1. Plaintiff is the tenant of the disputed house belonging to defdt.-l (the landlord). On 3-10-1961 the landlord filed an application before the House Rent Controller, Cuttack, for eviction of the plaintiff under Section 7 of the Orissa House Rent Control Act, 1958 (Orissa Act XXXI of 1958) hereinafter referred to as the Act on the allegations that the plff. had sublet the house and that he required it for his own business. The tenant challenged both the grounds as frivolous. The House Rent Controller dismissed the application holding that the Landlord failed to substantiate any of the grounds. The A. D. M. Cuttack (defdt.-2) rejected the case of sub-letting but held that the landlord required the house in good faith for his own occupation. He accordingly passed an order of eviction (Ext. 4) on 1-10-63 directing the tenant to give vacant possession of the suit premisses to the landlord by 15-11-63.
The tenant filed O. J. C. 344/1963 which was not admitted. The plff. filed the suit for a declaration that the order (Ext. 4) was ultra vires and without jurisdiction and that consequently Execution Case No. 193 of 1963 filed by defdt.-l in the Court of the first Munsiff, Cuttack, was inexecutable. Defendant-1 contested the suit alleging that Ex. 4 was legal within jurisdiction and executable.
2. The learned trial Court accepted the case of defdt.-l and dismissed the suit. Plaintiff has filed the first appeal.
3. The sole contention advanced by Mr. Mohanty in support of the appeal, is that Ex. 4 is without jurisdiction inasmuch as no notice under Section 106 of the Transfer of Property Act, terminating the contractual tenancy, was served on the tenant by the landlord. The Act does not abrogate compliance with Section 106 of the T. P. Act. This contention requires careful examination of the cope and ambit of Section 6 of the Act.
4. Section 6 of the Act runs thus :--Notwithstanding anything to the contrary contained in any agreement or law no tenant shall be liable to be ejected except as provided to Section 7.
In ILR (1962) Cut 152: (AIR 1962 Orissa 173), Parfulla Kumar Das v. House Rent Controller, Cuttack a Division Bench of this Court construed Section 6 of the Act and held that the only grounds on which a tenant could be evicted were those specified in Section 7 of the Act and it was immaterial whether tenancy was determined under the provisions of the T. P. Act or not and that notice under Section 106 of the T. P. Act was not necessary and was not a condition precedent to the institution of an eviction proceeding under Section 7 of the Act. Mr. Mohanty assails the correctness of this decision on the authority of the pronouncement of the Supreme Court in an unreported decision Manujendra Dutta v. Purendu Prasad Roy Choudhuri, Civil Appeal No. 586 of 1964 disposed of on 22-9-1966 (SC).
5. The disputed tenancy is a monthly one. Under Section 106 of the T. P. Act it is terminable on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy. It is the common case of the parties that the landlord did not serve any notice of termination of the tenancy under Section 106 of the T. P. Act. Defdt.-2 passed the order (Ext. 4) in conformity with Section 7(2) of the Act whereunder the landlord may, subject to the provisions of this Act, apply to the Controller for an order directing the tenant to put him in possession of the house if he requires the house in good faith for the occupation or use of himself, any member of his family or of any person or persons for whose benefit the house is held by him. Thus Ext. 4 was in conformity with Section 7(2) of the Act but the contractual tenancy was not terminated by a notice to quit under Section 106 of the T. P. Act.
6. The sole question for determination is whether notice under Section 106 of the T. P. Act was essential in addition to compliance with the provisions of Section 7 of the Act.
7. A similar question was examined in the aforesaid Supreme Court decision where the scope and ambit of Section 3 of the Calcutta Thika Tenancy Act 1949 (West Bengal Act no. II of 1949) hereinafter referred to as the Thika Act were involved. Relevant portions of Section 3 of the Thika Act runs thus:--
Notwithstanding anything contained in any other Law for the time being in force or in any contract a thika tenant shall subject to the provisions of this Act, be liable to ejectment from his holding on one or more of the following grounds and not otherwise namely :-- X X X XX X X XX X X X
Section 3 of the Thika Act was construed to mean that a landlord must first terminate the contractual tenancy and then fulfil one or more of the requirements of the several grounds enumerated therein before he was entitled to an order of eviction. The Thika Act did not confer any additional rights on the landlord, but on the contrary imposed restrictions on his right to evict a tenant under the general law or under the contract of lease. The Thika Act did not absolve the landlord from the obligation to give notice under Section 106 of the T. P. Act.
8. The Supreme Court decision concludes the interpretation of Section 6 of the Act which is almost in the same language as Section 3 of the Thika Act. The non obstante clause means, that the landlord would not only comply with the provisions of Section 106 of the T. P. Act but would also comply with one or more of the requirements of Section 7 of the Act before any order of eviction is passed in his favour. In view of the Supreme Court decision, ILR (1962) Cut 152: (AIR 1962 Orissa 173), is no longer a good law.
As no notice to quit was served under Section 106 of the T. P. Act Ext. 4 is ultra vires, without jurisdiction, nullity and inexecutable.
9. In the result the judgment of the trial Court is set aside and the suit is decreed. The appeal is allowed but, in the circumstances, parties to bear their own costs throughout.
R.K. Das, J.
10. I agree.