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Narendra Nath Mitter Vs. Rampal Singh - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKolkata
Decided On
Reported inAIR1947Cal378
AppellantNarendra Nath Mitter
RespondentRampal Singh
Cases ReferredSecy. of State v. Shiba Prasad
Excerpt:
- .....to its renewal, and there is some controversy as to whether it granted to the lessee a right of renewal subject to his acceptance of the appropriate rent fixed by the lessor, or whether the renewal was subject also to the lessor's pleasure. during the currency of the original lease, the appellant was declared a disqualified proprietor and the court of wards assumed charge of his property under the provisions of the act on 20-8-1939. on 9-4-1942, the collector of hooghly directed that the hat should be settled from may 1942 by public auction, and on 18-4-1942 the lease of the hat for a period of 5 years was put up to auction and the respondent, who was the only bidder, offered a rent of rs. 110 per mensem. his bid of rs. 110 per mensem for a period of 3 years was accepted by the.....
Judgment:

Sharpe, J.

1. This appeal arises out of a suit brought by the respondent against the appellant, who is a ward of Court, for specific performance of a contract for lease of a certain hat. The appellant has been represented throughout the proceedings by the Manager of the Court of Wards in accordance with the provisions of Section 51, Court of Wards Act (9 [IX] of 1879). The main facts are not disputed and are briefly as follows:

2. On 8 5-1983, the plaintiff-respondent, Rampal Singh was granted an Ijara lease for the Bowbazar hat by the defendant-appellant, Kumar Narendra K. Mitter for a period of 10 years ending in April 1942 at a rent of Rs. 40 per anensem from May 1933 to April 1937 and at Rs. 60 per mensem from May 1937 to April 1942, There was a clause in the lease relating to its renewal, and there is some controversy as to whether it granted to the lessee a right of renewal subject to his acceptance of the appropriate rent fixed by the lessor, or whether the renewal was subject also to the lessor's pleasure. During the currency of the original lease, the appellant was declared a disqualified proprietor and the Court of Wards assumed charge of his property under the provisions of the Act on 20-8-1939. On 9-4-1942, the Collector of Hooghly directed that the hat should be settled from May 1942 by public auction, and on 18-4-1942 the lease of the hat for a period of 5 years was put up to auction and the respondent, who was the only bidder, offered a rent of Rs. 110 per mensem. His bid of Rs. 110 per mensem for a period of 3 years was accepted by the Collector on 15-5-1942. The following day, one Kali Prasanna Singh represented to the Collector that he was willing to make a better offer for settlement of the lease with him, but that he was not aware of the auction which was held on 18-4-1942. Accordingly, on 185-1942, the Collector cancelled his order of 15th day and directed the holding of a fresh auction. A fresh auction was held on 1-6-1942, despite the respondent's protest and the final bid of Rs. 405 per mensem made by Kali Prasanna Singh was accepted by the Collector. Meantime, however, the respondent had appealed to the Commissioner against the order of the Collector cancelling his order of 15-5-1942 by which the respondent's bid of Rs. 110 per mensem had been accepted and on 27-7-1942 the Commissioner set aside the order of the Collector and directed the grant of an Ijara lease to the respondent for a period of 5 years at the rate of Rs. 150 per mensem. Respondent agreed to take settlement on these terms and deposited rent at Rs. 150 per mensem up to February, 1944.

3. Kali Prasanna Singh appealed to the Board of Revenue against the order of the Commissioner and on 3-12-1942 the Board set aside the order of the Commissioner, and directed him to reconsider the matter and to lease the Hat on such terms and for such period as he considered proper. In accordance with these directions, the Commissioner ordered a fresh auction to be held on 17-3-1943. In the meantime, the respondent brought the suit out of which this appeal arises for specific performance of the contract for lease with him which he claimed was concluded by the order of the Commissioner. He claimed further that in any event he was entitled to a renewal of the lease by virtue of the covenant contained in the lease of 1983 and a permanent injunction prohibiting the grant of a lease to any person other than himself. The suit was contested by the Manager, Court of Wards on behalf of the defendant appellant, and the main defence was that the suit was not maintainable in the absence of a notice under Section 80, Civil P.C. on the Manager of the Court of Wards who is a public officer, that there was no concluded contract for lease, and that the plaintiff was not entitled to a renewal of the original lease, but that such renewal was at the option of the defendant.

4. On the pleadings the following issues were framed:

(1) Has the plaintiff any cause of action or right to sue? (2) Is the suit maintainable in its present form? (3) Is the province of Bengal a necessary party to the suit? (4) Is the suit bad for want of notice under Section 80, Civil P.C.? (5) Is the suit barred by principles of estoppel, waiver and acquiescence? (6) Was there any concluded valid agreement for lease of the disputed Hat with the plaintiff as alleged? Is he entitled to a specific performance of the said contract? If so, under what terms? (7) To what relief, if any, is the plaintiff entitled

The learned trial Court answered issues 3 and i in favour of the plaintiff. With regard to Issue 6 however he held that the plaintiff had no right of renewal of the lease either on the covenant contained in the original lease or on the case made out in the plaint. He held further that there was no concluded contract for lease with the plaintiff because the Collector had no power to make any settlement unless approved by the Commissioner and that the settlement made by the Commissioner was also subject to any decision which might be made by the Board of Revenue either on appeal under Section 67 or by way of revision under Section 68, Court of Wards Act. He decided, therefore, this Issue in favour of the defendants and dismissed the plaintiff's suit.

5. On appeal the learned District Judge in an elaborate and exhaustive judgment reversed the decision of the trial Court. He held on reference to the relevant sections of the Court of Wards and Contract Acts that the lease granted by the Commissioner on 27-7-1942 in exercise of powers delegated under Section 15 of the Act was the act of an agent binding on the principal and when accepted by the plaintiff constituted a completed contract enforceable by law. He held further that this act was not subject to any appeal or revision under Section 67 or 68, Court of Wards Act, and, consequently, that the order of the Board of Revenue made on 3-12-1942 was without jurisdiction. In his view, the clause in the original lease of 1933 relating to renewal was in essence a covenant for renewal with the lessee, subject only to his agreement to pay such appropriate rent as might be settled, and the period for which the lessee was entitled to renewal was the same as that granted by the original lease, that is, for 10 years. He agreed with the view of the trial Court that no notice under Section 80, Civil P.C., was necessary in a suit of the present nature and, in any event, he considered that the respondent before[him was precluded from setting up Section 80, as a bar to the maintainability of the suit without preferring a cross-objection. The correctness of the decisions with regard to the necessity for service of a notice under Section 80, or of the bar to urging this ground in appeal without filing any cross objection have not been challenged before us. We need not therefore, discuss them, but our omission to do so should not be construed either as approval or disapproval of them.

6. On behalf of the appellants, Mr. Sen Gupta has contended that the learned District Judge erred in his construction of the relevant sections of the Court of Wards Act, and has urged that the orders of the Commissioner in every case are subject to appeal or revision by the Board of Revenue, whether those orders are made in exercise of powers conferred directly by the Act or by virtue of powers delegated to him. In the present case, it is contended, the Commissioner merely passed orders cancelling the lease granted by the Collector, and sanctioning a lease in new terms, and these are not final orders by which any contract was or could be concluded, but were subject to the provisions of Sections 67 and 68 of the Act, which are in the widest possible terms and such as to preclude any possible belief that the Board has deprived itself of authority to override the orders of the Commissioner in case of need. In support of this argument, Mr. Sen Gupta referred to the relevant sections of the Act and rules framed thereunder which have been quoted in extenso in the judgment of the learned District Judge. He has pointed out that under Clause 2, Section 39 of the Act, the powers of a manager are to grant leases under orders of the Court, and the powers which have been delegated under Rules 3(67) and 3(68) of sanctioning temporary leases are, he contends, also subject to the orders of the Board which can alone be the 'Court' referred to in Sections 67 and 68 of the Act. Mr. Sen Gupta contended also that the clause for renewal of the lease was subject to the pleasure of the lessor after determining the appropriate rent. In any event he maintained that renewal could be at most for a period of 5 years which the plaintiff had accepted and had asked for in his plaint. Mr. Gupta on the other hand has maintained on behalf of the respondent that the decisions of the learned District Judge are mainly correct, though he has admitted that the view that the respondent should be given a fresh lease for a further period of 10 years can hardly be supported, because he asked in his plaint for specific performance of the alleged contract to lease for a period of 5 years only, the period which according to him, had been offered by the Commissioner by his order of 27th July 1942 and accepted.

7. The main controversy relates to the question whether, by virtue of the power of sanctioning leases delegated to the Commissioner under the second part of Section 15, Court of Wards Act, and embodied in Clause 67 of Rule 3 of the rules framed under that Act, the order of the Commissioner made on 27-7-1942, was a final order binding on the Court of Wards, that is, on the Board of Revenue. On the whole we think it was and that this portion of the case was rightly decided by the District Judge. The provisions of Section 15, are clear that the Court may delegate any of its powers under the Act to Commissioners or Collectors or other persons, and the definition of 'Court' in Section 3 of the Act is specific that 'Court' when the Court of Wards has delegated any of its powers to a Commissioner or Collector or other person, means, in respect of those powers, the Commissioner or Collector or other person to whom they are delegated. Section 18 of the Act is one of the sections which confers specific powers on the 'Court' to sanction the giving of kases or farms of the whole or part of any property under its 'charge', and subject to the restrictions mentioned in Rule 2 of the rules framed under the Act, the Court has delegated this power to Commissioners in respect of temporary leases. The powers conferred by delegation under the second part of section must, we think, be distinct from those powers which the Court may exercise under the first part of that section through Commissioners and Collectors, or which are conferred on Commissioners or Collectors by the Act itself, and this could hardly be the case if orders made in exercise of delegated powers had no more finality than those made in the exercise of other powers, but Were also subject to the same provisions for appeal to or revision by the Court.

8. The restrictions contained in Rule 2 referred to above have no reference to the granting of leases, and, unlike some of the powers which have been delegated to Commissioners and Collectors and embodied in other clauses of Rule 3 which have been made subject to approval by or report to the Court or the Commissioner, as the case may be, the powers delegated by Clause 67 of Rule 3, of 'sanctioning temporary leases or farms of the whole or part of any property under the charge of the Court' are subject to no restrictions or limitations whatsoever. The powers of granting or renewing leases and farms conferred on managers by the second part of Section 39 of the Act, to which Mr. Sen Gupta has referred, may be exercised only under orders of the Court, but the delegation to Commissioners of powers conferred on the Court by Section 18 in relation to temporary leases is complete and unfettered. In these circumstances we cannot think that orders made in, the exercise of such powers were intended to be or are in fact subject to a right of appeal provided by Section 67 or the power of revision provided by Section 68 of the Act. To accept such a position would be to hold that orders made in exercise of the powers of the Court were subject to control by the Court; in other words that the order of one tribunal would be liable to be set aside on appeal or in revision by the order of another tribunal, exercising exactly similar powers so far as they relate to the sanctioning of temporary leases or farms of property under the charge of the Court. The powers given by Section 18 of the Act to the Court of granting leases of the whole or part of the ward's property are complete and final, and when those powers are delegated to Commissioners or other persons without restriction, it seems only reasonable to suppose that they are similarly free from interference in appeal or revision by any other authority. It is true that the terms of Sections 67 and 68 are extremely wide, but since the orders of Commissioners made in exercise of their delegated powers are really orders of the Court, we do not think they will apply to such orders. In our opinion, therefore, the sanction of a lease in exercise of these delegated powers amounts to a proposal which when accepted by the lessee becomes an agreement, and as there is no dispute that such an agreement is enforceable in law, we think that the proposal made by the Commissioner on 27-7-1942 and accepted by the (plaintiff constitute a contract of which the plaintiff is entitled to specific performance.

9. In the view we take with regard to the first point of controversy, the second point, namely whether the original lease contained a covenant for renewal with the lessee, is of secondary importance. The learned District Judge has set out in his judgment a translation of that clause prepared by the Official Translator and no objection to the accuracy of that translation was taken at the hearing of the appeal. It is as follows:

After my enjoyment of the said Bazar taken settlement of, and of the 'Toha' Bazar, and on my being in possession thereof for the full term under the lease, maintaining the previous boundaries of them intact, you will be at liberty to lease out this Bazar afresh at an appropriate jama and I shall be entitled to take settlement again at your will, otherwise I will relinquish this Ijara in your favour. If I fail to do so, I may be dealt with according to law.

10. In reaching his decision that this was in essence a covenant for renewal, the learned District Judge relied on the decision, Secy. of State v. Shiba Prasad 6 A.I.R. 1919 Cal. 972 We think however that the covenant in the lease which was then under consideration is materially different from the covenant which has been reproduced above. It was as under:

If I agree to the enhanced rent to be fixed at the time of the next settlement in future, the Government shall have the power to settle the lands with me, or if I do not agree, then with others.

11. This covenant, it seems to us aid stress on the agreement of the lessee, and seemed to emphasise that it was only when the lessee did not agree to the terms offered that the lessor would be able to settle the lands with other per. sons. In the lease which we are now considering, primary stress is laid on the liberty of the lessor to lease the Bazar afresh after the lessee has been in enjoyment of the Bazar for the full term of settlement and a further settlement with the lessee is governed by the important qualification that this would be 'at your will' that is so far as we can construe the meaning, subject to the, pleasure of the lessor. This lease, it must be remembered, was not a lease granted by Government but by a private landlord, and although it might be thought unnecessary to insert in a lease a clause conferring on the lessor a right to lease afresh his own property, it would be absurd to suppose that the words 'at your will' are meaningless or redundant. The clause relating to renewal seems to us to contain an acknowledgment by the lessee of the right of the lessor to grant a fresh lease on such suitable rent as the lessor might determine, and to make the lessee eligible for obtain a fresh lease, provided always that the lessor was willing to grant him a lease for a further term. It is not, we think, inconceivable or even unlikely that the lessor might be unwilling to grant a fresh lease to the original lessee, even though he might be agreeable to pay such appropriate rent as might be settled, if during the currency of the original lease he had proved to be an undesirable lessee, either because of his failure to pay the rent regularly or because of his obstructive conduct or for any other reason. The covenant was not, in our opinion, in essence a covenant for renewal with the original lessee; on the other hand we think that any renewal which might be made with him was entirely subject to the pleasure of the lessor. That being the position, there could be no question that the new lease should be for a period similar to that for which the original lease was granted. Clearly, if there was no covenant for renewal with the original lessee, there would be no covenant for granting a fresh lease to the new lessee, whoever he might be, for any fixed period. This is also, we think, supported by the provision that the lessor will be at liberty to lease out the Bazar afresh. In any event, it is clear from the case made in the plaint and from the relief sought that the plaintiff cannot get renewal of the lease for a period longer than the period of 5 years which, according to him, was the period for which the contract was concluded and on account of which he asked for a decree for specific performance. The period will also in our opinion run from the date of expiry of the old lease, that is, from May 1942 and extend up to April 1947 inclusive, since that again was the period for which the contract was made and for which according to the plaintiff specific performance should be granted.

12. The result is therefore that this appeal is allowed to this extent that the plaintiff-respondent will be granted a decree for specific performance of the contract made by the Commissioner by the order of 27-7-1942, that is, for a lease for a period of 5 years only from May 1942 to April 1947 at the rate of Rs. 150 a month, and other appropriate reliefs granted by the learned District Judge. In other words, we affirm -the decree of the lower appellate Court with these modifications that the defendant will grant the plaintiff a lease for the Bowbazar Hat for a period of 5 years only and that that period will run from May 1942 to April 1947. There will be no order as to the costs of this Court.

B.K. Mukherjea, J.

I agree.


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