Pathak, C.J. (Acting)
1. This appeal is directed against the judgment and decree passed by the Assistant District Judge on 13-11-75 in Title Appeal No. 62 of 1968 affirming the judgment and decree passed by Munsiff No. 2, Gauhati in Title Suit No, 11 of 1968 dated 15-5-68.
2. This matter was earlier heard by learned single Judge and same was referred to a Division Bench to consider the interpretation of Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act of 1955 (hereinafter 'the Act'). When the matter was last heard by a Division Bench, the appeal was again referred to a larger Bench in order to consider the interpretation put in Section 11 of the Act in respect of notice for ejectment and that is how this matter has been heard by this Bench. This appeal arises out of a suit of 1960. Considering this aspect, we have decided to finally dispose of the matter on merit.
3. A brief narration of the fact is that the respondent lessor filed a suit for recovery of the possession of lease land by evicting the appellant, the lessee. The case of the plaintiff in brief is that the defendant took lease of 2 Kathas and 10 laches of land from the plaintiff at an annual rental of Rs. 30 for a definite period of seven years by executing a registered deed. It was stipulated that if at the end of the lease period the land was not required by the plaintiff, the defendant might obtain a fresh lease and if it be necessary to plaintiff to sell the land, the defendant would have an option to purchase it at the proper price. The defendant also purchased a house of temporary structure from the plaintiff and started residing there. But in Fagun of 1364 B.S. fire gutted that house of the defendant, Then the plaintiff issued notice on defendant asking the latter to purchase the land within ten days of the receipt of the notice at Rs. 5,000 per katha which was, according to the plaintiff, the price offered by other intending purchasers. The defendant replied that he would purchase it at the end of the lease period. The period of lease expired on 31-12-59. The plaintiff issued a notice dated 11-12-59 asking the defendant to make over the vacant possession of the land on 1-1-60. But the defendant did not do so, hence the suit was instituted on 12-1-60 for ejectment together with compensation of Rs. 12 for unauthorised occupation.
4. The defendant by filing written statement contested the suit. He denied some of the averments of the plaint and pleaded inter alia that the suit is not maintainable being barred by waiver, estoppel and acquiescence and bad for defect in the requisite notice. The defendant stated that he improved the land at a cost of Rs. 480 and built a house of permanent structure which was unfortunately gutted by fire. Even thereafter the defendant raised other permanent structures on the same land. The defendant refers to para 8 of the lease deed and asserts that according to that stipulation the plaintiff is bound to sell his land to the defendant or to give a fresh lease at the expiry of the old lease. The defendant asked the plaintiff orally and by service of notice to sell his land to the defendant at proper price, but he failed to do so. The defendant also seeks protection from ejectment Under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act. He also contends that the suit is bad for nonjoinder of the State of Assam as a party to whom the defendant has mortgaged his lease-hold rights.
5. On the pleadings of the parties as many as seven issues were formulated. Out of these issues, the relevant issues for consideration in this appeal are issues Nos. 2 and 5 and they read as follows:--
'2. Whether the notice of ejectment is valid and sufficient?
5. Whether the defendant is protected
Under Section 5 of the Assam Non-Agricultural
Urban Areas Tenancy Act?
The trial Court on consideration of issue
No. 2 decided it in favour of the plaintiff. In deciding issue No. 5 the learned
trial Court answered the issue in negative and against the defendant. The defendant being aggrieved, preferred an
appeal against the judgment and decree
passed by the learned trial court and
in that appeal by an order dated 7-5-70
remanded the case to the trial Court
for determination of the following two
points on the basis of evidence on record keeping the appeal in his file. The two points are:
(1) Whether the defendant constructed permanent structure in the suit land within five years of the lease? and,
(2) Whether the subsequent structures were also of permanent nature? The learned trial Court on remand recorded a finding on point No. 1 that the defendant constructed permanent structure within the meaning of 'permanent structure' as defined under Section 3 (d) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short 'the Act'), in the suit land within five years of the lease. Regarding the second point, the learned trial Court also recorded a finding that the subsequent structures constructed by the defendant after the earlier house was gutted by fire were also of permanent nature. Ultimately the matter came up before the appellate Court for disposal of the appeal. In deciding the appeal, the learned appellate Court accepted the findings recorded by the trial Court. The appellate Court held that the lease in question came to an end on the expiry of the stipulated period as laid down Under Section 111(a) of the Transfer of Property Act and the notice was also valid. It is observed that the defendant appellant could have taken a fresh lease or he could have purchased the land. But he did not come forward with a concrete proposal for either and went on asserting his tenancy rights alone. On consideration of Issue No. 5, the learned appellate Court relied on a decision of this Court in Second Appeal No. 142 of 1964 disposed of on 22-2-68 (Janakiram Das v. Bhubaneshwar Deka), 1969 Assam LR 238. The trial Court relied on this decision where it waa observed-
'Both the courts below hold that the defendant built permanent structure on the suit land within five years of the tenancy. It is an admitted fact that the tenancy commenced from 7-10-53. The defendant's case is that he built a permanent structure in 1954 but those were gutted by fire in 1960 and then the defendant again constructed permanent structures. The second construction is obviously beyond five years from the commencement of the lease. But it is argued before me that under Section 5 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, a tenant is protected if he builds a permanent structure within the period of five years from the date of the commencement of the lease. It will not make any difference if the structures got destroyed. This argument cannot be accepted. It will lead to an absurd situation. It will mean that if no structure is constructed at all once the permanent structure is destroyed, the tenant cannot be evicted. Such a proposition cannot be accepted. Section 5 of the Act will apply only when it is sought to evict a tenant from permanent structures constructed within 5 years of the commencement of the tenancy. The suit must however be dismissed on the ground of invalid notice. The finding of the Court below that the defendant could not be evicted after his permanent structures were burnt down, is set aside.'
Following the above view the learned appellate Court held:--
'The defendant in this case is not protected from eviction under Section 5 of the Act notwithstanding his plea that he built permanent structures within 5 years of the commencement of the lease. He could have benefitted by the protection under Section 5 only if such permanent structures were in existence at the date of the suit. The second construction of the defendant is obviously beyond five years of the commencement of the lease and so does not afford him any protection. That being the position the defendant is not protected under Section 5 of the Act in any case. The issue is answered in the negative and against the defendant.'
The defendant being aggrieved has preferred this appeal.
6. Mr. S. Sarma, the learned counsel appearing on behalf of the appellant has raised two contentions in support of the appeal : (1) That there was no proper notice in terms of Section 11 of the Act, and (2) that the appellant is entitled to protection Under Section 5 of the Act which was not considered by the appellate Court in its proper perspective. Section 11 is a provision for notice which reads as follows:--
'11. No suit for ejectment except for arrears of rent shall be instituted until after the expiration of one month from the date of the receipt by the tenant of a notice in writing by the landlord requiring the tenant to surrender possession of the land in favour of the landlord.'
7. On perusal of Section 11, it is found that a suit by the landlord for ejectment of the tenant can be instituted only after the expiration of one month 'from' the date of the receipt by the tenant of notice in writing by the landlord requiring the tenant to surrender possession of the land in favour of the landlord. The appellant's counsel submits that the notice Annexure 'A' was not in conformity with the provision of Section 11 and hence the notice is invalid. The notice is dated 11-12-59 asking the appellant to surrender the possession of the land by 1-1-60. It is not in dispute that the notice was received by the appellant on 12-12-59. The suit was filed on 12-1-60. The validity of the notice has been challenged on two counts by the learned counsel for the appellant. First, that the appellant was asked to surrender the possession by 1-1-60 which ia less than a month from the date of the notice received by him. So, the actual cause of action for the suit arose on 1-1-60 which is less than a month from the date of service of notice. Secondly, that the suit was not filed after one month 'from' the receipt of the notice by the appellant. Regarding the first contention the learned counsel submits that he was asked to surrender the possession within less than a month which is not contemplated under Section 11 of the Act. Even assuming that the notice was received on 12-12-59, the suit having been filed on 12-1-60 which is less than a month, is clearly in contravention of the provision of Section 11 of the Act. The learned counsel for the appellant submits that if the date of service of notice is excluded which is 12-12-59, then the suit was filed within less than a month. In support of the submission that the day of service of notice is to be excluded, the learned counsel placed reliance on a decision of the Calcutta High Court in Province of Bengal v. Midnapore Za-mindari Co. Ltd. reported in AIR 1945 Cal 141. That was a case where the question of interpretation of Section 80 of the Code of Civil Procedure came up for consideration. There a Division Bench of the Court held that the period of two months, as laid down in Section 80, should be taken as exclusive of the day on which the notice is served. Accordingly the learned counsel submits that the notice was invalid on both the counts contended above.
8. The learned counsel for the respondents, on the other hand, submits that the suit was within time in terms of Section 11 of the Act. As the date of notice is 11-12-59 and the suit was filed on 12-1-60, it was filed clearly after expiry of one month from the date of the notice in terms of Section 11 of the Act. The learned counsel submits that the crucial date on which it is to be counted is the date of notice. In support of his submission the learned counsel refers to a decision of a Division Bench of this Court in Mst. Mira Khubi v. Usha Ranjan Bhadra reported in AIR 1966 Assam 118, where the question of interpretation of Section 11 of the Act came up for consideration. There it has been held that Section 11 requires that if a suit is to be brought for ejectment not on the ground of arrears of rent, the suit can only be brought after the expiry of one month from the date of the notice.
We do not see how this interpretation can be available in view of the explicit terms of Section 11 where it has been expressly provided that the suit can be instituted only 'after the expiration of one month 'from' the date of the receipt of the notice by the tenant.....'
We think that the interpretation put on Section 11 by the Division Bench in the aforesaid case holding that the suit can be instituted after the expiry of one month from the date of the notice is not the correct proposition of law.
Section 11 of the Act refers to 'after the expiration of one month 'from' the date of the receipt by the tenant'. 'Month' means a British Calendar month. Section 4 (39) of the Assam General Clauses Act, 1915 defines 'month' which reads:
' 'month' shall mean a month reckoned according to the British Calendar.'
Section 11 also uses the expression 'from' when expression 'from'' is used in a b2 series of days, the first date of the series is to be excluded. Section 9 of the Assam General Clauses Act, 1915 provides for the commencement and termination of time. This section reads:
'In any Act it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from' and for the purpose of including the last in a series of days or any other period of time, to use the word 'to'.'
Here the suit was filed on 12-1-60, whereas the notice was received by the
defendant on 12-12-59. Therefore, according to the provision of Section 11 of the Act, notice for the suit would have been sufficient after one month of the receipt of the notice by the defendant. Hence from the factual situation the calendar month would have expired on 12th January. 1960, as 12th of December, 1959 had to be excluded in terms of the provision of Section 11 of the Act. Accordingly the notice was invalid and the finding by the courts below that the notice was valid is hereby set aside.
9. The next important question for consideration is whether the protection under Section 5 of the Act is available to the appellant on the facts and circumstances of the case. We have already noticed that the lease which was granted to the appellant was to enure from 1-1-53 for a period of seven years. Within five years of the lease, the appellant constructed a permanent structure but the same was gutted by fire in 1958. After the construction of the permanent structure on the land under the lease, the appellant clearly got the immunity from eviction in view of the provision of Section 5 of the Act. Now after the permanent structure which was constructed within five years of the lease was gutted out and other structure of permanent nature was constructed within the period under lease, whether protection under Section 5 of the Act is available or not. There is a clear finding recorded by the Courts below that both the structures -- one constructed within five years of the lease and also the other one constructed after the earlier structure was gutted by fire, were of permanent nature. Now the question is whether on such facts the appellant is protected from eviction in view of the provisions of Section 5 of the Act.
10. Now we may notice the relevant provision of Section 5 of the Act which reads as under:--
'5 (1) Notwithstanding anything in any contract or in any law for the time being in force.-
(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actuallv built within the period of five years from the data of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rents
(2) and (3) .....'
This section gives the protective umbrella to the tenant from ejectment by the landlord from the tenancy except on the ground of non-payment of rent provided the tenant has constructed within a period of five years of the lease, a permanent structure on the land of tenancy for residential or business purposes. The emphasis of this section is that once the tenant has constructed the permanent structure on the land of the tenancy for residential or business purposes within five years from the date of the lease he acquires a right not to be evicted. In other words, on a bare reading of Section 5 it is found that a tenant who under the terms of the contract entered into between him and his landlord whether before or after the commencement of this Act, is entitled to build and has actually built in pursuance of that contract within five years from the date of that contract a permanent structure on the land of the tenancy for residential or business purposes, shall not be ejected by the landlord except on the ground of non-payment of rent. Again, a tenant although not entitled to build under the contract, has actually built permanent structure on the land of the tenancy for residential or business purposes with the knowledge and acquiescence of the landlord, shall not be ejected by the landlord except on the ground of non-payment of rent. Even with regard to the non-payment of rent under Section 5 (3), a decree for ejectment passed on the ground of nonpayment cannot be executed within a period of thirty days from the date of the decree and if the tenant pays in the court the decretal amount within tha aforesaid period, the decree will stand satisfied.
In Bireswar Banerjee v. Sudhir Ran-jan Bose, 1973 Assam LR 15, the Full Bench of this Court had to consider the scope and content of Section 5 of the Act. The Full Bench observed as follows:
'We are not prepared to give too literal a meaning to Section 5 (1) (a) with
the two parts therein. We are clearly of opinion that a right which has already vested in a tenant under Section 5 (1) (a) cannot disappear or be wiped out by his entering into another contract with the landlord for renewing the tenancy or for taking a fresh lease of the land in his occupation as a tenant where he had already built within five years of the first tenancy a permanent structure on the land. What has been conferred under Section 5, which is the principal aim and object of the legislature in making this law, cannot be taken away in the absence of any express provisions in this Act, as if by a side-wind. The legislature having conferred the right on the tenant in this way cannot be intended to have left the tenant in the lurch to the mercy of landlord to evict him after he had built his permanent structure on the land to earn immunity from eviction in compliance with Section 5 (1) (a).'
The Full Bench has further observed:
'Section 5 has to be interpreted in a way so as not to destroy the already vested rights of tenants conferred under the Act. The legislature, in a welfare legislation like the present, cannot be intended to give something by the right hand to take it away by the left. Such an interpretation of Section 5 is not possible unless the Court takes the words of the Act in their shell sans soul. It is clear, protection under Section 5 is available notwithstanding any provision of contract or of law.'
The contention raised on behalf of the landlord that unless the construction is made within five years of the current lease which is relied upon by a party, such a tenant is not entitled to protection under Section 5 (1) (a) of the Act, the Full Bench repelled the aforesaid contention in the following term:
'We cannot accept this submission as sound. Nothing impossible can be expected to be performed by the tenant as defined under the Act. Law assumes that what is impossible cannot be performed. It is absurd to suggest an impossibility that each time a tenant renews a lease he has to build a new permanent structure on the land in order to claim protection under Section 5. Such construction is a manifest absurdity and must be avoided in order to effectuate the object and purpose of Section 5. Section 5, in terms, refers only to a contract entered into between a landlord and tenant and a time limit of
five years from the date of such contract is insisted upon. Once a permanent
structure is constructed within five years of a contract entered into between a landlord and tenant, a tenant, is entitled to protection throughout the period that relationship is continuing between the parties.'
The Full Bench noticed the decision of a Division Bench of this Court in Chi-manlal Agarwalla v. Anandamalla Baraa, AIR 1964 Assam 70, and has expressly overruled the aforesaid decision.
In Chimanlal (supra) the appellant-defendants in the year 1931 had taken lease of the land. They had made permanent construction within five years of the said lease. Therefore, it was contended that they were entitled to protection from eviction on expiry of lease of 1943 on the ground that they had made permanent structure earlier within five years of the lease.
On these facts the Division Bench held-
'The lessee is not protected from ejectment under Section 5 of the Act, as it contemplates the permanent constructions by the lessee within the term of the lease on the expiry of which the suit for ejectment is based. If the structures in question were in existence at the date of the lease, the tenant cannot take advantage of such constructions.'
However, in Bireswar Banerjee (supra), as we have noticed earlier, the Full Bench did not accept the aforesaid view of the Division Bench but held that the case had not been correctly decided with regard to the construction of Section 5 of the Act. in view of the decision of the Full Bench in Bireswar Banerjee (1973 Assam LR 151 (supra), the decision in Janakiram (1969 Assam LR 238) (supra) also cannot be said to be the correct proposition of law in its interpretation of Section 5 of the Act.
The learned counsel for the appellant refers to another Division Bench decision of this Court in Rajendra Nath Sarma v. Ramdhin Rajbhor, 1971 Assam LR 244 : (AIR 1971 Assam 160). That was really a case not under the Act but it came up for consideration of the provisions of Sections 105, 106, 198 (a) and 111 of the Transfer of Property Act as well as Section 56 of the Contract Act. There the plaintiff's case was that the defendant came to the land in suit and occupied the house thereon as a tenant. When the house was gutted by fire the defendant instead of surrendering the land, constructed his own house on the land in spite of protest and occupied the same. On the above facts the point that arose for consideration is whether the lease that was admitted by the defendant determined on the destruction of the house. It was contended on behalf of the plaintiff that the house was gutted by fire was of the entire land measuring 1 Bigha and odd with house thereon. On these facts it was held that simply because the material portion of the property namely, the house was wholly destroyed by fire, the lease did not automatically determine unless the lessee exercises his option on that ground by virtue of the provision of Section 108(e) of the Transfer of Property Act which reads:
'If by fire.....any material part of the
property is wholly destroyed or render-ed substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void.'
It was further contended on the destruction of the house the contract arising out of the lease had altered and the lease was, therefore, no longer in force. In support of this contention Section 56 of the Contract Act was relied upon. Relying on the Calcutta High Court decision in AIR 1950 Cal 441 (Kshitish Chandra v. Shiba Rani Debi), the Division Bench held that Section 56 of the Contract Act had no assistance to the plaintiff in the case as that Section did not apply to leases.
The learned counsel for the appellant relied on this decision for his submission that merely because a house is gutted by fire thereby there is no auto-matic determination of tenancy.
In the present case the permanent structure which was built earlier within the period of five years and thereby acquiring the protection under Section 5 (1) (e) of the Act could not be said to have been whittled down by the mere fact that the said permanent structure has been gutted out by fire. The act of fire in gutting out the permanent structure was not within the control of the appellant, it was accidental without any volition on the part of the appellant This was an event which could not be reasonably anticipated. A loss occasioned by the act of God or vis major or by any event beyond the control of a person, it cannot be said that such loss will fall on him.
According to Osborn's Concise Law Dictionary, Sixth Edition at page 10, the act of God means -- 'An accident or event which happens independently of human intervention and due to natural causes, such as storm, earthquake, etc., which no human foresight can provide against, and of which human prudence is not bound to recognise the possibility. It will relieve from absolute liability in tort'.
In Latin for Lawyers. Third Edition published by Sweet and Maxwell Limited it is noted at page 108 that --Actus Dei, nemini nocet, meaning -- the act of God does injury to no one.
In Winfield on Tort. In Eighth Edition at page 430, it has been stated that -- in law the essence of an act of God is not sp much a phenomenon which is sometimes attributed tn a positive intervention of the deity, but a process of nature not due to the act of man, and it is this negative side which needs emphasis. One view of an act of God is that it means an event which could not reasonably be anticipated. This identifies it with inevitable accident from which it differs both in the degree of unexpectability and in the exclusion of human activity as a casual link in the chain of events. The other, more recent view adopted by the House of Lords is that the test of an act of God is whether or not human foresight and prudence can reasonably recognise its possibility.'
In Halsbury's Laws of England, Fourth Edition at page 323 paragraph 458, dealing with what constitutes an act of God, has noted as follows:
'In the legal sense of the term, an act of God may be defined at an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against: or, more accurately, as an accident (1) due to natural causes, directly and exclusively without human intervention, and (2) which could not be any amount of ability have been foreseen, or if foreseen, could not by any amount of human care and skill have been resisted. The occurrence need not be unique, nor need it be one that happens for the first time; it is enough that it is extraordinary, and such as could not reasonably have been anticipated. The mere fact that a phenomenon has happened the, when it does not carry with it or import any probability of a recurrence (When, in other words, it does not imply any law from which its recurrence can be inferred) does not prevent that phenomenon from being an act of God. It must however, be something overwhelming, and not merely an ordinary accidental circumstance.
The following, amongst other occurrences, have been said to be acts of God: a violent storm at sea, an extraordinarily high tide, an unprecedented rainfall, an extraordinary flood, an earthquake, fire caused by lightning, an extraordinary frost, an extraordinary snowfall, death, lunacy, and (in contracts of personal services) illness.
On the other hand, it has been held that the gnawing by rats of a hole in a pipe of a ship through which the sea water came in and damaged the cargo, a fog, an ordinary fall of snow, and fire not caused by lightning were not acts of God'
10-A. We are firmly of opinion that on the destruction of the permanent structure by accident beyond the control of the tenant or by any act of God, the protection available to a tenant under the provision of Section 5, by constructing a permanent structure, do not evaporate. Once the protection enure to the tenant by virtue of his having built the permanent structure, within five years of the lease for the purpose of residence and business, the destruction of the structures by same event beyond the control of the tenant would not deprive the tenant of the said protection provided he is continuing in the tenancy for the purpose of his residence or business.
11. On a thorough construction of Section 5 (1) (a) of the Act we are clearly of opinion that once the tenant acquires immunity from eviction having built his permanent structure for residence or business within five years of the tenancy, that cannot vanish merely the permanent structure has been destroyed by some event which is beyond the control of the tenant,
We have already noticed the facts that the permanent structures were built within five years of the tenancy which was destroyed by fire in 1958, and thereafter the tenant built other permanent structure on the land under lease, although after the expiry of the earlier lease.
12. For the reasons stated above, we are of opinion that the judgment ren-dered by the Courts below are not sus-tainable in law and accordingly they, are set aside.
The suit filed by the respondent stands dismissed.
The appeal is allowed. But in view of the facts and circumstances of the case, we pass no order as to costs.
K.N. Saikia, J.
Takun Das, J.