1981 Supreme(Cal) 371

High Court Of Calcutta
Bankim Chandra Ray
DUTTA AND ASSOCIATES - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Civil Rule 10836 (W)  Of  1981
Decided On : 09/24/1981

A notice under Section 106 of the Transfer of Property Act must terminate the tenancy on the expiry of 6 months with the end of a year of the tenancy.

Headnote:

TRANSFER OF PROPERTY ACT - SECTION 106 - LEASE - TERMINATION - NOTICE - VALIDITY - TENANCY - HOLDING OVER - RENEWAL CLAUSE - SECTION 111(H) - DETERMINATION - FORCIBLE DISPOSSESSION - ILLEGALITY - EXECUTIVE FIAT - DUE PROCESS OF LAW.

Fact of the Case:

The petitioners, a partnership firm, entered into an agreement for sale of Rungneet Tea Estate with the lessors, respondents 6 and 7, for purchase of the said Tea Estate. The said agreement was executed on 29th of March, 1977. On the basis of the said agreement the petitioner firm became entitled to carry on business of the said Tea Estate and to run the management of the said Tea Garden on their own account and they would be liable for all statutory and non-statutory liabilities and costs and expenses etc. relating to and/or arising out of or concerning the said Tea Estate or the business thereof. The petitioner firm was given delivery of possession of the said Tea Estate by the erstwhile owners, the respondents 6 and 7 (transposed petitioners), since 1977 and since then the petitioner firm was seized and possessed of the said Tea Estate and have been carrying on the business of growing and manufacturing of tea therefrom till the Collector, Darjeeling took possession of the same in April, 1981. The Collector, Darjeeling, issued a notice under Section 106 of the Transfer of Property Act determining the lease in favour of the respondents 6 and 7 and took possession of the Tea Garden on the failure of the lessee to execute long term lease on payment of the Government dues by 14th April, 1981 as required in the said notice. The petitioners challenged the legality and validity of the notice issued under Section 106 of the Transfer of Property Act and the notice intimating that possession of the said tea garden has been taken over by the Collector, Darjeeling with effect from 15th of April, 1981 on the failure of the lessee to execute long term lease on payment of the Government dues by 14th April, 1981 as required in the said notice under Section 106 of the T. P. Act.

Finding of the Court:

1. The notice under Section 106 of the Transfer of Property Act issued by the Collector, Darjeeling, determining the lease in favour of the respondents 6 and 7 and taking possession of the Tea Garden was not a valid and proper notice as it did not terminate the tenancy of the respondents 6 and 7 with the end of the year of the tenancy and no notice under Section 106 of the T. P. Act was served on respondents 6 and 7. 2. The provisions of Section 111 (g) of the T. P. Act, cannot be invoked as no notice was given expressing the lessee's intention to determine the lease by forfeiture for violation of any terms of the lease. 3. The tenancy of the respondents 6 and 7 was duly determined by the notice under Section 106 of the T. P. Act and possession was taken peacefully of the said tea estate by the Collector and the same was handed over by him to the Tea Development Corporation on 16th April, 1981. 4. The order of the Collector, Darjeeling dt. 16th April, 1981 taking over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 is wholly illegal, bad and unwarranted.

Issues: 1. Whether the notice under Section 106 of the Transfer of Property Act issued by the Collector, Darjeeling, determining the lease in favour of the respondents 6 and 7 and taking possession of the Tea Garden was a valid and proper notice? 2. Whether the provisions of Section 111 (g) of the T. P. Act, can be invoked as no notice was given expressing the lessee's intention to determine the lease by forfeiture for violation of any terms of the lease? 3. Whether the tenancy of the respondents 6 and 7 was duly determined by the notice under Section 106 of the T. P. Act and possession was taken peacefully of the said tea estate by the Collector and the same was handed over by him to the Tea Development Corporation on 16th April, 1981? 4. Whether the order of the Collector, Darjeeling dt. 16th April, 1981 taking over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 is wholly illegal, bad and unwarranted?

Ratio Decidendi: 1. A notice under Section 106 of the Transfer of Property Act must terminate the tenancy on the expiry of 6 months with the end of a year of the tenancy. The impugned notice dt. 7th Oct. , 1980 as mentioned in annexure E to the petition terminating the tenancy of the transposed petitioners on the expiry of the 14th April, 1981 being not a 6 months' notice expiring with the end oi the year of the tenancy is invalid and as such the tenancy has not been duly terminated by the said notice and the lease had not been determined in accordance with the provisions of Section 111 (h) of the T. P. Act. 2. The tenancy of the respondents 6 and 7 was not determined by a notice under Section 106 of the T. P. Act as the transposed petitioners, that is, the lessees, were continuing in possession on the basis of the renewal clause as embodied in the Indenture of lease on the terms and conditions mentioned therein and such a tenancy cannot be validly terminated under provisions of Section 111 (h) of the T. P. Act as there has been no determination of the period mentioned in the renewal clause. 3. The order of the Collector, Darjeeling dt. 16th April, 1981 taking over possession of the Tea Garden known as Rungneet Tea Estate with effect from 15th April, 1981 is wholly illegal, bad and unwarranted as the tenancy has not been determined by a notice under Section 106 of the T. P. Act and the Government or for that the Collector, Darjeeling cannot take possession of the Tea Garden forcibly without taking recourse to due process of law.

Final Decision: The Rule succeeds and is made absolute. Let a writ of Mandamus be issued commanding the respondents to forbear from giving effect or further effect to the notice mentioned in annexure E to the purported petition D/- 10th Oct. , 1980 as well as the impugned order of the Collector, Darjeeling D/- 16th April, 1981 as mentioned in annexure G to the petition. Let a writ of Certiorari be issued directing the respondents to quash and cancel and set aside the impugned notice as well as the impugned order mentioned hereinbefore. There will, however, be no order as to costs. Respondent No. 4 is hereby directed to hand over possession of the Tea Estate, locally known as Rungneet Tea Estate, to the petitioners in course of a week from today. The prayer for stay is refused.