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Union of India (Uoi) Vs. Shankar Narayan Gupta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 157 of 1974
Judge
Reported inAIR1979Cal185,83CWN651
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 1(3) and 13(6); ;West Bengal Premises Tenancy (Amendment) Act, 1965; ;Constitution of India - Article 14; ;Transfer of Property Act, 1882 - Section 106; ;Code of Civil Procedure (CPC) , 1908 - Section 80
AppellantUnion of India (Uoi)
RespondentShankar Narayan Gupta
Appellant AdvocateN.C. Chakraborty and ;Samarendra Nath Banerjee, Advs.
Respondent AdvocateBankim Dutt and ;Sailendra Bhusan Bakshi, Advs.
DispositionAppeal allowed
Cases ReferredWest Bengal v. Corporation of Calcutta
Excerpt:
- .....it was alleged by the plaintiff that the defendant failed to make essential repairs to the suit premises. further, it was alleged that the plaintiff required the suit premises for his own use and occupation.3. the suit was contested by the defendant by a written statement inter alia denying therein the allegations of the plaintiff as to the suit premises having fallen into disrepairs and the plaintiff's requirement of the suit premises. it was contended that the, west bengal premises tenancy act, 1956 applied to the tenancy, and that the suit was not maintainable without the service of a notice under section 13(6) of the said act.4. the learned judge, 11th bench, city civil court, calcutta came to the findings that the defendant undertook to effect all repairs and that because of.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the Union of India and it arises out of a suit for ejectment.

2. The case of the plaintiff was that the. Premises No. 5, Middleton Street, Calcutta was taken on lease by the defendant Union of India at a monthly rental of Rs. 4,000/-. The plaintiff determined the tenancy of the Union of India by, the service of a notice to quit under Section 106, of the Transfer of Property Act. The suit was instituted by the plaintiff after service of a notice under Section 80 of the Code of Civil Procedure. It was alleged by the plaintiff that the defendant failed to make essential repairs to the suit premises. Further, it was alleged that the plaintiff required the suit premises for his own use and occupation.

3. The suit was contested by the defendant by a written statement inter alia denying therein the allegations of the plaintiff as to the suit premises having fallen into disrepairs and the plaintiff's requirement of the suit premises. It was contended that the, West Bengal Premises Tenancy Act, 1956 applied to the tenancy, and that the suit was not maintainable without the service of a notice under Section 13(6) of the said Act.

4. The learned Judge, 11th Bench, City Civil Court, Calcutta came to the findings that the defendant undertook to effect all repairs and that because of the default of the defendant in making repairs to the suit premises, the same had fallen into a state of disrepair. He overruled the contention of the plaintiff that he required the suit premises for his own occupation. He found that the notice under Section 106 of the Transfer of Property Act was legal and the same was duly served upon the defendant. He, however, took the view that the tenancy was governed by the Transfer of Property Act and the West Bengal Premises Tenancy Act, 1956 did not apply to it and, accordingly, the question of service of a notice under Section 13(6) of the latter Act did not arise. In view of his finding that the tenancy was determined by the service of a valid notice to quit under Section 106 of the Transfer of Property Act, he decreed the suit. Hence this appeal at the instance pf the defendant.

5. The principal question that is Involved, in this appeal is whether the West Bengal Premises Tenancy Act would apply to the tenancy of the defendant Union of India. The unamended second proviso to Sub-section (3) of Section 1 of the West Bengal Premises Tenancy Act, 1956 provided as follows:

'Provided further that this Act shallnot apply to any premises belonging toor taken on lease by Government orany local authority, or requisitioned byGovernment.'

Under the proviso as it stood, the Act would not apply to any premises taken on lease by the Government. The Said proviso has been 'substituted and shall be deemed always to have been substituted' by the following proviso by the West Bengal Premises Tenancy (Amendment) Act, 1965:

'Provided further that this Act shallnot apply -

(a) to any premises belonging to ortaken on lease by any local authority,

(b) to any premises belonging to orrequisitioned by Government or

(c) to any tenancy created by Government in respect of any premises taken on Tease by Government .

The words 'or taken on lease by' in Clause (a) were omitted by the West Bengal Premises Tenancy (Amendment) Act, 1970.

Although previous to the amendment,the Act did not apply to any premisestaken on lease by the Government, afterthe amendment by the Amendment Actof 1965, it applies by necessary implication with retrospective effect. It is truethat the proviso does not expresslymake the Act applicable to any premisestaken on lease by the Government, butin view of the decision of the SupremeCourt in Supt. and Remembrances ofLegal Affairs, West Bengal v. Corporation of Calcutta, : 1967CriLJ950 , it is no longer possible torely on the English rule of constructionthat the Crown is not bound by a statutesave by express provision of necessaryimplication. As the proviso has not,either expressly or by necessary implication, exempted any premises taken onlease by Government from the operationof the Act, it applies to such premises.The learned Judge was, therefore, notjustified in holding that the Act did notapply to the defendant Union of India inrespect of its tenancy of the suit premises. So mere determination of the tenancy by the service of a notice to quitunder Section 106 of the Transfer ofProperty Act was not sufficient so as toentitle the plaintiff to get a decree forejectment. Before a decree for ejectmentcould be passed in the suit, the plaintiffwas required to prove one of thegrounds for ejectment as mentioned inSection 13(1) of the West Bengal Premises Tenancy Act, 1956, and also theservice of a notice under Section 13(6)of the Act.

6. Mr. Bankim Chandra Dutt, learned Advocate appearing on behalf of the plaintiff respondent, has challenged the constitutional validity of the proviso in so far as it impliedly applies the provisions of the Act to the premises taken on lease by the Government. It is contended by him that the West Bengal Premises Tenancy (Amendment) Act, 1965 having substituted the proviso with retrospective effect has unreasonably infringed or restricted the fundamental right of owners of property as guaranteed by Article 19(1)(f) of the Constitution. There can be no doubt that the legislature can enact laws with retrospective effect and also put restriction onthe fundamental right, of citizens, provided, however, the impugned infringementeffected by the legislation can be considered as a reasonable restriction in theinterest of general public. In our opinion, there is no scope for such an argument as the suit was instituted on April18, 1970, that is, long after the amendment of the proviso by the West BengalPremises Tenancy (Amendment); Act,1965; On the date, the suit was institutedthe Act 'applied' to any premises belonging to the Government. In the circumstances, by the retrospective legislationthe plaintiff was not at all affected, notwas the plaintiff's fundamental right infringed with retrospective effect. In thesecircumstances, the contention is notavailable to the plaintiff.

7. The next ground of attack to thevires of the proviso is that it offendsagainst the provision of Article 14 ofthe Constitution. It is said that by theamended proviso the legislature makes adiscrimination between two classes oflandlords, namely, Government landlordand private landlords. It is contendedthat when the Government is the landlord of a premises the provision of theAct would not apply to the tenancyunder the Government, while theywould apply to the tenancies under private landlords. It is submitted on behalfof the plaintiff respondent that theclassification sought to be made by theimpugned proviso is not founded on anintelligible differentia, and that it hasno rational relation to the object soughtto be achieved by the statute in question.In other words, it is argued that thereis no nexus between the basis of suchclassification and the object of the Act.It is, accordingly, contended that theprovisions of Clauses (b) and. (c) of theproviso to Sub-section (3) of Section 1of the Act are ultra vires Article 14 ofthe Constitution.

8. Under, Clause (c), the operation of the Act has been excluded in the case of a tenancy created by the Government in respect of any premises, taken on lease by Government The effect of Clause (c) is that the provisions of the Act, will not apply to any action that may be instituted by the Government against its tenant There is undoubtedly a discrimination between the Government as the landlord and a private individual as the landlord. The State or the Government, however, by virtue of its special position stands on a different footing. The consideration which will justify to declare a provision of a statute as ultra vires Article 14 on the ground of discrimination between two classes of private individuals may not be applied when there is a discrimination in favour of the State or the Government. The interest of the State or the Government in the matter of eviction of a tenant cannot be equated with the interest of a private individual. While the State or the Government acts from the point of view of public interest, a private individual acts for his own benefit. When the Government takes a lease of any premises, it does so for the benefit of the Government which, in its wider sense, a public benefit. When the Government lets out any property, it also does so for administrative purpose. To allow a private individual to remain in any premises either belonging to or taken on lease by Government against the wish of the Government will, in our opinion, be detrimental to public interest. In this respect, it may be presumed that the governmental actions are not mala fide but directed from the point of view of administrative reasons. Suppose, the Government takes on lease any premises for the purpose of letting it out to its officers so long as they will be in Government service. If a Government officer, after he ceases to be in Government service does not vacate the premises so as to enable the Government to provide another Government servant with accommodation in the premises, the Government has to institute an action for the ejectment of the tenant, namely, the Government officer who has ceased to be in Government employment. If in such an action, the provisions of the West Bengal Premises Tenancy Act are applied, it may be difficult for the Government to take possession of the premises and surely it will affect the administration. So the Government or the State stands as a class by itself and the preferential treatment that has been sought to be made by Clauses (b) and (c) to the proviso might be said to come within the permissible limits of reasonable classification under Article 14. Similarly, when the Government is A tenant of any private individual it would not be proper that the Government should not have arty defence against any action for ejectment on the basis of the provisions of the West Bengal Premises Tenancy Act, 1956. The Government remains in possession of the premises obviously for the purpose of administration and if a private individual who is the landlord is allowed to evict the Government without his proving any of the grounds under Section 13(1) of the Act, the interest of the Government will be in jeopardy and administration will suffer. In the circumstances, we do not think that the classification which has been made by clauses (b) and (c) of the proviso to Section 1(3) of the Act is unreasonable. In our opinion, such classification is founded on good grounds. For these reasons, we are unable to accept the contention made on behalf of the respondent that Clauses (b) and (c) of the proviso to Section 1(3) are ultra vires Article 14 of the Constitution.

9. The next point that has been urged on behalf Of the respondent is that even assuming that the provisions of the West Bengal Premises Tenancy Act applied to the tenancy of the Union of India, still the respondent is entitled to get a decree for eviction as it has fulfilled the requirements of the Act. One of the grounds for ejectment under Section 13(1)(b) of the Act is that the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of Clause (m), Clause (o) or Clause (p) of Section 108 of the Transfer of Property Act, it has been pleaded in paragraph 3 of the plaint that under the terms of the tenancy, the defendant undertook to execute all repairs of the suit premises and to keep the same wind and water-tight and to maintain the said premises in the same condition as it was at the commencement of the tenancy, reasonable wear and tear excepted. In paragraph 4, it is alleged that the defendant, however, failed and neglected to carry out the repairs to the suit premises or to keep the same wind and water-tight as per the terms of the tenancy, resulting in material deterioration in the condition of the same. There was a local inspection of suit premises by an Engineer Commissioner who inspected the same in the presence of the Engineer of the C.P.W.D. It has been recorded by the learned Judge that at the time of the local inspection weeds and trees were found growing on the building and a big tower clock of the building was damaged. Cracks developed near the tower clock and plaster had fallen and T joints of iron were not periodically painted. It has been admitted by D.W. 1 Amartosh Ganeopadhyay, the Engineer of the C.'P.W.D., who was present at the time of the inspection on behalf of the Government, that the marble floor had developed cracks, the ornamental ceiling of the big hall has fallen down and the bath room has deteriorated. In room No. 2 there are cracks on all sides of the wall and all the walls of the room in the second floor has got cracks. There can be no doubt that the building has not been kept in a proper state of repairs and it is not disputed that it is the Government who is under the terms of the agreement bound to keep the suit premises in proper repairs. It is apparent that as the Government has failed to effect the necessary repairs in the suit premises, its condition has greatly deteriorated. In our opinion, the respondent has been able to make out the ground under Clause (b) of Section 13(1) of the Act to the extent that the Government has done an act contrary to the provision of Clause (m) of the Transfer of Property Act.

10. Even in spite of the above finding, there is difficulty in granting decree for ejectment against the Government. Before the decree for ejectment can be granted the landlord has to satisfy the Court that he has determined the tenancy by the service of a notice to quit under Section 106 of the Transfer of Property Act, and that it has also served a notice on the tenant under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. It has been found by the learned Judge that the tenancy has been determined by the service of a valid notice to quit under Section 106 of the Transfer of Property Act, but no finding has been made by the learned Judge whether a notice under Section 13(6) has been served upon the Government. It is now well settled that a composite notice under Section 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act can be served upon the tenant. In this case, however, no such composite notice has been served upon the defendant. Section 13(6) provides inter alia that no suit or proceeding for the recovery of possession of any premises shall be filed unless the landlord has given to the tenant one month's notice expiring with a month of the tenancy. This is really a notice of the intended suit by the landlord. There is no dispute that no notice under Section 13(6) has been given by the respondent to the appellant. It is, however, contended on behalf of the respondent that the notice under Section 80 of the Code of Civil Procedure which the respondent had served upon the appellant prior to the institution of the suit should be regarded as a notice of suit under Section 13(6) of the West Bengal Premises Tenancy Act. We are, however, unable to accept the contention. The notice under Section 80, which is Exhibit 5 dated November 5, 1969, in paragraph 6 thereof stated inter alia that 'a suit will be instituted against the Union of India by my client for the recovery of possession of the said premises on the expiration of two months next after this notice has been delivered to you'. The notice is not one expiring with a month of the tenancy and, accordingly, it does not fulfill the condition of a valid notice under Section 13(6). It may be that Exhibit 5 is also a notice of suit but such notice not being a notice expiring with a month of the tenancy cannot be considered to be a notice under Section 13(6). Our attention has been drawn that the notice was received by the appellant on December 30. 1969. It is contended that as two months from December 30, 1969 expired on February 28, 1970, that is, the expiry of the month of the tenancy, it should be held that Exhibit 5 fulfilled the requirement of Section 13(6). We are unable to accept this contention. It may be that in the instant case, the period of two months counted from the date of receipt of the notice expired on the expiry of a month of tenancy, namely, the month of February 1970, but that does not fulfill the requirement of Section 13(6). Under Section 13(6), the notice itself should clearly show that it is a one month's notice expiring with a month of the tenancy. The notice under Section 80 (Ext. 5) informed the defendant appellant that a suit would be instituted on the expiration of two months next after the notice had been delivered to it. Such a notice, in our opinion, is not a proper notice as contemplated by Section 13(6), notwithstanding that the notice was delivered to the appellant on December 30, 1969 and the period of two months computed from that date expired on the expiry of the month of February 1970, that is, the month of tenancy, in these circumstances, the notice Exhibit 5 cannot be regarded as a notice under Section 13(6), No other point has been urged on behalf of either party.

11. For the reasons aforesaid, the judgment and decree of the learned Judge are set aside and the suit is dismissed. The appeal is allowed, but in the facts and Circumstances of the case, there will be no order for costs.

Sharma, J.

12. I agree.


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