IMPORTANT POINT
When a lease in respect of premises for a period of more than 20 years is terminated before its fixed period expired in terms of a clause in lease deed, proviso to Section 3(2) of West Bengal Premises Tenancy Act would be attracted as defence against eviction.

Headnote:West Bengal Premises Tenancy Act, 1956—Section 3(2)—Lease executed for a period of over twenty years with a clause allowing prior determination at instance of either the lessor or lessee—Applicability of Tenancy Act in such lease—If such a lease is determined before its fixed period expired, proviso to Section 3(2) of the Act would be attracted as a defence against eviction—If lease was allowed to run its full course, both the lease and condition contained therein would come to an end and would cease to be operative and clause for prior determination would no longer be available as defence against eviction—Premises in question was let out to respondent by registered lease dead for a period of 21 years on a rental of Rs. 450/- p.m. in 1969 and lease deed contained clause permitting parties to terminate lease prior to its expiry—Appellant landlord terminated lease in 1972 and filed eviction petition which was decreed on ground of default—Respondent lessee however retained possession invoking Section 114 of Transfer of Property Act and on payment of arrears of rent—On completion of 21 years of lease, appellant filed another suit for eviction on respondent’s failure to vacate premises —Suit was decreed by Courts below—High Court set aside decree in second appeal holding that Tenancy Act was applicable—Appeal—High Court erred on construction of provisions of Section 3(2) of 1956 Act—Intention of Legislature in amending Section 3 was to prevent landlords from using long term lease as a camouflage—Impugned judgment was liable to be set aside and that of trial Court to be restored.
Held : On a construction of the provisions of Sub-section (2) of Section 3 of the 1956 Act, we are unable to subscribe to the view expressed by the High Court. The intention of the Legislature in amending Section 3 appears to have been to prevent landlords from using long term leases as a camouflage for excluding them from the protection of the 1956 Act and yet retaining the right of prior determination. Sub-section (2) appears to have been enacted to prevent such abuse, inasmuch as, once the lease was determined before the fixed period, it attracted the proviso thereof.(Para 15)
The law is clear that lease deeds for periods of twenty years or more would stand excluded from the operation of the 1956 Act except in matters relating to Sections 31 and 36 thereof, unless the same were terminable before their expiration at the option either of the landlord or of the tenant. In other words, if such a lease is terminated before its fixed period expired, the proviso to Section 3(2) would be attracted as a defence against eviction. If, however, the lease was allowed to run its full course, both the lease and the conditions contained therein would come to an end and would cease to be operative and the clause for prior determination would no longer be available as a defence against eviction. The appeal must also be allowed on the question of estoppel. Having submitted to the jurisdiction of the Court under the Transfer of Property Act and having obtained relief thereunder, the respondent cannot in the present suit claim protection under the provisions of the West Bengal Premises Tenancy Act, 1956, to which she is not, in any event, entitled, in terms of the lease deed dated 13th January, 1969. The appeal is accordingly allowed. The judgment and decree of the High Court is set aside and that of the trial Court is restored.(Para 22 to 24)

JUDGMENT

Altamas Kabir, J.—The appeal raises an interesting question of law relating to the interpretation of Sub-section (2) of Section 3 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the 1956 Act) which does not appear to have been considered earlier for its full scope and effect. The question relates to the applicability of Sub-section (2) of Section 3 of the 1956 Act to leases which were executed for periods of over twenty years but containing a clause allowing prior determination at the instance of either the lessor or the lessee. Prior to 1965, the said Section was comprised only of one Section which is now numbered as Sub-section (1). Sub-section (2) was added by Amending Act XXIX of 1965. Since we shall be considering the provisions of Section 3 in this appeal, at some length, the same as it stands, after amendment, is reproduced hereinbelow for reference:-

"3. Certain provisions of the Act not to apply to certain leases.—(1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act, 1908, where—

(a)such lease has been entered into on or after the 1st December 1948, and

(b)such lease is for a period not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years.

(2) Notwithstanding anything to the contrary in sub-section (1) but subject to sub-section (3) of section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965:

Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease."

2. As will appear from the facts involved in this appeal, by a registered deed of lease dated 13th January, 1969, the predecessor-in-interest of the appellants let out the ground floor flat with one garage, measuring 1200 sq.ft., in premises No.29/1, Bondel Road, Calcutta 700019, to the respondent on a rental of Rs.450/- per month. The lease commenced with effect from 1st January, 1969, and was for a period of 21 years. The lease deed contained a clause which permitted the parties to terminate the lease prior to its expiry with notice from either side.

3. On 29th September, 1972, when the lease was subsisting, the lessor served a notice determining the lease under Section 111 (g) of the Transfer of Property Act, 1882. The lessee was asked to quit and vacate and deliver possession to the lessor on the expiry of the notice period. Inasmuch as, the lessee did not vacate the premises, the lessor filed a suit, being Title Suit No.3/1973, for eviction of the lessee from the suit premises and for recovery of arrear rents and damages. The said suit was decreed by the 2nd Subordinate Judge at Alipore under Section 111 of the Transfer of Property Act, 1882, on the ground of default. However the lessee made an application for protection under Section 114 of the Transfer of Property Act, 1882, and on payment of the arrear rents, he was entitled to retain his possession of the suit premises.

4. Subsequently, on completion of the period of 21 years reserved in the lease deed, in 1990, the lessor, who is represented by the appellants herein, called upon the lessee (the respondent herein) to hand over peaceful and vacant possession of the suit premises. On the failure of the respondent to do so, the lessor filed another suit, being Title Suit No. 71/1990, in the court of the Second Munsif, Alipore, for ejectment. In his written statement the respondent took a s

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2006 Supreme(SC) 902

IMPORTANT POINTWhen a lease in respect of premises for a period of more than 20 years is terminated before its fixed period expired in terms of a clause in lease deed, proviso to Section 3(2) of West Bengal Premises Tenancy Act would be attracted as defence against eviction.

Cases Referred (2)

IMPORTANT POINT
When a lease in respect of premises for a period of more than 20 years is terminated before its fixed period expired in terms of a clause in lease deed, proviso to Section 3(2) of West Bengal Premises Tenancy Act would be attracted as defence against eviction.