12 of the Bombay Act does not justify the conclusion that the provisions of the Transfer of Property Act have not been overridden by Section 12 of the Bombay Act reading it with Section 13, etc. This was the ground given for distinguishing Hemcase also by erroneously pointing out the distinction between Section 13(1) of the Delhi and Ajmer Merwara Rent Control Act, 1952 and the Bombay Act. In our considered judgment Bhaiyacase was not correctlyour opinion the majority decision with regard to Section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that Section 4 was not available to the landlord. It should be remembered, as we have said shows, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Some encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the Legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker Section of the society. As for example a widom or minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal disturbances or spread of epidemics. A man in possession of his house may go to another town letting out his premises to a tenant financially strong and of strong serves at a rate comparatively much lower than the prevailing market rates. Later on, on the normalisation of the situation as against the agreed rate of rent he approaches the Building Controller for fixing a fair rent in accordance with a particular State Rent Act. Why should she or he be debarred from doing so. The statute gives him the protection and enables the Controller to intervene to fix a fair rent as against the term of contract between the parties. In a large number of cases it is tenant who gets this protection. But in some as in the case of Raval the landlord needs and gets the protection. But this is not a direct authority on the point ofa careful consideration and approach of the matter in the instant case we think that we cannot approve of the view expressed in the passage extracted above. In Ratan Lal v. Vardesh Chander & Ors. Krishna Iyer J. delivered the judgment on behalf of a Bench of this Court consisting of himself Chandrachud J. as he then was and Gupta J. The case related to a building in Delhi. The Court was concerned with clause (g) of Section 111 of the Transfer of Property Act. Tracing the history of the legislation it was pointed out by the Court at page 918 that the requirement as to written notice provided in Section 111(g) cannot be said to be based on any general rule of equity and ,therefore, forfeiture of lease brought about terms of Section 111(g) of the Transfer of Property Act not by notice but on the application of justice, equity and good conscience was held to be good determination of the lease, quoting fromcase it was said at pageare inclined to hold that the landlord in the present case cannot secure an order for eviction without first establishing that he has validly determined the lease under T.P.this dual requirement? Even if the lease is determined by a forfeitures under the Transfer of Property Act the tenant continues to be a tenant, that is to say,is no forfeitures in the eyes of law. The tenant becomes liable to be evicted and forfeitures comes into play only if he had incurred the liability to be evicted under the State Rent Act, not otherwise. In many State Statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the Transfer of Property Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Rajcase comes into play and one had to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us, has been streched too far and without a proper and due consideration of all its ramifications.19. Beg J., as he then was, speaking for the Court in the case of Puwada Venkateswara Rao. v. Chidamana vnkata Ramana30 had to deal with the question as to whether a notice to quit was necessary for seeking an order for eviction under the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960. The Andhra Pradesh High Court had relied upon the decision of that Court in Ulligamma & Ors. v. S. Mohan Rao & Ors. for taking the view that a notice under Section 106 of the Transfer of Property Act was not necessary. Gopal Rao Ekbota J., delivering the judgment on behalf of a Bench of the Andhra Pradesh High Court incase reviewed several decisions of the High Courts and this Court and considered the special provisions of the Andhra Pradesh Rent Act. The view expressed by him that no notice was necessary under Section 106 of the Transfer of Property Act was approved by this Court. We find no justification for saying that because of some special provisions contained in the Andhra Act a different view was possible to be taken. This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform law for all the States. Section 10(1) of the Andhra Pradesh Act provided that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13. A special provision in the Andhra Act was contained in Section 10(7) whichan application under Sub-section (2) or Sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provision of this Act, be deemed to continue on the same terms and conditions as before and shall not be terminable by the landlord except on one or more of the grounds mentioned in Sub-section (2) or Sub-sectionspecial provision is provided by way of abundant presumption, only. Even without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him continues on the same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Rent Act. The said provision by itself did not justify a departure from the view expressed by the Court incase. Beg J., followed the decision of this Court incase and of the Punjab High Court in Hemcase. For the reasons stated by us, we approve of his view not on the ground that the Andhra Pradesh State Act is a different one but because in respect of any State Act that is the correct view to take.If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.22. For the reasons stated above we held that the High Court was right in its view that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the landlady-respondent to get an order of the eviction against the tenant-appellant. But we were told by learned Counsel for the appellant that he had come more points to urge before the High Court to challenge the order of eviction. We do not find from the judgment of the High Court that the appellant was prevented from supporting the orders of the courts below in his favour by urging any other point. No point of substance could be indicated before us which was worth consideration after a clear and definite finding by the Appellate Court that the respondent required the premises bona fide for a personal necessity. We do not think it advisable to delay the proceeding any further and send back the case to the High Court on this account. We accordingly dismiss the appeal but in the circumstances direct the parties to bear their own costs. Lastly our attention was drawn to the decision of this Court in firm Sardarilal Vishwanath and Ors. v. Pritam Singh32 The lease in that case had come to an end by efflux of time. A tenant continued in possession and become a so-called statutory tenant. The argument put forward before this Court that a fresh notice under Section 106 of the Transfer of Property Act was necessary was rejected on theexamined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of Urban immoveable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under Section 106 of the Transfer of Property Act. But it is equally clear as provided by Section 111 of the Transfer of Property Act that the lease of immoveable property determines by various modes therein prescribed. Now, if the lease of immovable property determining in any one of the modes prescribed under Section 111 the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re-entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lessee had expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under Section 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by the fresh notice.f we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a preceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite incorrect because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even Othereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of notice in accordance with Section 106 of the Transfer of Property Act.case (supra) the question for consideration was whether Section 4 of the Tamil Nadu Rent Act providing for an application for fixation of fair rent was available both to the tenant and the landlord. The majority speaking though Alagiriswami J. took the view that it was so. A contrary view was expressed by Bhagwati J. speaking for the minority. While discussing this question the relevant passage from the decision of this Court in Rai Brijcase quoted at page 634 and reference was made to the decision of the Punjab High Court in Hemcase. Thereafter the observation of this Court in Bhaiyato the effect thatActs 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 now rights of action but restricting rights either under the contract or under the generalwere held not to apply to all Rent Acts irrespective of the scheme of those Acts and their provisions. This observation given by with reference to the dictum of this Court in Bhaiyacase concerned with the question of notice under Section 106. It enabled certain High Courts to make a firm departure and take the view with reference to the scheme of their respective State Acts to say that a notice was not necessary. This happened in Madras, Andhra Pradesh, Kerala, Karnataka and Punjab & Haryana. Alagiriswami J. at page 635 after having made that observation with reference to Bhaiyathat as it may, we are now concerned with the question of fixation of a fair