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TMI Blog1979 (8) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... to give a notice under Section 106 of the Transfer of Property Act. We proceed to do so in this Judgment. The respondent filed an application against the appellant under section 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, hereinafter referred to as the Tamil Nadu Rent Act, on the ground of personal necessity. The Rent Controller held that the requirement of the respondent was not genuine and he accordingly dismissed her petition. On appeal by the landlady the Appellate Court held in her favour on the point of her requiring the premises bona fide for her personal necessity but maintained the dismissal of her application on the ground that a notice to quit was necessary and the one given by her was not in accordance with law. The landlady took up the matter in revision to the Madras High Court. A learned single Judge of that Court following his earlier decision in K. Sukumaran Nair etc. v. S. Neelakantan Nair by constituted attorney P. Raman Nair etc. etc. held that notice to quit under section 106 of the Transfer of Property Act was not necessary for seeking an eviction of a tenant under The Tamil Nadu Rent Act. Hence this appeal by the tenant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Many State Rent Acts have brought about considerable changes in the rights and liabilities of a lessor and a lessee, largely in favour of the latter, although not wholly. The topic of Transfer of Property other than agricultural land is covered by Entry 6 of List III in the Seventh Schedule to the Constitution. The subject being in the Concurrent List, many State Rent Acts have by necessary implication and many of them by starting certain provisions with non-obstante clause have done away with the law engrafted in section 108 of the Transfer of Property Act except in regard to any matter which is not provided for in the State Act either expressly or by necessary implication. Section III deals with the question of determination of a lease, and in various clauses (a) to (h) methods of determination of a lease of immovable property are provided. Clause (g) deals with the forfeiture of lease under certain circumstances and at the end are added the words and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. The notice spoken of in clause (g) is a different kind of notice and even without the State Rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of section 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word 'tenant' under the various State Rent Acts, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving a valid notice under section 106 of the Transfer of Property Act. In many cases the distinction betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been consistently held in the Patna High Court that a notice is necessary. A Special Bench of the Calcutta High Court in Surya Properties Private Ltd. and other v. Bimalendu Nath Sarkar and others has taken the view that over and above the notice required to be given under the State Act a notice under section 106 of the Transfer of Property Act is also necessary. To the same effect is the view expressed in Chhotelal Banshidhar v. Abdullabhai Abdul Gaffor; Shambhooram another v. Mangal Singh another Siddappa Adivappa v. Venkatesh Raghavendra Hubballi Batoo Mal v. Rameshwar Nath and others and Parshotam Lal v. Kalayan Singh and another. As against this, and specially after some decisions of this Court, the preponderance of recent view in the High Courts of Andhra Pradesh, Madras, Kerala, Karnataka and Punjab and Haryana is that no notice under section 106 of the Transfer of Property Act is necessary. These cases are Ulligappa etc. v. S. Mohan Rao, minor by guardian Changamma, etc.; K. Sukumaran Nair and others v. S. Neelakantan Nair and others; Lalitha v. Avissumma; Govindaswamy R. v. Pannalal C. S. and Vinod Kumar v. Harbans Singh Azad. Such a cleavage of opinion cropped up in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndlord to evict the tenant. Adverting to the provisions of the Bombay Rents, Hotels and Lodging House Rents Control Act, 1947 it would be found from the definition section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11). Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so long as the conditions mentioned in sub-section (1) are fulfilled nor any suit for recovery of possession shall be instituted by a landlord against a tenant on the happening of the events mentioned in sub-section (2) until the expiration of one month next after the notice is served on the tenant in the manner provided in section 106 of the Transfer of Property Act, as required by the said sub-section. Section 13 provides that a landlord may recover possession on certain grounds. Is it not plain then that on the happening of the events or on the fulfillment of the conditions mentioned in sections 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant, otherwise not. It will bear repetition to say that under the Transfer of Property Act i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It was on that account held that the decision of the Controlling authority was final and it was not open to the Civil Court to take a different view of the matter on the question of non-payment of rent. It was not a case where a question of notice arose for determination. The first decision of this Court which is necessary to be noticed on the point of notice is the case of Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad. The case related to Bombay Rent Act. Raghubar Dayal J. speaking on behalf of the Division Bench of this Court expressed the view at page 318 thus:- We are therefore of opinion that where a tenant is in possession under a lease from the landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession under s. 12 if his tenancy has not been determined already. It follows that whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him it is necessary for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-s.(2) of s.12 of the Act. It is true that the Rent Act is intended to restrict the rights which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant a right to evict a contractual tenant without determination of the contractual tenancy. But the above observation is followed by the words:- Protection from eviction is claimable by the tenant even after determination of the contractual tenancy so long as he pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of the tenancy consistent with the provisions of the Act. In our view if protection from eviction is claimable by the tenant even after, determination of the contractual tenancy then why import the contractual law engrafted in the Transfer of Property Act for seeking eviction of the tenant? The decision of this Court in the case of Mangilal v. Suganchand Rathi, being a decision of a Constitution Bench consisting of five learned and eminent Judges of this Court requires careful consideration. Therein it was held at page 244 with reference to section 4 of the Madhya Pradesh Accommodation Control Act, 1955 thus:- The Accommodation Act does not in any way abrogate Ch. V of the Transfer of Property Act which deals with leases of immovable property. The requirement of s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of notice came to be considered with reference to the Calcutta Thika Tenancy Act, 1949 and in that connection it was said at page 480:- The Thika Tenancy Act like similar Rent Acts passed in different States is intended to prevent indiscriminate eviction of tenants and is intended to be a protective statute to safe-guard security of possession of tenants and therefore should be construed in the light of its being a social legislation. What section 3 therefore does is to provide that even where a land-lord has terminated the contractual tenancy by a proper notice such landlord can succeed in evicting his tenant provided that he falls under one or more of the clauses of that section. For the reasons already stated we do not agree, and we say so with respect, with the above enunciation of law. This apart there is scope for distinguishing Manujendra's case because clause 7 of the lease deed therein ran as follows:- Provided always and it is hereby agreed and declared that if it be required that the lessee should vacate the said premises at the end of the said term of 10 years the lessee will be served with a 6 months notice ending with the expiry o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Alagiriswami J. at page 635 after having made that observation with reference to Bhaiya Punjalal's case has said- Be that as it may, we are now concerned with the question of fixation of a fair rent. In our opinion the majority decision with regard to section 4 was undoubtedly correct and the minority stretched the law, if we may say so with respect, too far to hold that section 4 was not available to the landlord. It should be remembered, as we have said above, that the field of freedom of contract was encroached upon to a very large extent by the State Rent Acts. The encroachment was not entirely and wholly one sided. Some encroachment was envisaged in the interest of the landlord also and equity and justice demanded a fair play on the part of the legislature not to completely ignore the helpless situation of many landlords who are also compared to some big tenants sometimes weaker section of the society. As for example a widow or a minor lets out a family house in a helpless situation to tide over the financial difficulty and later wants a fair rent to be determined. Again suppose for instance in a city there is an apprehension of external aggression, severe internal dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory rights and obligations. In Dattopant Gopalyarao Devakate v. Vithabrao Maruthirao Janagavai one of us (Untwalia J.) speaking on behalf of himself and Krishna Iyer J. said at page 71:- We do not think that the alternative argument put for ward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111 T.P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit. On a careful consideration and approach of the matter in the instant case we think that we cannot approve of the view expressed in the passage extracted above. In Ratan Lal v. Vardesh Chander Ors Krishna Iyer J. delivered the Judgment on behalf of a Bench of this Court consisting of himself, Chandrachud J., as he then was and Gupta J. The case related to a building in Del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessary. Gopal Rao Ekbote J., delivering the judgment on behalf of a Bench of the Andhra Pradesh High Court in Ulligappa's case reviewed several decisions of the High Courts and this Court and considered the special provisions of the Andhra Pradesh Rent Act. The view expressed by him that no notice was necessary under section 106 of the Transfer of Property Act was approved by this Court. We find no justification for saying that because of some special provisions contained in the Andhra Act a different view was possible to be taken. This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform law for all the States. Section 10 (1) of the Andhra Pradesh Act provided that A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or sections 12 and 13. A special provision in the Andhra Act was contained in section 10(7) which says:- Where an application under sub-section (2) or sub-section (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provisions of this Act, be deemed to continue on the same terms and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under s. 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by a fresh notice. If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant, we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get evictio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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