B. Kalyanasundaram v. A.R Natarajan.

Order of Reference by Ramaprasada Rao, J.

(6-1-1967)

The tenant is the petitioner before me. The Land lord respondent filed an application for eviction of the tenant on the ground of wilful default in the payment of rent from 16th Oct, 1962 to 15th December, 1963. The Rent Controller and the appellate authority found that the default in payment of rent is wilful, and directed eviction of the petitioner. But the petitioner, however raised the question of maintainability of the application for eviction on the ground that no notice under S. 106 of the Transfer of Prcperty Act was given to him terminating the tenancy and in the absence of such notice determining the tenancy, the application was not maintainable and that therefore the orders passed by the Rent Controller and the appellate authority were without jurisdiction. Though this later objection of want of notice under S. 106 of the Transfer of Property Act was not raised before the Rent Controller, it was pressed into service before the appellate authority. The appellate authority, however, held that the Madras Buildings (Lease and Rent Control) Act XVIII of 1960 is a self-contained Act and that the Supreme Court in Mangilal v. Suganchand A.I.R 1965 S.C 101. did not consider the scope and effect of the Madras Act, and he was therefore of the view that it is unnecessary to give a notice of termination under the general law as a condition precedent to an order for eviction under Madras Act VIII of 1960. He therefore brushed aside the objection regarding maintainability of the application, affirmed the order of the Rent Controller and directed eviction of the petitioner as a tenant of the demised premises.

On the above factual contentions I have absolutely no doubt whatsoever that the default in the payment of rent by the petitioner to the respondent is wilful and that there are no merits at all in this Civil Revision Petition which would require interference in revision.

The point, however that was again pressed before me was that the entire proceedings before the lower Tribunals are vitiated and are without jurisdiction inasmuch as notice under S. 106 of the Transfer of Property Act did not precede the institution of the proceedings under Act XVIII of 1960.

The primary question raised in this Civil Revision Petition is a Jurisdictional fact. Learned Counsel for the petitioner submits that such a proceeding by the landlord without determining the tenancy is not maintainable and that therefore the orders passed by the Rent Controller and thereafter the appellate authority are without jurisdiction and should be deemed to be non est. Learned counsel placed reliance upon the recent decision of the Supreme Court in Manujendra Dutt v. Puranda Prasad Roy Chowdhury C.A No. 586 of 1964 reported in 1966 2 M.L.J 33 short notes. Learned counsel for the respondent, however, relied upon the decision of the Full Bench of this Court in Messrs. Raval & Co. v. Ramachandran 19662 M.L.J 68.. The Full Bench of this Court, no doubt, held that no notice of determination of tenancy is necessary before a person could avail himself of the remedies under Act XVIII of 1960, this Act being a self-contained Act by itself. The Supeme Court's decision referred to above was rendered after the judgment was pronounced by the Full Bench of this Court in the case cited above.

My attention has been drawn to the judgment in Habibulla v. Fathima Bi C.R.P No. 1858 of 1965. in which My Lord the learned Chief Justice of this Court held as follows:

“ It is sufficient to state that the Full Bench held that Madras Act XVIII of 1960 has to be interpreted as a special Act, which did abrogate the Transfer of Property Act, with regard to several provisions and that it validly preserved the power of the landlord to evict a tenant on the special grounds available under the Act, notwithstanding the subsistance of a contractual tenancy, not determined by a statutory notice under S. 106 of the Transfer of Property Act. Learned Counsel for tte tenant (Revision Petitioner) does not claim that this decision of the Full Bench has been subsequently dissented from in any decision of the Supreme Court. Under those circumstances, the decision of the Full Bench governs this proceeding, and the petition has to fail on this ground.”

Learned counsel for the petitioner also represents that Veeraswami, J., has taken a contrary view and is of the opinion that in accordance with the ratio in the Supreme Court decision referred to above, a notice of determination of tenancy is a condition precedent for the institution of proceedlngs under the Madras Buildings (Lease and Rent Control) Act 18/1960) I am also informed that Srinivasan, J., has referred this very question, affronting me, to a Bench of this Court, apparently because he thought that these two decisions have to be reconciled.

From a reading of the Short Notes report of the Supreme Court as also a typed copy of the decision provided by the learned counsel for the petitioner, I find that the Suprme Court has sait in unequivocal terms that a landlord is entitled to a decree for eviction only if he had first terminated the contractual tenancy and also fulfills one or the other of the conditions laid down in the Rent Act in question.

Their Lordships observed that rent acts restrict of the existing rights either under the contract or under the general law. They add:

“It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is, the right of irremovability, thus is a right which comes into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time, the tenant need not seek protection under rent Act.”

In this view, their Lordships concluded that the decision in R. Krishnamurthy v. Parthalarathy is not correct law. The net result of this analysis is that the Supreme Court takes the view that under the Rent Acts notice of determination tenancy should precede a proceeding under that Act and unless such notice was given, the subsquent proceeding under that Act, based on such an inchoate attraction of the jurisdiction of the Tribunals under the special enacnaent would be proceedings which are not maintainable in the eye of law. But, in view of the decision of the Full Bench of this Court, which has not been expresssly referred to by Supreme Court, and particularly in view of the observations of My Lord the learned Chief Justice in Habibullah v. Fathima Bi I feel that the position has to be resolved by a reference of this question to a Bench of this court.

I am therefore obliged to place the papers before my lord the Chief Justice for reference to a duly constituted Bench of this court the following questions:

“Whether a notice of determination of tenancy as required under the common law and in particular under section 106 of the Tranrfer of Property Act is to precede any proceedings for eviction by landlords against tenants under the Madras Buildings (Lease and Rent Control Act 18/1960)

And this petition coming on for hearing before the above Bench on Tuesday the 9th and Wednesday the 10th days of September 1969 and this day in pursuance of the aforesaid order of reference, the court delivered the following:

JUDGMENT

(Judgment of the court by the Hon'ble the Chief Justice)

This Civil Revision Petition comes before us on a reference made by Ramaprasada Rao, J., as he considered that an authoritative decision should be made as to whether Raval & Co v. Ramachandran inso far as it relates to eviction on ground of default in payment of rent, is still good law after Manujendra Dutt v. P. P. Roy Chowdhy

The respondent applied to the Controller under section 10 (2) (1) of the Madras Buildings (Lease and Rent Control) Act 1960 for an order of eviction. The Controller granted it on a finding that there had been ‘Wilful default’ in payment of rent en the part of the petitioner and the appeal by the latter had failed. In the lower appellate court a point was taken, for the first time for the petitioner, that for failure to serve notice under section 111 (h) of the Transfor of Property Act, the application for eviction was liable to be dismissed. This objectien was rejected on two grounds: (1) the point was not raised before the Controller and, it should, therefore, be assumed that the petitioner must have waived his right, and (2) that the Madras Act, being a self contained Code, providing for eviction under certain circumstances and the machinery thereof, there was no legal requirement of a notice of termination as a condition precedent to an order of eviction. It is this point that survives in revision, in this court, as the other factual finding of the lower appellate court as to wilful default in payment of rent had become conclusive.' Raval & Co. v. Ramachandran I.L.R 1966 2 Mad. 437, decided by a Full Bench of this court, dees support the view of the lower appellate court as to the non-necessity of termination of Madras Act 18/1960 in ejectment on the ground of default in payment of rent.

Raval & Co., v. Ramachandran was decided on January 20th, 1966. On September 22nd 1966 came the decision in Manujendra Dutt v. P. P. Roy Chowdhury in which R. Krishnamurth v. Parthasarathy which was one of the decisions relied en for the conclusion in Raval & Co., v. Ramathanndran was held to be net correct law. In view of this, the question is whether Raval & Co. v. Ramachandran can nevertheless hold the field. In our view it can no longer. But, in passing we desire to state that we do not decide, in this case, whether termination by notice under section 106 of the Transfer of Property Act of a tenancy is required before initiation of proceedings for fixation of fair rent under Madras Act 18/60. That matter, which is also covered by Raval & Co., v. Ramachandran will have to be considered separately If and when it arises.

The Fall Bench in Ratal & Co., v. Ramachandran was mainly concerned with proceedings arising out of an application for fixation of fair rent, but, the considerations as well as the conclusions arrived at, without doubt, stand on a wider perspeetive as to whether termination of a contractul tenancy by notice, under the general law, should precede as a condition for invoking the provisions of Madras Act 18/1960. Though the Court formulated for its decision four questions, it is the third which is relevant for preseat purposes which is:

“(3) Similarly, do they enable the landlords and tenants to work out their respective rights in the matter of the liability of the tenants for eviction on the grounds specified in the Acts, even during a contractual tenancy, and without that tenancy being first determined by the landlord in accordance with section 11 (h) of the Transfer of Property Act?”

In answering the question in the affirmative, the eourt examined almost all the earlier decisions, both of this and other High Courts and of the Supreme Court, together with the provisions of Madras Act 18/1960, and, concluded:

“On a careful perusal of these decisions of the Supreme Court, including Punjabis Case we are unable to discover any ratio in these decisions, which were not rendered with reference to the intendment or structure of the Madras Act, which would necessarily imply that the Madras Act should be held applicable only to statutory tenancies and as not affecting centractual tenancies at all during their subsistence. On the contrary such a view is opposed (i) to the preamble and the intendment expressed therein, (ii) to the definitions of landlord and tenant in the Act, (iii) to the self-sufficient Code enacted in section 10 including a special machinery for eviction, (iv) to the provisions of section 7 which enacts specific inroads upon the rental agreements of contractual tenancies and (v) to the provisions of section 4 as to the fixation of fair rent as available to all landlords and all tenants, as defined in the Act.”

The learned Officiating Chief Justice, who spoke for the Full Bench, proceeded to say that thus the Madras Act had to be Interpreted as a special Act which did abrogate the Transfer of Property Act, with reference to several of its provisions, and indeed, it went further and applied, in its terms, not merely to contractual tenancies during their subsistence, but also to statutory tenancies, after the determination of a contractual tenancy. The Full Bench was emphatic that, under the terms of the Act, a landlord could evict a tenant on the special grounds available, notwithstanding the subsistence of a contractual tenancy, and even though it had not been determined, Punjalal's case, and more particularly Mangilal v. Sugan Chand. were specifically considered, but, it was pointed out that the particular perspective of interpretation that found favour in Mangilal v. Sugan Chand, was not available with regard to Madras Act 18 of 1960 because of its quite different structure and provisions. A great deal of reliance by the Full Bench was placed on the preamble to the Act as well as the definition of ‘landlord’ and ‘tenant’ for Its view that section 10 applied to all landlords and tenants whether the tenancy be under subsisting contracts or after its determination. Also weighed with the Full Bench the consideration that the provisions relating to fixation of fair rent and the inhibtion against landlords from claiming or receiving anything in excess of fair rent or agreed rent worked inroads into the terms and conditions of contractual tenancies. The view of the Full Bench more or less was the same as that taken earlier by a Division Bench of this Court in R. Krishnamurthy v. Parthasarthy Ratal & Company v. Ramachandran should naturally be binding on this Court had not its authority been shaken by the ratio of Manujendra Dutt v. P.P Roy Choudhry I.L.R 1966 2 Mad. 487.,

One of the questions, which Is relevant here, and for decision by the Supreme Court in Manajendra Dutt v. P.P Roy Choudhry 1967 1 S.C.J 503., was as to the right of a Thika Tenants, as defined in the Calcutta thika Tenancy Act, 1949 to a notice provided under a lease deed. A registered lease deed of December 4th 1934 provided for a fixed term of tea years with an option of renewal under certain circumstances. One of the clauses stipulated that the lesses was entitled to a six months' notice if the lessor desired him to vacate at the end of the fixed period of ten years, or after renewal, he desired him to vacate-The period of ten years having ended, but, there being no notice, as provided in the lease, and the lessee having continued in possession thereafter, the land-lord, treated the lessee as a trespasser and sued for possesion. When the suit was pending, the Calcutta Thika Tenancy Act, 1949 was enacted with the result the suit stood transferred to the Thika Controller under the Act. Before the controller disposed of the matter, West Bengal Legislature made a further amendment in 1953 the effect of which was to delete the then exising provisions conferring jurisdiction on the Thika Controller. An application for retransfer was refused. At that stage, the plaint was allowed to be amended by including a prayer for a decree for ejectment on grounds that the tenant had failed to use or occupy himself a major portion of the land and that the land was required by the landlords for constructing a building (on) and developing it, and further that the lease had expired by efflux of time. These grounds brought the suit within some of the grounds in section 3 of the Calcutta Thika Tenancy Act An eviction Plder by the Controller fallowed, he being of the view that on the expiry of the term of lease, the tenant became a trespasser and was not entitled to a six months notice as provided by the lease deed, and that, the landlords had made, out the ground for eviction under the Act. The High Court of Calcutta shared that view and dismissed the tenant's appeal. The Supreme Court, however, took a different view on the necessity for the landlords to give six months' notice in order to succeed in the eviction proceeding. The reasoning for this view is:—

“Rent Acts are not ordinarily intended to interfere with contractual leases and are Acts for the protection of teanants and are consequently restrictive and not enabling, conferring no new rights of action but restricting the existing rights either under the contract or under the General law. It is well settled that statutory tenancy normally arises when a tenant under a lease holds over, that is he remains in possession after the expiry of determination of the contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract had been determined, The right to hold ever, that is, the right of irremovabilty, thus is a right which cames into existence after the expiration of the lease and until the lease is terminated or expires by efflux of time the tenant need not seek protection under the Rent Act. For he is protected by his lease in breach of which he cannot be evicted”.

The Supreme Court proceded to refer to Abbasbhai v. Gulamnabi Mangilal v. Sugam Chand Haji Mohamad v. Rebati Bhushan and Monmatha Nath v. Banarasi in support of its view that the Rent Act did not give a right to the landlord to evict a contractual tenant without first determining the contractual tenancy. As to R. Krishnamurthy v. Parthasarathy, the Supreme Court dealt with it as follows'

“The only decision which has taken a contrary view is R. Krishnamurthy v. Partha sarathy where it was held that S. 7 of the Madras Buildings (Lease and Rent Control) Act XV of 1946 bad its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the Transfer of Property Act. On that view, the High Court held that an application for eviction could be made to the Kent Control ler even before the contractual tenancy was terminated by a notice to quit. That decision is clearly contrary to the decisions of this Court in Abbasbhai's Alangilal's case and therefore is not correct law.” Having said that, the Supreme Court summarised the position:

“The Thika Tenancy Act does not confer any additional rights on a landlord but on toe contrary imposes certain restriction on his right to evict a tenant under the general law or under the contract of lease. The Thika Act like other Rent Acts enacted in various Stales imposes certain further restrictions on the right of the land to evict his tenant and lays down that the status of irremovability of a tanant cannot be got rid of except on specified grounds set out in S. 3 The right of the appellant therefore to have a notice as provided for by tie proviso to clause 7 of the lease was not in any manner affected by S. 3 of the Thika Act. The effect of the non-obstante clause was that even where a landlord has duly terminated the contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under any one or more of the grounds in S. 3. Before therefore the respondents could be said to be entitled to a decree for eviction they had first to give six months' notice as required by the proviso to clause 7 of the lease and such notice net having been admittedly given their suit for eviction could not succeed.”

The view thus taken by the Supreme Court in line with its earlier view in Abbasbhai v. Gulambai and Mangilal Sugan chand both of which, bad been considered in Raval & Co. v. Ramachandran. But the point is that in Manujendra Dutt v. Roy Chowdnury the the Supreme Court was directly confronted with the contrary view in R. Krishnamurthy v. Parthasarathy and unmistakebly expressed the view that it was not correct law.

In deciding whether Manjendra Dutt v. P.P Roy Chowdhury has affected the validity of Raval & Co. v. Ramachandran we have to see whether there is anything in the preamble or sturcture of Madras Act 18/60 which is defferent from that in the Madras Buildings (Lease and Rent Control) Act, 1946 with which R. Krishnamurthy v. Parthasarathy was concerned. A Comparison of the two Madras enactments leaves us with the definite impression that there is, in substance and in fundamentals, no difference, The preamble of two Madras enactments and the definitions of ‘landlord’ and ‘tenant’ as well as the provisions for determination of fair rent and the inhibition against landlords claiming in excess of the fair rent fixed or the agreed rent, as also the provisions relating to eviction of tenants, which have all been ralied on in Raval & Co., v. Ramachandran as justifying a different perspective of interpretation from the one in Mangilal v. Sugan chand and, the earlier cases of the Supreme Court en the subject, are, as we find, the same or similar in essentials. S. 7 of the 1946 Act, which related to eviction of tenants, had been re-enacted by S. 10 in the 1960 Act. Except for verbal ehanges here and there, it dees net affect the material similarity. The scope, effect, set up and the nature of the proceedings as well as the ground for eviction are more or less the same, except for certain additional grounds for eviction S. 10 (3) (d) in Madras Act 18 of 1960 which has also been relied on by the Full Bench did find a place in the 1946 Act as well in the form of the first proviso to S. 7 (3) (a). The only additional-provisions which are material for our present purposes in the 1960 Act, are Ss. 14 to 16. These sections relating to recovery of possession by a landlord for repairs or for recons ruction, have not been attached any importance by the Full Bench as particularly contributing to the view that S. 10 of the 1960 Act, is a self contained code, that the 1960 Act makes several inroads into the terms and conditions of contractual tenancies and that, therefore, Madras Act 18 of 1960 should be considered as abrogating the requirements of S. 106 read with S. 111 (h) of the Transfer of Property Act.

When once the Supreme Court dissented from R. Krishnamurthy v. Parthasarathy and held it was not correct law, it clearly follows, the view that found favour in Raval & Co. v. Ramachandran cannot prevail any more, for, basically and in essentials, the provisions in both the Acts as to the object, structure, scheme, protection and grounds for eviction are almost identical.

We hold, therefore, that so long as the contractual tenancy is not terminated in the manner provided by S. 106 read with S. 111 (h) of the Transfer of Property Act the tenant is protected in his possession and the landlord cannot evict him, with the necessary corollary that there is no need for the tenant to seek proteetive refuge under the 1960 Act and that the landlord cannot, during the subsistence of the tenancy, resort to eviction on grounds provided by that Act irrespective of the protection available to the tenant under the subsisting contractual tenancy. It follows further that there is nothing in the 1960 Act which expressly or by necessary implication abrogates the general law relating to the necessity to terminate the contractual tenancy before proceedings in ejectment can be initiated, It is only after the expiration of the contractual tenancy, either by efflux of time or by notice of termination, that the field becomes open for the land to get over the statutory protection to the tenant by resorting to and establishing the grounds provided by the 1960 Act for eviction. To that extent, Ratal & Co. v. Ramachandran is no longer good law. The view that we have expressed derives support from a recent judgment of the Punjab High Court in Bhaiya Ram v. Mahavir Parshad. That was under the Bast Punjab Urban Rent Restriction Apt in which the landlord gave but a weeks notice of ejectment to the tenant before applying for eviction under the Act. Though it was the common case that the Transfer of Property Act did not apply to the Penjab, nevertheless, the court, composed of three Judges, on the view that the principles of the Transfer of Property Act did extend to the Punjab, held that the landlord without properly terminating the contractual tenancy could not resort to the grounds of eviction under the East Punjab Urban Rent Restriction Act. Punjala v. case, Mangilal v. Suganchand and Manujendra Dutt v. Purnedu Prasad Roy were referred to in support for that conclusion. The Full Bench of the Punjab High Court also specifically dealt with the Full Bench decision of this court in Raval & Co. v. Ramachandran and considered that since R. Krishnamurthy v. Parthasarathy had been categorically and specifically disapproved of by the Supreme Court in Manujendra Dutt's case the decision of the Full Bench in Raval & Co. v. Rama chandran could no longer be regard ed as of any authority.

It is said that inasmuch as the objection as to want of notice had not been raised before the Controller the petitioner should be deemed to leave waived his right, and that, in any case it should not be permitted to be raised at this stage. If the lower appellate court had decided against the tenant on the ground that he had failed to take the point before the Controller, normally this court would not interfere with that view. Bat, in this case, the point had been allowed to be taken by the lower appellate court and specific reference to this question has been made at the stage of revision. Ramaprasada Rao, J. has placed the matter before us for a decision particularly on the question of notice. In view of these circumstances, we are inclind to think that the petitioner cannot be defeated on the ground that he had failed to take the point at the earlier stage before the controller. No material has been placed either before the lower appellate court or before us that any notice, as required by S. 106 of the Transfer of Property Act, had been served on the tenant.

The result is the petitioner should succeed. The petition is allowed and the order of eviction is set aside. We make no order as to costs.

V.C.S