judgement:
Appeal No. 509 of 1958.
Appeal from the judgment and order dated February 22, 1956, of the Madras High Court in Case referred No. 66/52.
K. N. Rajagopal Sastri and P. D. Menon, for appellant.
T. section Venkataraman and M. K. Ramamurthi, for respondents.
139 1962.
December 12.
The following judgments were delivered.
section K. Das J., J. L. Kapur J., and A. K. Sarkar,delivered separate judgments.
The judgment of M. Hidayatullah and Raghubar Dayal, JJ., was delivered by Hidayatullah, J. section K. DAS, J.
The facts of this appeal have been stated by my learned brother Kapur, J., and as I am in agreement with him, I need not re state the facts.
The relevant assessment year was 1942 1943.
The proceedings under section 34 of the Indian Income tax Act, 1922, were initiated with the issue of a notice on July 25, 1949.
The assessee 's contention was that the initiation of proceedings on July 25, 1949, was invalid as the department 's right to revive the assessment was governed by old section 34 where the period of limitation prescribed was only four years in the case of a failure to file a return and this period having expired on March 31,1947, and the Amending Act of 1948 (XLVIII of 1948) having come into force on March 30, 1948, the eight years ' provided period therein could not be invoked.
The High Court upheld this contention and said : "In our opinion, the contention of the learned counsel for the assessee is well founded, that the new rule of limitation of eight years prescribed by the amended section 34 would not apply to the case of the assessee before us., whose was an instance of a failure to submit a return, when the period of four years had ran out long before 30th March 1948 when the amended section 34 came into force as part of the Income tax Act with effect from that date, 30th March 1948.
The learned counsel for the Department next referred to section 31 of Act XXV of 1953 140 in support of his contention, that 'the notice issued on 25th July 1949 was valid.
The learned counsel himself had to realise that section 31 of Act XXV of 1953 did not enlarge the scope of the amended section 34; nor did it purport to amend it.
The validity of the notice, dated 25th July 1949 will still have to be decided with reference to the provisions of the amended section 34.
Section 31 of Act XXV of 1953 does not therefore affect the question at issue, whether the extended period of limitation of eight years would apply to the assessee when the period of limitation applicable to the assessee had expired before the amended section 34 came into force on 30th March 1948.
" For the reasons given by me in section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas (1) (C. A. 705/1957) in which judgment has been delivered today, I think that the High Court correctly answered the question referred to it.
I would therefore dismiss the appeal with costs.
KAPUR, J. This is an appeal against the judgment and order of the High Court of ' Madras.
The appellant is the Commissioner of Income tax and the respondent is the assessee and the year of assessment is 1942 43.
The respondent is the wife of one Sheikh Abdul Khadar who was residing abroad in Bangkok from September 1940 to July 1947.
Daring that period he remitted moneys in the name of his agent for payment to the respondent.
In the account year the aggregate amount so remitted was Rs. 9,180/ .
The respondent submitted no return of her income as she was bound to do and the amount became taxable (1) [1964] Vol, 1 S.C.R. 29. 141 under section 4 (2) of the Income tax Act, hereinafter referred to as the "Act in 1949 the Income tax Officer on receipt of definite information that such income had escaped assessment issued a notice under section 34 of the Act as amended by the Amending Act of 1948 and an appeal was taken to the Appellate Assistant Commissioner but the assessment was con firmed.
A further appeal to the Income tax Appellate Tribunal Madras, was also unsuccessful.
The reference was thereupon made to the High Court and one of the questions referred was : "Whether the proceedings under section 34 of the Indian Income tax Act initiated on 25th July, 1949 to assess the amount of Rs. 9,180/ which escaped assessment during the year 1942 43 by failure to submit a voluntary return are valid in law"? It was held that the limitation of eight years prescribed by section 34 as amended by the Amending Act of 1948 did not apply to the case of the assessee which was a case of failure to submit the return and the period of four years ' had expired before March 30, 1948, when the amendment in section 34 was made by Amending Act of 1948.
It was also held that section 31 of the Amending Act of 1953 was not applicable and the question was therefore answered in the negative.
Against that judgment and order the Commissioner of Income tax has come in appeal to this Court.
This case is governed by the decision in C. A. No. 705 /57 (section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas) (1) the judgment in which has been delivered today.
The appeal is therefore dismissed with costs.
The appellant was granted the certificate by the High Court expressly on the condition that he would pay the costs of this appeal in any event to which he had agreed.
(1)[1964] Vol.
1 S.C.R. 29.
142 SARKAR, J.
The respondent in this appeal is the assessee.
She is the wife of one Sheikh Abdul Khader who lived in Siam.
In the year 1941 42, she received from her husband from Siam a sum of Rs. 9,180/ .
It is not disputed that this amount constituted " 'income" in her hands within section 4 (2) of the Income tax Act, 1922.
She did not however submit any return in respect of it.
On July 25, 1949, a notice under section 34 of the Act was issued to her asking her to file a return.
Thereafter she was assessed on the aforesaid income on October 24, 1949.
She appealed from that order but was unsuccessful in having the assessment set aside.
At her request, the Appellate Tribunal submitted the following question to the High Court at Madras for its decision: "Whether the proceedings under section 34 of the Indian Income tax Act initiated on 25th July 1949 to assess the amount of Rs. 9,180/ which escaped assessment during the year 1942 43 by failure to submit a voluntary return are valid in law ?" The High Court answered the question in the negative.
The revenue authorities have, therefore, come up in appeal.
Section 34 contains provisions for assessment and re assessment in cases where income for any year has not in the relevant assessment year been fully assessed for the reasons mentioned in it.
With these reasons it is not necessary to trouble ourselves in this appeal.
Sub section (1) of section 34 deals with the period of time within which a notice calling for a return of the escaped income may be served and sub section
(3) deals with time within which the assessment can be made.
This section was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948.
This Act was passed on 143 September 8, 1948 but the section which amended section 34, of the Income tax Act was brought into force retrospectively from March 30, 1948.
It is not in dispute that under section 34, as it stood before the amendment, the time to issue the notice calling for a return and to make the assessment in this case had expired on March 31, 1947, that is, on the expiry of four years after the year in which the escaped income was first assessable, namely, 1942 43.
It is not in dispute either that under section 34, as it stood after the amendment in 1948, the notice could be served and an assessment made within eight years from the end of that year, that is, in this case, within March 31, 1951.
The notice and the assessment order impugned in this case have, therefore, to be held to be valid if section 34 after its amendment in 1946 was applicable.
It is the contention of the appellant that it was so applicable.
The High Court held that the time having already expired under the existing law, the amended section 34 could not be given retrospective operation to validate the notice and the order of assessment.
Now, on May 24, 1953, was passed the Income tax (Amendment) Act, 1953, (XXV of 1953) which was brought into force retrospectively from April 1, 1952.
This Act contained a section, namely, section 31, which to my mind makes section 34 as amended by the 1948 amending Act, applicable to the proceedings in this case.
I am unable to accept the High Court 's view to the contrary and regret my inability to comprehend the reasons on which that view is based.
That section also amended sub section
(3) of section 34 so as to include in it provisions regarding the time of the issue of the notice but we will not be concerned with this amendment in this appeal.
Now, section 31 is in these terms : Section 31. "For the removal of doubts it is hereby declared that the provisions of 144 sub sections (1), (2) and (3) of section 34 of the principal Act shall apply and shall be deemed always to have applied to any assessment or re assessment for any year ending before the 1st day of April, 1948, in any case where proceedings in respect of such assessment or re assessment were commenced under the said sub sections after the 8th day of September, 1948, and any notice issued in accordance with sub section (1) or any assessment completed in pursuance of such notice within the time specified in sub section(3), whether before or after the commencement of the Indian Income tax (Amendment) Act, 1953, shall, notwithstanding any judgment or order of any Court, Appellate Tribunal or Incometax authority to the contrary, be deemed to have been validly issued or completed, as the case may be, and no such notice, assessment or re assessment shall be called in question on the ground merely that the provisions of section 34 did not apply or purport to apply in respect of an assessment or re assessment for any year prior to the 1st day of April 1948." No question as to sub section
(2) of section 34 mentioned in this section arises in this appeal and that sub section may be left out of consideration.
It seems to me quite plain that section 31 of the 1953 Act applies sub sections
(1) and (3) of section 34 of the Income tax Act, 1922 (hereafter called the principal Act), as it stood after the 1948 amendment, to assessment proceedings in respect of years ending before April 1, 1948 where the proceedings commenced after September 8, 1948 and makes the validity of the proceedings depend on that section as so amended.
Indeed, the contrary has not been contended at the bar.
It has to be remembered that the amending Act of 1948 was passed on September 8, 1948 145 but it was given retrospective effect from March 30, 1948.
It may be stated that the amending Act repealed the existing section 34 of the principal Act and substituted for it a new section.
I think it is quite clear that the pre existing section 34 which was repealed by the 1948 amendment could not have applied to proceedings commenced after repeal.
There was no question of applying the pre existing law to such proceedings.
But where the proceedings related to a period when the per existing law was in force, there might be some doubt as to which law was to apply.
Section 31 was enacted to remove that doubt and to make section 34 of the principal Act as it stood after the 1948 amendment applicable to these proceedings.
That is why the words "shall always be deemed to have applied" are used; they emphasise that the amended section is deemed always to have applied to proceedings even in respect of a period when the amendment had not been made.
The latter part of section 31 also makes this view equally clear.
It says that no notice or order of assessment shall be called in question on the ground that section 34 did not apply in respect of assessment for a year prior to April 1, 1948.
Section 34 here contemplated must be the section as amended in 1948, for if it was not so, then it would be the pre existing section which of course would have applied, if not repealed, to an assessment for a year ending prior to April 1, 1948 and no question of its not so applying would have arisen.
I thus arrive at the conclusion that under section 31 of the 1953 Act, the provisions of sub sections
(1) and (3) I leave sub section
(2) out as irrelevant of section 34 of the principal Act as amended in 1948 are to be applied and deemed always to have applied to assessment proceedings in respect of a year ended before April 1, 1948 where the proceedings were commenced after September 8, 1948, A notice issued and an order of assessment made in such proceedings are to 146 be held valid if the notice is issued ",in accordance with sub section (1)" of section 34 as it stood after the 1948 amendment and the assessment is ',completed in pursuance of such notice within the time specified in sub section (3)" of the same section 34.
Now the notice and assessment in tie present case satisfy all these conditions.
To them, therefore, section 34 as amended in 1948 applies.
Judged by that section, admittedly the notice and assessment order are unexceptionable.
It is true that in the present case when the notice was issued and the assessment made, the time to do either under the law as it stood before the 1948 amendment had expired.
It may be that law would have applied to it if the 1953 Act had not been passed.
It may also be, as was said in the Calcutta Discount Co. (1) case, that by itself, the 1948 amendment of section 34 would not have permitted assessment proceedings in respect of 1942 43 to be commenced in 1949 when under the previous law the time to issue a notice and to make an assessment for that year had expired before the 1948 amendment had come into force.
All this however is to no purpose.
No such question arises here.
The legislature had undoubtedly the power to makes.
34 as amended in 1948 apply to an assessment for 1942 43 by giving it a retrospective operation inspite of the time to issue a notice and to make an assessment fixed by the preexisting law having expired before the amendment came into effect.
The question really is one of interpretation, namely, whether the legislature had given such retrospective operation.
Now it seems to me that section 31 of the 1953 Act clearly gives section 34 of the principal Act as amended in 1948 such retrospective operation.
It plainly makes section 34 as so amended applicable to assessments for years ended before the amendment came into force.
It does not say that section 34 as amended is to apply to assessments for these years only when the time to (1) I.A.R. 147 issue the notice or make the assessment in respect of these years under the pre existing law had not expired.
It applies the amended section 34 "to any assessment for any year ending before the 1st day of April, 1948 in an case where proceedings . . . were commenced after the 8th day of September 1948".
Likewise any notice and any assessment in respect of any year ending before April 1, 1948 is to be held valid, if valid under section 34 as amended in 1948.
I find no justification in view of the language used to interpret section 31 as applying section 34 as amended in 1948 only to cases where thetime to issue the notice and make the assessment hadnot expired while the pre existing law was in force.
The latter part of section 31 seems to lead independently to the same conclusion.
It makes "any notice issued in accordance with sub section (1) or any assessment completed in pursuance of such notice within the time specified in sub section (3)" valid.
All that is necessary is that all notices and assessment orders in respect of years ending before April 1, 1948 in proceedings commenced after April 8,1948 shall comply with the provisions of section 34 as amended in 1948.
So a notice and an assessment order valid under section 34 as amended in 1948 would be valid even if the time prescribed in respect of them by section 34 as it stood before the 1948 amendment, had expired.
In my view, for these reasons, section 34 of the principal Act as amended in 1948 applies to the notice issued and the assessment order made in this case.
Both of them are valid under section 34 as so amended.
The High 'Court should have answered the question framed in the affirmative.
In the result, I would allow the appeal and set aside the order of the High Court.
The appellant will however pay the respondent 's costs of this appeal as it had agreed to do so as appears from the certificate on which this appeal has been admitted.
148 [For the judgment of Hidayatullah and Raghubar Dayal, JJ., see section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas, ante p. 29.] By COURT : In accordance with the opinion of the Omajority, the appeal is allowed.
The appellant will pay the costs of the respondent as was agreed to by the parties.
Appeal allowed.

summary/full:
In the year of account relevant to the assessment year 1942 43, the assessee received Rs. 9,180/ , but submitted no return of her income.
On July 25, 1949, the Income tax Officer, on receipt of definite information that such income had escaped assessment, issued a notice to her under section 34 of the Indian Income tax Act, 1922, as amended by the Indian Income tax and Business Profits Tax (Amendment) Act, 1948.
Thereafter, she was assessed on the aforesaid income on October 24, 1949.
She challenged the validity of the proceedings under section 34 initiated on July 25, 1949, on the grounds, that the right to revive the assessment was governed by the provisions of section 34, before it was amended in 1948, under which the period of limitation prescribed was four years in the case of a failure to file a return and that this period having expired on March 31, 1947, and the Amending Act of 1948 having come into force only March 30, 1948, the eight years ' period provided therein could not be invoked.
For the Income tax Authorities, the validity of the notice was sought to be sustained by the additional ground that, in any case, section 31 of the Indian Income tax (Amendment) Act, 1953, validated the notice.
Held (per Sarkar, Hidayatullah and Reghubar Dayal, JJ., Das and Kapur,JJ., dissenting), that section 34 of the Indian Income tax and Business Profits Tax (Amendment) Act, 1948, was applicable to the proceedings in the present case and that the notice dated July 25, 1949, was valid.
138 Per Das and Kapur,JJ.
The limitation of eight years prescribed by section 34 as amended by the Amending Act of 1948 did not apply to the present assessee which was a case of failure to submit the return, when the period of four years had expired before March 30, 1948, when the amendment in section 34 was made by the Amending Act of 1948.
Section 31 of the %mending Act of 1953 did not enlarge the scope of the amended section 34, and did not validate the notice dated July 25, 1949.
Per Sarkar, J. By virtue of section 31 of the Amending Act of 1953, a notice issued and an order of assessment made in respect of a year ended before April 1, 1948, where the proceedings were commenced after September 8, 1948, were to be held valid if the notice was issued in accordance with sub s, (1) of section 34 as it stood after 1948 amendment and the assessment was completed in pursuance of such notice within the time specified in sub section
The notice and assessment in the present case satisfied all these conditions and, therefore, section 34 as amended in 1948 was applicable.
Such a notice and an assessment order valid under section 34 as amended in 1948 would be valid even if the time prescribed in respect of them by section 34 as it stood before the 1948 amendment had expired.
Per Hidayatullah and Raghubar Dayal, JJ.
The action was taken after 1948 amendment by which income, profits and gains which had escaped assessment by reason of the omission or failure of the assessee to make a return of the income could be brought to tax after serving a notice within eight years from the end of the relevant year.
Hence the notice in 1949 was within eight years from 1942 43 and was validly issued section C. Prashar, Income tax Officer vs Vasantsen Dwarkadas, [1964] Vol. 1 S.C.R. 29.
, relied on.


judgement:
ppeal No. 209 of 1962.
Appeal by special leave from the judgment and order dated October 10, 1961, of the Gujarat High Court in Civil Revision Application No. 378 of 1960.
R. Ganapathy Iyer, B.R.G.K. Achar and K.L, Hathi, for the appellant.
M. section K. Sastri and M. section Narasimhan, for respondents.
314 1962.
May 4.
The judgment of the Court was delivered by RAGHUBAR DAYAL, J.
This appeal, by special, leave, is against the judgment and decree of the High Court of Gujarat.
The appellant was a tenant of certain residential premises situate at Anand, and belonging to the respondents landlords.
Under a contract between the parties, he held them at Rs. 75/ per mensem according to Indian Calendar.
In 1951 the appellant applied for fixation of standard rent.
On March 31, 1954, the standard rent was fixed at Us.
25/. per mensem.
The appellant did not pay the arrears of rent from July 27, 1949, to July 5, 1954.
On October 16, 1954, the landlords gave him notice to quit the premises stating therein 'that rent for over six months was in arrears and that he was to quit on the last day of the month of tenancy which was Kartak Vad 30 of Samvat Year 2011.
The appellant neither paid the arrears of rent nor vacated the premises.
(in December 16, 1954, the respondents filed the suit for ejectment basing their claim for ejectment on the provisions of section 12(3) (a) of the Bombay Rents, Hotel and Lodging House rates Control Act, 1947 (Bom.
LVII of 1947), hereinafter called the Act.
Within two months of the institution of the suit, the appellant deposited an account of Rs. 1,075/ in Court, towards arrears of rent and, with the permission of the Court, the respondents withdrew a sum of Rs. 900/ which was the amount due for arrears up to that time.
The Trial Court decreed the suit for ejectment together with arrears of rent for three years and costs.
An appeal against the decree for ejectment was dismissed by the appellate Court.
The revision to the High Court was also uusuccessful, and, it is 315 against the order in revision that this appeal has been preferred.
Four points were urged before the High Court: (1) That the month of tenancy was not by the Indian Calendar, but was by the British Calendar and that the Courts below had ignored evidence in that regard.
(2) Assuming that the month of tenancy was by the Indian Calendar according to the lease, it would be deemed to be by the British Calendar in view of the provision of section 27 of the Act.
(3) As the arrears of rent had been paid within two months of the institution of the suit, the appellant be deemed to be ready and willing to pay the rent and that therefore the landlord was not entitled to recover possession of the premises.
(4) It is discretionary with the Court to pass a decree for ejectment in a. case under section 12(3) (a) of the Act, as the expression, used in that subclause is 'the Court may pass a decree for eviction in any such suit for recovery of possession. ' The High Court held that the findings of the Courts below that the month of tenancy was by the Indian Calendar was based on a consideration of the evidence on the record and therefore was binding.
It also held that it could not be deemed to be by the British Calendar in view of section 27 of the Act which provided that the rent would be recovered according to the British Calendar, notwithstanding anything contained in any contract and did not provide for the tenancy to be by the month according to the British Calendar even if the tenancy under the Contract was by a different Calendar.
The High Court also held that the tenant 's depositing arrears of rent within two months of the institution of the suit would not justify holding that the tenant was ready and willing to pay the amount of standard rent and that therefore the .landlord was not entitled to recover possession 316 of the premises in view of sub s.(1) of section 12 of the Act.
Lastly, the High Court held that the Court is bound to pass a decree for ejectment under section 12 (3) (a) if it be proved that the rent was payable by the month, that ' it had been in arrears for a period of six months and that the tenant failed to make payment of the arrears until the expiration of the period of one month after the service of notice referred to in sub.s.
(2) of that section.
, As a result, the revision was dismissed.
Two points have been urged for the appellant in this Court.
One is that the month of the tenancy was to be by the British Calender in view of section 2 7 of the Act and r. 4 framed thereunder, and that there could be no forfeiture of the tenancy when the arrears of rent had been paid within two months of the institution of the suit.
The significance of the first question is that if the appellant 's tenancy was to be by the month of the British Calendar, notice to quit was a bad notice as it did not comply with the requirements of s.106 of the Transfer of Property Act and that therefore there had been no determination of the tenancy which is a condition precedent for the landlord being entitled to possession and, coin.
sequently, for instituting a suit for ejectment on any ground whatsoever, including the ground of rent being in arrears.
The first point to determine, therefore, is whether it is a condition precedent for the institution of a suit by a landlord for the recovery of possession from a tenant who has been in arrears of rent that there had been first a determination of the contractual tenancy.
If it is not a condition precedent; it will not be necessary to determine whether the month of the tanancy continued to be according to the Indian Calendar according to the contract, or had been according to the British 317 Calendar in view of a. 27 of the Act, when a tenancy is created under a contract between the landlord and the tenant, that contract must hold good and continue to be in force till, according to law or according to the terms of contract, it comes to an end.
Section III of the Transfer of Property Act states the various circumstances in which a lease of immovable property determines.
Clause (b) provides for the determination of the lease on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
There is nothing in the act which would give a right to the landlord to determine the tenancy and thereby to got the right to( evict the tenant and recover possession.
This Act was enacted for the purpose of controlling the rents and repair of certain premises and of evictions due to the tendency of landlords to take advantage of the extreme scarcity of premises compared to the demand for them.
The Act intended therefore to restrict the rights which the landlords possessed either for charging excessive rents or for.
evicting tenants.
A tenant stood in no need of protection against eviction by the landlord so long as he had the necessary protection under the terms of the contract between him and the landlord.
He could not be evicted till his tenancy was determined according to law and therefore there was no necessity for providing any further protection in the Act against his eviction so long as his tenancy continued to exist under the contract.
Sub section(1) of section 12 of the Act provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the 318 provisions of the Act.
It creates a restriction on the landlords right to the recovery of possession.
When the landlord will have such a right is not provided by it.
Ordinarily, the landlord will have a right to recover possession from the tenant when the tenancy had determined.
The provisions of this section therefore will operate against the landlord after the determination of the tenancy by any of the modes referred to in a. III of the Transfer of property Act.
What this section of the Act provides is that even after the determination of the tenancy, a landlord will not be entitled to recover possession, though a right to recover possession gets vested in him, so long as the tenant complies with what he is required to do by this section.
It is this extra protection given by this section which will be useful to the tenant after his tenancy has determined.
The section does.
not create a new right in the landlord to evict the tenant when the tenant does not pay his rent.
It does not say so, and therefore, it is clear that a landlords right to evict the tenant for default in payment.
of rent will arise only after the tenancy is determined, and the continued possession of the tenant is not account of the contractual terms but on account of the statutory right conferred on him to continue in possession so long as he complies with what sub s.1 requires of him.
The landlord is restricted from evicting the tenant till the tenant does not do what he is required to do for peaceful possession under sub s.(1) of section 12.
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 recovery 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 319 determining his tenancy and also serve him with a notice under sub s.(2) of section 12 of the Act.
In this connection reference may be made to what wag stated in Dr. K. A. Dhairyawan vs J. R. Thakur .(1).
In that case, the landlord granted a lease of a parcel of land to the lessees for a certain period.
The lessee was to construct a building on that land.
On the termination of the lease, the lessees were to surrender and yield up the demised promises including the building to the lessors.
After the expiry of the period of the lease, the lessor sued for a declaration that they were entitled to the building and were entitled to claim possession of the same.
The lessees pleaded that they were also lessees of the building and were protected from eviction therefrom by the provisions of the Bombay Rents, Hotel and lodging House Control Act, 1947, and that the covenant for delivering possession of that building could not be enforced as the lease in respect of the land could not be terminated on account of the protection given by the Act.
It was held that under the lease there was a demise only of the land and not of the building, and, consequently, the provisions of the Act dit not apply to the contract of delivery of possession of the building.
It was contended that even in such a case, possession of the building could not be given until the lease bad been determined, which in law, could not be determined so long as the respondents could not be evicted from the demised land of which they were tenants within the meaning of the Act.
This contention was repelled.
It was said at p. 808: "This contention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein.
All that the Act does is to give to the person who continues to (1) ; 320 remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant.
That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by the Act.
" This means that the provisions of the Act did not affect the terms of the lease according to which the lease came to an end after the expiry of the period for which it was given.
The lessee 's possession after the expiry of the lease was by virtue of the provisions of the Act and not by virtue of the extension of the period of the lease.
It is a necessary consequence of this view that the restriction on the landlord 's right to recover possession under section 12 of the Act operates after he has determined the tenancy and that till then the rights between the parties with respect to eviction would be governed by the Ordinary law.
It was said in Ragbubir Narayan Lotlikar vs Fernandez (1).
Rents, Hotel and Lodging House Rates Control Act (Bom Act LVII of 1947): ,, 'In our opinion, s.28 applies only to those suits between a landlord and a tenant where a landlord has become entitled to possession or recovery of the premises demised.
Under the Transfer of Property Act a landlord becomes entitled to possession when there is a determination of tenancy.
A tenancy can be determined in any of the modes laid down in section 111; and once the tenancy is determined, under s.108 (q) the lessee is bound to put the lessor into possession of the property.
It (1) , 511. 321 is, therefore, only on the determination of the lease or the tenancy that the landlord be comes entitled to the possession of the pro perty, and when he has so becomes entitled to possession, if he files a suit for a decree for possession, then section 28 applies and such a suit can only be filed in the Small Causes Court.
" Again it was said at the same page: "Section 12 postulates the fact that landlord is entitled to recovery of possession and he is only entitled to possession under the provisions of the Transfer of Property Act.
It is only when he so becomes entitled that the Legislature steps in and prevents the enforcement of his right by the protection which it gives to the tenant.
No question of the application of section 12 can arise if a landlord is not entitled to possession at all.
" A similar view was expressed in Karsandas vs Karsanji (1) It was said: ". that a tenancy must be duly determined either by a notice to quit or by efflux of time or under one or the other of the clauses of section III, T. P, Act before a landlord can one to, evict his tenant on any of the grounds contained in the clauses of s 13 (1) of the Bombay Rent Act as applied to Saurashtra.
Therefore a notice determining the tenancy and calling upon the tenant to quit was in this case a necessary prerequisite to the institution of the suit.
" The cases reported as Rai Brij Raj Krishna vs section K. Shaw and Brothers (2) and Shri Hem Chand vs Shrimati Sham Devi (3) are distinguishable.
In, the former case, s.11 of the Bihar Buildings (1) A.I.R. (1953) Sau.
113, 118.
(2) ; ,150.
(3) I.L.R. (1955) Punj.
322 (Lease, Rent and Eviction) Control Act, 1947, (III of 1947), came for interpretation by this Court and, in that connection it was said "Section II beings with the words 'Not withstanding anything contained in any agree ment or law to the contrary ', and hence any attempt to import the provisions relating to the law of transfer of property for the inter pretation of the section would seem to be out of place.
Section 11 is a self contained sec tion, and it is wholly unnecessary to g o outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions 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.
" In the present case, section 12 of the Act is differently worded and cannot therefore be said to be a complete Code in itself.
There is nothing in it which overrides the provisions of the Transfer of Property Act.
Shri Hem Chand 's Case (1) dealt with the provisions of s.13(i) of the Delhi and Ajmer Merwara Rent Control Act XXXVIII of 1952.
This section provided that no decree or order for the recovery of possession of any promises shall be passed by any court in favour of the landlord against a tenant, notwithstanding anything to the contrary contained in any other law or any con tract.
It was held that the Rent Control Act provided the procedure for obtaining the relief of ejectment and that being so the provisions of section 106 of the Transfer of property Act had no relevance, in considering an application for ejectment (1) I.L.R. (1955) Punj 36.
323 made under that Act.
There is nothing in the Act corresponding to the provisions of section 13(1) of the Delhi Ajmer Merwara Act.
It is unnecessary for us to consider whether Shri Hem Chand 's case was rightly decided or not.
In Meghji Lakhamahi and Brothers V. Furniture Workshop (2) the Privy Council dealt with an application for possession under section 16 of the Increase of rent (Restriction) Ordinance, No. 23 of 1949 (Kenya) whose relevant portion is : "(1) No order for the recovery of possession of any premises to which this Ordinance applies, or for the ejectment of a tenant therefrom, shall be made unless . (k) the landlord requires possession of the premises to enables the reconstruction or rebuilding thereof to be carried out. " It was said : "In the present case the only question is whether section 16(i) (k) is so framed as to envisage or make provision for such an order.
An application for possession under section 16 presupposes that the contractual tenancy of the demised premises has been determined.
It is not possible to determine it as to part and keep it in being as to the remainder.
In the present case the tenancy of the entire demised premises had been determined.
" The right to possession is to be.
distinguished from the right to recover possession.
The right to possession arises when the tenancy is determined.
The right to recover possession follows the right to possession, and arises when the person in possession does not make over (1) I.L.R. (1955) Punj.
(2) ,90. 324 possession as he is bound to do under law, and there arises a necessity to recover possession through Court.
The cause of action for going to Court to recover possession arises on the refusal of the person in possession, with no right to possess, to deliver possession.
In this context, it is clear that the provisions of section 12 deal with the stage of the recovery of possession and not, with the stages prior to it and that they come into play only when the tenancy is determined and a right to possession has come in existence.
Of course, if there is not contractual tenancy and a person is deemed to be a tenant only on account of a statute giving him right to remain in possession, the right to possession arises on the person in possession acting in a manner which, according to the statute, gives the landlord right to recover possession, and no question for the determination of the tenancy arises, as really speaking, there was no tenancy in the ordinary sense of that expression.
It is for the sake of convenience that the right to possession, by virtue of the provisions of a statute, has been referred to as statutory tenancy.
In Ebner vs Lascelles (1) It was said, dealing with the provisions of Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 and 11 Geo. 5, c. 17) : "It has been truly said that the main rights conceded to a tenant under these Acts are, first a right to hold over or 'status of irremovability, ' and, next, a right not to have his rent unduly raised.
The right to hold over is a right that comes into existence after the expiration of the contractual tenancy.
During the contractual tenancy the tenant, being in possession under the protection of his contract, has no need of the protection of the Act to enable him to retain possession, but (1) ,497. 325 during that tenancy the Act protects him in regard to rent by providing that, notwith standing any other agreements which he may make with his landlord as to rent, he is not to be charged a higher rent than the law allows, and if he is charged a higher rent than that he can have it reduced.
The right to hold over after the termination of the con tractual tenancy.
and the right to protection during the contractual tenancy are two right s which must be kept distinct from each other.
" It may be mentioned that section 5 of the aforesaid Act of 1920 provided that no order or judgment for the recovery of possession of any dwelling house to which the Act applied or for the ejectment of a tenant therefrom would be made or given unless the case fell within one of the clauses mentioned in sub.
s.(1).
We are therefore of opinion that so long as the contractual tenancy continues, a landlord cannot sue for the recovery of possession even if s.12 of the Act does not bar the institution of such a suit, and that in order to take advantage of this provision of the Act he must first determine the tenancy in accordance with the provisions of the Transfer of Property Act.
It is now necessary to determine whether a notice served on the appellant to quit the tenancy on October 16, 1954, the last date of the month according to the Hindu Calendar, as October 16 happened to be Kartik Vad 30 of section Y. 2011, the tenancy having commenced from Kartik Sud 1 of S.Y. 1963.
It is not disputed that originally the tenancy was according to the Hindu Calendar.
The contention for the appellant is that this month to month tenancy, according to the Hindu Calendar, was 326 converted to a similar tenancy according to the British Calendar in view of the provisions of s.27 of the Act and r. 4 of the Rules framed under the Act.
Section 27 of the Act reads: "(1) Notwithstanding anything contained in any law for the time being in force or any contract, custom or local usage to the contrary, rent payable by the month or year or portion of a year shall be recovered according to the British Calendar.
(2) The State Government may prescribe the manner in which rent recoverable according to any other calendar before the coming into operation of this Act shall be calculated and charged in terms of the British Calendar.
" Rule 4 of the Bombay Rents, Hotel and Lodging House hates Control Rules, 1948, hereinafter called the Rules, reads: "Calculation of rent according to British Calender.
If, before the Act comes into force, the rent in respect of any premises was chargeable according to a calendar other than the British Calendar, the landlord shall recover from the tenant rent for the broken period of the month, year or portion of the year immediately preceding the date on which the Act comes into force, proportionate amount according to the aforesaid Calendar month, year or portion of the year at which the rent was then chargeable.
After such date the landlord shall recover rent according to the British Calendar.
The rent chargeable per month according to the British 327 Calendar shall not exceed the rent which was chargeable per month according to the other calendar followed immediately before such date.
" There is nothing irk the aforesaid rule or the section about the conversion of the month of the tenancy from the month according to the Hindu calendar to the month according to the British Calendar.
They only provide for the recoverability of the rent according to the British Calendar.
Since the enforcement of the Act on February 13, 1948, the monthly rent would be for the month according to the British Calendar.
The monthly rent could be recovered after the expiry of a month from that date or the rent for the period from the 13th February to the end of the month could be recovered at the monthly rate and thereafter after the expiry of each Calendar month.
There is nothing in the section or the rule in regard to the date from which the month for recovery of rent should commence.
This provision was made probably, as a corollary, to the statute providing for standard rents.
Standard rents necessitate standard months.
There are a number of calendars in use in this country.
The Hindus themselves use several calendars.
The Muslims use a different one.
Some calendars are used for particular purposes.
It appears to be for the sake of uniformity and standardisation that a common calendar was to govern the period of the month of the tenancy and the date for the recovery of the rent.
Rule 4 provided a procedure for adjustment of the recovery of the rent according to a calendar other than the British Calendar, and further provided that the rent chargeable per month, according to the British Calender, would not exceed the rent which was chargeable per month according to the other calendar followed immediately before that date.
In the absence of any specific provision in the Act with respect to any alteration to be made in the period of the month of the 328 tenancy, it cannot be held merely on the basis of an alteration in the period for the recovery of rent that the monthly period of tenancy had also been changed.
The tenancy can be from month to month and the recoverability of the rent may not be from month to month and may, under the contract, be based on any period say, a quarter or half year or a year.
There is nothing in law to make the month for the period of recovering rent synchronize with the period of the month of the tenancy.
The tenancy must start on a particular date, and, consequently, its month would be the month from that date, according to the calendar followed.
The month of tenancy according to that calender are settled by contract from the commencement of, the tenancy.
The tenancy under a lease for a certain period starts from a certain date, be it according to the British Calendar or any other Calendar.
The period of, lease.
and consequently the tenancy, comes to an end at the expiry of that period according to the calendar followed by the parties in fixing the commencement of the tenancy.
A lease, even according to the British Calendar, can start from any intermediate date of the calendar month.
There is nothing in section 27 to indicate that the month of the tenancy to such a lease will start from the first of a regular month.
Section 27 simply states that the rent would be recovered according to the British Calendar without fixing the first date of the month as the date from which the month, for the purposes of the recovery of the rent, would be counted.
It follows that the month of the tenancy which commences on the 14th of a month, would be from the 14th to the 13th of the next month, according to the British Calendar.
The rent would be recoverable with respect .to this period of a month.
No interference with any such term of the contract has been made by any provision of the Act and therefore we hold that the provisions of section 27 of the Act and r. 4 of 329 the Rules, do not in any way convert the month of the tenancy according to the Indian Calendar to the month of the British Calendar.
The High court said in his judgment that Mr. Parghi, who was appearing for the appellant, was unable to cite any decision in support of the contention raised by him.
Our attention, however, has been drawn to two cases decided by the Bombay High Court.
They are Civil Revision Applications Nos. 247 of 1956 and 1583 of 1960 decided by Dixit and Tendolkar, JJ and Patwardban J., on February 22, 1957, and August 16, 1961, respectively.
The latter decision had to follow the earlier one.
In the earlier case, the notice to quit required the tenant to give possession on May 1, 1953.
The tenancy had commenced according to the Hindu Calendar.
The notice was given according to the British Calendar.
The High Court held the notice to be valid, agreeing with the contention that . the effect of the provisions of a. 27 of the Act was lo make the tenancy which was originally according to the Hindu Calendar, a tenancy according to the British Calendar.
The ratio of the decision, in the words of the learned Judges, is : "Now rent is payable for occupation by the defendant and therefore, the tenancy must be deemed to be one according to the British Calendar from the first of the month to the end of the month. . . .
Here is a local law which by section 27 makes the tenancy as one according to the British Calendar".
We are of opinion that this view is wrong.
We, therefore, hold that the notice to quit issued to the appellant was therefore a valid notice as held by the Court below and determined the tenancy of the appellant.
330 The second contention that, the appellant 's having paid the arrears of rent within 2 months of the institution of the suit, there would be no forfeiture of the tenancy has no force in view of the provisions of section 12 of the Act.
Sub section (2) permits the landlord to institute a, suit for the eviction of a tenant on the ground of non payment of rent after the expiration of one month from the service of the notice demanding the arrears of rent, and cl.
(a) of sub s.(3) empowers the Court to Pass a decree in case the rent had been payable by the month, there was no dispute about the amount of standard rent, the arrears of rent, had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand.
The tenant 's paying the arrears of rent after the institution of the suit therefore does not affect his liability to eviction and the Court 's power to pass a decree for eviction.
It is true that the expression used in el.
(a) of sub s.(3) is 'the Court may pass a decree for eviction in any such suit for recovery of possession ', but this does not mean as contended for the appellant, that the Court has discretion to pass or not to pass a decree for eviction in case the other conditions mentioned in that clause are satisfied.
The landlord became entitled to recover possession when the tenant failed to pay rent and this right in him is not taken away by any other provision in the Act.
The Court is therefore bound in law to pass the decree when the requirements of sub s (2) of s.12 are satisfied.
This is also clear from a comparison of the language used in cl.
(a) with the language used in cl.
(b) of sub section
(3) which deals with a suit for eviction which does not come within cl.(a) and provides that no decree for eviction shall be passed in such a suit if on the first day of hearing of the suit or on or before such other date as the Court may fix, the tenant pays or tenders in Court the 331 standard rent then due and thereafter continues to pay or tender in Court regularly such rent till the suit is finally decided and also pays costs of the suit as directed by the Court.
It is clear that where the legislature intended to give some benefit to the tenant on account of the payment of the arrears during the pendency of the suit, it made a specific provision.
In the circumstances, we are of opinion that the Court has no discretion and has to pass a decree for eviction if the other conditions of sub.s.
(2) of section 12 of the Act are satisfied.
The result therefore is that this appeal fails, and is accordingly dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was a tenant of the respondents in respect of certain residential premises.
The tenancy was by the Indian Calendar.
The appellant did not pay arrears of rent for about 5 years and the landlords gave him notice to quit as he was in arrears of rent for more than six months and asked him to quit on the last day of the Indian month.
On the appellant 's failure to comply the landlords filed a suit for ejectment under section 12 (3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Within two months of the institution of the suit the appellant deposited the arrears of rent.
The suit for ejectment was decreed.
The appellant contended that in view of section 27 of the Act and r. 4 the tenancy was deemed to be by the British Calendar and the notice to quit expiring with the end of the Indian month was invalid and that he should have been relieved against forfeiture.
The landlords contended that no notice to quit was necessary for filing the suit, that the notice given was valid and that there could be no relief against forfeiture.
Held, that the suit for ejectment was rightly decreed.
it was incumbent upon the landlords to determine the contractual tenancy by a proper notice before they could file a suit for the ejectment of the tenant on the ground of non.
payment of arrears under section 12(3) (a) of the Act.
The Act did not create a new right in the landlord to evict the tenant for nonpayment of rent; the right to evict was dependent upon a proper termination of the tenancy.
The Act gave extra protection to the tenant which he could avail of after his tenancy was determined.
There was nothing in section 12 of the Act which overrode the provisions of the transfer of Property Act.
The right to possession had to be distinguished from 313 the right to recover possession.
The right to possession arose on the determination of the tenancy and the right to recover possession arose under the Act after the right to possession had arisen.
Dr. K.A. Dhairyawan, vs J.R. Thakur, ; , Baghubir Narayan Lotlikar vs Fernandiz, (1952) Bom.
L.R. 505, Karsandas vs Karsanji, A.I.R. (1953) Sau.
113, Meghji Lakhamahi vs Furniture Workshop, and Ebner vs Lascelles, , referred to.
Bai Brij Bai Krishna vs S.K. Shaw and Bros. [1951] S.C.R. 145 and Shri Hem Chand vs Shrimati Sham Devi, I.L.R. 1955) Punj.
36, distinguished.
The notice to quit was a valid notice.
The original tenancy was according to the Indian Calendar and there was nothing in section 27 of the Act or in r.4 which converted it into a tenancy according to the British Calendar.
Section 27 and r. 4 merely provided for the recoverability of rent according to the British Calendar.
In view of the provisions of section 12 there could be no relief against forfeiture in the present case.
Section 12(3)(a) empowered the court to pass a decree for eviction in case of rent payable month by month if the arrears of rent had been for a period of six months and the tenant had neglected to make the payment within a month of the service of the notice of demand.
The payment of arrears after institution of the suit did not affect his liability to eviction and the court 's power to pass the decree.
The Court was bound to pass the decree when the requirments of the section were satisfied.where the ' legislature intended to give relief against forfeiture it made a specific provision.