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334

V. DHANAP AL CHETTIAR

v.

YESODAI AMMAL

August 23, 1979

[Y. V. CHANDRACHUD, C.J., R. S. SARK'ARIA, N. L. UNTWALIA,

P. N. SHINGHAL, P. S . .KAILASAM, 0. ClIINNAPPA REDDY

AND E. S. VENKATARAMAIAH, JJ.]

Rent Control Acts-Provide conditions for eviction of tenants-Notice under

s. 106 1'ransf er of Property Act if necessary after decree for eviction 'passed

-by Court.

A lease between a lessor and a lessee comes into existence by way of con­

tract when the parties to the contract agree on the rent, duration of tenancy and

other relevant terms. Section 111 of the transfer of Property Act provides

various methods by which a lease of immovable property can be determined.

Under clause (h) of s. 111 a lease determines on the expiry of a notice to

determine the lease given by the landlord to the tenant. Once the lease is

deter-mined by notice -the lessor can enforce his ·right of recovery of possession

of the property. But

if the lease does not stand determined under any of the

clauses

(a) to (g) of s. 111 notice under s.

106, Transfer of Property Act to

determine the lease is necessary. But this section does not imp0se an obliga­

tion on the landlord to spell out the grounds on which the landlord wishes to

evict the tenant.

During the postwar years all the State Legislatures pas!ed Building :md Rent

Control Acts

to give protection to tenants against unreasonable eviction by the

landlords

as well as to prevent the landlords from exploiting the tenants by

way of exorbitl\llt rents. As in the case of all social legislation which is de­

signed for the protection of the needy, the Rent Control Acts have brought

considerable

inroad on the landlord's freedom of contract. Many Acts have

brought about considerable changes in

the righ~ and liabilities of the lessor

and the lessee and the tilt of the law is largely in fnour of the lessee. The

landlord is bound to let out his premises on rent to a person even against his

wishes when the concerned authority allots a parti~ular premises to a person.

_ When once the premises are so allotted, the landlord is bound to give the pre­

m

ises

to that person l!llld at the rent fixed by the authority concerned.

In the matter of determination of the tenancy .the State Rent Acts do not

permit a landlord to snap his relationship with the tenant merely by serving

on him a notice to quit as is the position under the Transfer of Property Act.

The 'landlord can recover possession of the property only on one or more of

the grounds enacted in the relevant section of the Rent Acts. Even after the

termination of the contractual tenancy the landlord, under the definitions of land­

. lord and tenant contained in the Rent Acts, remains a landlord and a tenant

remains a tenant because of the eXpress provision made in the enactments that

a tenant means "a person continuing in possession after the termination of

the tenancy in his favour." It is also provided that no .landlord can treat a

building to have been vacant by merely terminating the contractual tenancy

-.... -

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V. D. CHBTTIAR V. YBSODAI 335

as the tenant still lawfully continues in possession of the premises. Yet another

important feature of the Rent Acts

is that either by way of a non-obstante

clause or by

necessary implication these enactinents have done away with the

law contained

in s.

108 of the T. P. Act dealing with rights and liabilities of the

.lessor and the lessee.

The difference between the position obtaining under· the Transfer of Property

Act and the Rent Acts in the matter of determination of a lease is that under

the former Act to recover possession of the property determination of the lease

is necessary because during the continuance of the lease the landlord cannot

recover possession of the premises while under the Rent Acts the landlord

be.

comes entitled to recover possession only on the fulfilment of the conditions

laid down in the relevant sections. He cannot recover possession merely by

determining the tenancY. Nor can he be stopped from doing so on the ground

that

he has not terminated the contractual tenancy.

In the instant case the appellant

filed an application against the tenant under

s. 10(3)(ii) of the Tamil Nadu Building (Lease and Rent Control) Act, 1970

calling upon him to quit 'On the ground of personal necessity. The Rent Con~

troller rejected her application. The Appellate Court, while 'holding that the

respondent required the premises bona fide tor her personal necessity, dismissed

the application on the ground that a notice to quit

was necessary and that the

notice

given by her was not in accordance with law. In revision the High Court

held that notice to <;J.Uit under s. 106, T.P. Act was not necessary.

Dismissing the appeal,

I-IELD : ( 1 ) · The High Court was right in its view that no notice to quit.

was necessary under s. 106 of the T.P. Act to enable the landlord to get an

order of eviction against the tenant. On the question of requirement of notice

under

s.

106, T.P. Act there is no scope for taking different views on the basis

of difference in phraseology of the various

Rent Acts. The difference in the

language

does not bring about any distinction. [353F; 342C-D]

2. In the case of a landlord wishing to evict .his tenant under the Rent Acts

determination of the lease in accordance with the Transfer of Property 1\ct is

unnecessary. It is a mere surplusage because the landlord cannof get eviction

of the tenant even after such determination. The tenant continues to be a

tenant even thereaftef. That being so, making out a case under the Rent Act

for eviction of the tenant by itself

is sufficient and it is not

Obligatory io found

the proceeding on the

basis of determination of the lease by issue of notice in

accordance with s.

106, T.P. Act. [353D-E]

3. Although the Rent Acts restrict the. rights which the landlord possesses

either for charging excessive rents or for evicting tenants, if within the an1bit

of tho~e restricted rights the landlord ma'.kes out his case, it is a rncre empty

· formahty, a mere surplusage, to ask him to determine the contractual tenancy

before the institution of a suit for eviction. Such a notice under the T.P. Act is

necessary because mere determination of the lease entitles a landlord to recover

possession. But und~r the Rent Control Acts it becomes a-n unnecessary techni­

cality to insist that the landlord must also determine the contractual tenancv.

It is of no practical use to insist again upon a notice under s. 106, after placi~g

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336 SUPREME COURT REPORTS [1980] l S.C.R.

A so many restrictions under the Rent Acts on the landlord'• ri&ht to evict tho

tenant. [344H-345A-B]

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4. But where a landlord, by way Of abundant caution:, to butteress his case,

gives a notice to the tenant that be intends to file a suit for eviction, it is not

open to the tenant to say that such a notice is compulsory or obligatory or that

it must fulfil all the technical requirements of s. 106 of the Transfer of Property

Act.

Once the liability to be evicted is incurred by the tenant; he cannot tum

round

and say that the contractual lease has not been determined. The action

of the landlord in instituting the suit for evictjon on the grounds mentioned in

any State Rent Acts will amount 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 l~ec would come to an encl on the passing of an order or a decree Jor

eviction. [340B-D]

5. The restricted area under the various State Rent Acts has done away to

a lar&e extent, with the requirement of the law of contract and the Transfer of

Property Act. This being so there is no reason to impose an unnecessary and

unjustifiable formality of terminating the contractual lease. [345C]

6. Secondly, if protection from eviction is -clai_mable by the tenant eTen after

D determination of the contractual tenancy under the Rent Acts there is no reason

why the law of contract engrafted in the Transfer of Property Act should again

be imported for seeking eviction

of the tenant. [346B]

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7. If the termination of the contractual tenancy by notice

dpes not entitle

the landlord

to recover possession of the premises and he

becomes entitled to

recover posses.sion only if he makes out a case under the special provisions of the

State Rent Acts then termination of the contractual relationship by notice is

not necessary. Termination comes into effect when a case is successfully made

out for eviction of the tenant under the State Rent Acts. [347A-B]

Bhaiya Punjalal Bhagwanddin

v. Dave

Bhagwatpraaad Prabhuprasad

[1963] 3 SCR 312, Mangilal v. Suganchand Rathi [1964] 5 SCR, 239,

Manujmdra Dutt v. Purendu Presad Roy Chowdhury & ors. [1967] 1 S.C.R.

475, lsha Valimohamad & Anr. v. Haji Gulam Mohamad & Hajj Dada Trust

[1975] 1 SCR, 720, P. J. Gupta & Co. v. K. Venkatesan Merchant & ors. [1975J

2 SCR. 401, Dattanpant Gopalyarao Devakate v. Vithabrao Maruthirao Jana­

gavai

[1975] Suppl.

SCR. 67, Ratan Lal v. Vardesh Chander & ors. [1976] 2

SCR. 906 and Sardarilal Vishwanath and Ors. v. Pritam Singh [1978] 1 SCR.

I! I not approved.

8. 'Vhere, on the other band, over and above the protection under the rele­

vant Act a clause in the lease deed gives 'an extra protection of getting notice

to quit and vacate the premises, such a clause not being unlawful, the extra

protection given to the .,.tenant against eviction must be adhered to. But for this

reason it is not correct to say that s. 106 of the T.P. Act gives an extra protec­

tion to the tenant against eviction. The purpose of this provision is merely to

terminate the contract which the over-riding Rent Acts do not permit to be

terminated. [348 A-BJ

Mis. Raval and Co. v. K. G. Ramachandran and others. [1974] 2 SCR 629,

Raj Kris/ma and another v. S. K. Shaw and Brothers [1951] SCR 145 and

'

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v. D. CHETTJAR v. v. YESODAI (Untwalia, J.) 337

.Puwada Venkateswara Rao v. Chidamana Venkata Ramana [1976] 3 SCR. 551 A

Y approved.

Shri Hem Chand v. Shrimati Sham Devi I.L.R. 1955 Punjab, 36 approved.

CIVIL APPELLATE JURISDICTION

1977.

Civil Appeal No. 1303 of

Appeal l;>y Special . Leave from the Judgment and Order dated

10-12-1976 of the Madras

High Court in

C.R.P. No. 836/76.

K. Jayaram and K. Ramkumar for the Appellant .

M. N. Padmanabhan, T. A. Ramachandran, M. N. Tandon and

B

l;frs. Ramachandran for the Respondent. C

The Judgment of the Court was delivered by

UNTWALIA J. This appeal by special leave at the instance of

the

ten'allt of certain premises in the town of Vellore was heard by a

larger Bench of this Court consisting of seven Judges

to resolve the

cleavage of opinion between the various

High Courts in India as also

between several decisions of this

Court, on the question as to whether

in order

to get a decree or order for eviction against

a tenant under

any State Rent Control Act it is necessary to give a notice under Sec­

tion 106 of the Transfer of Property Act. We proceed to do so in

this Judgment.

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The respondent filed an application

agains! 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 accor- F

dingly dismissed her petition. On appeal by the landlady the Appel­

late 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 ~pplication 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. Sukuma­

ran 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 ibis appeal by the

tenant.

(!) (1976) 2 Madras Law Journal 84.

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338 SUPREME COURT REPORTS [1980] 1 S.C:.R.

A We do not think it necessary to decide in this appeal whether the

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notice to quit given fo the appellant was a

valid notice in accordance ·

with section 106 of the Transfer of Property Act. The controversy

before us centered round th~ question whether such a notice was at

all necessary to be given.

We shall presently refer to the various decisions of the High

Courts and this Court taking contrary views. But before we do so

we may make some general observations. It is weUcknown that after

the second world war to give protection to a tenant against unneces­

sary, undue or unreasonable eviction and in the matter of being ex-

ploited for payment of exorbitant rent all States in India at one time

or the other passed Building and Rent Control Acts. Amendments

in t)lem were brought about from time to time. The language and

the scheme of the Acts varied and differed from State to State. Even

though there

was no basic or fundamental difference in regard to the

law

of eviction of a tenant in any of the State Statutes, different cons-

, tructions were put in regard to them and principles were culled out

in varying manners to arrive at the conclusions in some cases that a

notice to quit in accordance with section 106 of the Transfer of Pro­

perty Act was necessary and in some i~ was held that it was not neces­

sary. The grawmen of the underlying principles seems to have been­

over-looked in many cases.

Under the Transfer of Property Act the subject of "Leases of

I=ovable Property" is dealt with in Chapter V. Section 105 defines

the lease, the lessor, the lessee and the, rent. Purely as a matter of

contract, a lease comes into existence under the Transfer of Property

Act. But in all social legislations meant for the protection of the

needy, not necessarily the so-called weaker section of the society as is

commonly and popularly called, there is appreciable inroad on the·

freedom of contract and a person beccmes a tenant of a landlord even

against his wishes on the allotment of a particular premises to him

by

the authority concerned,

Under section 107 of the Transfer of Pro-

perty Act a lease of i=ovable property from year to year, or for

any term exceeding one year, or reserving a yearly rent, can be made

only by a registered instrument. None of the State Rent Acts has abro-

gated or affected this provision. Section 108 deals with the rights

and liabilities of lessors and lessees. 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 fatter, although not whole

H ly. The topic of Transfer of Property other than agricultural land is·

covered by Entry 6 of List III in the Seventh Schedule fo the Constr­

tution. The subject being in the Concurrent List, many State Rent

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v. D. CHETTIAR v. YESODAI (Untwalia, J.) 339

Acts have by necessary implication and many of them by starting cer-,A

tain provisions with non-obstante clause have done away with the law

engrafted in section 108 of the Transf7r of Property Act except in

regatd to any matter which is not provided for in the State Act either

expressly or by necessary implication.

Section 111 deals with the question of determination of a lease, and B

in various clauses

(a) to (h) methods of determination of a lease of

immovable property are provided. Clause (g) deals with the forfei-

ture of lease under certain circumstances and at the end are added

the

words "and in imy 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 Acts different

views have been expressed as to whether such a notice in all cases is necessary or not. We only

observe here that when the State Rent Acts provide under what cir­

cumstances and on what grounds a tenant can be evicted, it does pro-

vide that a tenant forfeits his right to continne in occupation of the

property and makes himself liable to be evicted on fulfilment of those

conditions. Only in those State Act~ where a specific provision bas

been made for the giving of any notice requiring the tenant either to

pay the arrears of rent within the specified period or to do any other

thing, snch a• the Bombay Rent Act or the West Bengal Rent Act,

n.o notice in accordance with clause (g) is necessary .. A ]ease of

immovable property determines under clause (h)

:-

"On the expiration of a notice to determine the lease, or

to quit, or of intention to quit, the property lea•ed, duly

given by one party to the other."

It is this clause which brings into operation the requirement of

section 106 of the Transfer of Property Act. Without adverting to

the effect and the details of waiver

of forfeiture, waiv.er of notice to

quit, relief against forfeiture for non-payment of rent etc.

3S provided

for in sections 112 to 114A of the Transfer of Property Act, suffice

it to say that under the said Act no ground of eviction of a tenant has

to be made out once a contractual tenancy

is put to an end by service

of a

valid notice under section 106 of the Tran~fer of Property Act.

Until and unless the lease is determined, the lessee is entitled to con­

tinue in possession. Once it is determined it becomes open to the

lessor to enforce

his right of recovery

o! possession of the property

against him.

In .such a situation it was plain and clear

that if the

lease of the immovable property did not stand determined under any

of the clauses (a) to (g) of section 111, a notice to determine it un-

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340 SUPREME COURT REPORTS [1980] l S.C.R. ·

der section 106 was necessary. But when under the various .State

Rent Acts, either in one language or the other, it has been provided that

a tenant can be evicted on the grounds mentioned in certain sections of

the said Acts, then how does the question of determination of a

tenancy by notice arise?

If the

State Rent Act requires the giving

of a particular type of notice in order to get a particular kind of relief,

:B »uch a notice will have to be given. Or, it may be, that a landlord

will be well advised by way of abundant precaution a.nd in order to

lend additional support to his case, to give a notice to his tenant inti­

mating 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

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notice is compulsory or obligatory or that it must fulfil all the techni­

cal 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 tantamonnt 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

E under section 106 of the Transfer of Property Act. In many cases

· the distinction between a contractual tenant and a statutory tenant

was alluded to for the purpose of elucidating some particular aspects

which cropped

up in a particular case. That led to the criticism of

that expression in some of the decisions. Without detaining

our­

selves on this aspect of the matter by any elaborate discussion, in our

F opinion, it

will

suffice to say that the various State Rent Control Acts

make a serious encroachment in the

field of freedom of contract. It

does not permit the landord to snap his relationship with the tenant

merely by his act of serving a notice to quit on

him. Inspite of the

notice, the law says that he continues to

be a tenant and he does so

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enjoying all the

right~ of a lessee arid is at the same time deemed to

be under

all the liabilities such as

payment of rent etc. in accordance

with the law.

In Sukumaran Nair's case (supra) the learned

!udge has pointed

out the difference of opinion expressed in the various decisions of the

Madras High Court from time to time in regard to notice to quit un­

der section 106 of the Transfer of Property Act. In Parthasarthy and

another

v. Krishnamoorthy and

another(') a learned single Judge of

(1) A.l.R. 1949 Madras 387.

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V. D. CHETTIAR v. YESODAI (Untwalia, J.) 341

that Court held that a notice to quit was uecessary. A contrary view

was expressed by a Division Bench of the High Court in R. Krishna·

murthy v. S. Parthasarthy and another.(') Difference of opinion in

Madras High Court continued in many other cases and then came

A

the Full Bench decision in the case of M./s Raval and Co. v. K. G.

Ramachandran

and others.

(2) This decision was' approved in the B

majority decision of ·this Court in Raval & Co. v. K. G. Ramachand-·

ran & Ors. (

3

) Raval's case was not directly a case in relation to

section 106 of the Transfer of Property Act but some observations

made therein did tend to

show that notice would not be necessary .

In spite of the Full

·Bench decision of the Madras High Court in

Raval's case a Division Bench of that Court in B. Kalyanasundaram

v. A. R. Nataraian(

4

)

stuck to the view that notice was necessary.

The Punjab High Court

in

Shri Hem Chand v. Shrimati Sham Devi(")

had expressed the view that notice was not necessary. The Full

Bench

of the Punjab and Haryana High Court in Bhaiya Ram Haroo

Lal

v. Mahavir Parshad Murari Lal Mahajan(') took a contrary view.

After the

majority view of the Full Bench of the Patna High Court

in Niranjan Pal and another v. Chaitanyalal Ghosh and another(T) it

has been consistently held in

the

Patna High Court that a notice is

necesS'ilry. A Special Bench of the Cakntta 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 Hubba/Ii;(") Batoo

Mal

v. Rameshwar Nath and

others(u) 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 !Jigh

(I) A.I.R. 1949 Madra., 780

(2) A.I.R. 1967 Madras 57.

(3) [1974] 2 S.C.R. 629.

(4) (1969) 2 M.L. J. 585.

(5)

I.L.R. 1955

Punjab 36.

(6)

A.I.R. 1969

Punjab & Haryana l IO.

(7) A.LR. 1964 Patna 401.

(8) A.LR. 1964, Calcutta I.

(9) A.LR. 1952 Madhya Bharat 121.

(10) A.l.R. 1959 Rajasthan 59.

(11) A.I.R. 1965 Mysore 65.

(12) A.l.R. 1971 Delhi 98.

(13)

A.l.R. 1971 J. & K.

20.

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342 SUPREME COURT REPORTS (1980] l S.C.R.

A · Courts of Andhra Pradesh, Madras, Kerala, Kamataka 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(');

B

c

Govindaswamy R. v. Pannalal C. S.(•) and Vinod Kumar v. Harbans

Singh Azad(•). Such a cleavage of opinion cropped up in the various

High Courts because of some observations of this Court in -;.ome

decisions which will be presently alluded to. It was so on an erro­

neous assiimption, if we may say so with great respect, that the diffe­

rence in the phraseology of the different State Rent Acts justifies this

difference of views.

In our considered judgment on the question of a

requirement of a notice under section

106 of the transfer of Property

Act there is no scope for taking different views on the basis of tire

difference in the phraseology of the various Rent Acts. In this regard

the difference in the language does not bring about any distinction.

In all the

States the law should be uniform viz. that either a notice

D is necessary or it

is not. It was high time, therefore, that this larger

Bench

was constituted to lay down a uniform

law for the governance

of the whole country and not permit the unjustified different trend of

decisions to continue.

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Before we embark upon a review of some of the decisions of this

Court we

think it necessary and advisable to briefly refer to the pro­

visions od' some of the State Rent Acts in support of the observations

made by us above that on the question of notice no different result is

possible on the language of any State Act. Section 10 of The Tamil

Nadu Rent Act says

:-

"A tenant shall not be evicted whether in

execution af a decree or otherwise except in accordance with the pro­

visions of this section or sections 14 to 16." In other words if a

case. is made out for his eviction in accordance with the provisions

aforesaid, he can be evicted. Even after the terinination of the con­

tractual tenancy under the definition of the landlord in clause ( 6)

and of the tenant under clause (8) of section 2 the landlord re­

mains a fandlord and the tenant remains a tenantl as clause ( 8) ex­

pressly says that tenant means "a person continuing in possession

after tire termination of the tenancy in his favour.'' Section 3 indicated

that no landlord can treat the building to have become vacant by

(!) (1971) 2 Andhra Weekly Report 298.

(2) A.l.R. 1976 Madras 329.

(3) A.I.R. 1978 Kerala 167.

(4) (1978) (1) fearnatalca Law Journal 506.

(5) A.I.R. 1977 Punjab & Haryana 262.

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V. D. CHETTIAR v. YESODAI (Untwalia, !.) 343

merely terminating the contractnal tenancy as the tenant still lawfully

continues in possession of the premises. The tenancy actnally termi­

nates on the passing of the order or decree for eviction and the build­

ing falls vacant by

his actual eviction. The giving of the notice, there­

fore,

is a mere surplusage and unlike the law under the Transfer of

Property Act it does not entitle the landlord to evict the tenant.

Adverting to the provisions of the Bombay Rents, Hotels and

Lod­

ging House Rents Control Act, 194 7 it would be found from the de­

finition section 5

that any person remaining in the building after the

· determination of the lease

is a tenant within the meaning of clause

(Ii). 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 l

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 provi­

des that a landlord may recover possession on certain grounds. Is

it not plain then that on the happening of the events or on the fulfil­

ment of the conditions mentioned in sections 12 and

13 etc. the land­

lord becomes

entitled to recover possession from the tenant, other­

wise not.

It will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession

determination of the lease is necessary

as during its continuance he

could not recover possession, while under the

State Rent Act the

blndlord becomes entitled to recover possession only on the fulfil­

ment of

fhe rigour of law provided therein. Otherwise not. He can­

not recover possession merely by determination of tenancy. Nor can

he be stopped from doing

so on the ground that he has not terminat­

ed the. contractual tenancy.

Under the State Rent Control Acts the

concept

of the contractual tenancy has lost much of its significance

and force. Identical

is the position under the Bihar Act. The defi­

nition

section permits the tenant to continue as a tenant even after

the determination of the contractual tenancy. Section 11 gives him

protection against eviction by starting with a non-obstante clause and

providing further that he shall not be liable to eviction from any build­

ing except in execution of a . decree passed by the Court for one or

more grounds mentioned in section 11. Does it not stand to reason to

say that a decree can

be passed if one or more of the grounds exist

and such a decree can

be passed against an existing tenant within the

meani_ng of the State Rent Act? Similar is the position under the

Kerala Lease and Rent Control Act, 1965 and the East Punjab Urban

A

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344 SUPREME COURT REPORTS [1980] 1 ~.C.R.

A Rent Restriction Act, 1949. We shall refer to the provisions of the

Madhya Pradesh and Andhra Pradesh State Rent Acts when we come

to review the decisions

of this Court in

relation to those Acts.

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A Constitution Bench of this Court in Rai Brij Raj Krishna and

another v. S. K. Shaw and Brothers (') in a different context dealing

with section 11 of the Bihar Rent Act observed at page 150 :-

"Section 11 is a self-contained section, and it is wholly

unnecessary to go outside the Act for determining whether a

tenant

is liable to be evicted or not,

atnd under what condi­

tions he can be evicted. It clearly provides that a tenant

is

not liable to be evicted

except on certain conditions, and one

of the conditions laid down for the eviction of a month to

month tenant

is non-payment of rent ................. .

The Act thus

sets up a complete machinery for the

investi­

gation of those matters upon which the jurisdiction of the

Controller

to order

evic.tion of a tenant depends, and it

expressly makes

bis order final and subject only to the deci­

sion of

th) Commissioner."

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 Conrt which is necessary to be noticed

on the point of notice is the case of Bhaiya Punja/al Bhagwanddin v.

Dave Bhagwatprasad Prabhuprasad(

2

). 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 re­

covery

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 whiclt

the landlord possessed either for charging excessive rents or for evicting

tenants. But if within the ambit

of those restricted rights he makes out

(1) [1951]

S.C.R. 145.

(2) [1963] 3 S.C.R. 312:

{.

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v. D. CHETTIAR v. YESODA! (Untwalia, !.) 345

his case it is a mere empty formality to ask him to determine the

contl'actual tenancy before institution of a suit for eviction. As we

have pointed out above, this was necessary under the Transfer of Pro-

perty Act as mere termination of the lease entitled the landlord to re­

cover possession. But under the Rent Control Acts it becomes an

.nnnecessary technicality to insist that the landlord must determine the

contractual tenancy.

It is of no pmctical use after so many restrictions

on

his right to evict the tenant have been put. The restricted area

under the various

State Rent Acts has done away to a large extent with

requirement

of the law of contract and the Transfer of

Property Act.

If this be so why unnecessarily, illogically and unjustifiably a formality

of terminating the contractual lease . should be insisted upon? In

Bhaiya Punjala/'s case, if we may say so with very great respect, the

principle of law laid down by this Court in Rai Brij Raj Krishna's case

(supra) and by the Punjab

High Court in Hem Chand's case was

wrongly distinguished. After quoting the passage from the former

if

was said at {Y.lge 3 22 :-

A

"In the present case, s.12 of the Act is differently worded I>

and cannot therefore be said to be a complete Code in itself.

There

is nothing in

fr which overrides the provisions of the

Transfer of Property Act.''

The difference in the wordings of section

11 of the Bihar Act and

section 12 of the Bombay Act

does not justify the conclusion that the

provisions

of the Transfer of

Property Act have not been overridden

,by section 12 of the Bombay Act reading it with section 13 etc. This

was the ground given for distinguishing Hem Chand's case also by

erroneously pointing out the distinction between section 1'3 (1) of the

Delhi and Ajmer Merwara Rent Control Act, 1952 and the Bombay

Act.

In 'our considered judgment Bhaiya Punja/al's case was

not

correctly decided.

In another decision of this Court in VoraAbbasbhai Ali Mohamed

v. Haji Gulamnabi Haji Safibhai,(') in relation to the Bombay Rent

Act again there are some lines at page 162 wherein it has been observ­

ed'

thus:-

"The clause applies to a tenant who continues to remain

in occupation after the contractual tenancy

is determined: it

does not

gr:mt a right to evict a contractual tenant without

determination of the contractual tenancy."

But the above observ&tion is followed by the words :­

"Protection from eviction is claimable by the tenant even

after determination of the contractual tenancy

so long as he

(1) [1964] 5 S.C.R. 157.

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.346 SUPREM!l COURT REPORTS (1980] I s.C.R.

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

Jaw engrafted in the Transfer of Property Act for

seek-

ing evictiort of the tenant? .

The decision of this Court in the case of Mangilal

v. Suganchand

Rat

hi,(') 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.

106 of the

Transfer of Property Act

is that a lease from month to

month

can be terminated only after giving fifteen days' notice expir­

ing with the end of u month of the t~nancy either by the

landlord to the tenant

or by

the tenant to the landlord. Such

a notice

is essential for bringing to an end the relationship

of landlord and tenant. Unless the relationship

is validly

terminated the landlord does not get the right to obtain

possession

of the premises by evicting the tenant.

Section

106

ofthe

Transfer of Property Act does not provide for the

satisfaction

of any Additional requirements. But then, s. 4

of the Accommodation Act steps in and provides that unless

one

of the several grounds set out therein is established or

exists, the landlord cannot evict the

tenant."

Section 4 of the Madhya Pradesh Rent Act, 1955 provided that no

suit could

be filed in any Civil

Court against a tenunt for his eviction

for any accommodation except on one or more grounds set out

in that

section. The corresponding provision in Madhya Pradesh

Accommo­

dation Act of 1961 is contained in Section 12 which starts with a non­

obstante clause also but the definition of the tenant as in other St~e

Acts includes "any person continuing in possession after the termina­

tion of his tenancy". How then is it correct to say that a notice is

essential. for bringing to an end the relationship between the landlord

and the tenant? The notice does not bring to an end such a re!'ation­

ship because of the protection given to the tenant under the Rent Act.

If that be so then it is not necessary for the landlord to terminate the

(I) J1964] 5 S.C.R. 239;

(

"f

r

;..

,,

...........

1.

"

v. D. CHETTIAR v. YESODAI (Untwalia, J.) 347

. contractnal relationship to obtain possession of the premises for evicting A

the tenant.

If the

termination of the contractual tenancy by notice

does not, because of the Rent Act provisions, entitle the landlord to

recover possession and he becomes entitled, only

if he makes out a case

under the special provision of the

State Rent Act, then, in our opinion,

termination

of the contractual relationship by a notice is not necessary.

B

The termination comes into effect when a

case is successfully made out

for eviction of the tenant under the State Rent Act.

We say with

utmost respect that on the point of requirement of a notice under

sec­

tion 106 of the Transfer of Property Act Mangilal's case was not

correctly decided.

In Manujendra Dutt v.

Purendu Prasad Roy Chowdhury & Ors.,(')

the question of notice came to be considered with reference to the Cal­

cutta Thika Tenancy Act, 1949 and in that connection it was said at

page 480 :-

"The Thika Tenancy Act like similar Rent Acts passed in

differen~ 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 tenanf

provid­

ed 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

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for distinguishing

Manujendra's case because clause 7 of the lease

deed F

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

IO years the

lessee will

be served with a 6 months notice ending with the expiry of

· the said term and it is further agreed that if the lessee is per­

mitted to hold over the land after the expiry of the said term

of 10 years the lessee will be allowed a six months notice to

quit and vacate the said pr_emises."

Over ~nd above the protection under the Thilca Tenancy Act clause

7

of the

lease deed gave an extra protection of getting six months

(I) !1967] I S.C.R. 475.

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348 SUPREME COURT REPORTS [1930] 1 s.c.R.

A notice to quit and vacate the premises. In that event one can say that

such a clause being not unlawful

and giving an extra protection to the tenant against eviction must also be adhered to. But it is not

correct

to say that

sectio11 106 of the Transfer of Property Act merely

providing for termination of a lease either by the lessor or the lessee

B by giving the requisite notice is an extra protection against eviction.

The purpo6e of this provision is merely to terminate the contract which

the overriding Rent Acts do not permit to be terminated.

In Raval's case (supra) the question for consideration was whe­

ther section 4 of the Tamil Nadu Rent Act providing for an applica-

C lion for

fixation of fair rent was

available both to the tenant and the

landlord. The majority speaking through Alagiriswami J. took the

view that it was so. A contrary view was expressed by Bhagwati J.

speaking for the minority. While discussing this question the relevant

passage from the decision of this Court

in Rai Brij Raj Krishna's

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case was quoted at page 634 and reference was made to the decision

of the

~jab High Court in Hem Chand's case. Thereafter the ob­

servation of this Court in Bhaiya Punja/al' s case to the effect that

"Rent Acts are not ordinarily intended to interfere with contractual

leases and are Acts

for the protection of tenants and are consequently resfrictive and not enabling, conferring no new rights of oaction ·but

restricting the existing rights either under the contract or under the

general law," were held not to apply to all Rent Acts irrespective of

the scheme of those Acts and their provisions. This observation

given with reference to the dictum of this Court in Bhaiya

Punjalal's

case concerned with the question of notice under section 106. It

enabled certain High Courts to make a firm departure and take the

view with reference to the scheme of their respective State Acts to say

that a notice

was not necessary. This happened in Madras, Andhra

Pradesh, Kerala, Karnataka and Punjab

& Haryana. Alagiriswami J.

at page 635 after having made that observation with reference to

Bhaiya Punja/al's case has

said-"Be that as it may, we are now

concerned with the question of fixation of a fair rent" In our opin-

ion the majority decision with regard fo 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 fue land­

lord.

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 v.'llS 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

.

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v. D. CHETTIAR v. YESODAI (Untwalia, I.) 349

many landlords who arc 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 sup­

pose for instance in a city there is an apprehension of cxtemaJi aggres­

sion, severe intema.I disturbances or spread of epidemics. A man in

possession of his house may go to another town letting out his premi­

ses to a tenant financrally strongi and of strong nerves at a rate com­

paratively much lower than the prevailing market rates. Later on, on

tl!e nomia.Iization of the situation as against the agteed rnte of rent

he approaches the Building Controller for fixing a fair rent

in accor­

dance with

a particular State Rent Act. Why should she or he bt1

debarred from doing so. The statute gives him the protection and

enables the Controller to intervene to

fix a fair rent as against the term

of contract between the parties.. In a large number of cases it is the

tenant who gets this protection. But

in some as

in the case of Raval

the landlord needs and gets the protection. But this is not a direct

authority on the point of not'icc.

In lsha Valimohmmad & Anr. v. Haji Gu/am Mohamad & Haji

Dada Trust,(') Mathew J. speaking for a Division Bench of this Court

had to consider the question with reference to the Saurashtra Rent

Control Act, 19 51.

In that connection it was observed at page 726 that the High Court was right in the assumption that a notice undec

the Transfer of Property Act. was necessary to terminate the tenal!lcy

on tjJe ground that the appellants had sublet the premises. Says the

learned Judge further that the landlord could not have issued a notice

under any of the provisions of the Transfer of Property Act to deter­

mine the tenancy on the ground

of sub-letting by the tenant. It is nee! correct to assume' that a notice under section 106 of the Transfer

of Property Act as required by clause (h) of section 111 needs a

ground to be made out for the termination of the tenancy. Such a

view could be taken only under clause

(g). Beg J. as he then was

in P. I. Gupta &

Co. v. K. Venkatesan Merchant & Ors.(

2

) speaking

for himself and Krishna Iyer

J. following Ravar s case observed at page 403 :-

"In other words, the special· procedure provided by the

Act displaces the requirements of the procedure for eviction

under the Transfer of Property Act and

by an ordinary civil

suit. Therefore, we need not

concern ourselves with the

A

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. provisions of Transfer of Property Act. . . . . A tenancy is H

(I) [1975j I S.C.R. 720.

(2) [1975] 2 S.C.R. -401.

4-S31SCln9

350 5UPREME COURT REPORTS Ll980] l S.C.R.

A ~ntially b36ed on and governed by an agreement or con­

tract even when a statute intervenes to limit the area with­

in

which an agreement or contract operates, or, subjects

contractual rights to statutory rights and

obligations."

B

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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 conti­

nued

in possession after the termination of the

tenancy in

his favour. Otherwise not. Without termination of the

contractual. tenancy by a yalid notice or other mode set oull

in Section 111 T.P. Act it was not open to the landlord to

treat the appellant as a statutory tenant and seek

his evic­

tion without service

gf a notice to quit."

On a careful consideration and approach of the matter in the ins­

tallt case we think that we cannot approve of the view expressed in

the passage extracted above. In Ratan Lal v. Vardesh Chander &

OrS(

2

)

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 Delhi. The Court

was concerned with clause ( g) of section 111 of the Transfer of Pro­

perty Act. Tracing the history of the legislation it was pointed out

by the Court at page 918 that the requirement as to written notice pro­

vided in section 111 (g) cannot be said to be based on any general

rule of equity and therefore forfeiture

of lease brought about in terms

of section 111 (g) of the Transfer of

Property Act not by notice but

on the application of justice, equity and good conscience was held to

be good determination

of the lease. Quoting from Manujendra' s case

it

was said at page 911 :___,.

"We are inclined to hold that the landlord in the present

qse cannot secure an order for eviction without first estab­

lishing that he has validly determined the lease under the

T.P. Act.''

Why this dual requirement? Even if the lease is determined by

a forfeiture under the Transfer of Property Act the tenant continues to

be a tenant, that is to say, there is no forfeiture in the eye of law.

(1) [19751 Suppl. S.C.R. 67.

(2) [1976) Z S.C.R. 906

•

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.,_,,..·

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.,

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v. D. CHETTIAR v. YESODAI (Untwalia, J.) 351

I

The tenant becomes ·liable to be evicted and forfeiture comes into

play only

if he

bas incurred the liability to be evicted under the State

Rent Act, not otherwise.

In many

State statutes different provisiollll

have been made as to the grounds on which a tenant can be evicted

and

in relation to his incurring the liability to be so evicted.

Some

provisions overlap those of the Transfer of Property Act. Some are

new which are mostly in favour of the tenants but some are in favonr

of the landlord .ilso. That being so the dictum of this Court in Raj

Brij's case comes into play and one has to look to the provisions Qf

law contained in the four comers of any State Rent Act to find out

whether a tenant can be evicted or not. The theory of double po­

tection or additional protection, it seems to us, has been stretched too

far and without a proper and due consideration

of all its

remifica­

tions.

Beg

J., as he then was, speaking for the Court in the

case of

Puwada Venkateswara Rao v. Chidamana Venkata Ramana(') had to

deal witl1 the question as to whether a notice to quit was necessary

for seeking an order for eviction under the Andhra Pradesh Build­

ing (Lease, Rent and Eviction) Control Act, 1960. The Andhra

Pradesh High Court had relied upon the decision of that Court in

Ul/igamma & Ors. v. S. Mohan Rao & Ors(') for taking the view

that a notice under section 106 of the Transfer of Property Act was

not necessary. Gopal Rao Ekbote

J., delivering the judgment on

be­

half of a Bench of the Andhra Pradesh High Court in Ul/igappa's

case reviewed several decisions of the High Courts and this Court and

considered the special provisions of the Apdhra 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 accor­

dance 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

(I) [1976] 3 S.C.R. 551.

(2) (1969] l A.P. Law Journal, 351~(1971) 2 .Andhra Weekly Reportor 29

:k

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352 SUPREME COURT REPORTS [1980] 1 s.c.R.

/I. conditions as before and shall not be terminable by the land­

lord except on one or more of the .grounds mentioned in

•uh-section (2) or sub-section (3)."

B

c

This special provision is provided by way of abunda.nt precaution

only. Even without this a tenant continuing in possession filter the

termination of the contractual tenancy and until an eviction order is

passed against him continues on the same terms and conditions as

before and

he cannot be evicted unless a

ground is made out for bis

eviction according to the State Rent Act. The said provision by it­

self did not justify a departure from the view expressed by this Court

in Mangilal's case. Beg J., followed the decision of this Court in

Ravars case and of the Punjab High Court in Hem Chand's case.

For the reasons stated by us, we approve of his view not on the

ground that the Andhra Pradesh State Act is a different one but be­

cause in respect of any State Act that is the correct view to take.

Lastly our attention

was. drawn to the decision of this Court in

D

Firm Sardari/al Vishwanath and Ors v. Pritam Singh('). The lease

in that case had come to an end by

effiux of time. A tenant

continu­

ed in possession and became a so-called statutory tenant. 'The argu­

ment put forward before this Court that a fresh notice under section

106 of the Transfer of Property Act was necessary was rejected on

the ground

:-

E

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G

B

"Having examined the matter orr authority and precedent

it must be frankly confessed that no other conclusion· is pos­

sible on the first principle. Lease of urban immoveable pro­

perty represents· a contract between the lessor and the lessee.

If the contract is to be put to an end it has to be terminated

by a notice to quit as envisaged under

s.

106 of the Trans­

fer of Property Act. Brit it is eqoolly clear as provided by

s. 111 of the Transfer of Property Act that the lease of

immoveable property determines by various modes therein

prescribed. Now,

if the lease of immoveable property

de­

tennines in any· one of the modes prescribed under s.111

the contract

of lease comes

th an end, and the landlord can

exercise his right of re-entry. This right of re-entry is· fur­

tl1er restricted a.nd fettered by the provisions of the Rent

Restriction Act. Nonetheless the contract of lease had

expired and the tenant lessee cotinnes in possession

un.der

the protective wing of the Rent Restriction Act until the

Jessee loses protect'ion. But there is no question of

termi­

nating the contract because the contract comes to an end

---

(1) (1979] 1 S.C.R. 111

,

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V. D. CHETTIAR v. YESODAI (Untwalta, J.) 35 3

once the lease detennines in any one of the modes pres­

cribed under s.111. There is, therefore, no question

of

giving a notice to quit

fo such a lessee who continued in

possession 'after the determination of the lease, i.e. after the

contract came to an -~nd 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 \;'i_th the view that determination of lease in

accordance with the Transfer ·of Property Act is a condition pre<--e­

dent to the starting of a proceeding under the State Rent Act for evic­

tion 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 elllux of time. But on the first assumption we have taken a diffe­

rent view of the matter and have come to the conclusion that d6ter­

mination of a lease in accordance with the Transfer of Property Act

is unnecessary and a mere surplusage because the landlord cannot get

eviction of the tenant even after such determination. The tenant con­

tinues to be so ev_cn thereafter. That being so, making out a case

under the Rent Act for eviction of the tenant by itself is sufficient

and

it is not obligatory .to found

the proceeding on the basis of the deter­

mination of the lease by issue of notice in accordance with section

106 of the Transfer of Property Act.

For the reasons stated above we hold that the High Court was

right in its view that

no notice to quit was necessary

under section

l 06 of the Transfer of Property Act in order to enable the landlady­

respondent to get an order of eviction against the tenant-appellant.

But we were told by learned counsel for the appellant that he had

some more points

to urge before the High Court to challenge the

Order

of eviction. We do not find from the judgment of the High Court that

the appellant was prevented from supporting the orders of the courts

below m his favour by urging any other point. No point of subs­

tan~e could be indimted before us which was worth consideration

after a

clear and definite finding by the Appellate Court that the res­

pondent required the premises

bona fide for a personal necessity.

We do not think it advisable to delay the proceeding any further and

send

back the case to the High Court on this account. We accor­

dingly dismiss the appeal but in the circumstances direct the parties

to

bear their own costs throughout.

P.B.R.

Appeal

dismissed.

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