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Report No. 70

101.11. Immoral purposes.-

Incidentally, as to user for immoral purposes, section 3(2)(a) of the Suppression of Immoral Traffic Act1 in India provides that any person who, being the tenant, lessee, occupier or person incharge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine.

Sub-section (3) of this section further provides that notwithstanding anything contained in any other law for the time being in force, on conviction of any such person for the said offences in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or are held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.

Under section 18(1) of the Act, a competent Magistrate may, on receipt of an information that any house, room or place within a distance of two hundred yards of any "public place" mentioned in sub-section (1) of section 7, is being used as a brothel or for carrying on prostitution, pass orders directing eviction of the occupier within 7 days of the passing of the order from the house, room, place or any portion thereof.

Sub-section (4) of section 18 further provides that notwithstanding anything contained in any other law for the time being in force, when a magistrate passes such an order, any lease or agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.

Section 18(1), proviso provides that if the Magistrate finds that the owner, lessor or landlord was innocent of the improper user of the house, room, place or portion, he may cause the same to be restored in the owner, lessor or landlord with a direction that the house, room, place or portion shall not be leased out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper use therein.

We are referring to these provisions only because leases for immoral purposes have figured in English cases relating to forfeiture.2 It is needless to say that the provisions in the Suppression of Immoral Traffic Act apply whether or not the lease contains a covenant on the subject.

1. The Suppression of Immoral Traffic in Women and Girls Act, 1956.

2. Para. 101.10, supra.

101.12. Indian law as to irremediable breach.-

In our Act, section 114A, clause (b), limits the operation of the section to a breach which is capable of remedy. prima facie, therefore, the question will, as in England, be a question of fact. Substantial interference with the property leading to its partial destruction may, for example, be irremediable. Breach of a covenant to insure or a covenant to repair would, speaking generally, be remediable. In fact, it is the breach of a covenant to repair against which relief is principally given by the section, since, before the amendment of 1929, such relief could not be granted.1

1. Debendra Lal v Cohen, AIR 1926 Cal 908.

101.13. Two notices.-

It is now proper to discuss the technical question whether two notices are required under section 111(g) and section 114A, or whether one notice should do. Although it would lead to avoidance of confusion in practice if the first notice calls upon the lessee to remedy the breach and the second notice, on failure to remedy the breach, determines the lease, that, of course, is not mandatory in law. One and the same notice can comply with section 114A and section 111(g), provided it is borne in mind that forfeiture of the lease is not effective until the requirements of section 114A are satisfied.

The lessor may, if he so chooses, state in one and the same notice that the lessee has committed a breach of covenant and therefore he determines the lease, but he must allow the lessee a reasonable time to remedy the breach. Further, in order to ascertain whether the forfeiture is effective or not, he must wait until the time allowed under section 114A has expired. In this sense, it is not the lessor who lays down the effective date of termination, but the law.

The lessor must, of course, comply with both the sections, and it is immaterial whether the same notice combines the two formalities, or whether two different notices are given. But the termination of the lease will not depend merely on the notice under section 111(g), but also on compliance with section 114A.

101.14. Obscurity.-

The following extract from a Calcutta judgment1 illustrates the obscurity that is felt to prevail at present:-

"In Pravat Chandra Syam's case ante, R.C. Mitter and Biswas, JJ., held that one written notice is required, reading sections 111(g), and 114A together-not one under the former and another under the latter; the reason being that section 114A 'added to the statute, by the amendment of 1929' only defines the form in which the notice has to be given under section 111(g). Some fourteen years later Raja-manner, C.J. and Venkatrama Aiyar, J. in Wood v. Spain ante 'are inclined to agree' with this view 'though there is room for doubt'. The Judgment is the judgment of the learned chief justice whose doubt I share, if I may say so with the greatest respect.

Do these sections say in any manner that what is provided for is only a form of notice? I am afraid not. Both confer substantive rights: one, section 111(g), in a positive from on the lessor, and another, section 114A, in the negative form, or the lessee. A negative form, as section 114A confers a right on the lessee to the extent that it imposes a bar on the lessor. In any event. I do not read this to mean that two notices are bad. I read this to mean that two notices are not essential and that one combined notice satisfying the requirements of sections 111(g) and 114A is too good.

Mr. Ghosh sees an insuperable difficulty in drafting such a combined notice Mr. Gouri Mitter does not. Nor do I. Here am I, a lessor, telling my lessee-You have broken an express condition X which provides that on breach thereof I may re-enter. I therefore, determine the lease and notify you so in writing of my intention. Section 111(g) receives effect. In the same notice, I tell him further X, the particular breach I complain of, is capable of remedy. And I require you to remedy it. Section 114A receives effect too. So where is the drafting difficulty? If I, no draftsman, can draft it, counsel and solicitors-draftsmen all-can do it for better."

If the correct position is stated by us above is borne in mind, such controversies could be avoided.

1. Godabari Devi v. Nand Kishore, (1969-70) 74 CWN 531 (571), para. 102 (Baijavest Mukherjee, J.).

101.15. Recommendation.-

In the light of what we have seated above, we recommend that section 114A should be revised as under:-

"114A. Postponement of forfeiture in certain other cases-Where a lease of immovable property is under clause (g) of section 111 sought to be forfeited for a breach of an express condition which provides that on breach thereof the lessor may re-enter, such forfeiture shall not be effective and the lease shall not determine, unless and until the lessor has served on the lessee a notice in writing."

The Transfer of Property Act, 1882 Back

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