Judgement

SHAH, J. : Biswambar Roy - predecessor-in-interest of the appellants - was granted on February 20, 1928, a lease for ten years 1335 B. S. to 1344 B. S. at an annual rental of Rs. 75 in respect of a plot of land, part of Dag No. 3615 in the town of Silchar, District Cachar in the State of Assam. Biswambar Roy constructed on the land buildings some for residential use, and others as warehouses. On the expiry of the period of the original lease, Biswambar Roy obtained a fresh lease in respect of a part of the land for ten years - Baisakh 1345 B. S. to Chaitra 1354 B. S. - at an annual rental of Rs. 70 under an instrument, dated February 22, 1938.

2. The respondents purchased the interest of the landlords in the land and instituted on August 3, 1951 an action in the Court of the Sadar Munsiff, Silchar against Biswambar Roy for a decree for vacant possession of the land. The suit was decreed by the Munsiff. Biswambar Roy appealed to the Subordinate Judge, Silchar. During the pendency of the appeal, the Non-agricultural Urban Areas Tenancy Act 12 of 1955 enacted by the Assam Legislature was brought into force. Biswambar Roy claimed protection from eviction under S. 3 of Act 12 of 1955. The Subordinate Judge held that Biswambar Roy had acquired under S. 5 (1) (a) of the Act the rights of a permanent tenant, since he had constructed within the period prescribed permanent structures for residential or business purposes. He accordingly reversed the decree passed by the Trial Court and dismissed the suit. Against that decree, an appeal was preferred to the High Court of Assam. Deka, J., held that Biswambhar Roy could not claim the protection of S. 5 (1) (a) of the Act, since he had let out to tenants the buildings constructed on the land. In the view of the learned Judge, by the use of the expression "for residential or business purposes" in S. 5 (1) (a) it is intended that buildings constructed by the tenant should be utilized by the tenant himself for his own residence or for carrying on business and that it is not the intention of the Legislature that third person should be protected by S. 5 from eviction from those structures. An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C. J., and Mehrotra, J. The learned Judges differed. Sinha, C. J., was of the view that permanent structured constructed by Biswambar Roy conformed to the description "residential or business purposes" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non-payment of rent. With that view Mehrotra, J., did not agree. He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build "a permanent structure on the land of the tenancy for residential or business purposes", and may not claim protection under S. 5 (1) (a). Since there was no majority concurring in the Judgment agreeing or reversing the decree appealed from, under S. 98 (2) of the Code of Civil Procedure the appeal was ordered to be dismissed. Against the decree passed by the High Court with special leave, this appeal is preferred.

3. This Court has held that S. 5 of Assam Act 12 of 1955 has retrospective operation : Rafiquennessa v. Lal Bahadur Chetri, 1964-6 SCR 876, and the only question to be determined in this appeal is whether a tenant qualifies for protection under S. 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes. The material part of the section reads:

"(1) Notwithstanding anything in any contract or in any law for the time being in force -

(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years f