Ganga Dutt Murarka Vs. Kartik Chandra
Das & Ors [1961] INSC 46 (10 February 1961)
SHAH, J.C.
KAPUR, J.L.
HIDAYATULLAH, M.
CITATION: 1961 AIR 1067 1961 SCR (3) 813
CITATOR INFO :
RF 1969 SC1187 (8) R 1972 SC 819 (7,8,12) RF
1975 SC1111 (12) RF 1977 SC2262 (11) RF 1978 SC1518 (6,7,13)
ACT:
Tenant, Eviction of-Determination of lease by
efflux of time-Tenant continuing in Possession on Payment of rent fixed by rent
control Acts-Landlord accepting the same-New tenancy, if created-Transfer of
Property Act, 1882 (4 of 1882), ss. 106, 116.
HEADNOTE:
The appellant was a contractual tenant of
certain premises in the town of Calcutta of which the respondents were the
owners. The respondents called upon the appellant to vacate and deliver
possession of the premises on the expiration of the period of tenancy but
possession was not delivered and the respondents were unable to obtain
possession in view of the protection afforded to the tenants by the successive
rent control Acts passed by the State. In the meantime the 814 appellant
continued to pay every month amounts equal to the contractual rent, and later
the rent declared to be the statutory rent and the respondent accepted the
same. The question arising for decision was whether the acceptance of the
amounts by the respondents conferred upon the appellant the right of a tenant
holding over within the meaning of s. 116 of the Transfer of Property Act.
Held, that where a contractual tenancy to
which the rent control legislation applied, had expired by efflux of time or by
determination by notice to quit and the tenant continued in possession of the
premises, acceptance of rent from the tenant by the landlord after the
expiration or determination of the contractual tenancy will not afford ground
for holding that the landlord had assented to a new contractual tenancy.
Kai Khushroo v. Bai Jerbai [1949] F.C.R. 262,
followed.
Acceptance by the landlord from the tenant of
amounts equivalent to rent after the contractual tenancy had expired or amounts
which were fixed as standard rent did not amount to acceptance of rent from a
lessee within the meaning of s. 116 of the Transfer of Property Act.
Occupation of the appellant after the
determination of tenancy was not in pursuance of any contract express or
implied but was by virtue of protection granted by the successive statutes and
such occupation was not required to be determined in the manner prescribed by
s. 106 of the Transfer of Property Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 82 of 1957.
Appeal from the judgment and decree dated
April 4, 1955, of the Calcutta High Court in Appeal from Appellate Decree No. 1224
of 1953.
G. S. Pathak and D. N. Mukherjee, for the
appellant.
H. N. Sanyal, Additional Solicitor-General of
India and P. K. Chatterjee, for the respondents.
1961. February 10. The Judgment of the Court
was delivered by SHAH, J.---Of the premises relating to which this dispute
arises No. 5, Raja Rajkissen Street, Calcutta -the respondents are the owners
and the appellant was a contractual tenant from June 15, 1917, till June 15,
1947, under three successive tenancies for 10 years each. Under the first
tenancy, the appellant paid rent at the rate of Rs. 84,15,0,per month, under
the second-tenancy at the rate of Rs. 180 per month 815 and under the third
tenancy at the rate of Rs. 225 per month. The tenancy was in respect of
buildings used for manufacturing " tin canisters " and open land. On
September 30, 1946, the Governor of Bengal issued the Calcutta Rent Ordinance,
V of 1946, making certain provisions for control of rent of premises in the
town of Calcutta. By s. 12 of the Ordinance, it was provided in so far as it is
material that notwithstanding, anything contained in the Transfer of Property
Act, the Presidency Small Cause Courts Act or the Indian Contract Act, no order
or decree for the recovery of possession of any premises shall be made as long
as the tenant pays rent to the full extent allowable by the Ordinance and
performs the conditions of the tenancy. By the proviso, the landlord was,
notwithstanding the protection granted entitled, if the conditions specified
therein were fulfilled, to obtain possession of the premises. This Ordinance
was replaced by Act I of 1947 which contained substantially the same provisions.
By the West Bengal Act V of 1948, the provisions of Ordinance V of 1946 and Act
I of 1948, were continued. Thereafter on December 1, 1948 the West Bengal
Premises Rent Control (Temporary Provisions) Act XXXVIII of 1948 was brought
into operation and by this Act, the West Bengal Act V of 1948 was repealed, but
the protection granted to the tenants was continued. This Act was repealed by
the West Bengal Premises Rent Control Act, 1950, and by s. 12 of the latter Act
protection to tenants, including tenants whose tenancies had expired, against
eviction was granted by prohibiting courts from passing decrees or orders for
recovery of possession of any premises in favour of landlords. It was provided
by that Act that the landlord shall be entitled to obtain a decree in
ejectment, inter alia, where the premises are reasonably required by, him
either 1 for the purpose of building or rebuilding or for his own occupation.
By letter dated May 15, 1957, the respondents
called upon the appellant. to vacate and deliver possession on the expiry of
the period of tenancy. Possession was however not delivered by the appellant
816 and he continued to pay the stipulated amount and the same was accepted by
the respondents. In an application under s. 9 of the West Bengal Premises Rent
Control (Temporary Provisions) Act, 1948, the Controller fixed the standard
rent of the premises at Rs. 455 per month. After the enactment of the West
Bengal Premises Rent Control Act, 1950, another application was submitted by
the appellant and the standard rent was reduced to Rs. 247,8,0. On October 10,
1950, the respondents served a notice upon the appellant requiring him "
to quit, vacate and deliver possession of the premises occupied ", which
the appellant was described as holding as " monthly tenant ", on the
expiry of the 31st of Chaitra, 1357 B. S., i.e., April 14, 1951. The ground for
eviction, it was claimed, was that the premises were reasonably required by the
landlords for putting up now buildings thereon. The appellant having failed to
vacate the premises, the respondents sued in the Court of Small Causes,
Calcutta, for a decree in ejectment. The Court of Small Causes decreed the suit
filed by the respondents. In appeal to the Special Bench, Court of Small
Causes, the decree passed by the court of first instance was reversed.
The appellate court held that by acceptance
of rent after determination of the tenancy in June, 1947, the appellant
continued to be " a tenant holding over " and as the purpose of the
tenancy was manufacturing, it could be determined only by a notice of six
months, expiring with the year of tenancy and as no such notice was served, the
tenancy was not determined and the suit was liable to fail. In appeal to the
High Court of Judicature at Calcutta, the decree passed by the -Special Bench
was reversed and the decree passed by the court of first instance was restored.
With certificate of fitness under Art. 133(1)(c) of the Constitution this
appeal is preferred by the appellant against the order of the High Court.
The contractual tenancy in favour of the
appellant was determined by efflux of time on June 15, 1947, and since that
date there has been between the parties no fresh contractual tenancy. The
respondents were, 817 it appears, anxious to obtain possession of the premises
let out to the appellant, but they were unable to obtain assistance of the
court in view of the protection afforded to the appellant by the successive
rent control Acts. In the meanwhile, the appellant continued to pay every month
amounts equal to the contractual rent, and later the rent declared to be the
statutory rent. Does the acceptance of the amounts paid by the appellant confer
upon him the right of a tenant holding over within the meaning of s. 116 of the
Transfer of Property Act? Section 116 of the Transfer of Property Act in so far
as it is material provides that if a lessee of property remains in possession
thereof after the determination of the lease granted to him and the lessor
accepts rent from the lessee or otherwise assents to his continuing in
possession, the lease is, in the absence of an agreement to the contrary,
renewed from year to year or from month to month according to the purpose for
which the property is leased as specified in s. 106. It is, however, well
settled that where a contractual tenancy to which the rent control legislation
applies has expired by efflux of time or by determination by notice to quit and
the tenant continues in possession of the premises, acceptance of rent from the
tenant by the landlord after the expiration or determination of the contractual
tenancy will not afford ground for holding that the landlord has assented to a
new contractual tenancy. It was observed by B. K. Mukherjee, J. (as he then
was), in Kai Khushroo v. Bai Jerbai (1):
" On the determination of a lease, it is
the duty of the lessee to deliver up possession of the demised premises to the
lessor. If the lessee or a sub-lessee under him continues in possession even
after the determination of the lease, the landlord undoubtedly has the right to
eject him forthwith; but if he does not, and there is neither assent or dissent
on his part to the continuance of occupation of such person, the latter becomes
in the language of English law a tenant on sufferance who has -no lawful title to
(1) [1949] F.C.R. 262, 270,273.
818 the land but holds it merely through the
laches of the landlord. If now the landlord accepts rent from such person or
otherwise expresses assent to the continuance of his possession, a new tenancy
comes into existence as is contemplated by s. 116, Transfer of Property Act,
and unless there is an agreement to the contrary, such tenancy would be
regarded as one from year to year or from month to month in accordance with the
provisions of s. 106 of the Act." It was further observed
".................. in cases of tenancies relating to dwelling houses to
which the Rent Restriction Acts apply, the tenant may enjoy a statutory
immunity from eviction even after the lease has expired. The landlord cannot
eject him except on specified grounds mentioned in the Acts themselves. In such
circumstances, acceptance of rent by the landlord from a statutory tenant whose
lease has already expired could not be regarded as evidence of a new agreement
of tenancy, and it would not be open to such a tenant to urge, by way of
defence, in a suit for ejectment brought against him, under the provisions of
Rent Restriction Act that by acceptance of rent a fresh tenancy was created
which had to be determined by a fresh notice to quit. " Under the Calcutta
Rent Ordinance, 1946, and the subsequent legislation which culminated in the
West Bengal Premises Rent Control Act, 1950, in the expression
"tenant" was included any person who continued in possession after
termination of his tenancy. Section 12 of the West Bengal Premises Rent Control
Act, 1950, expressly protects a tenant whose lease has expired. By the Rent
Restriction Statutes' at the material time, statutory immunity was granted to
the appellant against eviction, and acceptance of the amounts from him which
were equivalent to rent after the contractual tenancy had expired or which were
fixed as standard rent did not amount to acceptance of rent from a lessee
within the meaning of s. 116, Transfer of Property Act. Failure to take action
which was consequent upon a statutory prohibition 819 imposed upon the courts
and not the result of any voluntary conduct on the part of the appellant did
not also amount to " otherwise assenting to the lessee continuing in
possession. " Of course, there is no prohibition against a landlord
entering into a fresh contract of tenancy with a tenant whose right of
occupation is determined and who remains in occupation by virtue of the
statutory immunity.
Apart from art express contract, conduct of
the parties may undoubtedly justify an inference that after determination of
the contractual tenancy, the landlord had entered into a fresh contract with
the tenant, but whether the conduct justifies such an inference must always
depend upon the facts of each case. Occupation of premises by a tenant whose
tenancy is determined is by virtue of the protection granted by the statute and
not because of any right arising from the contract which is determined. The
statute protects his possession so long as the conditions which justify a
lessor in obtaining an order of eviction against him do not exist. Once the
prohibition against the exercise of jurisdiction by the court is removed, the
right to obtain possession by the lessor under the ordinary law springs into
action and the exercise of. the lessor's right to evict the tenant will not
unless the statute provides otherwise, be conditioned.
The High Court was in our judgment right in
holding that by merely accepting rent from the appellant and by failing to take
action against him, the appellant did not acquire the rights of a tenant
holding over. It is true that in the notice dated October 10, 1950, the appellant is described as a " monthly tenant ", but that is not indicative of
conduct justifying an inference that a fresh contractual tenancy had come into
existence. Within the meaning of the West Bengal Premises Rent Control Act,
1950, the appellant was a " tenant " and by calling the appellant a
tenant the respondents did not evince an intention to treat him as a contractual
tenant. The use of the adjective monthly " also was not indicative of a
contractual relation. The tenancy of the appellant was determined by efflux of
time an subsequent occupation by him 820 was not in pursuance of any contract
express or implied, but was by virtue of the protection given by the successive
statutes. This occupation did not confer any rights upon the appellant and was
not required to be determined by a notice prescribed by is. 106 of the Transfer
of Property Act.
In that view of the case, this appeal fails
and is dismissed with costs.
Appeal dismissed.
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