Nemai Chand Sen vs Kumud Behari Basu

Sarkar, J.—This is a suit for ejectment and for rent and mesne profits.

There is no dispute between the parties that the Plaintiff and the Defendant stood in the relation of landlord and tenant to each other.

It appears that the premises in question were used as a brothel. Upon that, the Commissioner of Police, Calcutta, took proceedings u/s 6 of the Bengal Suppression of Immoral Traffic Act (Bengal Act VI of 1933). It is necessary that some of the provisions of this section should be set out.

(1) If the Commissioner of Police or Superintendent of Police receive information that any house, room or place--

(a) is being used as a brothel or disorderly house, or for the purpose of carrying on prostitution, in the vicinity of any educational institution or of any boarding house, hostel or mess used or occupied by students, or of any place of public worship or recreation, or

(b) is used as, or for the purpose, aforesaid to the annoyance of the inhabitants of the vicinity, or

(c).. .. .. ..

(d).. .. .. ..

he may cause a notice to be served on the owner, lessor, manager, lessee, tenant or occupier of the house, room or place or all of them, to appear before him, either in person or by agent, on a date to be fixed in such notice and to show cause why, on the grounds to be stated in the notice, an order should not be made for the discontinuance of such use of such house, room or place.

(2) If, on the date fixed, or on any subsequent date to which the hearing may be adjourned, the Commissioner is satisfied after making such enquiry as he thinks fit, that the house, room or place is used as described in Clauses (a), (6), (e) or (d) of Sub-section (1), as the case may be, he may direct by order in writing to be served on such owner, lessor, manager, lessee, tenant or occupier, that the use as so described of the house, room or place be discontinued from a date not less than 15 days from the date of the said order and be not thereafter resumed.

(3) No house, room or place, concerning which an order has been made under Sub-section (2), shall again be used, or be allowed to be used, in any manner described in Clauses (a), (6), (c) or (d) of Sub-section (1), as the case may be and the Commissioner of Police if he is satisfied, that such house, room or place is again used in such manner, may by order in writing to be served on the owner, lessor, manager, lessee, tenant or occupier of such house, room or place, direct that the use as so described of such house, room or place be discontinued within a period of eleven days and be not thereafter resumed.

(4) For the purposes of this section the decision of the Commissioner of Police that a house, room or place is used in any manner, or for any purpose, described in Clauses (a), (6), (c) or (d) of Sub-section (1) shall be final and the legality or propriety thereof shall not be questioned in any trial or judicial proceeding in any court.

(5) Whoever, after an order has been made by the Commissioner of Police under Sub-section (2) or Sub-section (3) in respect of any house, room or place uses, or allows to be used, such house, room or place in a manner which contravenes such order after the period stated therein, shall be punished with fine

(8) Notwithstanding anything contained in any other law for the time being in force, the owner or lessor of any house, room or place, in respect of which an order has been made on the lessee, tenant or occupier thereof directing the discontinuance of the use thereof as a brothel or disorderly houses or for the purpose of carrying on prostitution, or as a common place of assignation, shall be entitled forthwith to determine such lease, tenancy or occupation.

Acting u/s 6 of this Act, the Commissioner served a notice as mentioned in Sub-section (1) on some of the occupiers of the premises. Such a notice was not, however, served on the Defendant, who was the lessee of the premises. Then it appears that the Commissioner of Police made an order under Sub-section (2), which was this time served on the Defendant and also cm the Plaintiff and may be on others. Likewise a notice under Sub-section (3) was served on the same persons. The Plaintiff claims that, as a result of the orders made under Sub-sections (2) and (3), he became entitled, under Sub-section (8), forthwith to determine the tenancy of the Defendant. Purporting to act under that sub-section, the Plaintiff, on February 25, 1948, served a notice on the Defendant determining his tenancy and called upon him to quit, vacate and make over vacant possession of the premises forthwith. In this suit, the Plaintiff claims possession on the basis of this notice. It will have been seen that the notice determined the tenancy on February 25, 1948. Notwithstanding this, in the plaint rent has been claimed for the whole of the month of February 1948 and mesne profits from March 1, 1948.

I should have stated that the Plaintiff also sought to justify his right to a decree for possession on the ground that the Defendant had sublet a major portion of the premises for a period more than six months. It has, however, not been necessary for him to rely on this ground.

Mr. Hazra, appearing on behalf of the Defendant, has conceded that his client had sublet the premises as, stated in the plaint and that there was no agreement in writing permitting his client to sublet. He has also conceded that the premises in question were used as a brothel. In the written statement it is admitted that the order under Sub-section (3) of Section 6 of the Act was served on the Defendant. It may be here stated that the clerk of the Commissioner of Police has proved that the order under Sub-section (2) of Section 6 was also served on the Defendant.

Mr. Hazra has contested the suit on three grounds. He has argued that the proceedings taken by the Commissioner under the Act were illegal with the result that the orders served on his client under Sub-sections (2) and (3) of Section 6 were invalid and of no effect and hence Sub-section (8) did not apply and so the notice of February 25, 1948, was ineffective to determine the tenancy. He then contended that, notwithstanding the provisions of Sub-section (8), a landlord, if he wishes to determine the tenancy, must serve a notice to quit u/s 106 of the Transfer of Property Act. The last defence taken by Mr. Hazra is that, in view of the claim in the plaint for rent for a period subsequent to the determination of the tenancy by the notice of February 25, 1948, that notice must be deemed to have been waived and the Plaintiff is, therefore, not entitled to possession.

With regard to the first ground, Mr. Hazra has argued that, under Sub-section (2), a notice has to be served on one or all of the persons mentioned and that a notice on more than one of such persons, but not all, is a bad notice and hence the proceedings that followed were all illegal and of no effect. Admittedly, in this case, the notice was served on some of these persons, but not all. Hence Mr. Hazra contended that there was no order properly made under the section and therefore Sub-section (8) had no application. Then Mr. Hazra argued that the orders under Sub-sections (2) and (3) could only be made on the persons on whom the notice under Sub-section (1) had been served and that any order made under Sub-sections (2) and (3) on a person not served with the notice under Sub-section (1) is an invalid order and of no effect. For this reason again, according to Mr. Hazra, Sub-section (8) does not apply. Mr. Hazra''s argument is that the order mentioned in Sub-section (5) must be an order validly made.

I am unable to agree with Mr. Hazra''s argument as to Sub-section (1). In my view, this sub-section permits a notice being served on any one or more or all of the persons mentioned therein and a notice so served is a good notice.

I am also unable to accept Mr. Hazra''s argument that orders under Sub-sections (2) and (3) could only be made on persons on whom notices under Sub-section (2) had been served. Mr. Hazra argued that the word "such" preceding the words "owners, lessors, etc." in Sub-section (2) showed that the "owners, lessors, etc." meant by this sub-section were those "owners, lessors, etc. on whom notices under Sub-section (1) had been served. The word "such" is in my view only used to indicate that those "owners, lessors, "etc." are meant who have been previously mentioned. Such previous mention is in Sub-section (7), which refers to the "owners, "lessors, etc." of the house, room or place, which, the Commissioner receives information, is being used in any of the manners mentioned in Clauses (a) to (d) of that sub-section. The word "such" means "of the same kind," that is to say, "of the kind mentioned before". The fact that notice may be issued to some of the "owners, lessors, etc." under Sub-section (2) does not make them of any particular kind under that sub-section. It may be that after the notice has been served they may become of a kind, but that would be different to the kind mentioned in the sub-section itself. Mr. Hazra''s interpretation would lead to reading Sub-section (2) as follows:

...owners, lessors, etc. ... of the house, room or place on whom notice under Sub-section (1) has been served.

These would hardly be "such owners, lessors, etc." for no such "owners, lessors, etc." are mentioned before.

Mr. Hazra argued that if the sub-section was not interpreted in that manner the result would be that the owner, lessor, or any other persons against whom an order had been made, but who had not had notice under Sub-section (1), would in effect be condemned without a hearing. I am unable to agree that there is any condemnation. The Act was intended to preserve the morality of the city and it has for that purpose given certain extraordinary powers to the Commissioner of Police. All that is necessary is that the Commissioner of Police is to be satisfied, before he takes action under Sub-section (2), that certain premises are being used in a certain undesirable manner. It is for him to decide which person would be in the best position to give him adequate information to come to a decision. The result of an order made by the Commissioner is that the premises are not to be used in that manner any further. This is hardly any condemnation of any person. Neither the owner, nor manager, lessor or lessee is found to be guilty of anything. They are only asked to stop certain activities being carried on there.

Sub-section (3), to my mind, shows clearly that Mr. Hazra''s argument about being condemned without a hearing has no application. This sub-section applies after the order under Sub-section (2) has been made. Let us assume that the order under Sub-section (2) was made on an owner on whom notice under Sub-section (2) had been served. Such an order would be a good order even according to Mr. Haizra. Then again, before Sub-section (3) applies, the Commissioner has to be satisfied that the house, room or place, in respect of which the order under Sub-section (2) was made, was again being used in the manner prohibited. On these conditions being fulfilled, the Commissioner might exercise the powers under Sub-section (3) which are stated in the following terms:

...The Commissioner may by order in writing to be served on the owner, lessor, etc. ... of such house, room or place, direct that the use as so described of such house, room or place be discontinued....

It will be noticed that in this case the word "such" does not occur before the words "owners, lessors, etc." but before the words "house, room or place." There is no scope for any argument here that the order under this sub-section can only be made on those who has had notice under Sub-section (1) or against whom an order had been made under Sub-section (2). The Commissioner is free to issue an order under Sub-section (3) against any owner or lessor, etc., even though he had no notice under Sub-section (1) or against whom an order under Sub-section (2) had not been made. It follows, therefore, that Sub-section (3) would allow what Mr. Hazra would describe as "a condemnation "without hearing." I also like to say that, in any event, in view of the plain meaning of Sub-section (2), I do not feel I would be justified in twisting its language to mate it accord with the principle of "no condemnation without a "hearing" even if that principle applied.

Lastly, I have to say that, even if Mr. Hazra was right in his interpretation of Sub-sections (1) and (2) and the orders made against his client under Sub-sections (2) and (3) had not been validly made as Mr. Hazra says, still Sub-section (4) prevents me from questioning their validity or propriety. This question arises only for ascertaining if Sub-section (8) applies. That is one of the purposes of Section 6. Sub-section (4) makes a decision of the Commissioner that a house, room or place is used in any of the manners described in Clauses (a) to (d) of Sub-section (1) final and the validity or propriety of such a decision for the purpose of Section 6 cannot be questioned in any trial or judicial proceeding. This decision is given only by the orders under Sub-sections (2) and (3). In the result, in this suit, for the purpose of deciding whether Sub-section (8) applies, I am not entitled to question the validity of the orders under Sub-sections (2) and (3). Mr. Hazra contended that the trial meant in Sub-section (4) is only a criminal trial. I do not see why it should be so. There can be a civil trial as also a criminal trial. Then there are also the words "judicial proceeding" and civil suit is such a proceeding.

Looked at from any point of view, therefore, Mr. Hazra''s arguments as to the validity of the orders under Sub-sections (2) and (3) must fail.

I now come to the second point. Sub-section (8) opens with the words: "Notwithstanding anything contained in any other "law for the time being in force." Now, Section 106 of the Transfer of Property Act is one of the laws for the time being in force. In view of the opening words of this sub-section, the power thereby given, must be deemed to exist, notwithstanding Section 106 of the Transfer of Property Act. It would follow, that though Section 106 required that before a monthly tenancy could be determined a notice under that section had to be given, when an order has been made u/s 6 Sub-section (2) or (3) of the Bengal Suppression of Immoral Traffic Act, the landlord becomes entitled to determine the tenancy immediately and this notwithstanding Section 106 of the Transfer of Property Act. I cannot see what other effect the opening words of Sub-section (8) that I have already read, can have. If in spite of Sub-section (8) the provisions of Section 106 of the Transfer of Property Act are to be complied with then the provisions of Sub-section (8) would certainly not be "notwithstanding anything contained in any other law for the time being in force." In my view, therefore, this contention of Mr. Hazra must also fail.

The last point, on which Mr. Hazra appeared to me to place the greatest reliance, is, whether the notice of February 25, 1948, can be said to have been waived, because in the plaint rent has been claimed for a period subsequent to the notice. Mr. Hazra argued that Section 112 of the Transfer of Property Act applied. His argument was that, under this section, any act on "the part of the lessor, showing an intention to treat the lease as subsisting, is sufficient to cause a waiver of forfeiture and that the claim in the suit for rent for a period subsequent to the notice is such an act. The initial difficulty in Mr. Hazra''s way is that Section 112 deals only with a forfeiture u/s 111, Clause (g) of the Transfer of Property Act. A forfeiture u/s 111, Clause (g) is incurred: (i) when the lessee breaks an express " condition which provides that in breach thereof the lessor may re-enter, or (ii) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or (iii) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such an event and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. Obviously, the determination of the lease intended by the notice of February 25, 1948, is not a determination on any of the grounds mentioned in Clause (g) of Section 111 of the Transfer of Property Act. I, therefore, think that Mr. Hazra is not entitled to rely on Section 112 of that Act.

Mr. Hazra then argued that the principle of Section 112 would apply. Section 112, it may be said, is not happily worded and that is the view that has been expressed in the notes to that section in Sir Dinshaw Mullah''s book on the Transfer of Property Act, third edition. Indeed it would be difficult to conceive how, once a forfeiture has been effected, there is anything to waive. When one talks of waiver, one contemplates a right which could be enforced, but which the owner of that right decides not to enforce. In those circumstances, it is said that he waives that right. In the case of a lease containing a covenant the breach of which provides for re-entry by a landlord, when the breach actually takes place, it is the right of the landlord to forfeit the lease and to exercise the power given to him by the covenant. If he does not choose to exercise this power as he is at liberty to do, he then waives the breach which had become available to him for determining the lease. I find it noted in Sir Dinshaw Mullah''s book that it would be more accurate, to say that there, is a waiver of the breach or the disclaimer or insolvency, as the case may be, mentioned in Section 111(g) than that there is a waiver of a forfeiture. The first proviso to Section 112 would lead to the same conclusion. If a forfeiture contemplated by Section 112 is to be a complete forfeiture as is mentioned in Section 111(g), then it would mean that, first of all, there has been a breach of a covenant containing a proviso for re-entry or disclaimer or an insolvency, and secondly, a notice by the landlord informing the tenant of his intention to determine the lease by reason of such breach, etc. It, therefore, must be on the basis that the landlord was aware of the breach and of his rights on it as, obviously, otherwise he could not have given the notice. Now, if that is so, then the proviso that there would be no waiver of forfeiture unless the lessor is aware that the forfeiture has been incurred, must be meaningless, if the word forfeiture means a completed forfeiture, i.e., in respect of which a notice has been served. On the other hand the proviso would be quite sensible if the word forfeiture is understood to mean only the breach or the disclaimer of title or insolvency as the case may be. This is the reason that has been given for the view that has been taken in Mullah''s Transfer of Property Act. The result, therefore, is that, once a lease has determined by forfeiture, that is to say, once the landlord relying on the breach of a covenant entailing forfeiture has given a notice forfeiting the lease there can be no waiver of such forfeiture. Section 112 does not talk of such a waiver. The landlord cannot, therefore, after such a notice, set up the lease on its feet again by any unilateral act of his own. That is also the general principle in English law. I can read from the very well-known case of Jones v. Carter (1846) 15 MW. 718 (724-725) : 153 E.R. 1040 (1043), what Baron Parke thought about the matter. He said:

(1) Though the lease is declared to be void for breach of covenant, it is perfectly well settled that the true construction of the proviso is, that it shall be void at the option of the lessor, Rede v. Farr (1817) 6 M. and Selw. 121 : 105 E.R. 1188, Doe v. Barcks (1821) 4 B.&Ald. 401 : 106 E.R. 984 and other cases and consequently, on the one hand, if the lessor exercises the option that it shall continue, the lease is rendered valid; if he elector that it shall end. the lease must be determined. In the cases above referred to, the option was held to have been exercised by the receipt of rent subsequently due and the lease thereby rendered valid. In like manner, the lease would be rendered invalid by some unequivocal act, indicating the intention of the lessor to avail himself of the option given to him and notified to the lessee after which he could no longer consider himself bound to perform the other covenants in the lease; and if once rendered voidi, it could not again be set up.

So I notice Cockburn J., observed in Toleman v. Portbury (1871) L.R. 6 Q.B. 245, 248;

If he succeeds in proving any one ground of forfeiture and so puts an end to the lease, then Jones v. Carter shews that all that takes place after the action was brought is immaterial; from that moment the lease is void and he cannot derive any advantage on the ground of the tenant continuing, or demand the rent.

To the same effect is the decision in M. Chengiah Vs. Rajah of Kalahasti and Others, . It therefore, seems, to me to be clear that the principle is that a forfeiture can be waived only in the sense that the right to forfeit can be waived, that is to say, before the forfeiture has been actually effected or incurred. In this case, the forfeiture, as Mr. Hazra said, took place by the service of the notice of February 25, 1948. That being so, on the principle that I have discussed, it was no longer possible for the Plaintiff to waive that forfeiture by any act on his part alone.

Mr. Harira then argued that the case came u/s 116 of the Transfer of Property Act. In my view, Section 116 cannot be said to apply, because there is here no act which can be said to amount to an assent by the landlord to the tenant continuing in possession. All that there is in this case, is the claim for rent for the subsequent period in the plaint, but in the plaint the landlord also unequivocally asks for possession. The two have to be read together, and if so read, I cannot say that the plaint amounts to an assent on the part of the landlord to the continuance of the tenant in possession. It has been said that the acts of the landlord from which his assent to the continuance of the tenant''s possession can be inferred at best create only a presumption and that this presumption may be rebutted. That is the case of Doe d. Lord v. Crago (1848) 6 C.B. 90 (98) : 136 E.R. 1185 (1188). Wilde C.J., there observed as follows:

It is clear, that, upon proof of the payment of rent in respect of the occupation of the premises ordinarily let from year to year, the law will imply that the party making such payments holds under a tenancy from year to year and it was so ruled in Bishop v. Howard (1823) 2 B.C. 100 : 107 E.R. 320 But it is equally clear that it is competent to either the receiver or payer of such rent to prove the circumstances under which the payments as for rent were so made and by such circumstances to repel the legal implication which would result from the receipt of rent, unexplained.

In view of the conflicting claims made in the plaint, it is obvious that there was some muddle. It is clear to my mind however, that the Plaintiff did not, by making that claim, intend that the tenant would continue in possession as a tenant, for then he would not have claimed possession and mesne profits at the same time.

The last thing that I have to note on this point is Section 113 of the Transfer of Property Act. It is now well settled that in order to make Section 113 of the Transfer of Property Act applicable, it is not enough to have an unilateral act on the part of the landlord, but there must be an agreement. That is made clear in the judgment in Davies v. Bristow (1920) 3 K.B. 428, 438. Lush J., in his judgment, which has subsequently been described by a very high authority as a judgment of great force, stated:

When once the notice to quit has expired the position of the parties is precisely the same as it would be if the original lease had provided for the determination of the terms on the date mentioned in the notice. There is in that case no room for election by the landlord. The landlord and the tenant may of course agree that a new tenancy shall be created on the old terms and that is what in effect they do when they agree that the notice to quit shall be waived. But the agreement to continue the tenancy must be proved.

This case was expressly approved by the Court of appeal in England in Clarke v. Grant (1949) 1 All E.R. 768, where Lord Goddard C.J. said:

Therefore, the tenancy having been brought to an end by a notice to quit, a payment of rent after the termination of the tenancy would only operate in favour of the tenant if it could be shown that the parties intended that there should be a new tenancy. That has been the law ever since it was laid down by the Court of King''s Bench in Doe d, Cheny v. Batten (1775) 1 Cowp. 243 : 98 E.R. 1066 where Lord Mansfield said "The question therefore is quo animo the rent was received and what the real intention of both parties was?" It is impossible to say that the parties in this case intended that there should be a new tenancy. The landlord always desired to get possession of the premises. That is why he gave this notice to quit. The mere mistake of his agent in accepting the money as rent which had accrued is not evidence that the landlord was agreeing to a new tenancy.

Likewise, it seems to me that a mere mistake of the draftsman of the plaint in claiming rent for a subsequent period is not evidence that the landlord had agreed to a new tenancy, particularly as he was at the same time also asking for possession and mesne profits.

I do not think it necessary to refer to any more authorities but there is one case to which my attention has been drawn by Mr. Sircar, appearing for the Plaintiff, which seems to fit this case exactly. That is the case of Shah Wall Ahmed v. Hussaini Begam (1917) 2 P.L.J. 595, 598-599, decided by Chapman and Atkinson JJ. I would like to read the relevant portion of this judgment which is as follows:

The third point raised by Mr. Fakhruddin is that inasmuch as arrears of rent were claimed in the plaint after the notice to quit had been served, that therefore the claim for arrears of rent due amounted to a waiver of the notice to quit and the Plaintiff''s right to eject the Defendant from the land in suit. This proposition stated so boldly without authority to support it seemed to us strange and fanciful. There is no authority for such proposition and I venture to say no authority can be found to support such an argument.

******

Where future rent is claimed and accepted after the notice to quit has been served and the ejectment proceedings instituted then the claim and acceptance of future rent would amount to a waiver of the initial steps and proceedings upon which the right to eject depended. There is no authority to support the proposition that a mere Claim for arrears of rent due prior to an ejectment proceeding and made after notice to quit was served, would constitute waiver of the notice to quit in point of law.

In the result, I would pass a decree for possession and for rent up to February 25, 1948 and for mesne profits thereafter till possession is delivered at the rate of Rs. 99 per month and the Plaintiff will have the costs of this suit, certified for two counsel.