Ramchandra Annasaheb Shinde vs Dagadu Shankar Shevate and Others

Chainani, C.J.—The question which has been referred to the Full Bench, is as follows:

Where there is a contractual tenancy for a fixed number of years expiring on particular date and the landlord has given notice of one year u/s 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, whether the period of such notice should expire on the date when the contractual lease terminates by efflux of time or whether the same should expire at the end of the year as defined under sub-section (20) of Section 2 next following the date on which the contractual lease expires by efflux of time?

This question arises in the above four special civil applications, which have been placed before us. In Special Civil Appln. No. 2486 of 1958 and No. 2587 of 1958, the landlords had on 9-9-1939 granted leases of their lands for a period of 15 years. On 23-3-1954, the landlords gave notices u/s 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as the Act, terminating the tenancies with effect from 31-3-1955. In Special Civil Application No. 386 of 1959, the lease was granted for 15 years with effect from 7-4-1941. The tenancy was terminated by a notice given on 9-2-1955 with effect from 31-3-1956 or from 7-4-1956. In Special Civil Application No. 920 of 1959 the tenancy commenced on 9-9-1943 and was for a period of 12 years. The landlord gave a notice on 19-10-1954 terminating the tenancy with effect from 31-3-1956. In all these four cases, therefore, the contractual tenancies continued to exist on the dates on which the notices were given. It is also not in dispute that the tenants in all the four cases were protected tenants, within the meaning of Section 31 of the Act. It is in the light of these facts that the question referred to us will have to be determined.

In order to answer this question, it is necessary to consider certain provisions of the Act, as it stood at the material time, i.e. when the notices were given. The Act was extensively amended in 1956 and we have to consider the provisions of the Act, as it stood prior to the amendment in 1956. Clause (20) in Section 2 of the Act defines the word "year", as meaning "the year ending on the 31st of March or on such date as the State Government may, by a notification, appoint for any locality." This meaning is to be given "unless there is anything repugnant in the subject or context." No notification under this clause has so far been issued by Government.

Section 3 states that "the provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this (Tenancy) Act, apply to the tenancies and leases of lands to which this Act applies." Chapter V of the Transfer of Property Act contains provisions with regard to leases. These provisions are made applicable to leases, to which the Tenancy Act applies, in so far as they are not inconsistent with the provisions of the latter Act.

Section 5 states:

(1) No tenancy of any land shall be for a period of less than ten years:

Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall, subject to the provisions of sub-sections (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.

(2) The landlord may, by giving the tenant one year''s notice in writing before the end of each of the periods referred to in sub-section (1) , terminate the tenancy, with effect from the thirty-first day of March in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in sub-section (1), of S. 34, but subject to the provisions of sub-sections (2) and (2A) of the said section, as if such tenant was a protected tenant.

Sub-section (2) therefore provides for one year''s notice for terminating a tenancy. The notice must, however, expire on 31st March of the particular year.

Sub-section (1) of Section 14 provides that notwithstanding any agreement, usage, decree or order of a Court of law, the tenancy of any land held by a tenant shall not be terminated except on the grounds specified in this section. The proviso to this sub-section states that no tenancy shall be terminated on any of the grounds mentioned in this sub-section, unless the landlord gives three months'' notice in writing intimating the tenant his decision to terminate the tenancy and the ground for such termination. In view of this section, therefore a tenancy, even though it was for a fixed period, could not come to an end merely by efflux of time. It could only be terminated on the grounds specified in the section.

Section 30 of the Act states that no other provisions contained in the Act shall be construed to limit or abridge the rights or privileges of any tenant arising out of any contract. By reason of this section, the tenants were entitled to continue in possession of the lands, until the period s of their contracts had expired. Even though they were protected tenants, their tenancies could not be terminated before they had expired by efflux of time. Section 31 stated that for the purposes of this Act, a person shall be recognised to be a protected tenant if such person has been deemed to be a protected tenant under Sections 3, 3A or 4 of the Bombay Tenancy Act, 1939.

The next section to be considered is Section 34, which is really an exception to Section 14, Sub-section (1) of this section states that notwithstanding anything contained in Section 14, a landlord may terminate the tenancy of a protected tenant by giving him one year''s notice in writing, stating therein the reasons for such termination, if the landlord bona fide requires the land for cultivating personally or for any non-agricultural use for his own purpose. This section gives a right to a landlord to terminate the tenancy on the ground he requires the land for personal cultivation or for non-agricultural use. In order to exercise this right, he has to give one year''s notice.

The question for consideration is, what is the meaning to be given to the expression "one year''s notice"? It is necessary to bear in mind that the expression used is not "a year''s notice" or "a notice of a year", but "one year''s notice". The section does not also state that the notice must expire on any particular date. Sub-section (2) of Section 5 also provides for one year''s notice for terminating the tenancy of a tenant who is not a protected tenant. It, however, specially states that the tenancy should be terminated with effect from 31st day of March of the relevant year. This provision made in Section 5(2) shows that the expression "one year''s notice" was not intended to be construed by reference to clause (20) in Section 2 of the Act. Section 43-D of the Act as amended in 1956 lays down that in the areas specified therein the tenancy may be terminated by a notice with effect from the 31st day of May of any year. Whenever, therefore, the Legislature wanted that the notice terminating a tenancy should expire on any particular date, it has said so specifically. The date with effect from which the tenancy should be terminated u/s 34, is however not specified in this section. The intention of the Legislature is therefore clear that the expression "one year''s notice" should have its ordinary dictionary meaning, viz., notice of one calendar year.

It has been contended that by reason of Section 3, section 106 of the Transfer of Property Act applies to notices given u/s 34 and that consequently a notice given under this section must expire with the end of the year of contractual tenancy. The difficulty in accepting this argument is that section 106 in terms does not apply to tenancies, which are for a fixed period or for a definite number of years. It applies in the absence of contract or local law or usage to the contrary as to the duration of a lease. In the cases before us, however, the tenancies were for a specified number of years. It has been urged that after the Act came into force, the original contracts did not exist and were abrogated by the various provisions of the Act, which confer several rights on tenants, inconsistent with the terms of the contracts. There is no substance in this argument, because s. 30 specifically saves the rights acquired by a tenant under his contract. Consequently, the contracts continued to subsist on the dates on which the notices were given. Section 106 of the Transfer of Property Act will not, therefore, apply in these cases.

Moreover, under s. 3, the provisions of the Transfer of Property Act apply in so far as they are not inconsistent with the provisions of the Tenancy Act. Section 106 prescribes a six months'' notice expiring at the end of the year of the tenancy. This provision is inconsistent with the provisions of s. 34, which require a notice of one year. Section 106 is, therefore, inconsistent with the provisions contained in s. 34, and is, consequently, inapplicable for this reason also

It is true that according to the view taken by us, a tenancy may be terminated during the midst of an agricultural season. This, however, is not likely to lead to an anomaly or hardship. The Act contemplates tenancies being terminated before the expiry of an agricultural season. Section 14 provides for three months'' notice, which may expire before the end of an agricultural season. Moreover, a landlord cannot got possession of the land immediately after the tenancy is terminated. After the termination of the tenancy, he has to apply to the Mamlatdar and it is only when the Mamlatdar makes an order in his favour that the landlord can get possession of the land.

I will now refer briefly to the various previous decisions, which have been brought to our notice. In Narayan Ramchandra Joshi v. K.B. Wasoodev, (1952) Special Civil Application No. 959 of 1952, decided by Chagla C.J. and Shah J., on September, 8, 1952 (Unrep.). there was a registered lease, which by efflux of time came to an end on June 14, 1948. The landlord gave a notice on June 2, 1947, calling upon the tenant to hand over possession on or before June 14, 1948. It was contended in that case that in view of the definition of "year" contained in cl. (20) of s. 2, the notice should have expired on March 31, 1949, and that the notice, which terminated the tenancy with effect from June, 14, 1942, was not good in law. This argument was negatived. In his judgment the learned Chief Justice observed:

Under section 3 of the Act, the provisions of Chapter V of the Transfer of Property Act shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies, and u/s 106 of the Transfer of Property Act, when six months'' notice has got to he given the notice must be such as expires with the end of a year of the tenancy, and therefore if the law requires a year''s notice the proper notice would be a notice which would expire with the end of the year of the tenancy, and if in this case the tenancy expired on 14th June 1948, then the proper notice must be a notice which expired on 14th June 1948. There is nothing in section 34 which is inconsistent with the provisions of the Transfer of Property Act and, in our opinion, the principles underlying the provisions of the Transfer of Property Act with regard to the giving of a notice must apply to a notice given u/s 34.

These observations have been relied upon on behalf of the tenants and it has been urged that the notices should have expired with the end of the year of the contractual tenancies. It is, however, to be noted that in this case the fact that s. 106 does not apply to tenancies for fixed periods, was lost sight of.

A different view with regard to the application of s. 106 of the Transfer of Property Act to protected tenancies was taken by Chagla C.J. and Dixit J. in Jagannath Narayan v. Vasant (1952) 55 Bom. L.R. 341. At p. 343 it was observed:

...As we have said before, in the ease of a non-protected tenant the duration of the tenancy is at least ten years; in the case of a protected tenant the duration of tenancies is unlimited and he cannot be ejected at all unless a case arises under s. 14 or s. 34. Now, it is not possible to speak of a protected tenant as an annual tenant. Mr. Chitale has relied on s. 106 of the Transfer of Property Act which raises the presumption in the case of a lease of immoveable property for agricultural purposes that it is a lease from year to year, terminable, on the part of either lessor or lessee, by six months'' notice expiring with the end of a year of the tenancy. But this presumption only arises in the absence of a contract or local law or usage to the contrary, and the Tenancy Act clearly displaces this presumption by making it impossible for the landlord to terminate the tenancy either of a protected or a non-protected tenant by giving a Six months'' notice expiring at the end of the year. Therefore, Mr. Chitale cannot place any reliance upon the terms of s. 106.

Narayan Joshi''s case, was followed in Chandrakant Nagindas Vs. Rami Maganlal Hirabhai, . It was again considered in Gulabrao Namdeorao v. Hari Eknath Sonar (1956) Special Civil Application No. 2345 of 1956, decided by Shah and Palnitkar JJ., on December 4, 1956 (Unrep.). In that case Narayan Joshi''s case, (Sp. Civil Appln. No. 959 of 1952 D/-8-9-1952) (Bom) was regarded only as laying down that:

under Section 34 a landlord is entitled to terminate a protected tenancy by one year''s notice and there is nothing in that section which requires that a protected tenancy shall be terminated by one year''s notice expiring on any particular date.

The argument that Narayan Joshi''s case, (Sp. Civil Appln. No. 959 of 1952 D/-8-9-1960) (Bom) had decided that where there is a contractual tenancy, the notice must expire with the end of a year of the contractual tenancy, was not accepted. In his judgment Shah J., observed:

Mr. Tarkunde contends that implicit in the decision is the view that if the protected tenancy and a contractual tenancy co-exist the protected tenancy cannot be terminated otherwise than by a notice which terminates a contractual tenancy, that is, by a notice which expires with the contractual year of tenancy. In our view that contention has no force. . . . . But for the termination of a protected tenancy, the legislature has prescribed that the landlord must terminate the tenancy by giving one year''s notice in writing. If that condition is fulfilled and if the landlord bona fide requires the land for personal cultivation or for any other purpose specified in sub-section (1) of Section 34, the landlord is in our view entitled to obtain an order for possession even if the date on which the notice expires is not the date on which the contractual tenancy terminates . . . . If there is a notice, it will not be regarded as invalid merely because the notice does not expire with the determination of the period of a contractual tenancy simultaneously held by the protected tenant.

17The decision in this case is in accordance with the view, which we are taking in regard to the interpretation of Section 34.

In Francis Mates Soz v. St. Thomas Church, Sandor, Special Civil Appln. No. 781 of 1957, D/-26-7-1957 (Bom) it was held that the expression "One year''s notice" means a notice expiring on the 31st March of the year. The judgment does not give the reasons for this view. In our opinion, this view is not correct for the reasons, which I have indicated.

The answer to the question referred to the Full Bench therefore will be that the notice u/s 34 of the Bombay Tenancy and Agricultural Lands Act must be a notice of not less than 12 calendar months and that it need particular date. When there is a contractual tenancy, the notice must not expire earlier than the date on which the period of contractual tenancy comes to an end.

In view taken by us, the notices in all the four cases must be held to be valid.