Biswambar Roy Vs. Girindra Kumar Paul
[1966] INSC 93 (30 March 1966)
30/03/1966
ACT:
The Non-agricultural Urban Areas Tenancy Act,
Assam Act 12 of 1955, s. 5(1) (a)-Tenant of band building structures within
prescribed period-Letting out structures-Protection from eviction under section
whether available to tenant of land-Construction whether should be for his own
use.
HEADNOTE:
Certain structures for residential and
business purposes were raised by a tenant of land in the term of Silchar in
Assam. The landlord secured a decree for ejectment against the tenant. During
the pendency of the appeal the Non Agricultural Urban Areas Tenancy Act, Assam
Act 12 of 1955 was brought into force. The tenant claimed protection from
eviction under s. The Subordinate Judge held that the tenant had acquired units
s. 5(1) (a) of the Act the right of a permanent tenant since he had constructed
within the prescribed period structures for residential or business purposes.
He accordingly dismissed the suit. The High Court in further appeal held that
the protection under s. 5(1)(a) was not available to the tenant since he had
let out to tenants the buildings constructed on the land. The tenant, by
special leave, appealed to this Court.
HELD:(i) The section merely requires that the
permanent structure must be one adapted for residential or business purposes.
If the structure is not adapted to such purposes.
the protection of s. 5 (1) (a) will not be
available. To read the expression "permanent structure on the land of the
tenancy for residential or business purposes" as meaning permanent
structure on the land of the tenancy constructed by the tenant for his own
residential or business purposes is to add words which are not found in the
section. [116 H].
(ii) Protection is conferred in terms by s. 5
upon the tenant of the land and not upon the tenant of the buildings
constructed upon the land. By letting out the structures the tenant of land
does not lose the protection given by the statute. [117 C].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 891 of 1963.
Appeal by special leave from the judgment and
decree dated June 26, 1959 of the Assam High Court in Letter Patent Appeal No.
1 of 1959.
N. C. Chatterjee and D. N. Mukherjee, for the
appellants.
Sarjoo Prasad and K. P. Gupta for
respondents.
The Judgment of the Court was delivered by
Shah, J. Biswambar Roy-predecessor-interest of the appellants--was Granted on
February 20, 1928, a lease for ten 115 years 1335 B.S. to 1344 B.S. at an
annual rental of Rs. 75/in respect of a plot of land, part of Dag No. 3615 in
the town of Silchar, District Cachar in the State of Assam.
Biswambar Roy constructed on the land,
buildings, some for residential use, and others as warehouses. On the expiry of
the period of the original lease, Biswambar Roy obtained a fresh lease in
respect of a part of the land for ten yearsBaisakh 1345 B.S. to Chaitra a 1354
B.S. at an annual rental of Rs. 70/under an instrument dated February 22, 1938.
The respondents purchased the interest of the
landlords the land and instituted on August 3, 1951 an action in the Court of
the Sadar Munsiff, Silchar against Biswambar Roy for a decree for vacant
possession of the land. The suit was decreed by the Munsiff. Biswambar Roy
appealed to the Subordinate Judge, Silchar. During the pendency of the appeal,
the Non-agricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam
Legislature was brought into force. Biswambar Roy claimed protection from
eviction under s. 3 of Act 12 of 1955. The Subordinate Judge held that
Biswambar Roy had acquired under s. 5(1)(a) of the Act the rights of a
permanent tenant, since he had constructed within the period prescribed
permanent structures for residential or business purposes. He accordingly
reversed the decree passed by the Trial Court and dismissed the suit.
Against that decree, an appeal was preferred
to the High Court of Assam. Deka, J., held that Biswambar Roy could not claim
the protection of s. 5(1) (a) of the Act, since he hadlet out to tenants the
buildings constructed on the land. In the view of the learned Judge, by the use
of the expression "for residential or business purposes" in s. 5(1)(a)
it is intended that buildings constructed by the tenant should be utilized by
the tenant himself for his own residence or for carrying on business and that
it is not the intention of the Legislature that third persons should be
protected by s. 5 from eviction from those structures. An appeal under the
Letters Patent from that judgment was heard by C. P. Sinha, C. J., and Mehrotra,
J. The learned Judges differed. Sinha, C. J., was of the view that permanent
structures constructed by Biswambar Roy conformed to the descripticon
"residential or business purposes" and Biswambar Roy became under Act
12 of 1955 a permanent tenant thereof and was not liable to be evicted except
for nonpayment of rent. With that view Mehrotra, J., did not agree. He held
that a tenant who obtains land on lease for erecting a structure thereon not
for his own residential or business purposes but for letting out to others does
not build "a permanent structure on the land of, the tenancy for
residential or business purposes". and may not claim protection under s.
5(1)(a). Since there was no majority concurring in the judgment agreeing or
reversing the decree appealed from, under s. 98(2) of the Code of Civil
Procedure the appeal was ordered to be dismissed. Against the decree passed by
the High Court, with special leave, this appeal is preferred.
116 This Court has held that s. 5 of Assam
Act 12 of 1955 has retrospective operation: Refiquennessa v. Lal Bahadur Chetri
& Others,(1) and the only question to be determined in this appeal is
whether a tenant qualifies for protection under s. 5 of the Act only after
building permanent structures on the land of the tenancy if he occupies them
for his own residential or business purposes. The material part of the section
reads:
"(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 built 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;" Protection under the first part of s.
5(1)(a) may be claimed by a tenant if three conditions co-exist: (i) under the
terms of the contract of tenancy the tenant is entitled to build on the land of
the tenancy; (ii) that pursuant to such liberty, he has actually built, within
the period of five years from the date of the contract a permanent structure on
the land of the tenancy; and (iii) that the permanent structure is for
residential or business purposes. The first two conditions are fulfilled in
this case. But the learned Judges of the High Court disagreed on the
fulfillment of the third condition: they differed as to the true meaning of the
expression" a permanent structure....... for residential or business
purposes". In the view of Sinha, C. J., under the Act the character of the
structure is determinative and not personal use by the ten.
ant. Mehrotra, J., held that the permanent
structure must be for residential or business purposes of the tenant. We are
unable to agree with the view taken by Mehrotra, J., because the Legislature
has not, in conferring rights of permanent tenancy, either expressly or by
implication enacted any such qualification as is suggested by the learned
Judge. The section merely requires that the permanent structure must be one
adapted for residential or business purposes. If the structure is not adapted
to such purposes, the protection of s. 5(1)(a) will not be available. To read
the expression "permanent (1) [1964] 6 S.C.R. 876.
117 structure on the land of the tenancy for
residential or business purposes" as meaning permanent structure on the
land of the tenancy constructed by the tenant for his own residential or
business purposes is to add words which are not found in the section.
It was urged on behalf of the landlords that
it could not have been the intention of the Legislature to confer by s. 5(1)(a)
protection upon sub-tenants. It was said that a sub-tenant is not a tenant
within the meaning of s. 3(g) of the Act, and he cannot claim protection from
eviction under s. 5(1)(a). In our judgment, the argument is wholly
misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land
and not upon the tenant of the buildings constructed upon the land. It is not
necessary in this case to consider whether by virtue of the definition of
"tenant" in s. 3(g) of the Act which includes a person who derives
his title from a tenant, a sub-tenant of the land is entitled to protection of
s. 5(1)(a). In the present case, the tenant of the land has claimed protection.
By merely letting the premises constructed on the land obtained by him on
lease, the tenant does not cease to be in possession of the land. The relation
between the landlord and the tenant of the land continues to subsist until it
is lawfully determined. Possession of the land obtained by the tenant remains
his even after he has let out the building constructed by him, and a building constructed
by the tenant for use as residential or business purposes does not cease to be
one for residential or business purposes, when it is let out.
We therefore agree with the view taken by
Sinha, C. J., that the protection of s. 5(1)(a) extends to a tenant who has
constructed on the land obtained on lease permanent structures which are
adapted for use for residential or business purposes and by letting out the
structures the tenant does not forfeit the protection conferred by the statute.
The appeal is therefore allowed and the
decree passed by the High Court vacated and the plaintiffs' suit dismissed. The
appellants who are the representatives of the tenant will be entitled to their
costs in this Court. There will be no order as to costs in the High Court.
Appeal allowed.
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