Skip to content


Ramchandra Annasaheb Shinde Vs. Dagadu Shankar Shevate and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 386, 920 and 2486 of 1959 and 2587 of 1958
Judge
Reported inAIR1962Bom71; (1960)62BOMLR778; ILR1961Bom14
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 2(20), 34 and 34(1); Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956; Transfer of Property Act, 1882 - Sections 106; Tenancy Law
AppellantRamchandra Annasaheb Shinde
RespondentDagadu Shankar Shevate and ors.
Appellant AdvocateR.W. Akik, Adv.
Respondent AdvocateN.H. Gursahani, Adv.
Excerpt:
.....means notice of one calendar year end such notice whether must terminate tenancy from particular date--notice when there is contractual tenancy when to expire.;under section 34 of the bombay tenancy and agricultural lands act, 1948, as it stood prior to its amendment in 1956, the notice under section 34 of the act must be a notice of not less than twelve calendar months and it need not terminate the tenancy with effect from any particular date. when there is a contractual tenancy, the notice must not expire earlier than the date on which the period of contractual tenancy comes to an end. ;narayan ramchandra joshi v. k.b. wasoodev (1952) special civil application no. 959 of 1952, decided by chagla c.j. and shah j., on september 8, 1952 (unrep.) and francis mates soz v. the st. thomas..........notwithstanding any agreement to the contrary. (2) the landlord may, by giving the tenant one year's notice in writing before the end of each of the periods referred to in sub-section (1) , terminate the tenancy, with effect from the thirty-first day of march in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in sub-section (1), of s. 34, but subject to the provisions of sub-sections (2) and (2a) of the said section, as if such tenant was a protected tenant.'sub-section (2) therefore provides for one year's notice for terminating a tenancy. the notice must, however, expire on 31st march of the particular year.(5) sub-section (1) of section 14 provides that notwithstanding any agreement, usage, decree or order of a court.....
Judgment:

Chainani, C.J.

(1) The question which has been referred to the Full Bench, is as follows:

'Where there is a contractual tenancy for a fixed number of years expiring on particular date and the landlord has given notice of one year under Section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, whether the period of such notice should expire on the date when the contractual lease terminates by efflux of time or whether the same should expire at the end of the year as defined under sub-section (20) of Section 2 next following the date on which the contractual lease expires by efflux of time?'

This question arises in the above four special civil applications, which have been placed before us. In Special Civil Appln. No. 2486 of 1958 and No. 2587 of 1958, the landlords had on 9-9-1939 granted leases of their lands for a period of 15 years. On 23-3-1954, the landlords gave notices under section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as the Act, terminating the tenancies with effect from 31-3-1955. In Special Civil Application No. 386 of 1959, the lease was granted for 15 years with effect from 7-4-1941. The tenancy was terminated by a notice given on 9-2-1955 with effect from 31-3-1956 or from 7-4-1956. In Special Civil Application No. 920 of 1959 the tenancy commenced on 9-9-1943 and was for a period of 12 years. The landlord gave a notice on 19-10-1954 terminating the tenancy with effect from 31-3-1956. In all these four cases, therefore, the contractual tenancies continued to exist on the dates on which the notices were given. It is also not in dispute that the tenants in all the four cases were protected tenants, within the meaning of Section 31 of the Act. It is in the light of these facts that the question referred to us will have to be determined.

(2) In order to answer this question, it is necessary to consider certain provisions of the Act, as it stood at the material time, i.e. when the notices were given. The Act was extensively amended in 1956 and we have to consider the provisions of the Act, as it stood prior to the amendment in 1956. Clause (20) in Section 2 of the Act defines the word 'year', as meaning 'the year ending on the 31st of March or on such date as the State Government may, by a notification, appoint for any locality.' This meaning is to be given 'unless there is anything repugnant in the subject or context.' No notification under this clause has so far been issued by Government.

(3) Section 3 states that 'the provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this (Tenancy) Act, apply to the tenancies and leases of lands to which this Act applies.' Chapter V of the Transfer of Property Act contains provisions with regard to leases. These provisions are made applicable to leases, to which the Tenancy Act applies, in so far as they are not inconsistent with the provisions of the latter Act.

(4) Section 5 states:

'(1) No tenancy of any land shall be for a period of less than ten years:

Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of sub-sections (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.

(2) The landlord may, by giving the tenant one year's notice in writing before the end of each of the periods referred to in sub-section (1) , terminate the tenancy, with effect from the thirty-first day of March in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in sub-section (1), of S. 34, but subject to the provisions of sub-sections (2) and (2A) of the said section, as if such tenant was a protected tenant.'

Sub-section (2) therefore provides for one year's notice for terminating a tenancy. The notice must, however, expire on 31st March of the particular year.

(5) Sub-section (1) of Section 14 provides that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated except on the grounds specified in this section. The proviso to this sub-section states that no tenancy shall be terminated on any of the grounds mentioned in this sub-section, unless the landlord gives three months' notice in writing intimating the tenant his decision to terminate the tenancy and the ground for such termination. In view of this section, therefore a tenancy, even though it was for a fixed period, could not come to an end merely by efflux of time. It could only be terminated on the grounds specified in the section.

(6) Section 30 of the Act states that no other provisions contained in the Act shall be construed to limit or abridge the rights or privileges of any tenant arising out of any contract. By reason of this section, the tenants were entitled to continue in possession of the lands, until the period s of their contracts had expired. Even though they were protected tenants, their tenancies could not be terminated before they had expired by efflux of time. Section 31 stated that for the purposes of this Act, a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Sections 3, 3A or 4 of the Bombay Tenancy Act, 1939.

(7) The next section to be considered is Section 34, which is really an exception to Section 14, Sub-section (1) of this section states that notwithstanding anything contained in Section 14, a landlord may terminate the tenancy of a protected tenant by giving him one year's notice in writing, stating therein the reasons for such termination, if the landlord bona fide requires the land for cultivating personally or for any non-agricultural use for his own purpose. This section gives a right to a landlord to terminate the tenancy on the ground he requires the land for personal cultivation or for non-agricultural use. In order to exercise this right, he has to give one year's notice.

(7a) The question for consideration is, what is the meaning to be given to the expression 'one year's notice'? It is necessary to bear in mind that the expression used is not 'a year's notice' or 'a notice of a year', but 'one year's notice'. The section does not also state that the notice must expire on any particular date. Sub-section (2) of Section 5 also provides for one year's notice for terminating the tenancy of a tenant who is not a protected tenant. It, however, specially states that the tenancy should be terminated with effect from 31st day of March of the relevant year. This provision made in Section 5(2) shows that the expression 'one year's notice' was not intended to b construed by reference to clause (20) in Section 2 of the Act. Section 43-D of the Act as amended in 1956 lays down that in the areas specified therein the tenancy may be terminated by a notice with effect from the 31st day of May of any year. Whenever, therefore, the Legislature wanted that the notice terminating a tenancy should expire on any particular date, it has said so specifically. The date with effect from which the tenancy should be terminated under Section 34, is however not specified in this section. The intention of the Legislature is therefore clear that the expression 'one year's notice' should have its ordinary dictionary meaning, viz., notice of one calendar year.

(8) It has been contended that by reason of Section 3, section 106 of the Transfer of Property Act applies to notices given under Section 34 and that consequently a notice given under this section must expire with the end of the year of contractual tenancy. The difficulty in accepting this argument is that section 106 in terms does not apply to tenancies, which are for a fixed period or for a definite number of years. It applies in the absence of contract or local law or usage to the contrary as to the duration of a lease. In the cases before us, however, the tenancies were for a specified number of years. It has been urged that after the

e_3 ___'_e_____________ee_3 ___'_e_______________ ____________________1/4K________ee_3 ___'_e____________ee_3 ___'_e____________e_3 ___e_3 ___'_e_______________ ____________ee_3 ___'_e_e_3e_3 ___'_e_______________ ____________________1/4K__________________________ee_3e_3 ___'_e_______________ ____________e_3 ___'_eee_3 ___'_e_______________ _____ee_3 ___'_e___ee_3 ___'_e____________e_3 e_3 __ee_3 ___'_e_________e_3 ___'_e_______________ ____________________1/4K____________________________ee_3 ___'_e___ee_3 ___'_e_______________ ____________________1/4K_____________________________ee_3 ___'_e____ee_3 ___'_e___e_3 e_3 ___'_e_______________ e_3 ___'_e___________ee_3 __ee_3 __ee_3 ___'_e_e_3 ___'_e_______________ __ee_3 ___'_e_______________e_3e_3 ___'_e_______________ __e_3 e_3 ___'_e_______________ ______ee_3 ___'_e_______________ ____________________1/4K___________________________________&__j____&__j____x_______x_______x_______x_______ee_3 ___'_e_______________ ____________________1/4K_____ee_3 ___'_e_______________ ____________________1/4K___________________________________&__j____&__j____x__e_3 ___'_e_______________ ____________________1/4K_ee_3 ___'_e____e_3 ___'_e_________e_3 e_3 ___'_e_______________ _e_3 ___'_e_______________ ______ee_3 ___'_e_______________ ____e_3 __e_3 ___'_e_______________ ________ee_3 ___'_e____________ee_3 ___'_e______________e_3ee_3 ___'_e_____ee_3 ___'_e______e_3 _e_3ee_3 ___'_e_______________ __ee_3 ___'_e_______________ _______________ee_3 ___'_e_______________ __ee_3e_3 __e_3 ___'_e______________e_3e_3 ___'_e_______________ ____________________1/4K_________________e_3 ___'_e_______________ __e_3 ___'_e_______________ __ee_3 ___'_e_______________ _________________ee_3 ___'_e_______________ ____________________1/4Ke_3 ___'_e_______________ __________________e_3 ___'_e_____________e_3 ___'_e_______________ _ee_3 ___'_e_______________ ____________________1/4K_____________e_3 ___'_e_______________ _______________ee_3 ___'_e____e_3e_3 ___'_e_______________ __e_3e_3ee_3 ___'_e_______________ ____________________1/4K________ee_3 ___'_e_______________ee_3 ___'_e_______________ ____________________1/4K______________e_e_3 ___'_e_____________e_3 ___'_e__ee_3 ___'_e_______________ ______e_3 e_3e_3ee_3 ee_3 ___'_e_______________ __ee_3 ___'_e___________e_3 ___'_e_______________ ____________________1/4K_ee_3 ___'_e_______________ ____ee_3 ___'_e_______________ __e_3e_3 ___'_e_______________ _e_3 e_3 _ee_3 ___'_e_______________ _________e_3 ___'_e_______________ __ee_3 ___'_e_______________ ____________ee_3 ___'_e______ee_3 ___'_e_______________ ee_3 ___'_e________e_3 ___'_eee_3 ___'_e_______________ ____________________1/4K__________ee_3 ___ee_3 ___ee_3 ___'_e_______________ __ee_3 ___'_e_______________ ______________ee_3 ___'_e_______________ ____________________1/4K____________________e_3e_3 ___'_e__e_3e_3 ___'_e_______________ __ee_3 ___'_e___ee_3 ___'_e_______________ __________________ee_3 ___'_e___________ee_3 ___e_3ee_3 ___'_e_______________ _____________ee_3 ___'_e_______________ ____________________1/4K________e_3ee_3e_3 ___'_e_____e_3 ___'_e_______________ ____ee_3 ___'_e_______________ _______ee_3 ___'_e_______________ ______ee_3 ___ee_3 ___ee_3 ___'_e_____________e_3 ___'_e_______________ ______________ee_3 ___'_e_3e_3 ___'_e_______________ ____________________1/4K___________________________________&__j____&__j____x_______x_______x_ee_3 ___'_e_______________ __ee_3 ___'_e_______________ ____________________1/4K________________________e_3 ___'_e_______________ ____________________1/4K_____________________________e_3 ___'_e_______________ ____________________1/4K_____e_3 ___'_e_______________ __ee_3 ___'_e_______________ __ee_3 ___'e_3 ___'_e_______________ ____________________1/4K___________________________________&__je_3 ___e_3e_3e_3e_3 ___'_e_______________ ____________________1/4K_________________________e_3 e_3 ___'_e__e_3 ___'e_3ee_3 ___'_e_______________ __________ee_3 ___'_e____ee_3 ___'_e_______________ ____________________1/4K___________________________________&__j____&__j____x_______e_3 ___e_3ee_3 ___'_e_______________ __________________e_3 ___'_e______________ee_3 ___'_e________ee_3 ___ee_3 ___'_e_______________ __ee_3 ___'_e_______________ ____________________ee_3 ___'_e___ee_3 ___'_e_______________ ____________________1/4K______________________________ee_3 ___'_e__________ee_3 ___'_e_______________ ____________________1/4K__________________________________e_3 ___'_e__________ee_3 _ee_3 __e_3 ___e_3e_3 e_3 ___'_ee_3 ___'_e_______ee_3 ___'_ee_3e_'

` (13) Narayan Joshi's case, Civil Appln. No. 959 of 1952, D/-8-9-1952 (Bom) was followed in Chandrakant Nagindas v. Rami Maganlal, 59 Bom LR 1098. It was again considered in Gulabrao Namdeorao v. Hari Eknath, Special Civil Appln. No. 2345 of 1956 (Bom) to which also Shah J was a party. In that case Narayan Joshi's case, (Sp. Civil Appln. No. 959 of 1952 D/-8-9-1952) (Bom) was regarded only as laying down that 'under Section 34 a landlord is entitled to terminate a protected tenancy by one year's notice and there is nothing in that section which requires that a protected tenancy shall be terminated by one year's notice expiring on any particular date'. The argument that Narayan Joshi's case, (Sp. Civil Appln. No. 959 of 1952 D/-8-9-1960) (Bom) had decided that where there is a contractual tenancy, the notice must expire with the end of a year of the contractual tenancy, was not accepted. In his judgment Shah J., observed:

'Mr. Tarkunde contends that implicit in the decision is the view that if the protected tenancy and a contractual tenancy co-exist the protected tenancy cannot be terminated otherwise than by a notice which terminates a contractual tenancy, that is, by a notice which expires with the contractual year of tenancy. In our view that contention has no force. . . . . But for the termination of a protected tenancy, the legislature has prescribed that the landlord must terminate the tenancy by giving one year's notice in writing. If that condition is fulfilled and if the landlord bona fide requires the land for personal cultivation or for any other purpose specified in sub-section (1) of Section 34, the landlord is in our view entitled to obtain an order for possession even if the date on which the notice expires is not the date on which the contractual tenancy terminates . . . . If there is a notice, it will not be regarded as invalid merely because the notice does not expire with the determination of the period of a contractual tenancy simultaneously held by the protected tenant.'

The decision in this case is in accordance with the view, which we are taking in regard to the interpretation of Section 34.

(14) In Francis Mates Soz v. St. Thomas Church, Sandor, Special Civil Appln. No. 781 of 1957, D/-26-7-1957 (Bom) it was held that the expression 'One year's notice' means a notice expiring on the 31st March of the year. The judgment does not give the reasons for this view. In our opinion, this view is not correct for the reasons, which I have indicated.

(15) The answer to the question referred to the Full Bench therefore will be that the notice under Section 34 of the Bombay Tenancy and Agricultural Lands Act must be a notice of not less than 12 calendar months and that it need particular date. When there is a contractual tenancy, the notice must not expire earlier than the date on which the period of contractual tenancy comes to an end.

(16) In view taken by us, the notices in all the four cases must be held to be valid.

(17) Reference answered.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //