Ila Basu vs Narayani Bazaz

This case raises the question of the proper interpretation of the word "not "terminable... at the option of the landlord" used in Section 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950. The order which is challenged before us was passed u/s 14(4) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The Defendant tenant raised the contention that the West Bengal Premises Rent Control (Temporary Provisions) Act of 1950 is not applicable at all to the present case in view of the provisions of Section 5 of that Act. Section 3 is in these words:

Nothing in this Act shall apply to a lease of any premises entered into after the 1st day of December 1941, for a period of not less than fifteen years which is not terminable within the said period at the option of the landlord.

There is a proviso with which we are not concerned in this case.

Admittedly, the premises were leased in the present case on August 10, 1951 and it was for a period of 30 years. The dispute is whether on a consideration of the terms of the lease we can properly say that this was a lease which was not terminable within the period of 30 years at the option of the landlord. The only provision as regards termination of the lease is to be found in the following provisions of the lease:

If the said rent hereby reserved or any part thereof shall be unpaid for the period of three months after the same shall have become due whether lawfully demanded or not or if default shall be made in performance or observance of any of the covenants, conditions and agreements on the part of the lessee herein contained then and in any such case it shall be lawful for the lessor or any person or persons duly authorised by her in that behalf into and upon the said demised premises or any part thereof in the name of the whole to re-enter and to have the same re-possessed and enjoyed notwithstanding anything herein contained and thereupon the terms hereby created shall cease without prejudice to any right of action or remedy of the lessor in respect of any antecedent breach of any of the covenants by the lessee hereinbefore contained.

It is contended by Mr. Datta on behalf of the opposite party that as this clause gives a right of re-entry to the landlord on certain things happening, namely the rent reserved remaining upheld for three months after the due date and in case of non-performance or non-observance of the covenants, conditions and agreements in the lease, it should be said that this was a lease terminable within the period of 30 years at the option of the landlord. Against this, it is argued on behalf of the Petitioner that the Legislature cannot be, considered to have used the words, "terminable... at "the option of the landlord" in this loose sense of there being any right of re-entry by the landlord. It is argued that what the Legislature obviously had in mind, was the case that though the lease is for a particular period it provides that at some date before the full period it is terminable-without anything else happening-if the landlord so chooses. Reference is made in this connection to Section 110 of the Transfer of Property Act, the third clause of which is in these words-

Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee and not the lessor, shall have such option.

It is argued that the legislature in enacting Section 5 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, had in mind the provisions of Section 110 of the Transfer of Property Act as regards the expression of terminability before the expiration of the period-apart from any thing else.

In our judgment, this contention should be accepted. The words, "terminable... at the option of the landlord", cannot, in our judgment, be reasonably applied to a case where in view of something happening the lease is forfeited. It is true that even in such a case the landlord may not choose to enforce the forfeiture, but it will be inappropriate to speak of such a lease as terminable at the option of the landlord. These words are properly applicable to a case where there is provision for cutting off a part of the term wholly and solely because the landlord so chooses. Where the will of the landlord is not supreme and can be exercised only if the tenant acts or omits to act in a particular way, it can no longer be properly said that the landlord is free to cut off the term. It is only where the lease provides that whether or not the tenant does something or whether or not something happens, merely on the strength of the provisions of the lease the landlord can cut off a part of the term, that the lease can be said to be "terminable... at "the option of the landlord".

We have, therefore come to the conclusion that the present lease was not terminable within the period of 30 years for which the lease was executed-at the option of the landlord-and consequently the provisions of the West Bengal premises Rent Control Act, 1950, are not applicable. We, therefore, set aside the order passed by the learned court below.

The Rule is made absolute. The Petitioner will get her costs in both the Courts.