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Case Number

s .a .no .1026 of 197

Advocates

Sailen Dutta
Ananga Kumar Dhar
B.N.Sen
Baskar Sen
Jayanta Mukharji
S.Pal
Sasanka Kr.Ghosh
Subrata Nayak
Ramesh Chowdhury

Judges

Mr. Justice A.K Janah
Mr. Justice D.C. Chakravorti

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Smart Summary

Judgment Summary — Janah, J.

Factual and Procedural Background

The plaintiff (respondent) sued for recovery of possession of certain premises on the ground that the lease term had expired and the defendant (appellant) was obliged to surrender possession. The premises had been leased to the defendant by a registered deed dated April 25, 1955 for a 16-year term commencing November 1, 1954 and ending October 31, 1970. The lease contained a covenant that the lessee would give up peaceful and vacant possession on expiry. The plaintiff's advocate wrote to the defendant on August 17, 1970 requesting compliance, and the plaintiff alleged in that letter that he required the premises for his own use and occupation. When the defendant did not vacate, the plaintiff filed suit.

The defendant contested the suit by filing a written statement denying wrongful possession from November 1, 1970 and asserting entitlement to remain in possession under the West Bengal Premises Tenancy Act, 1956 ("the Act"), so long as rent was paid. The defendant alleged compliance with the lease and the Act, that the landlord refused to accept rent, and that rent was deposited with the rent controller. The defendant also argued that the advocate's letter was not a notice to quit and that the suit was not maintainable without such a notice.

At trial, the trial court held that the defendant had become a tenant under the Act for limited purposes (identified by the trial court as certain rent-related sections and sections 31 and 36) and dismissed the plaintiff's suit, concluding that eviction was not permissible without a notice under section 13(6) of the Act. On appeal, the lower appellate court reversed the trial court, holding that the lease had stood determined by efflux of time and that the landlord need not serve notice under section 106 of the Transfer of Property Act or section 13(6) of the Act; it decreed the suit. The defendant then filed the present second appeal.

Legal Issues Presented

Whether, after expiry of the 16-year lease, the defendant became a "statutory tenant" under the West Bengal Premises Tenancy Act, 1956 and thereby became entitled to protection against eviction under section 13 of the Act.
Whether section 3(1) of the Act (which limits the application of the Act to specified provisions for certain leases) allows the defendant to invoke the definition of "tenant" in section 2(h) and other provisions of the Act beyond the specific provisions mentioned in section 3(1).
Whether the landlord was required to serve any statutory notice (for example under section 106 of the Transfer of Property Act or section 13(6) of the West Bengal Premises Tenancy Act) before obtaining possession following expiry of the lease.

Arguments of the Parties

Plaintiff-Respondent's Case

The plaintiff leased the premises to the defendant by registered deed (ext. 1) for a fixed term (Nov 1, 1954 to Oct 31, 1970) and the lease required the lessee to surrender possession on expiry.
By letter dated Aug 17, 1970 the plaintiff (through his advocate) required the defendant to comply and deliver possession because the plaintiff needed the premises for his own use; the defendant failed to deliver possession, prompting the suit for recovery.

Defendant-Appellant's Case (including submissions of Mr. Sen, learned advocate)

The defendant maintained that it was entitled to remain in possession under the West Bengal Premises Tenancy Act, 1956 as a tenant so long as rent was paid; it alleged that rent had been deposited with the rent controller because the landlord refused to accept it.
Mr. Sen contended that the definition of "tenant" in clause (h) of section 2 of the Act includes any person continuing in possession after termination of his tenancy; therefore, on expiry of the lease the defendant became a statutory tenant entitled to protection under section 13.
Mr. Sen argued that section 3(1) of the Act applies the provisions "relating to rent" and sections 31 and 36 to the lease, and that "provisions relating to rent" should be read broadly to include all sections containing references to payment or deposit of rent (for example sections 13(1)(i) and 17), thus bringing more provisions of the Act into play than only sections 4–12 and 31 and 36.
As an alternative argument, Mr. Sen contended that once the lease term expired and the defendant continued in possession, the statutory protection under the Act should become fully available to the defendant (i.e., the restriction in section 3 should cease to operate on expiry and the defendant should become a tenant within the Act in full).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Syed Ali Kaiser v. Mstt. Ayesha Begum, A.I.R. 1977 Cal. 226 (= 81 C.W.N. 639)	Held that for a lease executed after 1 December 1948 for a period not less than 15 years, the provisions of the Act other than those mentioned in section 3(1) do not apply.	The court relied on this decision to support the conclusion that section 3(1) must be given its plain meaning and that provisions beyond those specified in section 3(1) cannot be read into the Act for the lease in question.
Panchanan Basak & Ors. v. Ishanitosh Ghatak & Ors., reported in 66 C.W.N. 872	Principle that to establish the status of a statutory tenant one must first have been a tenant within the meaning of the Act prior to expiry of the lease and have continued in possession after termination; if the Act did not apply during the contractual tenancy, mere retention of possession after expiry does not confer statutory tenancy.	The court adopted and applied this principle to reject the appellant's contention that mere continuation in possession after expiry transformed the defendant into a statutory tenant with full protections under section 13.

Court's Reasoning and Analysis

The court proceeded by examining the lease (ext. 1) and the statutory scheme of the West Bengal Premises Tenancy Act, 1956, particularly section 3(1) and the preliminary definitions in section 2. The lease was for 16 years from November 1, 1954 (registered April 25, 1955), and included a clause permitting the defendant company to allow officers and employees to occupy the premises, thereby bringing the lease within the ambit of section 3.

The court interpreted section 3(1) to mean that only certain provisions of the Act—specifically those "relating to rent" and sections 31 and 36—apply to leases of the character of the present lease; other provisions of the Act do not apply. The court observed that if Chapter I (which contains definitions such as that of "tenant" in section 2) were to be treated as wholly inapplicable to such leases, then a party could not rely on the section 2 definition of "tenant." The court therefore rejected the appellant's attempt to rely on section 2(h) where the applicability of Chapter I is excluded by section 3.

The court considered and rejected Mr. Sen's argument that the phrase "provisions relating to rent" in section 3(1) should be given a broad meaning so as to include every provision that refers to payment or deposit of rent (for example sections beyond chapter II). The court found that such a construction would defeat the clear intention and wording of section 3(1) and render that section nugatory. The court relied on precedent (Syed Ali Kaiser) to support the strict reading that provisions other than those specified in section 3(1) do not apply to long leases of this character.

The court also rejected the submission that expiration of the lease and continued possession should automatically confer upon the defendant full statutory tenant rights. Citing the principle in Panchanan Basak, the court held that to be a statutory tenant one must already have been a tenant within the meaning of the Act prior to expiry; if the Act did not apply to the contractual tenancy, mere retention of possession after expiry does not convert the holder into a statutory tenant entitled to protections under section 13. Applying these legal principles to the facts, the court concluded that the defendant, who had held under a 16-year contractual lease to which the Act's full protections did not apply, could not claim protection under section 13 merely by continuing in possession after expiry.

The court noted that certain decisions relied upon by the trial court were on different facts and did not assist the defendant in this case.

Holding and Implications

Holding: The appeal is dismissed. The court held that the defendant did not become a statutory tenant entitled to protection under section 13 of the West Bengal Premises Tenancy Act, 1956 upon mere continuation in possession after expiry of the 16-year lease; the protections of the Act beyond those specified in section 3(1) do not apply to the lease in question.

Consequences / Implications:

The plaintiff's decree for recovery of possession (as granted by the lower appellate court) stands and the defendant cannot resist eviction on the basis of section 13 of the Act in the facts of this case.
The court applied existing precedents and statutory interpretation rather than laying down a new legal principle; no broader or novel precedent was created beyond the application of established authority (as indicated by the court's reliance on the cited cases).
The appeal was dismissed with costs, but the court stayed the operation of its order for a period of four weeks from the date of the judgment.

Disposition: Appeal dismissed (operation stayed for four weeks).

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Kesoram Industries And Cotton Mills Ltd. v. Manindra Nath Sarkar

Janah, J.:-

(1) This appeal is at the instance of the defendant and it is against a judgment of reversal. The plaintiff - respondent instituted a suit for recovery of possession of the disputed premises on the ground that the term of the lease having expired, the defendant was liable to deliver up possession of the disputed premises to the plaintiff. The plaintiff's case in short, is that he leased out the disputed premises to the defendant by a registered deed dated april 25, 1955. The lease was for a period of 16 years commencing from november 1, 1954 and ending on october 31, 1970. It was provided in the lease that the lessee will give up peaceful and vacant possession of the suit premises to the lesser on the expiry of the term of the lease. The plaintiff through his advocate wrote a letter dated august 17, 1970 to the defendant requesting him to act in compliance with the aforesaid term of the lease. The defendant not having complied with the plaintiff's request the suit, out of which this appeal arises, was filed by the plaintiff. In the letter which was written to the defendant by the plaintiff's advocate it was mentioned that the plaintiff, required the suit premises for his own use and occupation.

(2) The defendant contested the suit by filing a written statement in which the defendant denied that it was in wrongful possession of the disputed premises from november 1, 1970. The defendant asserted that under the provisions of the west bengal premises tenancy act, 1956 the defendant was entitled to remain in possession of the suit premises as long as the defendant paid the monthly rent as stipulated in the aforesaid lease. The defendant alleged that it had been duly observing and complying with the provisions of the lease and also of the west bengal premises tenancy act, 1956, and as the plaintiff landlord refused to accept rent, the defendant had been depositing the rent with the rent controller regularly. The defendant also took the plea that the letter addressed to him by the learned advocate for the plaintiff was not a notice to quit and the suit was not maintainable in the absence of such a notice.

(3) The trial court came to the conclusion that the defendant was a tenant under the west bengal premises tenancy act, 1956 (hereinafter referred to as the act) for some limited purpose, namely, for the purpose of sections 4 to 12 and sections 31 and 2. 36 of the act. Relying on certain decisions mentioned in its judgment the trial court came to the conclusion that after the expiry of the lease when the contractual tenancy came to an end, the defendant became a statutory tenant under the provisions of the act and it was not liable to eviction under the provisions of the act and also for want of a notice under section 13 (6) of the act. In this view of the matter the trial court dismissed the plaintiff's suit.

(4) On appeal by the plaintiff the lower appellate court disagreed with the view taken by the trial court that the defendant had become a statutory tenant under the act. The lower appellate court took the view that the lease having stood determined by efflux of time, the landlord was not required to serve any notice under section 106 of the transfer of property act or under section 13 (6) of the act. The lower appellate court was of the view that the protection afforded to tenants under the act was not available to the defendant. The suit was accordingly decreed by the lower appellate court. Against the decision of the lower appellate court the present second appeal has been preferred on behalf of the defendant.

(5) Mr. Sen, learned advocate, appearing in support of this appeal has contended before us that under the provisions of the act the defendant after the expiry of the lease became a statutory tenant, and as such, the defendant was entitled to protection against eviction in terms of the previsions contained in section 13 of the act. Mr. Sen has contended that the definition of a 'tenant' as given in clause (h) of section 2 of the act includes any person continuing in possession after the termination of his tenancy. He has accordingly contended that in the present case the defendant is continuing in possession after the termination of the tenancy and accordingly the defendant is a tenant within the meaning of the act. He has accordingly contended that if the defendant is a tenant within the meaning of the act, he is entitled to protection against eviction under section 13 of the act. In order to ascertain whether the defendant is a tenant within the meaning of the act or not we have to look at the lease under which the defendant was holding the disputed premises under the plaintiff. The deed of lease has been marked as ext. 1. It appears from ext. 1 that the lease was for a period of 16 years commencing from november 1, 1954. The lease is dated april 25, 1955. The purpose for which the lease was taken appears from clause (5) thereof which stipulates that the defendant which is a limited company is given permission to allow its officers and employees to occupy the disputed premises without the approval and consent of the landlord. The lease therefore comes squarely within the provisions of section 3 of the act. Section 3 provides :

" (1) the provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the indian registration act, 1908, where - (a) such lease has been entered into on or after 1st december, 1948, and (b) such lease is for a period of not leases than 20 years, and save as aforesaid nothing in this act shall apply to any premises held under a lease for a period of not less than 15 years."

From the provisions of section 3 it is clear therefore that the only provisions applicable to the premises held under the lease ext. 1 are the provisions relating to rent and the provisions of sections 31 and 36 of the act. Section 2 of the act appears under chapter i which is headed as 'preliminary'. If the provisions of chapter i are not applicable to the premises then it is not open to mr. Sen to rely upon the definition of a 'tenant' as contained in clause (h) of section 2 of the act. If the whole of chapter i is inapplicable then it is not open to the appellant to take advantage of the definition of a 'tenant' as given in clause (h) of section 2 in support of his claim that as the defendant is continuing in possession after the termination of its tenancy, it is also included within the definition of a 'tenant'.

(6) The next contention of mr. Sen is that section 3 provides that the provisions 'relating to rent' and the provisions of section 31 and 36 shall apply, and therefore, all those sections in the act where the word 'rent' has been used contain provisions 'relating to rent'. According to him the lower appellate court was wrong in construing the provisions of section 3 as limited only to sections 4 to 12 and sections 31 and 36 of the act. Mr. Sens contention is that sections 4 to 12 which find place under chapter ii are provisions 'regarding rent' as the heading of the chapter shows. Mr. Sen has distinguished between the provisions 'regarding rent' and provisions 'relating to rent'. According to him the provisions 'relating to rent' is an expression which has wider connotation than the provision 'regarding rent'. In other words, sections 13 (l) (i) which refers to payment of lent is a provision 'relating to rent'. Similarly, section 17 which also contains reference to payment or deposit of rent is also a provision relating to rent. According to him, therefore, by virtue of the provisions of section 3 all those provisions in the act which contain reference to payment or deposited of rent are provision relating to rent, and therefore, those provisions are applicable in the present case as well. If that is so, argued mr. Sen, his client is amply protected under section 13 (1) (i). We are unable to accept this contention put forward by mr. Sen. If this contention is accepted, it would render the provisions of section 3 (1) of the act almost nugatory. Section 3 (1) specifically mentions certain provisions which would be applicable to a kind of lease with which we are concerned in the present case. To extent other provisions of the act to such a lease would amount to introducing something into the section which is not there in syed ali kaiser v. Mstt. Ayesha begum reported in a. I. R. 1977 cal. 226=81 c. W. N. 639, a similar question came up for consideration although not in the same form in which it has come up before us now. In that case the division bench to which i was a party took the view that in a lease executed after the 1st december, 1948 for a period of not leas than 15 years the provisions of the act other than those mentioned in section 3 (1) would have no application. We see no reason to take a different view in the present case.

(7) The other branch of mr. Sen' s argument has been that section 3 (1) of the act puts certain restrictions on the rights of a lessee and the protection conferred upon him by the act so long as the lessee holds the property for a period not less than 15 years as limited by the lease itself. But as soon as that period expires and the lessee continues in possession all the rights and benefits under the act are available to him. In other words, the argument is that once the lease under which the lessee is holding comes out of section 3, the limitation imposed by that section ceases to operate and the lessee becomes entitled to all the benefits and protection under the act. That being so, mr. Sen has contended that the protection against eviction under section 13 (1) (i) is available to the defendant. Although mr. Sen has placed this point in an apparently attractive manner, we are unable to accept his argument. To do so would be to confer greater right upon a lessee whose term has expired than the rights which he had during the continuance of the lease. In panchanan basak and ors. Vs. Ishanitosh ghatak and ors. , reported in 66 c. W. N. 872 it has been pointed out that in order that a person can establish his right as a statutory tenant he must first establish that he was a tenant of the premises within the meaning of the premises tenancy act, 1956 prior to the expiry of the lease, and that he continued in possession after termination of that tenancy. If the act did not apply to the lease or the contractual tenancy under which the person was holding he would not be a statutory tenant by merely retaining possession after expiry of the lease. We respectfully agree with the view expressed in the said case. The trial court referred to certain decisions mentioned in his judgment. But it appears, that those decisions were on different facts and the decisions in those cases are of no assistance to the defendant in the present case. In the present case the defendant was holding the disputed premises under the lease for a period of 16 years. After the determination of that lease by efflux of time the defendant cannot claim to be a statutory tenant merely because he has not delivered up possession to the lesser. In such a case, in purr opinion, the protection against eviction given to tenants under section 13 of the act is not available to the defendant. This appeal therefore fails and it is accordingly dismissed with costs. On the prayer of the learned advocate for the appellant, we stay the operation of this order for a period of four weeks from this date. Appeal dismissed

Kesoram Industries And Cotton Mills Ltd. v. Manindra Nath Sarkar

Judgment Summary — Janah, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiff-Respondent's Case

Defendant-Appellant's Case (including submissions of Mr. Sen, learned advocate)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kesoram Industries And Cotton Mills Ltd. v. Manindra Nath Sarkar

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