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Judgment
Sugato Majumdar, J. :
The instant appeal was preferred against the judgment and decree dated 07/03/1998 passed by the Learned Civil Judge, Senior Division at Asansol in Title Appeal No.43 of 1996 reversing the judgment and decree dated 30/01/1989 passed by the Learned Munsif 3rd Court, Asansol in Title Suit No.8 of 1987.
The original Plaintiff was the owner of the suit premises which had been let out to the original Defendant on monthly rent of Rs.35 per mensem. The premises were required by the original Plaintiff for settling his unemployed son’s business and also for addition and alteration of the same. The tenancy was determined in terms of the notice dated 24/11/1986 on expiry of the month of December, 1986. Since the original Defendant, after determination of tenancy, neglected and failed to hand over peaceful and vacant possession of the premises, the original Plaintiff instituted the suit for eviction. Since the area was not a municipal area, the West Bengal Premises Tenancy Act, 1956 was not applicable. The notice to quit was given under Section 106 of the Transfer of Property Act, 1886.
The original Defendant contested the suit by filing written statement denying all material allegations. Principal defence was that the alleged requirement was false. It was also contended that the notice to quit had not been served upon the original Defendant.
On the basis of rival pleadings, the following issues were framed:
Is there any cause of action for the suit?
Is the suit maintainable?
Is the Plaintiff defaulter?
Does the Plaintiff require the suit premises for his own bona-fide use and occupation?
Was any notice served upon the Defendant, and if so, is the notice legal, valid and sufficient?
Is the Plaintiff entitled to get a decree as prayed for?
The Learned Trial Court allowed the suit and passed a decree of eviction against the original Defendant.
The original Defendant preferred an appeal which was registered as Title Appeal No.43 of 1989. The appeal was heard by the Civil Judge, Senior Division, Asansol. The First Appellate Court reversed the Judgment and Decree passed by the Learned Trial Court. It was observed by the Learned First Appellate Court that notice under Section 106 of the Transfer of Property Act, 1882 was defective. The First Appellate Court accepted the submission made by the Learned Counsel for the Appellant therein that the notice under Section 106 was invalid because of the fact that there was no clear 15 days’ notice terminating the tenancy within the end of the calendar month of November 1986 after its service on 28-29/11/1986. Further conclusion is that the notice was invalid because less than 15 days’ time was given to quit the premises.
On being aggrieved and dissatisfied, the instant appeal was preferred.
Since both the original Plaintiff and the Defendant expired, their legal heirs were substituted.
At the time of admission of the appeal no substantial question of law was framed. Subsequently at the time of hearing, two substantial questions of law were framed:
I. “Whether the notice determining the tenancy is valid and good in the eye of law and whether the leaned First Appellate Court erred in law in coming to the conclusion on the validity of notice.
II. Whether the tenancy is governed by the Transfer of Property Act or the West Bengal Premises Tenancy Act, 1956?”
On the first point, Mr. Chatterjee, the Learned Counsel for the Appellant herein argued that both the courts were at ad idem that notice to quit was validly served. Notice period longer than 15 days under Section 106 does not vitiate the notice; a shorter notice period does. According to the Learned Counsel for the Appellant, the Learned First Appellate Court committed serious error in coming to the conclusion that the notice was not valid.
Mr. Banerjee, the Learned Senior Counsel appearing for the Respondents submitted that the notice to quit was issued on 24/11/1986 and it was served on 28/11/1986. The original Defendant paid rent up to the month of October, 1986, hence not a defaulter for a period of two successive periods or two months within a period of 12 months. The reason given by the First Appellate Court with regard to invalidity of notice may not be appreciable in terms of law but the conclusion was correct and absent reason may be provided by the superior court.
Mr. Banerjee, the Learned Senior Counsel also raised a new point. The suit property is situated within the Police Station of Jamuria which, after institution of the suit, became municipal area attracting application of the West Bengal Premises Tenancy Act, 1956. Under Section 1(3) of the West Bengal Premises Tenancy Act, 1956, application of the Act extended to the whole Calcutta and to all areas which had been or might have been constituted municipalities under the provision of the Bengal Municipal Act, 1932. When the suit was filed in the year 1987, the suit came to be governed by the West Bengal Premises Tenancy Act, 1956. The West Bengal Municipal Act, 1993 came into being repealing the Bengal Municipal act, 1932 and the effect of repealing was provided by section 441 of the act of 1993. It was further contended that Asansol Municipal Act, 1990 (Special Act), came into force on 15/09/1993, before coming into force of the West Bengal Municipal Act, 1993 on 13/07/1994. The Judgment of the Trial Court was passed on 30/01/1989. The Judgment of the First Appellate Court was passed on 07/03/1998. During pendency of the appeal, the Asansol Municipal Corporation came into force. Therefore, according to the Learned Senior Counsel, the relationship of landlord-tenant should be governed by the west Bengal Premises Tenancy Act, 1956. Mr. Banerjee referred to a decision of the Supreme Court of India in Lakshminarayan Guin vs Niranjan Modak [(1985) 1 SCC 270] to substantiate his point. Mr. Banerjee also referred to a Division Bench decision of this Court in Mrs. V. Aviet vs Malik Zafar Ahmed & Anr. [AIRCJ II-1988 (1)]. Mr. Banerjee also relied upon a notification published in The Kolkata Gazette dated 05/06/2015 being the Notification dated 03/06/2015 No.335/MA/O/C-41/M-36/2014.
It was further argued by Mr. Banerjee, the Learned Senior Counsel that though this point had not been agitated before the Learned First Appellate Court, the same is a point of law and can be agitated in the Second Appeal too.
Mr. Chatterjee, the Learned Counsel for the Appellant submitted, per contra, argued that the Notification dated 03/06/2015 No.335/MA/O/C-4/1M-36/2014 is silent on extension of the West Bengal Premises Tenancy Act, 1956 to the area. The purported notification was meant for notification of municipal affairs and purposes and has nothing to do with the West Bengal Premises Tenancy act, 1956. Furthermore, Jamuria was constituted municipality under the West Bengal Municipal Act, 1993 and not under the Bengal Municipal Act, 1932. Jamuria came within territorial jurisdiction of Asansol Municipal Corporation in terms of the Asansol Municipal Corporation Act, 1990 and the area was constituted as an independent municipality under the West Bengal Municipal Act, 1993. Jamuria then merged within limit of the West Bengal Municipal Corporation Act, 2006. Under Section 1(3) of the West Bengal Premises Tenancy Act, 1956, the ambit of the Act extended only to the area covered under the Bengal Municipal Act, 1932 not otherwise. Therefore, neither Jamuria was any municipal area under the Act of 1932 nor the litigation comes within ambit of the West Bengal Premises Tenancy Act, 1956. The Learned Counsel for the Appellant relied on Goutam Dey Vs. Jyotsna Chatterjee [(2012) SCC OnLine Cal 642] and Banka Prasad Vs. Ukhra Forest & Fisheries Ltd. [(1969) SCC OnLine Cal 217].
I have heard rival submissions.
Section 1(3) of the West Bengal Premises Tenancy Act, 1956 may be looked into:
“1. Short title, commencement and extent.
(1)This Act may be called the West Bengal Premises Tenancy Act, 1956.
(2)It shall come into force on such date as the State Government may, by notification, appoint.
(3)It extends to the whole of Calcutta and to all areas which have been or may hereafter be constituted municipalities under the provisions of the Bengal Municipal Act, 1932:
Provided that the State Government may, by notification, extend this Act or any part thereof to any other area specified in the notification, or may, by notification, exclude any area from the operation of this Act or any specified part thereof:”
According to Section 1(3) the Act should be extended to the whole of Calcutta and to all areas which have been or may hereafter constituted municipalities under the provisions of Bengal Municipal Act, 1932 with the proviso that the State Government may, by notification, extend the Act or any part thereof to any other area specified in a notification, or may, by notification, exclude any area from the operation of the Act or any specified part.
Purport of Section 1(3) is that the area which had hitherto not been a municipal area should be constituted a municipal area under the provisions of the Bengal Municipal Act, 1932 and at the same time, the State Government should publish a notification to extend the Act of 1956 to any such area or part thereof. Twin requirements are there in the Section 1(3) of the Act. Reason is clear. Unless there be a separate notification of the extension of the Act of 1956 to the newly constituted municipal area, machineries and set up under the provisions of the Act of 1956, like the office of the Rent Controller, could not have been established. Nothing is thereon the record to show that there was any notification by the State Government extending the operation the Act of 1956 to Jamuria. Secondly, Jamuria became municipal area under the West Bengal Municipal Act, 1993. Subsequently, in terms of notification dated 3rd June, 2015, Jamuria became part of Asansol Municipal Corporation. Therefore, twin requirements of Section 1(3) were not applicable. Lakshminarayan Guin’s case was decided in the factual background that Memari became a municipal area under The Bengal Municipal Act, 1932 and the Act of 1956 was extended to that area. The factual matrix having been different, the ratio of this case is not applicable herein. Therefore, it can safely be concluded that the West Bengal Premises Tenancy Act, 1956 did not extend to Jamuria at any point of time. This Court also noted that even though vehemently canvassed on applicability of the Act of 1956 nothing is thereon the record to show at any point of time rent had been deposited with the Rent Controller. The argument of Mr. Banerjee, the Learned Senior Counsel is not acceptable.
Once, the conclusion is that the West Bengal Premises Tenancy Act, 1956 was not applicable, the landlord-tenant relationship was obviously governed by the Transfer of Property Act, 1882. It is admitted provision is that notice was given on 24/11/1986 and a notice was received on 27/11/1986. Tenancy came to be determined on expiry of the month of December, 1986. The First Appellate Court noted that the tenancy came to be determined on expiry of the calendar month of November 1986, on the ground that since its service on 29/11/1986, 15 days’ time, as contemplated in Section 106 of the Transfer of Property Act, 1882 had not been fulfilled. Therefore, the notice was invalid. Finding is manifestly perverse, since tenancy came to an end on expiry of month of December, 1986 and not November, 1986. Therefore, the notice given under Section 106 of the Transfer of Property Act, 1882 was valid and legal. The order passed by the First Appellate Court, in view of very serious infirmity, demands interference and is liable to be set aside.
This Court does not accept the argument made on behalf of the Learned Counsel of the Respondent; rather concur with the argument of Mr. Chatterjee, the Learned Counsel for the Appellant. For reasons as stated above also the impugned Judgment and Decree passed by the Learned Civil Judge, Senior Division at Asansol dated 07/03/1998 in Title Appeal No.43 of 1996 is hereby set aside.
The litigation has been pending for several decades and nothing is there on record that the Respondent either deposited money with the Rent Controller or paid occupational charges. In this situation, this Court is of considered view that cost of litigation should be imposed on the Respondent.
Hence is ordered that the instant appeal is allowed.
The Judgment and Decree dated 07/03/1998 passed by the First Appellate Court in Title Appeal No.43 of 1996 is hereby set aside. The Judgment and Decree of the Trial Court in Title Suit No.8 of 1987 dated 30/01/1989 is affirmed. The Judgment and Decree of the Trial Court dated 30/01/1989 is upheld. The Respondent shall hand over possession within 60 days from the date of drawing up of the Decree. The Respondent shall also pay the litigation cost of Rs.50,000/- to the Appellant within the same period. In case of default within the said 60 days period, the Appellant shall be at liberty to draw up execution proceeding to recover money as well as the possession. The Appellant is also given liberty to file suit, praying for mesne profit.
The instant appeal stands disposed of along with all pending applications, if any.
Let T.C.R be returned.