Kamales Mallik vs Octavius Tea And Industries Ltd. (Formerly Known As Octavius Steel And Co. Ltd.) And Ors.

DEBANGSU BASAK, J.:-

Plaintiff has assailed the judgment and decree dated January 9, 2024 passed in CS No. 244 of 2008.

By the impugned judgment and decree, learned Trial Judge has dismissed the suit for eviction filed by the appellant.

Learned Advocate appearing for the appellant has contended that, the appellant had leased the immovable property concerned in favour of the defendants by a registered deed of lease dated March 5, 1965. He has contended that, such lease did not fall within the purview of the Act of 1956 or the Act of 1997. He has referred to Section 3 of the West Bengal Premises Tenancy Act, 1956 and Section 3 of the West Bengal Premises Tenancy Act, 1997 in support of such contention.

Learned Advocate appearing for the appellant has contended that, since the lease is governed by the Transfer of Property Act, 1882, suit for eviction of the defendants/respondents was maintainable. Learned Trial Judge has erred in holding that the tenancy was governed by the Act of 1997.

Learned Advocate appearing for the appellant has relied upon 1995 Volume 6 Supreme Court Cases 274 (Savita Dey Vs. Nageswar Majumdar and Another) and 1989 (1) CHN 1 (Mahindra & Mahindra Vs. Sm. Kohinoor Debi) in support of the contention that the lease deed was not governed by the Act of 1997.

Learned Advocate appearing for the appellant has drawn the attention of the Court to Section 6 of the General Clauses Act, 1897. He has contended that, the repeal of the Act of 1956 by Section 45 of the Act of 1997 does not mean that, past and concluded contracts between the parties have been repealed. In support of such contention, he has relied upon 1996 Volume 5 Supreme Court Cases 60 (State of Rajasthan Vs. Mangilal Pindwal).

Learned Senior Advocate appearing for the respondent nos. 2, 6, 11, 12 and 13 has drawn the attention of the Court to Section 3(c) of the Act of 1997. He has contended that, Section 3(c) of the Act of 1997 was amended with retrospective effect from July 10, 2001. He has pointed out the difference between the amended and unamended provisions of the Act of 1997. He has contended that, by reason of Section 3(c) of the Act of 1997 as obtaining today, the suit by the appellant which was filed in 2008 is governed by the Act of 1997. Therefore, the subject registered lease is governed by the Act of 1997 and the learned Trial Judge has correctly held it to be so.

Learned Senior Advocate appearing for the respondent nos. 2, 6, 11, 12 and 13 has relied upon 2006 SCC Online Cal 441 (Prakashwati Chopra Vs. Sibaji Mitra), 2024 SCC Online SC 2607 (Rajesh Mitra alias Rajesh Kumar Mitra and Another Vs. Karnani Properties Ltd.), 2025 SC Online Cal 4255 (Charu Diesels LLP and Others Vs. E.L. Properties Private Limited and Others) in support of the contention that lease registered prior to the amendment to Section 3(c) of the Act of 1997 is protected by the Act of 1997.

Learned Senior Advocate appearing for the respondent nos. 2, 6, 11, 12 and 13 has relied upon 2006 SCC Online Cal 441 (Prakashwati Chopra Vs. Sibaji Mitra) an unreported order dated November 7, 2019 passed in CO No. 1582 of 2019 (Sri Ashwin Bhanulal Desai Versus Bijay Kumar Manish Kumar HUF) in support of the contention that, the tenancy is protected under the Act of 1997.

Learned Senior Advocate appearing for the respondent nos. 2, 6, 11, 12 and 13 has referred to Section 45 of the Act of 1997. He has submitted that while repealing the provisions of the Act of 1956, the Act of 1997 has protected the pending proceedings. The suit having not been filed during the regime, when, the Act of 1956 was in operation, Section 45 of the Act of 1997 will not assist the appellant.

Learned Senior Advocate appearing for the respondent nos. 2, 6, 11, 12 and 13 has relied upon Section 1(3) of the Act of 1997 with regard to the contention of the area of operation. He has relied upon the judgment and order of the Division Bench dated November 12, 2021 passed in SAT No. 27 of 2024 (Kashinath Mondal & Ors. Versus Swapan Pal & Ors.) where, a similar issue was decided in favour of the respondents.

The issue that has fallen for consideration is whether, the subject registered lease deed for 99 years executed on March 5, 1965 is protected under the Act of 1997 or not.

Parties have accepted that their relationship is governed by the registered lease deed dated March 5, 1965 and that the lease is for 99 years. Appellant as the plaintiff had filed suit for eviction of the respondents in 2008 on the grounds that the lease was governed by the Transfer of Property Act, 1882 and that it determined by a notice dated November 23, 2005 with effect from the expiry of the month of December 2005 that is with effect from January 1, 2006.

By the impugned judgment and decree, learned Single Judge has held that the tenancy is protected under the provisions of the Act of 1997.

The predecessor of the Act of 1997 is the Act of 1956. In both the Act of 1956 as also in the Act of 1997, Section 3 delineates the arena in which the respective statute would not apply.

Mahindra & Mahindra (supra) has considered Section 3 of the Act of 1956 as it stood prior to the amendment introduced to the Act of 1956 in 1965 as also subsequent thereto.

Sabita Dey (supra) has considered Mahindra & Mahindra (supra). Sabita Dey (supra) has held that, under Section 3 of the Act of 1956 as amended with effect from August 24, 1965 makes the Act of 1956 not applicable in respect of lease executed before August 24, 1965 for a period of 21 years.

Section 3 of the Act of 1997 is as follows:-

Section 3 of the Act of 1997 has prescribed the arenas in which, the Act of 1997 would not be attracted. In doing so, it has sought to exempt tenancies from its operation on the basis of ownership of the property in question, the nature of tenancy, the quantum of rent payable, and the nature of user of the tenancies.

In the fact and circumstances of the present case, we have to consider the exemption enumerated under Section 3(c) of the Act of 1997. Section 3(c) of the Act of 1997 has prescribed that, the Act of 1997 shall not apply to any tenancy where lease with due consent of the tenant has been registered under the Registration Act, 1908 after commencement of the Act of 1997 and the fact of consent has been recorded in the instrument so registered.

In the fact and circumstances of the present case, parties had executed registered lease deed on March 5, 1965 which is prior to the commencement of the Act of 1997.

Section 3(c) of the Act of 1997 has undergone an amendment with retrospective effect from July 10, 2001. Prior to the amendment introduced to Section 3(c) of the Act of 1997, it was as follows:-

Subsequent to the amendment that has been introduced to Section 3(c) of the Act of 1997, it is as follows:-

The Act of 1997 and its predecessor that is the Act of 1956 have carved out exceptions of tenancy from out of the purview of by the Transfer of Property Act, 1882. Both the Act of 1956 and the Act of 1997 have granted protection to classes of tenants and tenancies which are governed thereby from the rigors of the provisions of the Act of 1882. Essentially, both the Act of 1956 and the Act of 1997 have protected specified tenancies and tenants from eviction under the Act of 1882.

Once it is acknowledged that, tenancies and leases in all aspects are governed by the Act of 1882 save and except those which are expressly carved out by the Rent Control statutes such as the Act of 1956 or the Act of 1997, then, it has to be also acknowledged that, those tenancies and tenants which are not covered by the Rent Control statutes continue to be governed by the Act of 1882.

The Act of 1956 had sought to protect tenants and tenancies from eviction on the basis of geographical location, ownership of the property, the quantum of the rent payable, the nature of tenancy that is whether it was for residential or commercial purpose. The Act of 1997 has sought to rework and lay down parameters on the basis of the same categories as that of the Act of 1956. In doing so, the Act of 1997 has deviated from the Act of 1956 on the basis of the quantum of the monthly rent payable which are covered under it, the tenure of the lease/tenancies and the nature of documents creating lease of tenants.

Section 3 of the Act of 1997 has recognized the tenancies which would not be governed by it. In doing so, prior to the Amendment in 2001, it has prescribed in Section 3(c) that, leases registered before the commencement of the Act of 1997 would be exempted. However, by virtue of the amendment introduced to Section 3(c) of the Act of 1997, the exemption from the purview of the Act of 1997 is limited to lease deed executed after the commencement of the Act of 1997 and where, the parties to the lease have agreed to the non-applicability of the Act of 1997 in the body of the registered documents itself.

On the plain reading of Section 3(c) of the Act of 1997, the subject lease which was registered on March 5, 1965 do not fall within the category of leases exempted from the purview of the Act of 1997. The tenancy created by the registered lease deed dated March 5, 1965 also do not qualify for exemption on the other parameters enumerated under Section 3 of the Act of 1997.

Prakashwati Chopra (supra) has noted provisions of Section 3 of the Act of 1956. It has held that, the Act of 1997 shifted the criteria of exemption. In the facts of that case, a pre-1997 registered lease was held to come within the mischief of the Act of 1997 only if it is shown to have in fact been terminated prematurely and not merely because it contained a termination clause. It has held that, a lease will not come within the purview of the Act of 1997 if it expires by efflux of time.

Charu Diesels LLP (supra) has followed Prakashwati Chopra (supra). It has held that, lease governed by the Act of 1882 does not automatically convert into the Rent Act tenancy merely because rent-control legislation later comes into force. It has held that, under Section 3 of the Act of 1997, terminability of a lease is no longer the criteria for attracting the Act of 1997.

Rajesh Mitra (supra) has held that, Section 45 of the Act of 1997 which repeals the Act of 1956 does not mean that rights accrued under the Act of 1956 stands extinguished on the enforcement of the new Act. It has also held that enforcement of a new statute does not ipso facto, take away rights already accrued under the repealed statute unless such intention is reflected in the new statute.

Mangilal Pindwal (supra) has held that, repeal or substitution of a provision does not affect its operation during the period it was actually in force. It has held that rights and status are determined by the law as it stood and operated at the relevant time.

Kashinath Mondal & Ors. (supra) has held that, once an Act is repealed in its entirety, it is removed completely from the statute and must be treated as though it had never existed, except to the limited extent expressly preserved at the time of repeal.

In the facts of the present case, the appellant had filed suit in 2008 and at the time of institution of the suit, the Act of 1997 was in operation. Rights of the parties to the suit are therefore governed by the provision of the Act of 1997.

Section 45 of the Act of 1997 does not specify that, rights accrued to a landlord or the tenant under the Act of 1956 would continue, even if no proceeding under the Act of 1956 was pending. The Act of 1997 as noted above has re-worked the tenancies that would be protected from eviction under the Act of 1882.

Sri Ashwin Bhanulal Desai (supra) has noted Prakashwati Chopra (supra) and held that there was a difference between a lease deed executed prior to the Act of 1997 coming into effect which was actually terminated and which either contained no sooner determination clause or contained clause but were not exercised and the lease was permitted to run its full course.

In the facts and circumstances of the present case, the lease is for 99 years. Plaintiff has sought to terminate such lease deed prior to the tenure of the lease coming to an end. The termination of the lease deed was made subsequent to the Act of 1997 coming into force. Suit for eviction was filed subsequent to the Act of 1997 coming into force.

In view of the discussions above, the issue framed is answered by holding that the subject registered lease for 99 years executed on March 5, 1965 is not exempted under the Act of 1997.

We find no ground to interfere with the judgment and order impugned before us.

AD COM 8 of 2026 is dismissed without any order as to costs.

I agree.