Bankim Chandra Ray, J.
1. This application is at the instance of the petitioners M/s. Dutta & Associates, a partnership firm and one of the partners of the said firm Shri Gour Pada Dutta challenging the legality and validity of the notice issued under Section 106 of the Transfer of Property Act determining the lease in favour of the respondents Nos. 6 & 7 Shri Om Prakash Agarwall and Shri Ajit Kr. Agarwall, subsequently transposed as petitioners, granted by the Government in respect of the Tea Garden named Rungneet Tea Estate (Darjeeling) as well as the notice intimating that possession of the said tea garden has been taken over by the Collector, Darjeeling with effect from 15th of April, 1981 on the failure of the lessee to execute long term lease on payment of the Government dues by 14th April, 1981 as required in the said notice under Section 106 of the T. P. Act. The challenge was thrown on the ground that the notice of termination issued under Section 106 of the T. P. Act was not in accordance with lawand as such it did not terminate the lease in favour of the petitioners' vendors and/or assignors, the respondent Nos, 6 and 7 (the transposed petitioners) and the notice of the Collector taking possession of the said tea esiate forcibly by executive fiat was wholly illegal and unwarranted.
2. The salient facts of the case as appeared in the averments made in the writapplication are as follows. The petitionerNo. 1 which is a registered partnershipfirm having its registered office at DuttaBhawan, P. O. Siliguri, District Darjeeling, entered into- an agreement for saleof Rungneet Tea Estate situated withinthe District of Darjeeling with the lessorsof the said Estate Shri Om PrakashAgarwall and Shri Ajit Kr. Agarwall, therespondents Nos. 6 & 7 for purchase ofthe said Tea Estate. The said agreementwas executed on 29th of March, 1977. Onthe basis of the said agreement thepetitioner firm became entitled to carryon business of the said Tea Estate andto run the management of the said TeaGarden on their own account and theywould be liable for all statutory andnon-statutory liabilities and costs and expenses etc. relating to and/or arising outof or concerning the said Tea Estate orthe business thereof. The petitioner firmwas given delivery of possession of thesaid Tea Estate by the erstwhile owners,the respondents Nos. 6 & 7 (transposedpetitioners), since 1977 and since then thepetitioner firm was seized and possessedof the said Tea Estate and have beencarrying on the business of growing andmanufacturing of tea therefrom till theCollector, Darjeeling took possession ofthe same in April, 1981. It has been statedthat the petitioner firm duly paid theconsideration money to the lessors, respondents Nos. 6 & 7, for purchase of theirleasehold interest and they have also invested a considerable sum of money forthe improvement of the said Tea Estateby purchase of manure and pesticides andalso for purchase of newplantation in the said Tea Estate. It hasalso been stated that since 1977 all theplants, machineries, stocks and stores,buildings, furniture, fixtures and fittingsof the Tea Estate belonged to the petitioner firm and the petitioner firm usedand enjoyed the said Tea Estate withoutany hindrance or objection, from anyquarter. It is stated that the petitionerfirm, on the basis of the said agreement,applied for licence for manufacturing oftea in the said Tea Garden to the Superintendent, Central Excise, Darjeeling, to the knowledge and consent of the Government and licence was issued in their favour on 6th April 1977 authorising them to manufacture tea for a period of 3 years ending on 31st December, 1979 in the said Rungneet Tea Estate. This licence has been annexed as annexure 'A' to the petition. It also appears that the State Government by Order No. 6774-L. Ref. D/- 30-5-62 declared under Section 6(3) of the West Bengal Estates Acquisition Act that 405.78 acres of land was retainable by the tea garden for its purpose. The rent under Sub-section (3) of S, 42 of the West Bengal Estates Acquisition Act for the aforesaid area declared retainable was determined on 18-9-74 at Rs. 3635.74 annually; road and P. W. cesses were assessed at Rs. 109.08 each and education cess at Rs, 345.42 paise. It also appears that on 28th of Mar., 1977, the Additional Deputy Commissioner, Darjeeling, respondent No. 3, intimated Shri Om Prakash Agarwall, the respondent No, 6, that the Government had no objection to their handing over the Rungneet Tea Estate by lease or any other form which they might deem proper to M/s, Dutta & Associates (Petitioners), Tea planters and traders, Silli-guri. It has also been stated therein that formal sale agreement would not be entered into by the respondents Nos. 6 & 1 with the petitioners till permission for sale had been taken by them from the Additional Deputy Commissioner, Darjee-ling. This permission, it has been stated, will only be given if arrears of land re venue and cesses are paid by them. A copy of this letter was sent to the Superintendent, Central Excise, Darjee ling with a note that the Government had no objection to M/s. Dutta and Associates taking over the management of the gar den. This has been annexed as annexure 'A' to the affidavit-in-reply on behalf of the petitioner on 24th June, 1981. On 8th Sept., 1977, the petitioner sent a letter to the Deputy Secretary, Land Utilisation and Land Revenue, Government of West Bengal praying for allowing the petitioner to pay the arrears of land revenue on quarterly instalments basis and also for giving necessary permission for transfer of the said Tea Estate in favour of the petitioners by the lessors, the respondents Nos. 6 & 7. This has been annexed as annexure B to the affidavit in reply swornon behalf of the petitioner. The respondent No. 6 also on 26th of Nov., 1977, addressed a letter to the Additional Deputy Commissioner, Darjeeling, stating that he and his brother, the respondent No. 7 who are the owners of Rungneet Tea Estate have entered into an agreement on 9th of Mar., 1977 for sale of the said Tea Estate to M/s. Dutta and Associates, the petitioners, and requested him to settle the matter of payment of arrear and current land revenue of the said Tea Estate in instalments with the representatives of M/s. Dutta & Associates and also to accept the payment of such land rent for which they did not have any objection since it was to be borne by them. A copy of this letter has been annexed as an-nexure B to the petition. On 26th December, 1977 the petitioner sent another tetter to the Additional Deputy Commissioner, Darjeeling, making a similar request for permitting them to pay on quarterly instalments of one year all arrears of revenue. This letter is also annexed as annexure B to the Affidavit-in-reply. The Additional Deputy Commissioner, Darjeeling, sent a letter on 10th Feb., 1978 to the petitioner No. 1, stating that the lease could not be transferred in full or in part of the Tea Garden without the formal sanction of the Collector as per lease condition in Clause No. 13 in reply to the letter of the petitioner dt. 24th June, 1978, requesting the Additional Deputy Commissioner, Darjeeling, to intimate whether any prior permission from authority was necessary for transfer of the Tea Garden. On 29th of Mar., 1978, the petitioner sent a letter to the Additional Deputy Commissioner, Darjeeling intimating that they be permitted to pay the arrears of land revenue by instalments in the manner already applied for by them. This has been annexed as annexure B to the affidavit-in-reply. On 20th of June, 1979, a letter was sent by the Additional Deputy Commissioner, Darjeeling, to the Manager, Rungneet Tea Estate, Darjeeling intimating that in spite of repeated reminders they had not executed the long term lease of 30 years on payment of requisite number of instalments of rents and cess. It has been further stated therein that if they fail to tender payment of Government dues the following consequences would follow:
(1) Certificate proceedings will be instituted, for recovery of Govt. dues if not already instituted.
(2) The Concession or remission of in-terest on arrear rent and cesses will auto-matically be withdrawn.
(3) Credit facilities so far given by the various Banks and other agencies will be advised to be stopped.
3. The petitioner sent a reply to the said letter on 20th of Aug., 1979 stating inter alia that as the rent payable by them in respect of the said Tea Garden had been finally determined and the said determination had been communicated to them, they could not take any steps in that respect. It was also stated therein that they be permitted to pay arrear rents by instalments and as such they requested the Additional Deputy Collector, Touzi department, Darjeeling to intimate them about the total amount of Govt. dues for the said Tea Estate in order to enable them to make payment of the said Tea Estate at an early date. This letter was annexed as annexure D to the petition. No reply was given to the said letter by the respondents and on 7th Oct., 1980, a notice has been issued on the proprietor, Rungneet Tea Estate, Darjeeling, Dutta and Associates, Tea Planters and Traders intimating that the lease of the Tea Garden shall stand determined on the expiry of the current year of tenancy namely on the expiry of 14th of April, 198) and they are requested to make over peaceful possession of the said Tea Garden to the Junior Land Reforms Officer, Special Land Reforms Circle or Executive Magistrate immediately on the expiry of the 14th April, 1980 failing which they will be deemed as trespassers and will also be liable to pay mesne profits till they are evicted in due course of law besides arrears of rent. On 1st of Nov., 1980, the Manager of the petitioner firm sent a letter to the Collector, Darjeeling requesting him to arrange for renewal of the lease in their favour of Rungneet Tea Estate having Touzi No. 32F and to advise them accordingly. On 18th of April, 1981, the Collector of Darjeeling by a notice addressed to the proprietor/Manager, Rungneet Tea Estate, P. O. Darjeeling has intimated that he does hereby take over possession of the Tea Garden known as Rungneet Tea Estate with effect from 10th April, 1981 as they failed to execute long term lease on payment of the Govt. dues by 14th April, 1981 as required in the notice served upon them under Section 106 of the T. P. Act.
4. It is against the impugned notice issued under Section 106 of the T. P. Act and also the notice issued by the Collector, Darjeeling dt. 16th April, 1981 taking over possession of the Tea Garden from 15th April, 1981 this instant writ application was made and a Rule was obtained. There was also an interim order to the effect that the respondents were permitted to maintain status quo as on 28th April, 1981 as regards possession of the petitioner in respect of the said Tea Estate. This interim order was for a period of 10 days with liberty to pray for extension of the interim order with notice to the respondents.
5. The instant application for extension of the interim order as well as the Rule was taken up for consideration with the consent of learned Advocates of both the parties.
6. An affidavit-in-opposition has been sworn by Sri Ranjit Guha, Assistant Secretary, Land and Land Reforms Department, Government of West Bengal on 4th Aug., 1981, In Para. 5 of the said affidavit it has been stated that by order dt. 30-5-62 the State Govt. declared that an area of 405.78 acres of land in respect of Rungneet Tea Garden was retainable for its purpose. It was also stated therein that the rent of the said land declared retainable in the Tea Garden was determined on Sept. 18, 1974 at Rs. 3635.74 annually road and P. W, Cesses and education cesses were also determined by the authorities concerned. In para. 6 of the said affidavit it has been said that the tenants of the Tea Garden within the meaning of Clause 1 of Schedule F to the W. B. Estates Acquisition Rules, 1954 (hereinafter referred to as the said Rules) should have paid the land revenue and cesses at the above rate from 15th April, 1955 up to the current year of payment. The said recorded tenants neither did pay the aforesaid land revenue and cesses at the above rates nor did they conclude any lease in Form I appended to Sch. F of the said Rules. According to Rule 4 of the said rules, the intermediary shall hold land comprising a Tea Garden only on the terms and conditions set out in Sch. F appended to the said Rules, On the recorded tenants having not paid the aforesaid revenue and cesses and also not having concluded the lease in Form I appended to Sch. F the recorded tenants should be deemed not to have retained the land comprisingthe Tea Garden concerned which had vested in the State under Section 4 of the W. B. Estates Acquisition Act, 1953. In the circumstances, alleged transfer of the Tea Garden by the recorded tenants to the petitioner is void ab initio and non est and has no validity in the eye of law since the alleged transferors had no authority to transfer the vested land of the Government. It has also been submitted that, in the eye of law the peii-tioners are nothing but trespassers. In Para. 8 of the said affidavit it has been further averred that the petitioner firm had no right, title and interest in the Garden, Therefore the question of informing him about the payable amount of rent does not arise. Sri Om Prakash Agarwall was duly informed by the Collector for payment on account of rent and cesses as determined under the W. B. Estates Acquisition Act in due time but without any response from his end. It has also been stated in Para. 10 of the said affidavit that the petitioner firm was never the owner of the tea garden nor was the firm a lessee in respect of the same. The petitioners had no authority to run and manage the tea garden. It has been further stated in para. 11 of the said affidavit that no land revenue and cesses were ever paid in respect of the tea garden in question since 1955-56, i. e., from the date of vesting and no lease was executed for the garden in terms of Clause 1 of Sch. P to the said Rules or at all. It has been further stated in the said affidavit in para. 14 that the respondents had no right and title to the tea garden, in view of the fact that they not having paid the rent and land revenue and cesses settled under Section 42(2) of the Act and not having concluded any lease with the Govt. in terms of Clause 1 of Sch. F to the said Rules, the respondents 6 and 7 must be deemed not to have retained the land comprised in the tea garden. As such any agreement made in respect of the tea garden with the petitioners by the respondents Nos. 6 and 7 is not valid. It has also been stated in Para. 16 of the said affidavit that no approval was ever granted to the petitioners to become a sublessee or assignee or transferee of any lease granted by the respondent Nos. 2 and 3, It has been further submitted that as a matter of abundant caution the petitioners though have no right or title to possess the property still the Collector, Darjeeling served a notice under Section 106 of the T. P. Act on the petitioners. Thepetitioners therefore are trespassers in the eye of law and the petitioners were not entitled to any notice under Section 106 of the T. P. Act as there was no valid and subsisting lease either in favour of the petitioners or their assignors. It has been further stated that the possession of the Tea Garden was taken over in accordance with law. The other portion of the affidavit are not necessary or relevant for the purpose of determination of this role and as such they are not mentioned hereinbefore.
7. An affidavit-in-opposition was also affirmed by Sri Anil Kumar Dutta a permanent employee of the Tea Board of India, the respondent No. 4 stating inter alia that one Mr. B. L. Tamang, Amin, ADC's office went on 16-4-1981 with Collector's notice for serving on either to the proprietor op the Manager of Rung-neet Tea Estate but both the Manager and the proprietor of the Garden, were not present. The Assistant Manager who was found in the factory expressed his inability to receive the notice as he had no authority. Thereafter Sri Rai and other workers came to the office and the Collector's notice was pasted in the notice Board by Mr. Tamang in the presence of the persons therein. The possession of the Garden was thus taken over by the Government and the same was handed over by Sri B. L. Tamang the representative of the Collector to the officer on special duty of the Tea Corporation and thereafter on the same day the certificate of possession was signed by the Additional Deputy Commissioner, Darjeeling on behalf of the Government and the authorised representative of Tea Corporation, Darjeeling. It has been stated that the Tea Development Corporation, the respondent 4, has spent considerable sum of money in the shape of payment of wages of workers and the staffs and also for purchase of coal, tea chests necessary for carrying on the tea business in the said tea garden.
8. Mr. Rabindra Nath Mitra, the learned Advocate appearing on behalf of the petitioners submitted in the first place that the impugned notice under Section 106 of the T. P. Act, which was addressed to the Proprietor, Rungneet Tea Estate, Dutta and Associates is not a proper and valid notice as contemplated under Section 106 of the Act for two reasons: firstly, the notice does not terminate the tenancy of the respondents Nos. 6 and 7 with the end ofthe year of the tenancy as the lease commenced on and from 1st day of April, 1948 and therefore the end of year of the tenancy will be 31st March, of the year in which the lease is terminated. In this case as the notice was given on 10th Oct., 1980, terminating the tenancy of the expiry of the 14th April, 1981, the notice, it is submitted, is not a valid notice terminating the tenancy. Secondly, the lease was not terminated as no notice under Section 106 of the T. P. Act was served on respondents Nos. 6 and 7, It has been next submitted that the provisions of Section 111(g) of the T. P. Act, cannot be invoked as no notice was given expressing the lessee's intention to determine the lease by forfeiture for violation of any terms of the lease, It has been next submitted that even assuming for argument's sake that the notice under Section 106 of the T, P, Act has been validly issued terminating the tenancy of the respondents Nos. 6 and 7 still then the respondents cannot take possession forcibly as has been done in this case without bringing an action for eviction of the tenants in accordance with law. As this has not been done, it has been therefore submitted that the notice issued by the Collector, Darjeeling, that possession of the Tea Garden has been taken over by executive fiat is wholly illegal and arbitrary and such taking over of possession is liable to be set aside. It has been further submitted that the cause of terminating the tenancy is the non-payment of arrear rents as appears from the notice under Section 106 of the T. P. Act served by the Collector. The petitioner or for that matter the respondents Nos. 6 and 1 (transposed petitioners) being willing to pay the arrear rents the notice is waived and possession cannot be taken on the basis of this notice.
9. Mr. Arun Prakash Chatterjee, learned Standing Counsel appearing on behalf of the State respondents Nos. 1 to 3 has submitted that petitioners 1 and 2 who claimed to be managing the tea estate on the basis of an agreement of sale executed in their favour by the respondents Nos. 6 and 7, the lessees of the tea estate in question, have no locus standi to maintain this writ application as having no legal right in respect of this tea garden and the impugned notice under Section 106 of the T. P. Act and the impugned order taking possession of the said tea estate by the Collector, Darjeeling do not, in any way, affect their right, title or interest in the said tea garden. It hasalso been submitted by Mr. Chatterjee, the learned Standing Counsel, that an agreement of sale does not create any title or interest in the property unless a deed of sale has actually been executed in favour of the petitioners by the Agar-walla, the respondents 6 and 7 now transposed as petitionesr Nos. 3 and 4. Therefore, this writ application at the instance of the petitioners is not maintainable, Mr. Chatterjee has next contended that the petitioners being not a tenant the notice under Section 106 of the T. P. Act was not required to be served on them for terminating the tenancy. It has also been submitted that the tenancy of the lessees, the transposed petitioner Nos. 3 and 4 ended already by not exercising the option for renewal of the lease and by nonpayment of rent. No notice, according to Mr. Chatterjee is necessary to be served for terminating the tenancy as required under Section 106 of the T. P. Act and the impugned notice under Section 106 of the T. P. Act is unnecessary. Mr. Chatterjee has submitted next that the leasehold interest of the petitioners Nos. 3 and 4, the lessees under the Government, vested in the State on the issuance of notification under Section 4 of the W. B. Estates Acquisition Act. Under Section 6(i)(f) of the said Act the Tea Garden in question, i. e., Rungneet Tea Estate was retained by the intermediaries, respondent Nos. 6 and 7, and there has been a determination under Section 6(3) of the Act by the appropriate authority determining that an area of 405.78 acres of land are retainable by the tea estate for the purpose of the Tea Garden etc. It has been submitted that after the date of vesting of the intermediary interest of the respondents Nos. 6 and 7 in the said Tea Estate in the State of West Bengal they became direct tenants under the State of West Bengal, the respondent No. 1 only in respect of land determined under Section 6(3) of the W. B. Estates Acquisition Act to be retainable. Under Rule 4 of the W. B. Estates Acquisition Rules 1954 the intermediary having not paid the land revenue as determined by the concerned authorities and having not executed any lease in form No, I appended to Sch. F to the said Rules the recorded tenants should be deemed not to have retained the lands comprising the tea garden concerned and his interest vested in the State under Section 4 of the Act. It has also been submitted that by such non-payment of rent and non-execution of any lease in form No. 1 the tenancyautomatically came to an end. There was no illegality on the part of the State to take possession of the tea garden and more so when such possession was taken without any opposition from the side of the respondents Nos. 6 and 7 or from their managers after terminating their tenancy by the impugned notice under Section 106 of the T. P. Act. It has, therefore, been submitted that in these circumstances the argument that the possession of the Tea Estate has been taken by the executive fiat without taking recourse to the due process of law is not sustainable and decisions cited to that effect are not also applicable in this case. This Rule, therefore, it is submitted, is liable to be discharged.
10. Mr. Amal Kumar Dutta, the learned Advocate appearing on behalf of the Tea Development Corporation, the respondent No. 4, submitted that the petitioners 1 and 2 did not acquire any right, title or interest in the said tea estate as the Government did not grant permission for assignment of the lease and/or for transfer of the leasehold interest of the leasehold interest of the respondent Nos. 6 and 7 in favour at the petitioners. It has also been submitted that on the basis of the alleged agreement of sale they did not acquire any right, title or interest in the said property and as such they are not competent to challenge the impugned notice under Section 166 of the T. P. Act as well as the order issued by the Collector taking possession of the tea garden. It has been further submitted that the tenancy of the respondents Nos. 6 and 7 was duly determined by the notice under Section 106 of the T. P. Act and possession was taken peacefully of the said tea estate by the Collector and the same was handed over by him to the Tea Development Corporation on 16th April, 1981. The Manager employed by the petitioners has been employed as managers in respect o the tea gardens by the Tea Development Corporation, respondent No. 4 and as such it has been submitted by Mr. Dutt that for suppression of material facts the rule shall be discharged. Some decisions were cited at the Bar on this score.
11. Mr. Soumen Ghosh, learned Advocate appearing on behalf of the respondents Nos. 6 and 7 submitted that respondents Nos. 6 and 7 were the lessees in respect of the Tea Garden under the Govt. and in accordance with the provisions of Section 6(2) proviso of the W. B.Estates Acquisition Act they shall be deemed to be tenants on the same terms and conditions as embodied in the lease granted in their favour. It has been further submitted that in Clause 10 (1) of the Indenture of Lease it has been specifically provided that the lessee shall be entitled to renewal of lease for a further period of 30 years and subsequent renewals for similar periods in perpetuity. Therefore this lease in favour of his clients continues and cannot be taken to be determined by efflux of time or on failure on the part of the respondents Nos. 6 and 7 to execute the lease in the prescribed form No. 1 of Sch. F appended to the W. B. Estates Acquisition Rules as the same is not applicable to this case. It has also been submitted by Mr. Ghosh that the respondents Nos. 6 and 7 on receiving consideration from the petiioners executed an agreement of sale in their favour in respect of this Tea Estate and handed over the management of the Estate the purpose of running of the Tea Estate as well as of manufacture of tea in the said Estate to the petitioners. The final deed of sale could not be completed because of the non-grant of permission by the Collector, Darjeeling to the said transfer. After the close of argument an application was filed by the respondents Nos. 6 & 7 for transposing them to the category of the petitioners in the main writ petition on 2nd Sept., 1981. The said application was heard on 16th of Sept., 1981 and was allowed. Accordingly, the respondents Nos. 6 & 7 were transposed to the category of petitioners.
12. It is pertinent to consider the preliminary question raised as to the maintainability of this rule at the instance of the petitioners 1 and 2 who, it is submitted, having acquired no right, title and interest in the Tea Estate in question are not competent to maintain this application as the impugned notice under Section 106 of the T. P. Act and the order of the Collector, Darjeeling taking possession of the garden do not, in any way, impinge upon any of their legal rights. As such they have no locus standi to come before this writ court. Of course, in coming before the writ court with an application for a writ in the nature of Mandamus or for certiorari or for any other proper writ or order one has to satisfy the court that he has a legal right which is a judicially enforceable right and this right has been affected by an order made by the public authority to his prejudice. This has beenobserved in : 2SCR361 M. S. Jain's case. This view, however, has been widened by the latter pronouncement of the Supreme Court in : 2SCR172 Venkateswara Rao v. State of Andh Pra and in : 3SCR58 Jasbhai Motibhai Desai v. Basir Ahmed in para. 12 where it has been held that in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an 'aggrieved person' and in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a 'Stranger', the Court will in its discretion, deny him this extraordinary remedy, save in very special circumstances. This takes us to the further question: Who is an 'aggrieved person'? And what are the qualifications requisite for such a status? The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept, II cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scone and meaning depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression 'aggrieved person'. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction.
13. Following this decision this Court has held in Re: Monoranjan Maity v. District School Board decided on 31-3-1981, (1981 Lab IC NOC 179) that in order to maintain an application for a writ in the nature of Mandamus or in the nature of Certiorari or for any other order or directions under Article 226 of the Constn. it is not sole test to be satisfied that the person making an application must show that any of his individual or personal rights either conferred by Part III of the Constitution or by any statute has been infringed illegally by the purported action on the part of the statutory authority. If a person is shown to have a genuine grievance by an action or inaction of the authority to discharge his public dutiesenjoined upon him by the Act, in that case such person will be an aggrieved person having locus standi to maintain an application for a writ in the nature of mandamus and/or Certiorari against the purported action or inaction on the part of such public authority. In this case undoubtedly the impugned notice issued under Section 106 of the T. P. Act terminating the tenancy of the respondents Nos. 6 and 7 now transposed to the category of petitioners has undoubtedly affected the petitioners inasmuch as on the basis of the agreement of sale they have been inducted into the management of the said Tea Estate by the lessors, i. e., the Agarwalia, the transposed petitioners. The petitioners in such a case are aggrieved persons and this application at their instance is therefore maintainable though their proprietary interest has not been affected by the impugned notice and order of the Col-Lector taking possession of the Tea Estate. It is pertinent to refer in this connection that the lessors who are respondents Nos. 6 and 7 to the petition have been transposed to the category of the petitioners and as such it is no longer open to the State to contend that this application is not maintainable as the petitioners' Legal rights have not been affected by the impugned notice terminating the tenancy and the impugned order of the Collector taking possession of the said Tea Garden. Therefore this contention raised on behalf of the State respondents by the learned Standing Counsel is devoid of any merit and hence it is overruled.
14. The next question that poses itself for consideration is whether the notice under Section 106 of the T. P. Act is a valid and proper notice duly terminating the tenancy of the transposed petitioners. To effectually deal with this question it is necessary to consider in this connection what is the nature of the tenancy, that is, whether the transposed petitioners, that is, Om Prakash Agarwalia and Ajit Kumar Agarwalia, the admitted lessees in respect of the Rungneet Tea Estate were holding over under Section 116 of the T. P. Act or not. In the instant case the lease was entered between the Government of West Bengal with the assignor of the transposed petitioners on 24th of Nov., 1948 for a term of 30 years from the 1st day of April 1948. There is also a clause giving option to the lessee to have renewal of this lease for a period of 30 years and to renewals for similar period for perpetuity subject to the rulesand the terms and conditions of this lease and to such clause as the Govt. may from time to time found it necessary to add on the renewal of a lease etc. This has been mentioned in Sub-clause III (I) of Clause 10 of the Indenture of lease. According to the said terms the lease expired on 31st March, 1978 and the notice of termination of lease was issued by the Collector, Darjeeling only on 7th Oct., 1980 terminating the tenancy, Therefore, it is evident that the transposed petitioners, that is, the Agarwallas have been in possession of the said Tea Estate as a tenant after the determination of the term of the lease. It has been submitted by Mr. Mitra, learned Advocate, appearing on behalf of the petitioners that the lessees remained in possession in accordance with the terms of the renewal clause as tenant on the same terms and conditions as embodied in the Indenture of lease and they are not continuing in possession as a tenant from year to year that is holding over under Section 116 of the T. P. Act. This submission of Mr. Mitra, in my opinion, has to be upheld in view of the decision of this Court in : AIR1965Cal55 Satadal Basini v. Lalit Mohan De the facts of which are in pari materia with the facts of this case. It has been observed that when a tenant under a 20 years' lease with a renewal clause, continues his possession after expiry of the said lease his continuance of possession will be deemed to be under the renewal clause though there will not be any express exercise of the said renewal. His rights in the leasehold land would be deemed to have flowed from the registered lease for 20 years and such cases will be outside the mischief of clause of section 2 (5) of the Calcutta Thika Tenancy Act. In the instant case the lease expired on 31st March, 1978 but the Agarwallas, that is, transposed petitioners, remained in possession of the property on the basis of the renewal clause though the option was not expressly exercised. Therefore the possession of the lessors that is the Agarwallas after the expiry of the term of the lease is on the basis of the renewal clause, that is, on the terms and conditions as mentioned in the registered lease for 30 years. It cannot be said that they were holding over the said Tea Garden under the provisions of Section 116 of the T. P. Act.
15. Therefore the transposed petitioners are continuing in possession astenants on the said same terms and conditions as specified in the Indenture of lease under the Government of West Bengal. It is next to be considered what is the effect of the service of a notice terminating the tenancy of the transposed petitioners by the impugned notice issued by the Collector, Darjeeling on 7th of Oct., 1980. Section 111(h) of the T. P. Act provides that a lease of immovable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the otherr This provision brings into operation the requirement of Section 106 of the T. P. Act which specifically provides for determination of lease of immovable property for agricultural and manufacturing purposes in the absence of a contract by six months' notice expiring on the end of the year of the tenancy. The effect of service of a notice under Section 106 on the tenant is an expression of a desire to terminate the tenancy of the tenant after expiration of the period of notice. This does not mean that after service of notice under Section 106 of the T. P. Act though the tenancy is determined the tenant can be evicted and/or removed from the land, in this case the Tea Garden under his occupation by the lessor, that is, the Government of West Bengal forcibly and the lessor through the Collector of Darjeeling cannot take possession of the Rung-neet Tea Estate without taking recourse to due process of law for ejectment of the tenant, that is, the transposed petitioners, from the Tea Garden as has been done in this case. It has been tried to be submitted on behalf of the State that after termination of the tenancy of the lessees, that is, Agarwallas, the State of West Bengal is competent to take possession of the Tea Garden from the Agarwallas who are no better than trespassers after the termination of the tenancy and the Collector, Darjeeling, has rightly taken over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 on the lessees's (Transposed petitioners) failure to pay Govt. dues by 14th April, 1981 as required by the notice under Section 106 of the T. P. Act. In the case of Midnapur Zemindari Co. Ltd. v. Naresh Narayan Roy, (1924) 51 Ind App 293 at p. 293 at p. 299 : (AIR 1924 PC 144), it has been observed that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled tothrough a Court. The plaintiff was not entitled to get possession by ousting his then co-sharers, Robert Watson & Co. from possession of lands which they were entitled to hold in common as co-sharers. 'The Supreme Court in the case of Bishan Das v. State of Punjab, : 2SCR69 observed that the petitioners who were alleged to have built a Dhar-masala, temple and shops out of the funds of the joint family consisting of himself and the petitioners in 1909 on Govt. lands with the permission of the authority for the benefit of the travelling public, could not be forcibly dispossessed from the same by the Sub-Divisional Officer' and possession of the same could not be handed over to the Municipal Committee, Barnala by executive fiat without taking recourse to due process of law. It has been further held that the Dharmasala, temple and shops could not be treated as belonging to the State irrespective of the question whether the trust created was of a public nature. A trustee even of a public trust can be removed by an executive fiat. This view has been reiterated in a subsequent decision of the Supreme Court in AIR 1968 SC 620 at p. 623 in paragraphs 10 and 13 where it has been held that possession cannot be taken forcibly without recourse to due process of law. A lessor is not entitled to usa force to throw out his lessee. Therefore, the order of the Collector, Darjeeling dt. 16th April, 1981 taking over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 is wholly illegal, bad and unwarranted. Another question requires to be considered in connection with the validity of the notice under Section 106 is whether the impugned notice dt. 7th Oct., 1980 issued by the Collector, Darjeeling determining the lease of the Tea Garden in favour of the transposed petitioners on the expiry of 14th April, 1981 is a valid and proper notice according to the provisions of Section 106 of the T. P. Act or not. I have already mentioned hereinbefore that the tenancy on the basis of the Indenture of the lease entered between the parties on 24th Nov., 1948 for a period of 30 years undoubtedly expired on 31st March, 1978, as the lease is for agricultural purposes 6 months' notice was required to be served on the lessee as has been done in this case. This notice has to terminate the tenancy on the expiry of 6 months with the end of a year of the tenancy. The meaning of the words 'yearof the tenancy' was considered by a Special Bench of this Court in (1960) 64 Cal WN 641 Indian Iron and Steel Co. Ltd. v. Baker Ali where it was held that a year of the tenancy means a year or a period of twelve months according to the calendar of the particular tenancy, starting with its date of commencement or any anniversary thereof. 'A year of the tenancy' in the first instance, a period of twelve months according to the Calendar, governing the particular tenancy commencing with the date of commencement of the said tenancy according to the said calendar. In this case the tenancy commenced from the 1st April, 1948. Therefore the impugned notice dt. 7th Oct., 1980 as mentioned in annexure E to the petition terminating the tenancy of the transposed petitioners on the expiry of the 14th April, 1981 being not a 6 months' notice expiring with the end oi the year of the tenancy is invalid and as such the tenancy has not been duly terminated by the said notice and the lease had not been determined in accordance with the provisions of Section 111(h) of the T. P. Act. Therefore, the tenancy has not been determined by a notice under Section 106 of the T. P. Act. As the transposed petitioners, that is, the lessees are continuing in possession on the basis of the renewal clause as embodied in the Indenture of lease on the terms and conditions mentioned therein such a tenancy cannot be validly terminated under provisions of Section 111(h) of the T. P. Act as there has been no determination of the period mentioned in the renewal clause. In such circumstances the tenancy being net validly determined the argument of the learned Standing Counsel that the Government or for that the Collector, Darjeeling by issuance of an order dt April 16, 1981 as mentioned in Annexure D to the petition has validly taken over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 and handed ever possession of the same to respondent No. 4, the Tea Development Corporation is wholly without any substance and not sustainable in law.
16. It has been submitted on behalf of the petitioner that the notice under Section 106 of the T. P. Act is bad as the transposed petitioners, that is, the lessees, were holding the disputed tea garden on the basis of the renewal clause on the terms and conditions embodied in the lease deed and as such the provisions of Section 106 ofthe T. P. Act are not applicable to this case and the impugned notice does not determine the tenancy. In this regard reference has been made to a decision of the Supreme Court in AIR 1981 SC 1550, Smt Shanti Devi v. Amal Kumar Baner-jee. In this case there was a registered lease in respect of a cinema theatre known as Santi House at Sainthia in the district of Birbhum for a term of four years with a covenant of two renewals of three years each. In 1970 an ejectment suit was brought on the ground that the lease had expired by efflux of time and also pleaded in the alternative that he had sent a notice for determining his tenancy under Section 106 of the T. P. Act. The deponent pleaded that no notice was served on him. The Court below held that the lease was validly determined by a notice to quit and decreed the suit. The High Court reversed that decision of the trial Court as well as of the lower Appellate Court by holding that service of notice under Section 106 of the T. P. Act on the defendant had not been proved and, as such the suit was not maintainable. It was held by the Supreme Court that the lease being for a definite term and, therefore, expired by efflux of time by reason of Section 111(a) of the Transfer of Property Act. The determination of the tenancy by notice under Section 106 of the said Act was not necessary as there was no allegation by the deponent that he was holding as a tenant under S, 116 of the Act. In this case also the lessees have been possessing the tea garden on the basis of the renewal clause and as such there has been no determination of the lease by efflux of time. Moreover, the notice under Section 106 of the T. P. Act terminating the tenancy was not a valid notice as has been held hereinbefore. This notice therefore, did not determine the lease and the tenancy subsists.
17. It was tried to be contended on behalf of the respondent No. 4 by Mr. Amal Kr. Dutta, learned Advocate that the writ application should be dismissed for suppression of material facts as it has been stated in the petition that the possession of the Tea Garden were still with the petitioners and all the workers of the Tea Estate were employed as the workers of the Tea Estate as usual on 27th April, 1981 when this application was affirmed and moved and on the basis of this averment an interim order of maintaining status quo on that day ason 24-8-81 was obtained. In support of this submissions he referred to some decisions of this Court. I am not inclined toaccept this submission for the simple reason that there was no material suppression of facts in the writ application and the interim order was not obtained on its basis by misleading the Court. On the other hand, there is a specific averment in para. 22 of the petition that on 16th April, 1981 the petitioner was served with the impugned notice informing that the respondent No. 2 took over the possession of the Tea Garden with effect from 15th April, 1981. In the circumstances, it cannot be said that there has been a material suppression of facts.
18. In the reasons aforesaid the contentions raised on behalf of the petitioner having succeeded the Rule succeeds and is made absolute.
Let a writ of Mandamus be issued commanding the respondents to forbear from giving effect or further effect to the notice mentioned in annexure E to the purported petition D/- 10th Oct., 1980 as well as the impugned order of the Collector, Darjeeling D/- 16th April, 1981 as mentioned in annexure G to the petition.
Let a writ of Certiorari be issued directing the respondents to quash and cancel and set aside the impugned notice as well as the impugned order mentioned hereinbefore.
There will, however, be no order as to costs.
Respondent No. 4 is hereby directed to hand over possession of the Tea Estate, locally known as Rungneet Tea Estate, to the petitioners in course of a week from today.
The prayer for stay is refused.