Ganga Dutt Murarka v. Kartik Chandra Das and Others.

Shah J. · SHAH, J . .:_ar the ·premises· relating to which this

dispute arises-No. 5, Raja Rajkissen Street, Calcutta .-t_he respondents are the owners ;J.nd .. the appellant __ was, a· contractual tenant from Junec 15, 1917, till · · June 15,-l 9i 7, under three successive tenancies for · '10 years each. Under the first tenancy, the 'appellant · paid rent at the rate of Rs: 84-15;0 per month, under

the seco_nd-tenancy at therate_of,R.s. 180 per month •, and undPr the third tenancy at the rate of Rs. 225 Ig6I per month. The tenancy was in respect of buildings used for manufacturing " tin canisters " and open Ganga Duti Mura,.ka land. On September 30, 1946, the Governor of v. Bengal issued the Calcutta Rent Ordinance, V of 1946, J(artik making certain provisions for control of rent of pre-Chand1·a Das mises in the town of Calcutta. Bys. 12 of the Ordin-ance, it was provided in so far as it. is material that Shah]. notwithstanding, anything contained in the Transfer of Property Act, the Presidency Small Cause Courts Act or the Indian Contract Act, no order or decree for the recovery of posse;sion of any premises shall be made as long as the tenant pays rent to the full extent allowable by the Ordinance and performs the conditions of the tenancy. By the proviso, the land-lord was, notwithstanding the protection gra11ted entitled, if the conditions specified therein were ful-filled, to obtain possession of the premises. This Ordinance was replaced by Act I of 1947 which con-tained suustantially the same provisions. By the West Bengal Act V of 1948, the provisions of Ordin-ance V of 1946 and Act I of 1948, were continued.

Thereafter on December l," 1948, the West Bengal Premiseo Rent Control· (Temporary Provisions) Act XXXVIII of 1948 was brought into operation and by this Act, the West Bengal Act V of 1948 was repealed, but the protection granted to the tenants was con-tinued. This Act was repealed by the West Bengal Premises Rent Control Act, 1950, and by s. 12 of the latter Act protection to tenants, including tenants whose tenancies had expired, against eviction was granted by prohibiting courts from passing decrees or orders for recovery of possession of any premises in favour of landlords. It was provided by that Act that the landlord shall be entitled to obtain a decree in ejectment, inter alia, where the premises are reason-ably required by him either for the purpose of building or re building or for his own occupation.

By letter dated May 15, 1957, the respondents called upon the appellant to vacate and deliver possession on the expiry of the period of tenancy .

.Possession was however not delivered by the appellant

and he continued to pay the stipulated amouut and the same was accepted by the respondents. In an Ganga Dutt application under s. 9 of the West Bengal l:'remises Murarka

v. Rent Control (Temporary Provisions) Act, 1948, the Karlik Controller fixed the standard rent of the premises at Chandra Das Rs. 455 per month. After the enactment of the West

Bengal Premises Rent Control Act, 1950, another Shah]. application was submitted by the appellant and the

standrad rent was reduced to Rs. 247-8-0. On Octo-ber 10, 1950, the respondents served a notice upon the appellant requiring him "to quit, vacate and deliver possession of'the premises occupied", which the appellant was described ii.s holding as "monthly tenant", on the expiry of the 31st of Chaitra, 1357 B. S., i.e., April 14, 1951. The ground for eviction, it wa.s claimed, was that the premises were reasonably required by the landlords for putting up new build-ings thereon. The appellant having failed to vacate the premises, the respondents sued in the Court of Sm11ll Causes, Calcutta, for a decree in ejectment. The Court of Small Causes decreed the suit filed by the respondents. In appeal to the Special Bench, Court of Small Causes, the decree passed by the court of first instance was reversed. The appellate court held that by acceptanlJe of rent after determination of the tenancy in June, 1947, the appellant continued to be " a tenant holding over" and as the purpose of the tenancy was manufacturing, it could be determined only by a notice of six months, expiring with the year of tenancy and as no such notice was served, the tenancy wa's not determined and the suit was liable to fail. In appeal to the High Court of J ndicature at Calcutta, the decree passed by the Special Bench was reversed and the decree passed by the court of first instance was restored. With certificate of fitness under Art. 133(1Xc) of the Constitution this appeal is preferred by the appellant against the order of the High Court. ·

The contractual tenancy in favour of the appellant was determined by effiux of time on June 15, 1947, and since that date there has been between the parties no fresh contractual tenancy. The respondents were, it appears, anxious to obtain possession of the pre-mises let out to the appellant, but they were unable to obtain assistance of the court in view of the protec-Ganga Dutt Murarka tion afforded to the appellant by the successive rent v. contrnl Acts. In the meanwhile, the appellant con-Karlik tinued to pay every month amounts equal to the Chandra Das contractual rent, and later the rent declared to be the f· statutory rent. Does the acceptance of the amounts Shah paid by the appellant confer upon him the right of a tenant holding over within the meaning of s. 116 of the Transfer of Property Act?

Section 116 of the Transfer of Property Act in so far as· it is material provides that if a lessee of pro.

perty r~mains in possession thereof after the deter-mination of the lease granted to .him and the lessor accepts rent from the lessee or otherwise assen ts to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month according to the pur-pose for which the property is leased as specified in s. 106. It is, however, well settled that where a con-tractual tenancy to which the rent controllegislation applies has expired by efflux of time or by determina-tion by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contract11al tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy. It was observed by B. K. Mukherjea, J. (as he then was), in Kai Khushroo v. Bai Jerbai ('):

"On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues in possession. even after the determination of the lease, the landlord undoubt-edly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on hi~ part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to r961 the land but holds it merely through the ]aches of

the landlord. If now the landlord accepts rent Ganga Dutt from such person or otherwise expreRses assent to Murarka

v. the continuance of his possession, a new tenancy Kartik comes into existence as is contemplated bys. 116, Chandra Das Transfer of Property Act, and unless there is an

agreement to the contrary, such tenancy would be Shah j. regarded as one from year to year or from th to m"n month in accordance with the provisions of s. 106 of the Act."

It was further observed :

" .................. in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired. The landlord cannot eject him exeept on specified grounds mentioned in the Acts them'<·lves. In such circumstances, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy, and it would not be open to such a tenant to urge, by way of defence, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be deter-mined by a fresh notice to quit. "

Under the Calcutta Rent Ordinance, 1946, and the subsequent legislation which culminated in the West Bengal Premises Rent Control Act, 1950, in the expression "tenant" was included any person who continued in possession after termination of his tenancy. Section 12 of the West Bengal Premises Rent Control Act, 1950, expressly protects a tenant whose lease has expired. By the Rent Restriction Statutes at the material time, statutory immunity was granted to the appellant against eviction, and acceptance of the amounts from him which W'ere equivalent to rent after the contractual tenancy had expired or which were fixed as standard rent did not amount to accept-ance of rent from a lessee within the meaning of s. ll6, Transfer of Property Act. Failure to take action which was nonsequent upon a statutory prohibition imposed upon the courts and not the result of any voluntary conduct on the part of the appellant did not also amount to "otherwise assenting to the lessee Ga11ga DuU Muraf'Aa continuing in possession. " Of course, there is no v. prohibition against a landlord entering into a fresh Karlik contract of tenancy with a tenant whose right of Chandra Des occupation is determined and who remains in occupa-tion by virtue of the statutory immunity. Apart from Shah]. an express contract, conduct of the parties may undoubtedly justify an inference that after determina-tion of the contractual tenancy, the landlord had entered into a fresh contract with the tenant, but whether the conduct justifies such an inference must always depend upon the facts of each case. Occupation of premises by a tenant whose tenancy is determined is by virtue of' the protection granted by the statute and not because of any right arising from the contract which is determined. The statute protects his posses-sion so long as the conditions which justify a lessor in obtaining an order of eviction against him do not exist. Once the prohibition against the exercise of jurisdiction by the court is removed, the right to obtain possession by the lessor under the ordinary law springs into action and the exercise of the lessor's right to evict the tenant will not unless the statute provides otherwise, be conditioned.

The High Court was in our judgment right in hold-ing that by merely accepting rent from the appellant and by failing to take action against him, the appel-lant did not acquire the rights of a tenant holding over. It is true that in the notice dated October 10, 1950, the appellant is described as a "monthly tenant", but that is not indicative of conduct justify-ing an inference that a fresh contractual tenancy had come into existence. Within the meaning of the West Bengal Premises Rent Control Act, 1950, the appellant was a " tenant" and by calling the appellant a tenant the respondents did not evince an intention to treat him as a. contractual tenant. The use of the adjective "monthly" also was not indicative of a contractual relation. The tenancy of the appellant was determined by effiux of time and subsequent occupation by him I961 was not in pursuance of any contract express or Ga11ga DuU implied, but was by virtue of the protection given by MuYarka the successive statutes. This occupation did not confer

v. any rights upon the appellant and was not required to Kartik be determined by a notice prescribed by s. 106 of the Chandra Das Transfer of Property Act.

Shah]. In that view of the case, this appeal fails and is

dismissed with costs.

Appeal dismissed.

JUTE AND GUNNY BROKERS LTD.

AND ANOTHER

v.

THE UNION OF INDIA AND OTHERS.

February r7. (and connected appeals)

(P. B. GAJENDRAGADKAR, K. N. WANCHOO and

K. c. DAS GUPTA, JJ.) '

Requisition and Acquisition of Property-Orders by Govern-ment of India-Notice on managing agents-Validity-Holders of Pucca delivery order, if owners of goods-Estoppel-Defence of India Act, z939 (35 of z939)-Defence of India R.11les, z939, rr. 75A, zz9-Code of Civil Procedure, z908 (Act V of z908), 0. XXIX, r. 2-lndian Companies Act, z9z3 (7 of I9z3), ss. 2(zz),z,,.S-Indian Sale of Goods Act, z930 (3 of z930), s. z8.

The Government of India entered into an agreement with the President of Argentine Institute for Promotion of Trade to supply hessian in return for licences for shipment to India of food-stuff purchased there and with a view to implement that agreement issued orders under r. 75A(1) of the Defence of India Rules, 1939, on the managing agents of certain jute mills on September 30, 1946, requisitioning hessian and directing them and any other person in possession of the said goods to deliver them to the Director of Supplies, Calcutta. Although 'in the heading of the notices after the names of the managing agents it was not stated that they were being addressed as managing agents of such and such mills, the schedules attached to them made it clear that they were addressed as managing agents of such and such mills. On the same day notices of acquisition under r. 75A(2) were served on the said managing agents and they were further informed that under r. 75A(3) the goods would vest in the Government at the beginning of the same day free from any mortgage, pledge, lien and other similar encumbrance. The notices of acquisition were also accompanied by schedules similar to those accompanying the requisition <;>rders. The