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Chandrakant Nagindas Vs. Rami Maganlal Hirabhai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1107 of 1957
Judge
Reported in(1957)59BOMLR1098
AppellantChandrakant Nagindas
RespondentRami Maganlal Hirabhai
DispositionApplication dismissed
Excerpt:
.....land to opponent for fixed period expiring on february 5, 1955-notice by landlord to opponent, his protected tenant, under section 34 of bom. act lxvii of 1948, terminating his tenancy from march 31, 1955-validity of notice.; a landlord, on february 5, 1930, granted a lease of certain land to the opponent for a period of twenty-five years expiring on february 5, 1955, on december 20, 1953, the landlord gave a notice to the opponent under section 34 of the bombay tenancy and agricultural lands act, 1948, on the allegation that he wanted the land for personal cultivation and by the notice the tenancy was terminated with effect from march 31, 1955. on the question whether the notice terminating the tenancy with effect from march 31, 1955, was a valid notice:-; that apart from the opponent..........the date of the coming into force of the bombay tenancy (amendment) act, 1946, be deemed to be a protected tenant for the purposes of this act and his rights as such protected tenant shall be recorded in the record of rights, unless his landlord has within the said period made an application to the mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant. it is common ground that opponent no. 1 is shown to be a protected tenant in the record of rights. but it is necessary to emphasise that by virtue of section 3a of the act of 1939, a person is to be deemed to be a protected tenant for the purposes of the act. the next section to be referred to in connection with this topic is section 31 of the act of 1948, which provides that.....
Judgment:

Dixit, J.

1. This application raises a question about the validity of a notice given by the applicant, a landlord, to opponent No. 1, who is his tenant, under Section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948. The facts of the case in which the question arises may be shortly stated.

2. The land in dispute is a field bearing Survey No. 1431 admeasuring 9 acres 4 gunthas situate in the village of Dholka in the Ahmedabad District. The applicant Chandrakant, a minor, is the owner of the land. On February 5, 1930, one Khushaldas, who was the grandfather of the minor Chandrakant, granted a lease to opponent No. 1 for a period of 25 years. The period of 25 years would expire on February 5, 1955; and this is not disputed. On December 20, 1953, Chandrakant's guardian gave a notice to opponent No. 1 under Section 34 on the allegation that the applicant would want the land for personal cultivation and by the notice the tenancy was terminated with effect from March 31, 1955.

3. As the notice was not complied with, Chandrakant through his guardian Khushaldas filed a suit for possession against opponent No. 1 on the ground that the applicant wanted the land for bona fide personal cultivation. One of the issues, which was raised in the suit, was whether the plaintiff's notice was valid, and the learned Mamlatdar, after answering the issue in the affirmative, decreed the plaintiff's suit. From this decree there was an appeal before the Prant Officer, Dholka Prant, and the learned Prant Officer affirmed the order passed by the Mamlatdar. From the order made in appeal opponent No. 1 preferred an application in revision before the Bombay Revenue Tribunal and a Bench of that Tribunal allowed opponentNo. 1's application, set aside the orders made by the authorities below and directed that the applicant's application for possession dated June 14, 1955, would stand dismissed. It is the correctness of this order which Mr. D.V. Patel has challenged on this petition under Article 227.

4. The question of the validity of the notice arises in this way. Mr. Patel contends that the notice, which was given by the applicant's guardian on December 20, 1953, terminating the tenancy with effect from March 31, 1955, was a valid notice. The view, which the Bombay Revenue Tribunal took, was that the tenancy was not validly terminated inasmuch as the applicant's guardian sought to terminate the tenancy with effect from March 31, 1955, whereas the tenancy should have been terminated with effect from February 5, 1955. The question, therefore, which arises for decision is, whether the notice terminating the tenancy with effect from March 31, 1955, was a valid notice.

5. In appreciating this contention, it is necessary to refer to some important provisions of the Tenancy Acts. The first of these is the Bombay Tenancy Act, 1939. Section 3A(i) of that Act provides that every tenant shall, on the expiry of one year from the date of the coming into force of the Bombay Tenancy (Amendment) Act, 1946, be deemed to be a protected tenant for the purposes of this Act and his rights as such protected tenant shall be recorded in the Record of Rights, unless his landlord has within the said period made an application to the Mamlatdar within whose jurisdiction the land is situated for a declaration that the tenant is not a protected tenant. It is common ground that opponent No. 1 is shown to be a protected tenant in the Record of Rights. But it is necessary to emphasise that by virtue of Section 3A of the Act of 1939, a person is to be deemed to be a protected tenant for the purposes of the Act. The next section to be referred to in connection with this topic is Section 31 of the Act of 1948, which provides 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 Section 3, 3-A or 4 of the Bombay Tenancy Act, 1939; and it is, to repeat again, common ground that opponent No. 1 is a protected tenant.

6. While dealing with this question, it may be necessary to refer to some other sections of the Act of 1939. Section 7 of the Act corresponds, speaking generally, to Section 34 of the Act of 1948. Under Section 7 a landlord may terminate the tenancy of a protected tenant by giving him one year's notice in writing if the landlord bona fide requires the land for personal cultivation. Section 23 runs as follows:

(1)(a) No lease of any land situated in any area in which this section comes into force made after the date of the coming into force of this section in such area, shall before a period of less than 10 years; and

(b) every lease subsisting on the said date or made after the said date in respect of any land in such area shall be deemed to be for a period of not less than 10 years.

It would appear that Section 23(1)(a) contains a sort of a prohibition, that is, according to the Tenancy Act there can be no lease which is for a period of less than 10 years. Then Section 23 also enacts that if there is a lease, which is subsisting on the date mentioned in Section 23(1)(a), then such a lease shall be deemed to be a lease for a period of not less than 10 years. In other words, Section 23(1)(b) enacts a positive rule that if a lease is subsisting on the date referred to in Section 23(1)(a), then such a lease must be taken to be a lease for a period of not less than 10 years. It means, therefore, that whatever the period of the lease may be, the lease cannot, under any circumstances, be a lease for a period of less than 10 years. The position in the present case was that the lease of opponent No. 1 commenced on February 5, 1930. The Bombay Tenancy Act was first enacted in 1939; and, by virtue of Section 3A, opponent No. 1 was to be deemed to be a protected tenant, and he became a protected tenant because of the operation of Section 31 of the Act of 1948. In this particular case the lease is a lease for a period of 25 years. It is, therefore, obvious that it does not come within the ambit of Section 23. Section 23 has a counterpart in Section 5 of the Act of 1948 and under Section 5 it is provided:

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

(2) Notwithstanding any agreement, usage or law to the contrary, no tenancy shall be terminated before the expiry of a period of ten years except on the grounds mentioned in Section 14:

Provided that any tenancy may be terminated by a tenant before the expiry of a period of ten years by surrendering his interest as a tenant in favour of the landlord.

So that, Section 5 of the Act of 1948 enables a landlord to terminate the tenancy for reasons mentioned in Section 14. Section 5 was amended by Bombay Act XXXIII of 1952, and whereas Section 5 before its amendment by Act No. XXXIII of 1952 was confined only to Section 14 of the Act, Section 5, as amended by Act No. XXXIII of 1952, went much further in so far as that section permitted the landlord to terminate the tenancy under Section 34. As a good deal of argument has been addressed by Mr. Patel on Section 5, as amended by Bombay Act No. XXXIII of 1952, it may perhaps be necessary to refer to it in some detail. That section runs as follows:

5. (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 (I), terminate the tenancy, with effect from the thirty-first day of March in the last year of each of the said period, if be bona fide requires the land for any of the purposes specified in Sub-section (1) of Section 34, but subject to the provisions of Sub-sections (2) and (2A) of the said section, as if such tenant was a protected tenant.'

It is not necessary to refer to Sub-section (3) of Section 5 because it deals with a case of surrender. Now, under Section 5, as amended, no tenancy shall be for a period of less than 10 years, a provision which, in substance, corresponds to Section 5(1) of the Act of 1948 before the Amending Act XXXIII of 1952 and also corresponds, in substance, to Section 23 of the Act of 1939. Section 5, as amended by Act No. XXXIII of 1952, is, in a sense, a sweeping provision. A lease, which is a lease for a period of less than 10 years, becomes a lease for a period of 10 years and according to the proviso, there is a further period of 10 years in succession and such a tenancy is to be deemed to be renewed subject to the provisions contained in Sub-sections (2) and (3). The consequence is that according to Section 5(1) a lease, which is originally a lease for a period of less than 10 years, is by statute made a lease for a period exceeding the period mentioned in the original lease and then there are successive periods of 10 years in respect of such a lease. It would be obvious that such a lease would seem to be permanent in its character; but Section 5 enacts that such a lease is subject to the limitations contained in Sub-sections (2) and (3), i.e. if a landlord wants to terminate such a tenancy for bona fide personal cultivation under Section 34, the tenancy is liable to be terminated; such a tenancy may be terminated if under Sub-section (3) of Section 5 a tenant surrenders the land. It is evident, in our opinion, that the enactment of Section 5(2) was necessary, because, otherwise had not that provision of Section 5(2)been there, the result would have been that a landlord could not have been in a position to terminate the tenancy contemplated by Section 5 even if the landlord wanted his land for bona fide personal cultivation. It is to avoid this result that Section 5(2) appears to have been enacted.

7. A reference to the Act of 1948, as amended, shows that a tenancy can be terminated either under Section 14 or under Section 34. Under Section 14 the tenancy cannot be terminated unless the tenant is, so to say, guilty of one of the acts mentioned in Clauses (a) to (c) of Section 14. Under Section 34 the tenancy of a protected tenant may be terminated if the landlord wants the land for bona fide personal cultivation; and it is significant to bear in mind the opening words both of Section 14 and Section 34. Section 14 says that the tenancy may be terminated for the reasons mentioned in Section 14 notwithstanding any agreement, usage, decree or order of a Court of law. Section 34 says that notwithstanding the provisions contained in Section 14, a landlord is given the right to terminate the tenancy of a protected tenant if he wants the land for bona fide personal cultivation.

8. The expression, which has been the subject of controversy in this application, is the expression 'one year's notice' occurring in Section 34(1), and, in substance, Mr. Patel's contention is that the expression 'one year's notice' means that the tenancy must be terminated with effect from March 31, of a particular year; and in this connection he relies upon the definition of the expression 'year' as given in Section 2(20) of the Act. Mr. Patel also contends that looking to Section 5, to which I have already referred, the tenancy may be terminated with effect from March 31, as mentioned in Section 5(2).

9. The Bombay Tenancy Act is, if I may say without offence, a much amended Act and is, perhaps, also a much discussed Act. Some of the provisions of the Act would seem to be difficult to construe and it is often the despair of Judges, while construing such provisions; and it is not surprising that it has been, not unjustifiably, quite a paradise for lawyers, while relying on some of the provisions of the Act. But difficult or otherwise, the Court has to construe the provisions to the best of its judgment and skill.

10. Now, in this case, what is the position? The position is that opponent No. 1 is a protected tenant. As a protected tenant his tenure is secured and the tenancy is not ordinarily liable to be terminated. It may, however, be terminated either for reasons mentioned in Section 14 or for reasons mentioned in Section 34. Subject to the limitations contained in these two sections, it would seem as if the tenancy of a protected tenant is on the same footing as that of a permanent tenant. Mr. Patel, therefore, argues that inasmuch as the applicant is terminating the tenancy of a protected tenant under Section 34, the landlord while giving one year's notice has to comply with Section 2(20) of the Act, and he says that if that was not the correct interpretation of the provisions of the Act, it would mean that opponent No. 1 would not acquire the status of a protected tenant. There is one thing to which attention may be called at the outset. As I have pointed out, Section 34 speaks of one year's notice. As to when the tenancy is to be terminated, the section does not specifically say so, unlike Section 5(2) in which the tenancy is to be terminated with effect from March 31 in the last year of each of the said periods mentioned in Section 5(1) proviso. The omission to mention as to when the tenancy is to be terminated in Section 34 would seem to be, in my view, deliberate, because if Section 5(2) mentioned as to when the tenancy was to be terminated, and the tenancy was to be terminated with effect from March 31 in the last of each of the said period mentioned in Section 5(1) proviso, it should not have been difficult for the Legislature to mention also in Section 34 as to when the tenancy was to be terminated when Section 34 speaks of 'one year's notice'. Indeed, Section 5 and Section 34 contemplate two different types of cases. Section 34 deals with the case of a protected tenant, pure and simple; Section 5 deals with the case of a tenant who, according to the section, may be regarded as a protected tenant. According to Section 5, a tenant becomes a statutory tenant because by statute, his tenancy is fixed for a period of 10 years in the first instance and it goes on in succession after each period of 10 years. That is why I am inclined to describe a tenant falling within Section 5 as a statutory tenant and that is why the Legislature in enacting Section 5 said that the tenancy of such a tenant shall be terminated with effect from March 31 in the last year of each of the said period mentioned in Section 5(1) proviso. Section 34 deals, no doubt, with a protected tenant; but the distinction between Section 5 and Section 34 is quite apparent. Section 34 speaks of a protected tenant whereas Section 5 speaks of a tenant as if such a tenant was a protected tenant. Mr. Patel argues that there is no reason why the expression 'one year's notice' should not be construed in accordance with the definition of the expression 'year' as enacted in Section 2(20). In order to understand this contention, it is necessary, first, to see what the rights of opponent No. 1 are. Opponent No. 1 has acquired the rights of a protected tenant. Those rights I have already briefly summarised in an earlier part of this judgment. Apart from the rights of a protected tenant given to him under the Bombay Tenancy Act of 1948, opponent No. 1 has certain rights also by virtue of the contract of tenancy which was given to him by the lease dated February 5, 1930. One of the rights was that he was to be on the land for a period of 25 years. So that the landlord would not be in a position to apply for possession on the ground of bona fide personal cultivation until the period of 25 years was over, and this is not disputed by Mr. Patel. To the extent, therefore, that the contract subsists between the applicant and the present opponent No. 1, the right of opponent No. 1 is preserved by virtue of Section 30 which provides:

Save as otherwise provided in Sub-section (3) of Section 6 and Sub-section (1) of Section 27, no other provision contained in this Act shall be construed to limit or abridge the rights or privileges of any tenant under any usage or law for the time being in force or arising out of any contract, grant, decree or order of a court or otherwise howsoever.

And Mr. Patel has pointed out no other provision in the Act of 1948 which can have the consequence of limiting or abridging his rights. Indeed, Section 30 prohibits the limiting or abridging of the rights or privileges of a protected tenant save in the two cases mentioned in the section, that is, by reference to Sub-section (3) of Section 6 or by reference to Sub-section (1) of Section 27. Therefore, by virtue of Section 30, opponent No. 1 is entitled to remain in possession of the land until February 5, 1955, and this is so notwithstanding the provisions contained in Section 34. In other words, even if the present applicant wanted the land for bona fide personal cultivation any time before February 5, 1955, he could not have successfully applied for possession under Section 34.

11. Mr. Patel points out that to hold that the tenancy must be terminated with effect from February 5, 1955, and not with effect from March 31, 1955, is to ignore the circumstance that opponent No. 1 is a protected tenant. But I am not impressed by this argument. Opponent No. 1 is no doubt a protected tenant, but in addition to his right as a protected tenant he has also a right given to him by the contract by virtue of which he has a right to remain in possession until February 5, 1955.

12. It is, under these circumstances, that we have to examine the correctness of the contention raised by Mr. Patel on behalf of the applicant. The Bombay Revenue Tribunal, while holding that the tenancy must be terminated with effect from February 5, 1955, has relied upon a decision of this Court in Narayan Ramchandra Joshi v. K.B. Wassodev (1952) Special Civil Application No. 959 of 1952, decided by Chagla C.J. and Shah, J., on September 8, 1952 (Unrep.). The facts of that case would seem to be essentially similar to the facts in the present case. There certain land was granted to a tenant under a registered deed dated June 14, 1940, the period of the lease being a period of eight years. By efflux of time the lease ended on June 14, 1948. The landlord gave a notice on June 2, 1947, calling upon the tenant to hand over possession on or before June 14, 1948. The Bombay Revenue Tribunal took the view that the tenancy must be terminated with effect from March 31, 1948, and this view was rejected in a judgment delivered by the learned Chief Justice. Dealing with this topic this is what the learned Chief Justice said:

Under Section 3 of the Act, 'the provisions of Chapter V of the Transfer of Property Act shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies', and under Section 106 of the Transfer of Property Act, when six months' notice has got to be given the notice must be such as expires with the end of a year of the tenancy, and therefore if the law requires a year's notice the proper notice would be a notice which would expire with the end of the year of the tenancy, and if in this case the tenancy expired on June 14, 1948, then the proper notice must be a notice which expired on June 14 1948. There is nothing in Section 34 which is inconsistent with the provisions of the Transfer of Property Act and in our opinion the principles underlying the provisions of the Transfer of Property Act with regard to the giving of a notice must apply to a notice given under Section 34.

With regard to the expression 'year', it was observed:

The expression is not merely 'year' but the expression is 'one year's notice', and that expression has to be construed in the light of the Transfer of Property Act and not the definition of 'year' given in Section 2(20).

It is evident that in that case, as in this one, it was a lease for a fixed period. It is also evident that in that case the application was made, as in this case, under Section 34; and in each case one year's notice was to be given, and this Court came to the conclusion that one year's notice as contemplated by Section 34 was to be understood not with reference to Section 2(20) of the Act of 1948 but with reference to Section 106 of the Transfer of Property Act. This is a decision given by a Court of co-ordinate jurisdiction and would be binding upon us, and, with respect to Mr. Patel, he has not suggested anything which would induce us to take a view contrary to the view taken in the above-mentioned Special Civil Application. It remains to notice two sections of the Transfer of Property Act. The first of these is Section 106 on which the learned Chief Justice relied in the case cited above. According to Section 106, the tenancy is terminable on the part of a lessor by six months' notice expiring with the end of a year of the tenancy. Mr. Patel has suggested that the opening words of Section 106 would be a difficulty in adopting the construction which we propose to adopt; but there is no difficulty at all, because Section 34 speaks of 'one year's notice' and there is no inconsistency between Section 34 and Section 106. It is true that by Section III of the Transfer of Property Act a lease of immoveable property is determined by efflux of time limited thereby. Now, in this case if the question arose with reference to a contractual lease, then there is no question that no notice was necessary to be given. The notice becomes necessary by virtue of Section 34, and according to Section 34 one year's notice has got to be given; and in this case such a notice has been given. But the difficulty in accepting Mr. Patel's contention is that apart from opponent No. 1 being a protected tenant, opponent No. 1 has certain rights by virtue of the contract and, as I have already pointed out, the right is a right to remain, in possession until February 5, 1955. In other words, the tenancy of opponent No. 1 would come to an end on February 5, 1955, and it is that tenancy of opponent No. 1 that has got to be terminated by virtue of Section 34, and, therefore, the landlord should have given a notice terminating the tenancy of opponent No. 1 not with effect from March 31, 1955, but with effect from February 5, 1955.

13. Mr. Patel has also referred to a decision given by my brother Shelat and myself in Francis Mates Soz v. Rev. Raymond Mendes (1957) Special Cicil Application No. 781 of 1957, decided by Dixit and Shelat JJ., on Julay 25, 1957 (Unrep.) Now, that was a case where, as in this, the landlord applied under Section 34 for possession on the ground of bona fide non-agricultural purpose. The lease in that case commenced on June 1, 1939. It was limited to a period of three years and so the lease ended on May 31, 1942. 'We had to consider the provisions of the TenancyAct and we held that the tenant became a statutory tenant by the operation of the Bombay Tenancy Act of 1939, that is, the contractual tenant became a statutory tenant. In that case the notice was given on March 28, 1952, terminating the tenancy with effect from March 31, 1953, and the question was whether the notice was valid. 'We held that the tenant was a statutory tenant and that the provisions to be applied were the provisions to be found in the Tenancy Act and not in the Transfer of Property Act. 'We made a distinction by pointing out that the tenancy which was sought to be terminated was the tenancy of a statutory tenant and in such a case Section 2(20) would apply. The present is a case which deals with the case of a protected tenant, though under Section 5(2) a statutory tenant is to be deemed to be a protected tenant for the purpose of Section 34. There is nothing inconsistent between the view taken in that case and the view which we are taking in this case.

14. For the reasons given above, we think that the view taken by the Bombay Revenue Tribunal is right. The application, therefore, fails and the rule will be discharged, but there will be no order as to costs.


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