Maneksha Ardeshir Irani & ANR Vs.
Manekji Edulji Mistry & Ors [1974] INSC 197 (4 October 1974)
RAY, A.N. (CJ) RAY, A.N. (CJ) MATHEW, KUTTYIL
KURIEN ALAGIRISWAMI, A.
CITATION: 1974 AIR 2123 1975 SCR (2) 341 1974
SCC (2) 621
ACT:
Bombay Tenancy and Agricultural Lands Act
(Bom. 55 of 1948).
ss. 4B and 88B (2)-Scope of
HEADNOTE:
(1)Under s. 4B of the Bombay Tenancy and
Agricultural Lands Act, 1948, no tenancy of any land shall be terminated merely
on the ground that the period, fixed by agreement or usage, for its duration,
has expired.
The appellant became a tenant under the
respondent and the period of tenancy was for 5 years ending on Feb. 28, 1948.
Under S. 23(1) of the Act, 1939 the lease was
deemed to be for 10 years and the appellant tested tenant by virtue of the
Bombay Tenancy and Agricultural But the effect of introduction of s. 88B it in
the 1948 Act Bombay Tenancy became a protect Act, 1948. was that the appellant
no longer remained a protected tenant. After the appellant ceased to be a
protected tenant on Aug. 1, 1956, and the original contractual tenancy had
ceased, the appellant was in occupation of the lands only on sufferance. If a
tenant, after termination of the lease, is in possession without the consent of
the landlord, he is a tenant by sufferance. It is only where a tenant continues
in possession with the consent of the landlord that he can be called a tenant
holding over or a tenant at will. The appellant did not have any consent and
the respondent never gave any consent to him to hold over. He gave a notice
terminating the tenancy in 1955 and another notice in 1958, calling upon the
appellant to deliver possession. Tenancy being a matter of privity of parties
there was no tenancy and the appellant was a trespasser. Therefore, s. 4B has no
application.
[343G-344B] (2)Under s. 88B (2) of the Bombay
Tenancy and Agricultural Lands Act, 1948,the Collector grants a certificate
after holding an enquiry that the conditions in the proviso to s.
88B(1) are satisfied by any trust. The
enquiry is between the Collector and the Trust.
Therefore, the appellant, who wag a tenant by
sufferance under the respondent, and who, at no stage denied the fact that the
lands are the properties of a trust was not entitled to a notice when the
Collector held an enquiry under s. 88B(2) for the 'purpose of granting a
certificate to the respondent. [344B-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1013 of 1973.
From the Judgement and Order dated the 7th
September, 1972 of the Bombay High Court at Bombay in Appeal No. 453/60 from
Original Decree.
M. C. Bhandare and K. Rajendra Choudhary for
the appellant.
V.S. Desai R.G. Samant; P. C. Bhartari; K. J.
John, J.B. Dadachanji, O. C. Mathur and Ravinder Narain for the respondents.
The Judgment of the Court was delivered by-,.'
RAY, C. J. The question in this appeal by certificate is whether the appellant
is entitled to protection of section 4B of the Bombay Tenancy and Agricultural
Lands Act, 1948 hereinafter referred to as the 1948 Act.
Section 4B states that no tenancy of any land
shall be terminated "merely on the ground that the period fixed by
agreement or usage for its duration has expired.
342 The appellant became a tenant of the
respondent for a period of five years with effect from 1 March, 1943. The
tenancy was in respect of certain agricultural lands belonging to the
respondent. The lease contained a clause for renewal for five years. The
appellant did not exercise the option of renewal. The lease expired on 28
February, 1948.
The respondent by a notice dated 25 October,
1955 terminated the tenancy with effect from 1 April, 1957. The respondent gave
another notice to the appellant on 10 June, 1958 without prejudice to the
earlier notice and called upon the appellant to deliver possession within 7
days. The respondent on 14 September, 1959 filed a suit against the appellant
for possession. The trial Court did not grant a decree for possession. On
appeal the High Court also held that the appellant was not liable to be
evicted. On appeal, this Court remanded the matter to the High Court for a
report on two questions. First, whether the appellant was a protected tenant on
1 March, 1953. Second, if the appellant was a protected tenant on 1 March, 1953
whether the appellant could claim benefit of Section 5 of the Amending Act,
1952. The High Court submitted the report holding that the appellant was a
protected tenant on 1 March, 1953 but that the appellant was not entitled to
claim the benefit of section 5 of the Amending Act; 1952. Section 5 of the
Amending Act gave certain relief to tenants other than protected tenants.
This Court affirmed both the findings of the
High Court and set-, aside the judgment of the High Court from which an appeal
had been taken to this Court. (See Manekji Edulji Mistry & Ors. v. Manekshe
Ardeshir Irani & Anr. [1972] 1 S.C.R. 334). This Court at the invitation of
the parties directed the High Court to determine whether there was a valid
termination of tenancy because there were two issues as to damages yet to be
decided.
The High Court on remand has held that the
appellant was not entitled to any notice and that the appellant was a tenant on
sufferance,, The issues as to damages are not yet heard.
in this appeal, the appellant contends that
the appellant is entitled to protection under section 4B of the 1948 Act
because the appellant is holding over and the tenancy cannot be terminated by
efflux of time.
The contract of tenancy commenced on 1 March,
1943. It was for a period of five years ending on 28 February, 1948.
Under section 23(1)(b) of the Bombay Tenancy
Act, 1939 as it stood amended in 1946, every lease subsisting on the date when
that section came into force became deemed to be for a period of not less than
ten years. The effect of the statutory provision was that the appellants' lease
which would have expired on 28 February, 1948 expired on 28 February, 1953 by
reason of the deeming provision of section 23(1)(b) of the 1031 Act;
34 3 The 1948 Act while repealing the 1939
Act did not repeal but modified sections 3, 3A and 4 of the 1939 Act. These
three sections of the 1939 Act deal with protected tenants. The relevant
section for the purposes of this appeal is section 3A as modified by the 1948
Act. Section 3A states that every tenant shall, from the eighth day of
November, 1947 redeemed to be a protected tenant for the purposes of this Act
and his rights as such protected tenant shall be recorded in the Record of
Rights, unless his landlord has prior to the aforesaid date made an application
to the Mamlatdar for a declaration that the tenant is not a protected tenant.
The landlord in the present case did not make any application as contemplated
in section 3A of the 1939 Act as modified by the 1948 Act. The result was that
the appellant became a protected tenant by virtue of the 1948 Act read with
section 3A of the 1939 Act.
From 1 March, 1953 until 31 July, 1956 the
appellant remained a protected tenant under the 1948 Act until section 88B was
introduced in the 1948 Act by Act 13 of 1956. The effect of introduction of
section 88B in the 1948 Act was that the appellant no longer remained a
protected tenant.
Along with section 88B was introduced section
4A. Section 4A states that a person shall be recognised to be a protected
tenant if such person has been deemed to be a pro- tected tenant under section
3, 3A, and 4 of the Bombay Tenancy Act, 1939 referred to in Schedule 1 of the
1948 Act.
Section 4A does not apply to tenancies
governed by section 88B(1) of the Act.
After the appellant ceased to be protected
tenant on 1 August, 1956 and the original contractual tenancy had ceased On 28
February, 1948 the appellant was in occupation of the lands on sufferance. It
cannot be said that the respondent assented to the appellant continuing in
possession on the same terms and conditions as in the original tenancy. When
the protection was withdrawn on 1 August, 1956 there could be no question of
holding over because there was no contractual tenancy.
In the present case, it is not necessary for
us to express any opinion as to whether section 84 of the Bombay Land Revenue
Code or section 106 of the Transfer of Property Act would apply with regard to
notice to quit.
The respondent-landlord gave a notice to quit
in 1955. At that time, there was no contractual tenancy. The appellant was a
protected tenant. Immediately the protection was taken away by section 88B of
the 1948 Act the only question is whether the appellant could claim to remain
in occupation on the plea of holding over. If a lessee remains in possession
after determination of the term, he is under the common law a tenant on
sufferance. The expression "holding over" is used in the sense of
retaining possession. If a tenant after the termination of the lease is in
possession without the consent of the landlord, he is a tenant by sufferance.
It is only where a tenant will continue in possession with the consent of the
landlord that he can be called a tenant holding over or a tenant at will. In
the present case, 344 there is no doubt that the appellant did not have any
consent and the respondent never gave any consent to hold over. The appellant
remained in possession on sufferance.
Therefore section 4B of the Act has no
application because there is no tenancy. Tenancy is a matter of privities of
parties. If there is no consent, the appellant is a tres- passer.
A contention was advanced on behalf of the
appellant that 'he appellant was entitled to a notice when the Collector held
an inquiry under section 88B(2) of the Act for the purpose of granting a
certificate to the respondent. The Collector under section 88B(2) of the Act
grants a certificate after holding an inquiry that the conditions in the
proviso to section 88B(1) are satisfied by any Trust.
The Trust has to satisfy two conditions.
First, the Trust is registered under the Bombay Public Trust Act, 1950.
Second, the entire income of the lands which
are the property of the Trust is appropriated for the purposes of such Trust.
The certificate granted by the Collector shall be conclusive evidence. The
appellant raised this contention in the High Court that the appellant was
entitled to a notice. The High Court did not accept the contention.
The High Court held that the appellant at no
stage denied the fact that the lands are the property of a Trust. The inquiry
is between the Collector and the Trust. The conclusive evidence clause in the
section means that it is a rule of evidence which would not render it necessary
for it to prove again the compliance with the requirements.
For those reasons, the appeal is dismissed.
Parties will pay and bear their own costs.
V.P.S.
Appeal dismissed.
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