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Santosh Kumar Gupta Vs. Smt. Chinmoyee Sen - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1802 of 1962
Judge
Reported inAIR1966Cal615
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 13, 13(6) and 17; ;Transfer of Property Act, 1882 - Sections 106, 111 and 114; ;Evidence Act, 1872 - Section 114
AppellantSantosh Kumar Gupta
RespondentSmt. Chinmoyee Sen
Appellant AdvocateNani Coomar Chakravarti, Adv.
Respondent AdvocateJ.K. Sen Gupta and ;Asoke Kumar Sen Gupta, Advs.
DispositionAppeal dismissed
Cases ReferredGanga Dutt v. Kartik
Excerpt:
- .....to get them out of the 3. mr. chakravarti contends firstly that section 13(6) of the west bengal premises tenancy act, 1956, (hereinafter called the act) provides that the notice is to be 'given'. according to mr. chakravarti, the giving of the notice means only personal service, i.e., service, not by post not even by registered post. if no personal service is effected, it is contended, there would be no service according to law. the special bench decision of this court in the case of surya properties private ltd. v. b.n. sarkar, : air1964cal1 (sb) held inter alia that a combined notice, both under section 13(6) of the act as also under section 106 of the transfer of property act, providing for service by post, would be sufficient. if in a combined notice the service by post is legal,.....
Judgment:

Laik, J.

1. This is a tenant defendant's appeal against the decree of the Court of appeal below affirming the decree of the Trial Court, passed against him, in a suit for ejectment from a house premises. The tenancy was according to the English Calendar month. The defendant was stated to be a habitual defaulter in payment of rent. The tenancy of the defendant was determined by a combined notice to quit and that of a suit, expiring with the end of March 1958. The suit was contested: firstly, on the ground of non-service of notice and secondly, there was no default in payment of rent. The learned Munsif decreed the suit which was affirmed in appeal by the learned Subordinate Judge, Alipore. The instant appeal is against the said decree.

2. Mr. Nani Coomar Chakravarti, the learned Advocate in support of the appeal, raised various points. To get the real bone of contention viz., as to whether the tenant defendant is entitled to relief against forfeiture under the provisions of Section 114 of the Transfer of Property Act it would be convenient to refer first to the other points in order to get them out of the

3. Mr. Chakravarti contends firstly that Section 13(6) of the West Bengal Premises Tenancy Act, 1956, (hereinafter called the Act) provides that the notice is to be 'given'. According to Mr. Chakravarti, the giving of the notice means only personal service, i.e., service, not by post not even by registered post. If no personal service is effected, it is contended, there would be no service according to law. The Special Bench decision of this Court in the case of Surya Properties Private Ltd. v. B.N. Sarkar, : AIR1964Cal1 (SB) held inter alia that a combined notice, both under Section 13(6) of the Act as also under Section 106 of the Transfer of Property Act, providing for service by post, would be sufficient. If in a combined notice the service by post is legal, I fail to understand the principle as to why the separate service of the notice Under Section 13(6) of the Act by post would not be valid and sufficient. Moreover, both Sinha, J. (as his Lordship then was) and G.K. Mitter, J. held in the said Special Bench decision that oral notice under Section 13(6) of the Act would be sufficient. It is better also to take note of the fact that there is no mode of service prescribed in Section 13(6) of the Act. Rules 4, 9, 12 and 25 of the West Bengal Premises Tenancy Rules provide for service by registered post but do not speak about service of notice under Section 13(6) of the Act. The first contention that personal service of the notice under Section 13(6) is mandatory, is therefore without substance.

4. The second contention is that the instant suit should fail in the absence of a statement as to the date of commencement of the tenancy, which statement again according to Mr. Chakravarti, must appear both in the notice and in the plaint. In the instant case, the statement made in paragraph 2 of the plaint makes it clear that the tenancy is according to the English Calendar month ^^baxzt ekl vuq'kkjsThereis no denial of this in paragraph 5 in the writtenstatement. P.W. 1's verbal evidence in chief, isthat the defendant is a tenant according to theEnglish Calendar month. To this again, there isno cross-examination. The Division Bench decision (Akram and Pal, JJ.) in the case of MozamShaikh v. Annada Prasad, 46 Cal WN 366: (AIR1942 Cal 341), Mr. Chakravarti cannot rely on,because no evidence had been adduced by theplaintiff in that case to show when the tenancydid really commence. The exact vernacularwords used in the said reported decision is^^frfjls pS= e/;** and nothing more. In ouropinion the said expression is not sufficient toprove the date of commencement of the tenancy.The principle laid down by Lahiri, J. sittingsingly, in the case of Jagat Mohan Dutta v.Basiran Bibi, (1957) 61 Cal WN 127, we approveof, though the tenancy in the said reported decision was governed by the Bengali Calendarmonth. The Division Bench decision (Lahiri andP.K. Sarkar, JJ) in the case of Carrara Marbleand Terrazo Co., v. Charu Chandra Guha, : AIR1957Cal357 alsolaid down that when a monthly tenancy wascommenced on the first day of a month it couldbe properly and validly determined by a serviceof a notice, expiring on the last day of the subsequent month. We are not disputing the proposition of law, laid by P.N. Mookerjee andSarkar, JJ. in the case of Baidya Nath v. NirmalaBala, : AIR1957Cal649 , butthe said decision does not help Mr. Chakravarti,as the defendant's tenancy in the said reporteddecision, commenced from April 7, 1945 undera registered lease. It was not a tenancy accordingto the English Calendar month. The second contention is without any merit and we hold thatthe suit is maintainable and it is not necessaryto state the date of commencement of the tenancy both in the notice and in the plaint.

5. The third contention of Mr. Chakravarti is that the notice under Section 13(6) of the Act can only be given, after the tenancy is determined, first under Section 106 of the Transfer of Property Act. This contention is again contrary to the principle laid down in the said decision of the Special Bench in the case of Surya Properties, : AIR1964Cal1 (SB).

6. The fourth contention of Mr. Chakravarti is that the notice is bad because there is no reference to the specific provisions of the Acts in it viz., of the Transfer of Property Act and Section 13(6) of the Act. In our opinion specific reference to the Section or Sections is not a necessity. It would be sufficient in our opinion, if the notice fulfils the requirements of the said Sections of the said two Acts.

7. Mr. Chakravarti next overlooks that in the notice there is a threat of suit and the argument on this score also is unsustainable.

8. The next argument of Mr. Chakravarti is that the notice under Section 106 of the Transfer of Property Act must be served by registered post and not by any other mode of posting, Such a concept can only be captured by those who believe in a neat, catch-all rule of thumb. In the instant case, the notice is allowed to be served by registered post, as well as by certificate of posting Both the landlord and the tenant, in the instant case, live in the same premises. It is true that the peon's endorsements on the registered envelope were, 'left' and 'out of Calcutta' The Court of appeal below considered the same as well as the oral evidence and held, in our view rightly, that the said endorsement that the defendant was out of Calcutta and therefore 'left' on the relevant date, was unreliable and could not be accepted. Therefore in spite of the endorsement 'left' by the serving peon appearing on the registered envelope, the Trial Court, as well as the Court of appeal below, correctly and concurrently held that there was proper service of the notice on the tenant defendant. The learned Advocate for the landlord respondent relied upon the principles laid down in the case of Sita Nath v. Soleman. (1947) 51 Cal WN 650 and the case of Nagendranath v. Jotish Chandra, : AIR1952Cal221 . Even assuming the proposition of law namely that, if the notice, sent by post, and correctly addressed as evidenced in the certificate of posting, might not carry the presumption under Section 114 illustration (f) of the Evidence Act to be correct, which we do not accept, there is no difficulty in affirming the finding of fact arrived at by the Court of appeal below on evidence in the instant case that there is a proper service of the notice. This contention therefore fails.

9. The last and main ground of attack of Mr. Chakravarti is that the tenant is entitled to invoke the provisions of Section 114 of the Transfer of Property Act and is entitled to relief against forfeiture. On such argument, there would be nothing to prevent the case becoming the battle ground of experts and it has become so. Mr. Chakravarti in support of his contention relies very strongly on a recent decision of our learned brother P.B. Mukharji, J. sitting singly in the case of Deo Chand v. Shah Mohammad, : AIR1965Cal398 . He adopts the reasonings of his Lordship as his arguments before us. We are constrained to observe that the said decision is no longer a good law in view of the Supreme Court decision in the case of Mangilal v. Sugan Chand. : [1964]5SCR239 , but at the same time we cannot approve of the criticism that there is a tendency to disregard precedents in the decisions of cases like the present, has became so strong of late, as to shake confidence in the consistency of decisions and leave the Courts below on an unchartered sea of doubt and difficulty. In the Bench decision in the case of Mohammed Yusuf v. Ram Chandra Singh, (1965) 69 Cal WN 588, P.N. Mookerjee, J. indicated that the said Supreme Court decision 'apparently at least may militate against the grant or availability of 'the relief under Section 114 of the Transfer of Property Act. The further criticism, that the expression 'apparently at least may militate' is a coldly cerebral approach and that the difficulties should not be disregarded nor met by avoiding them, is not also justified. As it was thought unnecessary to decide the point in the facts of the said case, His Lordship said so. No learned Judge would like that the past decisions should be gratuitously under-minded or the future unnecessarily hemmed in. To revert back, we cannot persuade ourselves to agree to the distinction, sought to be made by P.B. Mukharji, J. (in his said decision of Deochand), : AIR1965Cal398 of the Supreme Court decision of Rajaram Paranjype v. Aba Maruthi Mali, : AIR1962SC753 . P.B. Mukharji, J. himself noticed the said Supreme Court decision of Mangilal : [1964]5SCR239 in his later decision in the case of Anil Chatterjee v. Shibnath Chakravorty, A. F. A. D. No. 624 of 1959 dated 16-8-1965 (Cal) unreported, but his Lordship thought it unnecessary to decide the said point in the said appeal.

10. It may be stated that Raghubar Dayal, J. speaking on behalf of the Supreme Court in the case or Punjalal v. Bhagwatprasad, : [1963]3SCR312 did not accept the contention advanced on behalf of the tenant that having paid the arrears of rent within two months of the institution of the suit, there would be no forfeiture of the tenancy. I am aware that Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act of 1947 fell for consideration in the said decision but his Lordship laid down the principles in paragraph 23 at page 127 of AIR the tenant's paying the arrears of rent after the institution of the suit therefore does not affect his liability to eviction and the Court's power to pass a decree for eviction .... The landlord became entitled to recover possession when the tenant failed to pay rent and this right in him is not taken away by any other provision in the Act ........ ..... It is clear that where the legislature intended to give some benefit to the tenant on account of the payment of the arrears during the pendency of the suit, it made a specific provision'. The said principles are equally applicable as regards the Bengal Act viz., the West Bengal Premises Tenancy Act, 1956 is concerned, with which we are dealing in the instant appeal, though it cannot be disputed that the language in which the West Bengal Premises Tenancy Act is written, is less than precise. Even if play was allowed for contingency and the future to be packed with surprise, the cardinal fact remained that tie Act being essentially a compromise between conflicting views, must not Speak in something, less than logically compelling terms. The Premises Tenancy Act nowhere speaks that the tenant would get further reliefby way of Section 114 of the Transfer of Property Act. It might be stated that the said decision of P. B. Mukharji, I. in the case of Deochand, : AIR1965Cal398 (supra), refers to the provision of Section 111(g) of the Transfer of Property Act. The other decisions referred to by his Lordship are the cases of Ahindra Nath Chatterjee v. E.K. Twiss, ILR 49 Cal 150: (AIR 1922 Cal 394) and Luxmi Spinning and Weaving Mills Ltd. v. Md. Ibrahim Mutwalli, : AIR1958Cal428 which refer to the provisions of Section 111(g) in the background of the protection under Section 14 of the West Bengal Premises Rent Control Act, 1950 and Section 114 of the Transfer of Property Act. In all the three decisions where the content is not derived from an abstract analysis there is an express condition of re-entry for the failure in payment of rent but in the instant case we do neither find any proof of a written lease nor of any contract nor of any breach of any of its terms nor of the condition of re-entry. These are major threads in the fabric of Section 114 of the Transfer of Property Act which my learned brother would be dealing with in some detail, presently. A Division Bench of Gujarat H. C. in the case of Ambalal Chhotalal v. Babaldas Dayabhai, : AIR1964Guj9 does not take a contrary view in dealing with the said Bombay Act. To say that a tenant would be entitled to the relief under Section 114 of the Transfer of Property Act is to take an expanded view and to read the West Bengal Premises Tenancy Act, 1956 without Section 17. The meaning of a Statute should be drawn out of its terms as nourished by their proper environment and not, like Nitrogen out of the air.

11. In view of the anxious nature of the provisions of the Statute and in view of the decisions being not unanimous and in spite of the mounting burden of the Court's business we gave our best consideration and ultimately we had come to the conclusion that a tenant under the West Bengal Premises Tenancy Act, 1956 would not be entitled to avail of the further relief under the provisions of Section 114 of the Transfer of Property Act. The last contention also fails.

12. This appeal is accordingly dismissed. There would however be in the special circumstances of this case, no order for costs in this appeal. Let the records be sent down early.

D. Basu, J.

13. Agreeing with the decision of my learned brother, I would like to state briefly, the reasons why the tenant, in the instant case, is not, in my opinion, entitled to the protection of Section 114 of the Transfer of Property Act:

(a) Firstly, the provision in Section 114 of the Transfer of Property Act, is not, in terms, attracted to the facts of the instant case, because-

(i) That section is applicable only where a tenancy has been determined under Clause (g) of Section 111 and not where it is determined by a notice under Clause (h) of that section. Hence, even if Section 111 were assumed to apply in a case governed by the W. B. Premises Tenancy Act, no relief under Section 114 would be available in the instant case.

(ii) It is clear from the terms of Clause (g) of Section 111 that relief under Section 114 would be available only where there is a lease having an 'express condition which provides that, on breach thereof the lessor may re-enter'. No such lease exists in the instant case.

(iii) Section 114 itself makes it clear thatit is applicable only where the landlord has suedto eject the tenant on the ground that the tenant's lease 'has determined by forfeiture for nonpayment of rent'. The landlord has not instituted the instant suit on that ground but on theground laid down in Section 13(1)(i) of the W. B.Premises Act, which gives the landlord a statutoryright to evict the tenant, by serving a noticeunder Section 13(6), as soon as the contingencyspecified in Section 13(1)(i) does occur.

Secondly, though that proposition has not been expressly asserted in the several Supreme Court decisions cited before us, I am of opinion that the time has come to assert that in matters where the provisions of the W. B. Premises Tenancy Act are inconsistent with the provisions of a Central Enactment such as the Transfer of Property Act, the former shall prevail. The reason is that while the W. B. Premises Tenancy Act is an enactment made by the State Legislature under Entry 18 of the State List (List II of the Seventh Schedule of the Constitution), the Transfer of Property Act, 1882 is an 'existing law' relating to a matter enumerated in item 6 of the Concurrent List (List III), so that, in case of repugnancy between the provisions of the two Acts, the existing law should, ordinarily prevail, according to Clause (1) of Article 254. But this is subject to the provisions of Clause (2) of that Article which says that the situation would be reversed if the State law has been made with the assent of the President, after having been reserved for his consideration. This is exactly what has happened in the case of the W. B. Premises Tenancy Act, 1956, which was enacted with the assent of the President, published in the Calcutta Gazette Extraordinary of the 30th March, 1956.

14. It follows that, in case of repugnancy between any provision of the W. B. Premises Tenancy Act and the Transfer of Property Act, the former must prevail, so long as Parliament does not choose to exercise its overriding power under the Proviso to Article 254(2), which it has not so far elected to exercise.

15. It remains to see whether there is a repugnancy between the two enactments. It is now well settled that there may arise a repugnancy between two enactments not only where they are in direct conflict with each other but also where one of the enactments intends to be an exhaustive Code, or where the two cannot be simultaneously observed: Tika Ramji v. State of U. P., : [1956]1SCR393 .

16. I do not propose to consider, nor is it necessary in the instant case to determine, whether the W. B. Premises Tenancy Act is intended as an exhaustive code relating to landlord and tenant in respect of the premises to which the Act applies, so as to exclude all the provisions of the T. P. Act. But the Supreme Court has, in effect, already held that at least two of the provisions of the T. P. Act, namely, Section 116 Ganga Dutt v. Kartik, : [1961]3SCR813 and : [1963]3SCR312 , are excluded by similar tenancy laws of other States,

17. In my opinion, though there is nothing in the W. B. Premises Act to prevent a landlord to proceed against his tenant under the general law in matters not dealt with by that Act (sic) to prevent the tenant to raise defences under the general law when the landlord seeks to enforce is rights relating to such matters, under the general law,--in case the landlord seeks to enforce his rights either created or limited by the special enactment, namely, the W. B. Premises Tenancy Act, 1956, he can avail himself of those special rights only if he complies with the special provision of that act,--both substantive and procedural. Likewise, where the landlord resorts to the provisions of the special Act, the tenant also can rely only on the protection offered by the provisions of that Act, in matters which are specially dealt with by the Act.

18. Now, Section 13(1) of the W. B. Act provides that 'notwithstanding anything to the contrary in any other law', the landlord of a premises to which this Act applies can sue his tenant in eviction only on one or more of the grounds specified in that sub-section. In the matter of eviction, thus, the landlord's right to proceed under the general law, if any, on any ground not enumerated in Section 13(1) is taken away; in lieu of this restriction, the landlord has been offered by this Act a speedy remedy, after complying with the requirements of Sub-section (6) of Section 13 and the other relevant provisions of the Act. Section 17 then deals with 'when a tenant can get the benefit of the protection against eviction'. This section, in short, says that when a landlord sues in eviction under Section 13 the tenant can get protection from eviction under Sub-section (4) of Section 17, in case he makes the deposit specified in Sub-section (1) of that section, read with Sub-section (2) of that section. I would, with respect, venture to assert that the provision in Section 17 is intended to be exhaustive in respect of the matter dealt with by it and that its provisions would be defeated if the tenant were allowed to fall back upon the provisions of Section 114 of the Transfer of Property Act and to avoid eviction by depositing rent otherwise than in the manner and within the time specified in Section 17 of the West Bengal Act.

19. It does not appear to me that there is anything in the majority judgment of the Special Bench of this Court in : AIR1964Cal1 (SB), to preclude the view taken by me as to the applicability of Section 114. In that case, the Court was concerned with the applicability of Section 106 of the Transfer of Property Act and the Court had no occasion to refer to the applicability of any other section of the Transfer of Property, or, at least of Section 114.


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