Indian Iron & Steel Co. Ltd. Vs.
Biswanath Sonar  INSC 80 (22 March 1966)
22/03/1966 HIDAYATULLAH, M.
CITATION: 1967 AIR 77 1966 SCR (1) 15
Bengal Non-Agricultural Tenancy Act, s.
9(1)(iii)-Benefit under section whether available in case of monthly tenancyTerm'
in section whether means agreed term or period of occupation.
The appellant company gave on lease a piece
of land to the respondent in 1938. On June 28, 1950 the company gave notice to the respondent terminating the tenancy. The period mentioned in the notice,
which was received by the respondent on June 29, 1950 was six months ending with the expiry of December 1950. Later the company filed a suit for the eviction of
the respondent. The latter claimed benefit of s. 9(1) (iii) of the Bengal
Non-Agricultural Tenancy Act.
The trial court decreed the suit and the
first appellate Court upheld the decree, but the High Court set it aside and
dismissed the suit. By special leave, the company appealed to this Court
contending that since the respondent's tenancy was from month to month s. 9 (1)
(iii) did not apply. It was urged: (i) the phrase "for a term of more than
one year but less than twelve years" in the first part of the section contemplated
tenancies in which the agreed duration under a contract was more than one year
but less than 12 years; (ii) the phrase "six months' notice expiring with
the end of a year of the tenancy" in the latter part of the section meant
that the notice in writing must expire with the end of the year of the tenancy
when the tenancy was from year to year and with the end of the term when it was
more than one year's duration.
HELD:(i) The Act uses the word
"term" both in the sense of a period of occupation and of a period
agreed, upon in a contract. The context must determine the sense in which it is
to be understood. In the opening words of s. 9(1) (iii) it means that the land
must be held, that is, occupied, for more than one year. It does not signify
that there should be an agreed term of more than one year. [18 C-D; 19C; 20E]
(ii) The words "end of a year of tenancy" in the latter part of s.
9(1) (iii) are no doubt indicative of a tenancy from year to year but they are
not such as to be 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. [20 F-H].
(iii) The tenancy having commenced as held by
the High Court on December 1, 1938 the notice given by the company in the
present case fell short of the statutory six months and was therefore in valid.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1090 of 1963.
Appeal by special leave from the judgment and
decree dated June 2, 1961 of the Calcutta High Court in Appeal from Appellate
Decree No. 786 of 1956.
M. C. Setalvad and D. N. Mukherjee, for the
A. K. Sen and P. K. Chatterjee, for the
16 The Judgment of the Court was delivered by
Hidyatulla, J. 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 & 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 courts 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 NonAgricuItural 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 dec. reed 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(1) 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 dated 25-1-1955) and Narayan Chandra Sen v. Sripati Charan Kumar (S.A.
No. 425 of 1952 dated 9-8-1955).
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.
In this appeal two questions arise, namely,
(i) whether the provisions of s. 9(1)(iii) of the Non-Agricultural Tenancy Act
apply to the present tenancy, and (ii) whether the notice served upon the
respondent compiled with the terms of the Act. In so far as the A.I.B. 1961
17 first question is concerned no further
facts are necessary.
This question should have given no difficulty
but for the fact that the language of the enactment is far from clear.
Section 9(1)(iii) reads as follows:
"9. Incidents of non-agricultural
tenancies held for less than twelve years.
(1) Notwithstanding anything contained in any
other law for the time being in force or in any contract, if any
non-agricultural land has been held for a term of more than one year but less
than twelve years(a) under a lease in writing for a term of more than one year
but less than twelve years to which the provisions of clause (5) of section 7
do not apply, or (b) without a lease in writing, or (c) under a lease in
writing but no term is specified in such lease, then the tenant holding such
non-agricultural land shall be liable to ejectment on one or more of the
following grounds and not otherwise, namely:
(i) (ii) (iii) on the ground that the tenancy
has been terminated by the landlord by six months" notice in writing
expiring with the end of a year of the tenancy served on the tenant in the
prescribed manner in clause (b):
Provided that a tenant shall not be liable to
ejectment on the ground specified in clause (iii) except on payment of such
reasonable compensation as may be agreed upon between the landlord and the
tenant or if they do not agree, as may be determined by the Court on the
application of the laodlord or such tenant.
. . . . .
. . . . .
Difficulties arise in connection with two
expressions in this section. Firstly what is meant by the phrase "for a
term of more than one year but less than twelve years" in the opening
part, and, secondly, what is meant by the phrase "six months' notice in
writing expiring with the end of the year of the tenancy" The appellant
contends that the first phrase contemplates tenancies in which the agreed
duration under a contract is more than one year but less than 12 years and the
second phrase means that the notice in writing must expire with the end of the
year of the tenancy when the tenancy is 18 from year to year and with the end
of the term when, it is more than one year's duration. The respondent contends
that the two phrases respectively describe the duration for which
non-agricultural land must actually be held and that the notice of six months
must end on the anniversary of the commencement of the tenancy. The appellant's
contention, shortly stated, is that a monthly tenancy cannot get the benefit of
s. 9(1)(iii) however long the occupation of the land. Both sides agree that
this is non-agricultural land and that the tenancy is from month to month. It
has also been found that it is a monthly tenancy. If the provisions of s.
9(1)(iii) apply also to a monthly tenant who has been in possession of land for
more than a year, then the respondent will be protected from eviction,
This depends on what is meant by the two
phrases we have referred to earlier.
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
The Act was passed to make comprehensive
provisions relating to the law of landlord and tenant in respect of nonagricultural
tenancies in West Bengal and is a part of protection given in modern times by
law to tenancies of various kinds of which the Rent Control Acts and Acts
relating to agricultural tenancies represent some other aspects. After defining
the terms such as 'land', 'nonagricultural land' and 'non-agricultural tenants'
(to which definition pointed reference here is unnecessary), the Act classifies
non-agricultural tenants into tenants and undertenants, and then it makes
separate provisions for their protection. The Third Chapter (ss. 6 to 15)
provides for tenants and the Fourth Chapter for under-tenants. The remaining
Chapters providing for the manner of transfer of non-agricultural tenancies',
preparation of records of rights, settlement, rents, etc. do not presently
We shall, therefore, confine our attention to
the chapter on tenants. Section 6 lays down the manner of use of nonagricultural
lands. It states generally that the tenant may use land in any manner not
inconsistent with the purpose of the tenancy but so as not to impair its value.
The section goes on to state that the tenants to whom ss, 7 and 8 apply may
erect any structure including a pucca structure, dig any tank, plant and enjoy
the flowers and fruits and fell and utilise or dispose of timber of any tree on
such land, but the tenants to whom 19 s. 9 applies may only erect structures
other than pucca structures and may not dig tank, or fell, utilise or dispose
of, trees not planted by :them. Sections 7, 8 and 9 lay down the incidents of
two different kinds of tenancies:
(a) those held for a term of not less than 12
,years and (b) those held for a term of less than 12 years but more than one
year and the question which we have stated earlier is whether by the word
"term" is meant the duration of the least agreed upon or merely the
period of occupation of the non-agricultural land.
A close study of the Act shows that the word
"term" is used in both senses and the context must determine in which
sense it is to be understood. We need not reproduce here all the sections or
clauses in which the word "term" is used in one sense or the other
because sub-sections (3) and (4) of s. 7 between them illustrate adequately
this two-fold meaning.
We may reproduce them here:
"7. Incidents of certain tenancies.
Notwithstanding anything contained in any
other law for the time being in force or in any contract (1) . . . .
(2) . . . .
(3) If any non-agricultural land has been
held for a term of not less than twelve years under a lease in writing but no
term is specified in such lease, or (4) if any non-agricultural land held under
a lease in writing for a period specified therein continues to be held with the
express or implied consent of the landlord after the expiration of the time
limited by such lease and the total period for which such land is so held is
not less than twelve years, or (5) . . . .
then(i) the tenant holding the
non-agricultural comprised in such tenancy shall not be eject.
ed by his landlord from such land except on
the ground that he has used such land, in a manner which renders it unfit for
use for the purposes of tenancy, (ii) the interest of the tenant in the nonagricultural
land comprised in such tenancy shall, in the case where such tenant dies
intestate in respect of such interest. be transmitted by inheritance in the same
manner as his other immovable property:
. . . . ." 20 A bare 'perusal of these
enactments 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).
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 8 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 tenan 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 lease.
21 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
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
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. In fact, 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 months. It was, therefore, quite
ineffective and the High Court was right in holding that it was invalid
although our reasons are different.
The appeal has thus no force. If fails and
will be dismissed with costs.