A structure constructed by a tenant on the roof of the demised premises without the permission of the landlord, which is substantial in nature, likely to endure for several years, so annexed to the main building that it cannot be demolished without causing substantial damage to the main building, and not constructed for temporary use, is a permanent structure within the meaning of Clause (p) of Section 108 of the Transfer of Property Act.

( 1 ) THIS appeal arises out of a suit for ejectment instituted in the Court of Small Causes at Calcutta after a notice to quit under Section 106 of the Transfer of Property Act and also alter a notice of suit under Section 13 (6) of the West Bengal Premises Tenancy Act on the ground that the tenant was not entitled to any protection under Section 13 of the West Bengal Premises Tenancy Act of 1956 as the tenant had done an act contrary to the provisions of Clause (p) of Section 108 of the Transfer of Property Act of 1882.

( 2 ) THE act contrary to the provisions of Clause (p) is the building of a kitchen on the roof of the house with 3" wall of brick and mortar together with a roof of corrugated iron sheets. When the appeal came up for hearing before another Division Bench of this Court, the matter was referred to a Special Bench under proviso (ii), Rule I, Chapter II of the Appellate Side Rules. The relevant portion of the two of the points referred to were as follows:-- (i) "what is a permanent structure for purposes of Clause (p) of Section 108 of the Transfer of Property Act. . . . ?" (ii) "what notice is contemplated under Section 13 (6) of the West Bengal Premises Tenancy Act of 1956. . . what, if any are its necessary elements or contents ?"the matter was heard by the Special Bench and the decision of the Special Bench is, in the case between the same parties, namely, Suraya Properties Private Ltd. v. Bimalendu Nath Sarkar. The two portions that I have quoted are the substantial parts of the points referred to.

( 3 ) THEIR Lordships were not inclined to answer the question No. (i) positively. Their Lordships laid down that the question is to be decided with regard to the facts and circumstances of each case. The second point was answered in the following manner:--"a notice as contemplated under Section 13 (6) is essentially a notice of suit. . . . It is not necessary to mention in the notice under Section 13 (6) the grounds of ejectment for which a suit is to he instituted for the recovery of possession. "so there is no doubt that a proper notice tinder Section 13 (6), West Bengal Premises Tenancy Act was given. The relevant answer may he found at p. 985 of the report (Cal WN): (at p. 5 of AIR) With regard to the question of notice, it is now urged that by acceptance of rent at an enhanced rate the landlord has waived the right to institute the suit on the ground of violation of term (p) of Section 108 of the Transfer of Property Act. With regard to that, it is quite clear that the rent was enhanced because of the law that rent could be enhanced by 5% and that is why rent was enhanced and the same was accepted at the enhanced rate. That has nothing to do with the raising of the structure.

( 4 ) BUT the next question is whether acceptance of rent subsequent to the building of the structure constituted acquiescence or waiver on the part of the landlord to the building of the structure. By a notice to quit a tenancy is determined. Thereafter, the tenant continues in possession not because of the lease hut notwithstanding the tease because of the conditions referred to in the West Bengal Premises Tenancy Act. Under the West Bengal Premises Tenancy Act a person to whom a property is leased out and if the provision of the West Bengal Premises Tenancy Act applies to the lease, the lessee under Section 2 (p) would continue to be the tenant within the meaning of the Act till a decree or order for eviction is made by a Court of competent jurisdiction Hence, even though the contractual tenancy ceases, there is what we may call a statutory tenancy within the meaning of the West Bengal Premises Tenancy Act. The tenant is entitled to continue in possession provided he complies with the provisions of the Act and one of the conditions for such compliance is payment of rent to the landlord or deposit of rent with the Rent Controller if the landlord chooses not to accept. The landlord under such circumstances, if he re