Calcutta High Court
Prafulla Kumar Roy Chowdhury And Anr. vs Bharat Petroleum Corporation Ltd. on 13 May, 2003
Equivalent citations: (2003)3CALLT392(HC)
JUDGMENT A.K. Bisi, J.
1. In the instant suit instituted against the defendant Bharat Petroleum Corporation Ltd. the present plaintiffs have sought decree for possession of premises No. 3 Ganesh Chandra Avenue, Calcutta (hereinafter referred to as the suit premises), damages or occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986, mesne profits at the rate of Rs. 1,000/- per day from 15thAugust, 1986 till delivery of vacant possession of the suit premises to the plaintiffs and some other incidental reliefs.
2. Briefly stated the case set out in the plaint is that the original plaintiff Binapani Roy Chowdhury was the owner of the suit premises. By a registered indenture of lease dated 17th September, 1956, the suit premises had been leased out to M/s. Burmah Shell Oil Storage & Distributing Co. for a period of 25 years with effect from 15th August, 1956. The said lease deed contains a clause for option of renewal for a period of 5 years after expiry of the term of the original lease. The original plaintiff handed over possession of the suit premises to the said Burmah Shell Oil Storage & Distributing Co. in terms of the said lease deed on or before 15th August, 1956. In the month of January, 1976 the said Burmah Shell Oil Storage & Distributing Co. had been taken over by the Central Government of India under the Burmah Shell (Acquisition of Undertaking in India) Act, 1976, with effect from 24th January, 1976. Subsequently, Bharat Petroleum Corporation Ltd. had taken over the assets and liabilities of Burmah Shell Oil Storage & Distributing Co. The said period of 25 years expired on 14th August, 1981 and defendant No. 1 expressed the desire to exercise the option for taking the right of tenancy for 5 years in terms of the original lease deed. Defendant No. 1 also informed that it would enter into a fresh written agreement for the said 5 years but did not do so. Since July, 1982 defendant No. 1 failed and neglected to pay the licence fee or occupation charges and is now denying the right, title and interest of the plaintiff in respect of the suit premises. By the written notice dated 18th April, 1983 the original plaintiff terminated the licence or any relationship or right of the defendant to use or occupy the suit premises and/or rescinded the agreement between the plaintiff and the defendant for occupation of the suit premises. The defendant is claiming to be a tenant of the State of West Bengal under the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981. It has been alleged by the plaintiff that the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 has not affected the right, title and interest of the plaintiff in respect of the suit premises and that the rights and liabilities of the parties are governed by the Transfer of Property Act, 1882. In any event the period of option to renew the lease in terms of the lease deed dated 17th September, 1956 expired on 14th August, 1986 and as such the plaintiff is entitled to get vacant possession of the suit premises. Since the defendant is in wrongful and illegal occupation of the suit premises, the plaintiff is also entitled to get measure profits at the rate of Rs. 1,000/- per day for the use and occupation of the suit premises by the defendant. The original plaintiff Binapani Roy Chowdhurani died during pendency of the suit and after her demise the present plaintiffs became the owner of the suit premises each in equal shares.
3, The defendant Bharat Petroleum Corporation Ltd. has contested the suit by filing the written statement and two additional written statements wherein the material allegations contained in the plaint have been denied. The specific case of the contesting defendant may briefly be stated thus. The tenancy in the suit premises was in nature of Thika Tenancy and/or was essentially a Thika Tenancy. The Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 came into force on and from 18th January, 1982. Section 5 of the said Act provides for vesting of the rights, title and interest of the Landlord of such land like the suit premises in the State of West Bengal. The defendant denies and disputes that the plaintiff is still owner of the suit premises by the registered indenture of lease dated 17th September, 1956. The original plaintiff Binapani Roy Chowdhurani since deceased granted lease of all that piece or parcel of revenue free land containing an area of 8 cottahs 3 chittacks and 4 sq, ft. being the suit premises in favour of the Burmah Shell Oil Storage & Distributing Company of India Ltd. (in short Burmah Shell) for a term of 25 years commencing from 5th August, 1956 with an option of renewal for a further period of 5 years at the rent and on the terms and conditions mentioned in the said indenture. The said Burmah Shell being the lessee under the aforesaid indenture subsequently erected structure on such land for the purpose of its business and carried on business of selling petroleum and petroleum products from the said premises. On 24th January, 1976 the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 came into force whereby and whereunder the right, title and interest of Burmah Shell in relation to its undertakings in India stood vested in the Central Government. By virtue of the provisions of the said Act, on expiry of the term of the lease, such lease became renewable at the desire of the Central Government on the same terms and conditions on which the lease was held by Burmah Shell. By operation of law the right, title and interest of Burmah Shell so vested in the Central Government was transferred by the Central Government to the defendant and notification was issued to that effect whereupon the defendant became a lessee of the vacant land of the suit premises under the original plaintiff. By the letter dated 30th July, 1981 the defendant gave notice to the original plaintiff exercising -its option of renewal of the lease in terms of the provisions of the said indenture of lease dated 17th September, 1956. Though no further lease of the suit premises was granted by the original plaintiff to the defendant, the original plaintiff continued to accept rent from the defendant in respect of the suit premises. Under the circumstances the defendant became a monthly tenant under the original plaintiff and the tenancy of the defendant in respect of the suit premises was governed and protected by the provisions of the West Bengal Premises Tenancy Act, 1956. It has been further averred by the defendant that in view of enactment of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and in view of subsequent enactment of the Calcutta Thika Tenancy (Acquisition & Regulation) (Amendment) Act, 1993, the said premises vested in the State of West Bengal and neither the original plaintiff had nor the present plaintiffs have any right whatsoever over the suit premises. So the question of giving vacant possession of the suit premises by the defendant to the present plaintiffs cannot arise.
4. Further case of the defendant is that since the suit premises vested in the State of West Bengal, the defendant had not entered into a fresh written agreement with the original plaintiff or with the present plaintiffs in respect of the suit premises. The plaintiffs have no right to terminate the licence, or the right of the defendant to use or occupy the suit premises as alleged. In view of the provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 and the subsequent amendment of the said Act the suit instituted by the original plaintiff and thereafter proceeded with by the present plaintiffs was/is not maintainable and the same should be dismissed. In absence of the State of West Bengal, the suit is bad for non- joinder of necessary party and the original plaintiff had no cause of action to institute the suit. It has also been averred by the defendant that since 15th August, 1981 the defendant became a monthly tenant under the original plaintiff and such tenancy was governed and protected by the provision of the West Bengal Premises Tenancy Act, 1956. No notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was served by the original plaintiff on the defendant and as such the suit was/is not maintainable. In view of the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976, the defendant is not liable to be evicted from the suit premises and the suit is premature.
5. The following issues have been framed for the purpose of trial of the suit:-
(1) Has this Court jurisdiction to receive, try and determine the instant suit?
(2) Had the original plaintiff cause of action to institute the present suit?
(3) Is the suit bad for non-joinder of necessary party namely, the State of West Bengal?
(4) Is the plaintiff entitled to get a decree for eviction against the present defendant in view of the provisions of the Burma Shell (Acquisition of Undertakings in India) Act, 1976 as alleged in the written statement?
(5) a. Did the defendant become a Licensee in respect of the suit premises after 14 August, 1981 as alleged in paragraph 4 of the plaint?
b. If not, what was the nature of the right of the defendant to use or occupy the suit premises after 14th August, 1981?
(6) Did the defendant become a monthly tenant in respect of the suit premises since 15th August, 1981 and is the defendant entitled to protection under the West Bengal Premises Tenancy Act, 1956 as alleged in paragraph 17 of the 1st and 2nd Additional Written Statement and paragraph 10B of the amended written statement?
(7) Could the original plaintiff terminate or rescind the right of the defendant to use or occupy the suit premises by the notice dated 18th April, 1983 as alleged in paragraph 4 of the plaint?
(8) Did the suit property vest in the State Government under the Provisions of the Calcutta Thika Tenancy (Acquisition & Regulation) Act, 1981 as alleged in the written statement?
(9) Is the plaintiff entitled to get a decree for eviction against the defendant as prayed for?
(10) Is the plaintiff entitled to get a decree for damages/mesne profits as prayed for?
(11) To what relief or reliefs is the plaintiff entitled?
6. Decision with reasons:
Issue No. 1:
No plea has been raised by the defendant to assail territorial jurisdiction of this Court to try the suit. The defendant has made an endeavour to assail pecuniary jurisdiction of this Court to try the suit by raising a vague plea in paragraph 11 of the original written statement to the effect that the valuation is improper and invalid and not as per law.
7. As mentioned hereinabove, the original plaintiff has instituted the instant suit seeking decree for possession of the suit premises, damages or occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14thAugust, 1986 and mesne profits at the rate of Rs. 1,000/-per day from 15th August, 1986 till delivery of vacant possession of the suit premises. The suit was instituted in 1986 and according to estimation of the original plaintiff the suit was valued at Rs. 1,20,350 which exceeded Rs. 1 lac at the relevant point of time. The averments regarding valuation as made in paragraph 11 of the plaint are as follows:
"The suit is valued at Rs. 1,20,350/- in as much as suit for possession is valued at Rs. 16,200/- as for rent and occupation charges Rs. 66,150/-up to 14th August, 1986 and mesne profit from 15th august, 1986 to 22nd September, 1986 at Rs. 38,000/- aggregating to Rs. 1,20,350/-and Court fees of Rs. 2,625/- has been paid. The plaintiff craves leave to pay additional Court fees if necessary."
8. As per case of the plaintiffs the defendant is in wrongful occupation of the suit premises on expiry of the period of lease and the original plaintiff served a notice dated 18th April, 1983 to the defendant asking the latter to hand over vacant and peaceful possession of the premises on expiry of 14th June, 1983. Since such request of the original plaintiff remained unheeded, the plaintiffs claimed damages in the form of occupation charges at the rate of rent last paid by the defendant from 15th June, 1983 to 14th August, 1986. The plaintiffs further claimed mesne profits at the rate of Rs. 1,000/- per day from 15th August, 1986 till delivery of the vacant possession of the premises as already mentioned.
9. The learned senior advocate appearing for the plaintiffs has contended that the plaintiffs have the right to value the relief claimed according to their own estimation and such valuation has to be ordinarily accepted. Such contention is well-fortified with the decisions of the Supreme Court in Tara Devi v. Thakur Radha Krishna Maharaj, , Sathappa Chettiar v. Ramanathan Chettiar, as well as Meenakshisundaram Chettiar v. Venkatachalam Chettiar, , This settled principle of law has been referred to by this Court in Dinwara Engineers Pvt. Ltd. v. Amitava Banerjee reported in 2002(1) CLJ 556 wherein at page 561 (para 12) it has been observed as follows:
"It is settled law that the plaintiff has the right to value the relief claimed according to his own estimation and such valuation has to be ordinarily accepted. Reference can be made in this context to Smt. Tara Deviv. Thakur Radha Krishna Maharaj, , Sathappa Chettiar v. Ramanathan Chettiar, as well as Meenakshisundaram Chettiar v. Venkatachalam Chettiar, ."
10. In re: Smt. Dalia Ghosh, 1991(2) CLJ 226 at page 228 (para 6) the Division Bench of this Court observed as follows:
"In the case of Nandita Base v. Ratankd Nahata and Tara Devi v. Shri Thakur Radha Krishna Maharaj, Their Shebait Chandreswar Prasad and Maheswar Prasad and Anr., reported in the same volume at page the ratio as propounded by the Supreme Court appears to be that the liberty to value the suit and to determine the forum on the basis of such valuation lies with the plaintiff normally, unless the valuation put by the plaintiff can be demonstratively shown to be arbitrary and unreasonable. The term "demonstrate" means "to make manifest"; "to give proof or; "to prove with certainty"; "to exhibit by practical means". To express succinctly, the valuation has to be established patently to be arbitrary and unreasonable. In the instant cases, no material appears to have been placed before the Courts below to satisfy the above test laid down by the Supreme Court and we agree with the view expressed by the Courts below that to hold at this stage that the valuation was arbitrary or unjust would be to pre-judge the question. It is pertinent to consider in this connection that it has also been laid down by a Division Bench of this Court in the case of Manirampore Cultural Association v. Manirampore Junior High School & Ors. reported in 92 CWN 502 that the Court will consider such questions and take into consideration the fact that the jurisdiction of a higher forum is not ousted even if on the conclusion of the trial the suits are found to have not been properly valued."
11. In Nandita Bose v. Ratanlal Nahata the landlord claimed a decree for Rs. 78,000/- for certain period on the footing that the tenant's possession was unauthorised or illegal after termination of tenancy and he was liable to pay mesne profits or damages and on that basis filed the suit in the High Court on valuation of mesne profits. It was contended by the tenant before the High Court that even termination of the tenancy the tenant did not cease to be statutory tenant and was liable to pay only agreed rent. The High Court accepted the contention of the tenant and came to the finding that when arrears were calculated on the basis of the agreed rent the tenant would not be liable to pay arrears which would attract the pecuniary Jurisdiction of the High Court and accordingly the High Court directed to return the plaint for presentation to the proper Court. The claim for mesne profits/damages was not palpably absurd or imaginary considering location of the premises. In the said case the Supreme Court has held that the High Court was In error in prejudging the issue relating to the right of the landlady to claim mesne profits/damages and in directing that the plaint should be returned for presentation to the proper Court.
12. In view of the authorities cited above it can well be held that liberty to value the suit and determine the forum on the basis of such valuation lies with the plaintiff and such valuation has to be ordinarily accepted unless the valuation put by the plaintiff is shown to be arbitrary and unreasonable. Considering location in the suit premises in the instant case the claim for mesne profits/damages as made by the plaintiff cannot be said to be arbitrary and unreasonable.
13. The learned senior advocate for the defendant has contended that this Court has no pecuniary jurisdiction to receive, try and determine the suit in view of Section 20 read with first schedule of the West Bengal Premises Tenancy Act, 1956 and Section 7(xiii)(d) of the West Bengal Court Fees Act, 1970. He has cited the case of Nellimarla Jute Mitts Co. Ltd, v. Rampuria Industries and Investments Ltd. reported in 2000(2) CLJ 70 wherein at page 73 (para 9) the Division Bench of this Court has held as follows:- "under the Court Fees Act law as also under the West Bengal Court Fees Act suit has to be valued in terms of the provision thereof. A suit for recovery of immovable property from a tenant including tenant holding over after the determination of the tenancy, a suit for eviction of tenant would still be a suit between the Landlord and Tenant, not a suit between the owner and a rank trespasser." In the said case at page 77 (para 25) it has been held by the Division Bench that for the purpose of Court Fees Act the plaintiff who claims himself to be a former landlord has to value the suit under Clause (xiii) and the theory of a "dual capacity" in the context of the provisions of the Act cannot have any application. The facts and circumstances of the case of Nellimarla Jute Mills Co, Ltd. (supra) have no manner of application to the present suit and the question which has been raised in this suit had not been raised in the said case cited by the learned senior advocate for the defendant. That apart, in Nellimarla Jute Mills Co. Ltd. (supra) there was no occasion for the Division Bench to consider the respective decisions of the Supreme Court and as referred to earlier. The other decisions viz. Ramcharan Singh v. Sheo Dutta Singh AIR 1923 Patna 380, Prahlad Chandra Roy v. Rash Behari Roy & Ors., AIR 1949 Assam 64, Govinda Kumar Sur and Ors. v. Mohini Mohan Sen and Ors. , Balkrishna Bhimaji Beknalkar v. Ramkrishna Gandhar and Ors. AIR 1931 Bombay 234, Mohd. Ibrahim v. Ishrat Husain and Ors., and Madak Chand Jain v. Fatma Bai AIR 1999 Madhya Pradesh 30 as cited by the learned senior advocate for the defendant are inapplicable to the facts and circumstances of the present suit.
14. The question of Court fees must be considered in the light of the allegations made in the plaint. No material is placed before this Court to indicate arbitrariness or unreasonableness of the valuation put by the plaintiff and as such in view of ratio of the decisions of the Supreme Court in Nandita Bose (supra) and Tara Devi (supra) this Court has pecuniary jurisdiction to receive, try and determine the instant suit. This issue is accordingly decided in favour of the plaintiffs.
15. Issue No. 3:
Admittedly, the original plaintiff filed the instant suit on the original side of this Court for eviction under Chapter XIII-A of the Original Side Rules against the defendant. The learned single Judge by his order dated 27.7.87 directed summary eviction by the following order which has been quoted in the judgment of the Supreme Court in Civil Appeal No. 136 of 1991 copy of which is marked Exhibit 'J' (vide page 2 of Ext. '):-
"In view of the judgment of the Special Bench in the case of Lakshmimoni Das v. State of West Bengal reported in 1987(2) CLJ 50, there will be an order in terms of prayer (1) and (b) of the petition. Written statement is to be filed by 13.8.87. Cross order for discovery by 19.8.87 inspecting forthwith thereafter. Adjourned till 21.8.87. This application will be heard in part."
"In respect of prayer (a) this application stands to trial. The petitioner shall pay the costs of this application assessed at 200 Gms. Decree in terms of prayer (a) to the petition. This order will remain stayed for three months to enable the defendants to vacate the premises in question. In the meantime, the defendants will take appropriate steps for vacating the premises in question. All parties to act on a signed copy of the minutes."
16. The Division Bench of this Court confirmed the said decree for eviction passed under Chapter XIIIA of the Original Side Rules of the High Court whereupon the present defendant filed the appeal before the Supreme Court. An application was moved by the defendant for addition of the State as party to the appeal on the ground that the State Government was a necessary party. By the order dated 25.7.91 copy of which is marked Ext. 'F the Supreme Court dismissed the said application as the same was not pressed. Thereafter the State of West Bengal filed an application in the said appeal to be added as party. By the order dated 29.8.91 copy of which is marked Ext. 'G' the Supreme Court dismissed the said application for impleadment. So the question as to addition of the State of West Bengal as necessary party to this suit is no longer a res integra in view of the decision of the Supreme Court. Under the circumstances I hold that the suit is not bad for non joinder of the State of West Bengal as party thereto. This issue is accordingly decided in favour of the plaintiff.
17. Issue No. 8:
The learned senior advocate for the defendant has contended that the schedule incorporated in the lease deed dated 17.9.56 copy of which is marked Ext. '1' indicates the subject matter of lease which is as follows:
"All that piece or parcel of revenue free land containing an area of 8 cottahs 3 chittacks and 4 square feet be the same a little more or less being premises No. 3, Ganesh Chandra Avenue in the town of Calcutta."
18. He has further contended that there is no mention of any structure, kutcha or pucca, being there and only the vacant land was the subject matter of lease. The learned senior advocate for the defendant has argued that there Is no dispute that the land in question was being held under a lease deed and the lessee being the defendant erected structure on the demised land for the purpose of its business. He has also argued that in view of erection of pucca structures by the lessee the plaintiffs are emboldened to contend and claim that erection of pucca structures has brought the tenancy outside the purview of the Calcutta Thika and other Tenancies and Lands (Acquisition & Regulation) Act, 1981 and the lessee Bharat Petroleum did not become a thika tenant and the land demised under the lease deed also did not vest in the Gtate. It is the contention of the learned senior advocate for the defendant that no oral evidence to contradict the lease deed is permissible or admissible in view of Sections 91 and 92 of the Indian Evidence Act. He has further contended that the question relating to thika tenancy in respect of the land in suit has not yet been decided finally and by the order dated 22nd September, 1995 in SLP (C) No. 3291 of 1995 copy of which is marked as Ext. 'K' the Supreme Court left the said question open for the present defendant Bharat Petroleum Corporation. He has next urged that the incident of vesting is not dependent upon any contest between the parties since vesting of the land under the relevant provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition & Regulation) Act, 1981 takes place by operation of law. It has further been urged by the learned senior advocate for the defendant that the Supreme Court set aside the summary judgment passed by this Court in favour of the plaintiff in the instant suit and the issue as to whether the land in suit has or has not vested in the State is required to be decided independently in this suit. As contended by the learned senior advocate for the defendant, conjoint reading of Sections 3(8), 5 and 6(4) of the Calcutta Thika and other Tenancies and Lands (Acquisition & Regulation) Act, 1981 in the light of the object and reasons of the said Act will leave no doubt in the mind of the Court that the land in question vested in the State as on 18.1.82 and the defendant became and still is a thika tenant under the State.
19. The learned senior advocate for the plaintiffs, on the other hand, has contended that the Calcutta Thika and other Tenancies and Lands (Acquisition & Regulation) Act, 1981 came into force with effect from 18.1.82 and the preamble of the Act indicates that the said Act was enacted with the sole aim to take over undeveloped land and for proper utilisation of the same through regulated developments. He has further contended that historical background of the two Acts the Calcutta Thika Tenancy Act, 1949 and the Calcutta Thika and other Tenancy and Lands (Acquisition & Regulation) Act, 1981 clearly indicates intention of the legislature to give protection to the thika tenants where the tenancy Is temporary in nature and it is an admitted position that the tenants who are occupying temporary structures constructed by them are the thika tenants of the lands while the tenants who are in occupation of permanent structures are governed by the West Bengal Premises Tenancy Act or by the Transfer of Property Act, as the case may be, irrespective of construction of such pucca or permanent structure either by the landlord or by the tenant.
20. In Khrodamoyee Sen v. Ashutosh Roy reported in 63 CWN 565 it has been pointed out that there is nothing in the Calcutta Thika Tenancy Act to show that a thika tenant is entitled to put up a pucca structure on the demised land. It has further been held in that case that the thika tenant will not be entitled either under the Transfer of Property Act or under the provisions of the Calcutta Thika Tenancy Act to raise a permanent structure on the land. In Monmoihanath Mukherjee v. Smt Banavasi and Ors. reported in 63 CWN 824 it has been held that the words 'any structure' as used in Section 2(5) of the Calcutta Thika Tenancy Act, 1949 are not to be construed in a way so as to include a pucca structure although the words, by themselves, will ordinarily include a pucca structure.
21. In case of Sri Sri Satyanarayan and Ors. v. S.C. Chunder reported in 2001 (3) CHN 641 at page 646 (para 20) the Division Bench of this Court has held as follows:
'The question which automatically comes to one's mind is that if construction of any structure make one a thika tenant then there would be a duplication of the rent laws. A tenant would be protected, if he constructs or obtains a permanent structure on land, both the Thika Tenancy Laws and by the Rent Control Legislation. However, this unwholesome anomaly has been avoided from the very beginning by means of judicial decisions whereby the words "any structure" in the Thika Tenancy Act have been consistently held to mean kutcha or temporary structure. There is the case of Kshirodamoyee Sen reported at 63 CWN 565, the case of Monmatha Nath Mukherji, reported at 63 CWN 824 and the case of Jatadhari Daw, reported at 1986(1) CHN page 21."
22. In view of the authorities cited above it can well be held that the words "any structure" as used in Section 3(8) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 means kutcha or temporary structure and not pucca structure and the thika tenancy relates to kutcha or temporary structure and not permanent structure. Similar view is expressed in an unreported decision of the Division Bench of this Court in the case of Hindustan Petroleum Corporation Ltd. v. Sasht Bhusan Mondal in APD No. 280 of 1981 as pointed out by the Division Bench in the case of Sri Sri Satyanarayan and Ors. (supra) at page 646 (para 18 and 19).
23. It has been urged by the learned senior advocate for the defendant that in Section 3(8) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 which defines 'thika tenant', before the word 'structure' the expression 'any has been used omitting in between either the expression 'kutcha' or 'pucca' inspite of the fact that Section 3(7) of the said Act defines what is a 'pucca structure'. He has further argued that if the legislature intended that 'structure' used in Section 3(8) of the said Act should be 'pucca structure', there was no difficulty for the legislature to qualify the expression 'structure' by the word 'pucca' in Section 3(8) of the said Act and since it was not done, no Court can supply any word to a section which word was not supplied by the legislature itself. It is the further contention that the expression 'any' does not admit of any limitation or qualification as would be evident from Stroud's Judicial Dictionary, 5th Edition, Vol. 1, page 139. But such contention raised by the learned senior advocate for the defendant cannot be countenanced in view of the judicial decisions cited above. In this context the learned senior advocate for the plaintiff has pertinently drawn my attention to Section 6(4) of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 which authorises the thika tenant holding land directly under the State to construct pucca structure after obtaining necessary permission from the State Government. Section 6 of the said Act relates to incidents of tenancy in respect of lands vested in the State and every thika tenant occupying any land under a landlord on the date of commencement of the said Act shall occupy such land, on such terms and conditions as may be prescribed, directly under the State as if the State had been the landlord in respect of that land. On perusal of the relevant provisions of the said Act in the light of the judicial decisions cited above it is quite apparent that thika tenancy relates to kutcha or temporary structure and unless kutcha structure is involved in the demised premises the question of thika tenancy cannot arise. Reference can be made in this context to the case of Sri Sri Satyanarayan and Ors. (supra) at page 647-648 (para 26).
24. It has been contended on behalf of the plaintiff that prior to granting of lease of the suit premises to the defendant there was permanent structure. The deed of lease copy of which is marked Ext. 1 is dated 17.9.56. The learned senior advocate for the plaintiffs has drawn my attention to the letter dated 10.3.56 (Ext. 'O') produced by PW 1 under subpoena. The said letter, as it appears, was written by the plaintiffs father to the Secretary, Orient Movietone Corporation requesting the latter to allow the security guards who were residing at the suit premises to use the water tap and latrine of the darwans of the cinema house. It transpires from the testimony of PW 2 Purnendu Roychowdhury that there were two pucca structures made of concrete. His cross-examination reveals that permanent structures were erected on the demised premises prior to 1981. The learned senior advocate for the plaintiff has pertinently drawn my attention to the answers given by PW 2 to question Nos. 54 to 58, 132, 134, 206 to 209, 216 to 227 and 268 in support of the plaintiffs contention relating to existence of permanent structures on the demised premises. It is significant to note in this context that the evidence of DW1 Anil Chandra Deb indicates in clear terms that the pucca structures were constructed on the demised premises prior to 1981. This fact is revealed from the answers given by DW 1 with regard to question Nos. 15 to 23 and 50 put to him. The answers given by DW 3 Tulsidas Banerjee with regard to question Nos. 15, 22 and 23 glaringly reveal existence of permanent structures on the demised premises. Likewise the answers given by DW 5 Gautam Das with regard to question Nos. 10, 17, 18 and 27 put to him in course of his evidence unmistakably point out existence of permanent structures on the suit premises.
25. From the materials on record it appears that a writ petition was moved by the original plaintiff Binapani Roy Chowdhurani in this Court on 2.3.84 being Matter No. 215 of 1984 and the State Government appeared in the said matter and the rule was issued. Ext. 'D' is copy of the order dated 2.3.84 in Matter No. 215 of 1984 wherefrom it appears that the rule was issued upon the respondents including the State Government and the present defendant. By the order dated 5.5.86 copy of which is marked as Ext. 'E' Padma Khastagir, J. (as Her Lordship then was) made the said rule absolute and issued writ in the nature of mandamus upon the State of West Bengal, Secretary, Ministry of Land and Land Reforms and other respondents referred to therein commanding them to desist and forebear from taking any step in furtherance of or in reliance upon the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981 and in particular applying the provisions of the said Act to the present suit premises. Exhibit 'K' is the copy of the order dated 22.9.95 passed by the Supreme Court wherefrom it appears that thejudgment and order dated 5.5.86 of the High Court in Matter No. 215 of 1984 binds only respondent Nos. 1 to 4 therein and does not bind the fifth respondent Bharat Petroleum Corporation. Thus it is manifestly clear that the order dated 5.5.86 passed in Matter No. 215 of 1984 was ultimately confirmed by the Supreme Court and the same is binding on the State of West Bengal. In view of the said decision of the Supreme Court it can in no way be argued that the suit premises vested in the State under the provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981 and as such I hold that the premises in suit obviously falls outside the purview of the said Act.
26. From the above factual matrix it emerges that the suit premises never vested in the State under the provisions of the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981. This issue is answered in the negative and decided accordingly in favour of the plaintiffs.
27. Issue Nos. 2, 4, 5, 6 and 7:
Being interlinked all these issues are taken up together for consideration for the sake of convenience and brevity.
28. The defendant has taken a plea in the written statement that in view of the provisions of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976 the defendant is not liable to be evicted from the suit premises and the suit is premature. The Burmah Shell (Acquisition of Undertakings in India) Act, 1976 came into force on 24th January, 1976 and by virtue of the provisions of the said Act the right, title and interest of the Burmah Shell in relation to its undertakings in India stood vested in the Central Government. In view of Section 5(1) of the said Act where any property is held in India by Burmah Shell under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property. Sub-section (2) of Section 5 of the said Act lays down that on expiry of the term of any lease or tenancy referred to in subsection (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immediately before the appointed day. Thus it appears that desire of the Central Government is a sine qua non for renewal of such lease or tenancy, as the case may be, which was held by Burmah Shell immediately before the appointed day. In the instant suit there is not even a scintilla of evidence to indicate that any such desire was expressed by the Central Government for renewal of the lease in respect of the suit premises.
29. On perusal of the contents of the deed of lease marked as Ext, 1, I find that the lease was originally for the term of 25 years commencing from 15th August, 1956 with an option of renewal for a further period of five years subject to the terms and conditions incorporated therein. One of the terms of the lease is that if the rent or any part thereof shall remain unpaid for a period of two calendar months of the written demand or in case of breach of any of the conditions on the part of the lessee it shall be lawful for the lessor or re-enter, possess and enjoy the demised premises or any part thereof. It has been contended by the learned senior advocate for the plaintiffs that the option was exercised by the lessee according to the registered deed of lease copy of which is marked as Ext. '1' and the defendant lessee continued in possession under the original registered deed where term of renewal was fixed for 5 years after the specified period of 25 years. Exhibit 'A' is the copy of the letter dated 30.7.81 wherefrom it is quite evident that the defendant Bharat Petroleum Corporation Ltd. exercised option of renewal of the lease for a further term of 5 years from 15.8.81. It transpires from the answers given by PW 2 Purnendu Roy Chowdhury with regard to question Nos. 200 and 201 put in cross-examination that the rent was fixed at Rs. 1350/- per month in the original lease and after 15.8.81 the defendant had remitted the amount of Rs. 1350/- to the Chartered Bank according to the original instruction. It further transpires from his testimony that the defendant lessee had paid the rent according to the lease deed and the lessor had accepted the rent pursuant to the original lease deed. It has been contended by the learned senior advocate for the plaintiffs that the option period is part of the original lease and where no fresh lease is created in terms of the renewal clause of the original registered deed of lease no question of registering it arises. He has further contended that if in such a case the lessee continues in possession in exercise of his option as per renewal clause over the leased property after the initial period is over, his continuance in possession would be deemed to be under the original registered deed and in such a case further period Is to be treated as the part of the period of the original registered deed of lease. He has cited the case of Lalit Mohan Dey v. Smt. Satdalbasini Dosi wherein the Division Bench of this Court comprising P.N. Mookherjee, J. and T.P. Mukherjee, J. (as Their Lordship then were) held at page 58 (para 13) that the option of renewal, though it did not affect the term, or period of the lease until the option was exercised, did affect it, once it was exercised and the holding thus under the said further lease would be a holding under the original lease, which, in effect, would be a lease for the entire term, including the option period, the latter operating only on exercise of the option. Similar was the view expressed by the Division Bench of this Court subsequently in the case of Syed Ali Kaiser v. Mstt. Ayesha Begum and the case of Bank of India v. Smt. Govind Debi binani and Anr. reported in 1984(1) CLJ 16 as cited by the learned senior advocate for the plaintiffs. Relying on the aforesaid decisions the learned senior advocate for the plaintiffs has submitted that where the lessee had exercised his option in terms of the lease, it was a continuation of the lease as originally executed and the lessee was therefore not entitled to any protection under the West Bengal Premises Tenancy Act because such lease was outside the provisions of the said Act by virtue of Section 3(1)(b) of that Act. In Ranjit Kumar Dutta v. Tapan Kumar Shaw and Anr. on difference of opinion between Babu Lall Jain and Siddheshwar Narayan, JJ. (as Their Lordships then were) the appeal had been assigned by the Hon'ble the Chief Justice to Vidyanand, J. (as His Lordship then was) who agreeing with Siddheshwar Narayan, J. and disagreeing with Babu Lall Jain, J. held as follows at page 287-288 (para 29):-
"From the discussions made above it can be safely concluded that renewed of a lease is creation of a fresh lease and a fresh lease is required to be registered according to law but where no such fresh lease is created in terms of the renewal clause of the original registered deed of lease no question of registering it arises. If in such a case the lessor continues In possession in exercise of his option as per renewal clause over the leased property after the initial period is over, his continuance in possession would be deemed to be under the original registered deed. The further period is to be treated in such a case as part of the period of the original registered deed of lease. Thus, in such a case, where a lease contains renewal or extension clause, the period does not remain limited to the initial period only but it breaks the limit to further flow for another term and the lease does not determine at the end of the initial period on exercise of unilateral option by the lessee as in such a case there does not arise any question of fresh assent by the lessor because the right to enjoy for further period gets conveyed to the lessee under the original registered lease itself. In the instant case the lessee exercised his option and continued in possession after the initial period of 15 years as per the renewal/extension clause and as such his continuance would be deemed to be under the old registered deed of lease. His continuance in possession thereafter of the demised premises would not be holding over the same under Section 116 of the T.P. Act and his tenancy would not be governed under the provisions of the West Bengal Premises Tenancy Act, 1956."
30. The learned senior advocate for the defendant, on the other hand, has urged that 'renewal' requires a fresh lease and there cannot be any fresh lease unless there is a document duly registered. He has cited the case of Provash Chandra Dalui and Anr. v. Biswanath Banerjee and Anr. wherein at page 1839 (para 12) the Supreme Court observed as follows:
"It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong, to carry out further than its original limit. Extension, according to Black's Law Dictionary, means enlargement of the main body; addition of something smaller than that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension' and 'renewal1 is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease means a prolongation of the lease. Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years and as Mr. A.K. Sen rightly pointed out the Schedule specifically mentioned the lease as "for a stipulated period of twenty years." As these words are very clear, there is very little for the Court to do about it."
31. It has been contended by the learned senior advocate for the defendant that the above noted decisions and (1984)1 CLJ 16 (supra) must be taken to have been impliedly overruled by the decision of the Supreme Court in Provash Chandra Dalui (supra). But on careful perusal of those decisions I fail to accept such contention. In the case of Provash Chandra Dalui (supra) the Supreme Court has observed that in case of renewal a new lease is required. The said decision nowhere indicates that where in terms of renewal clause of the original lease deed the option of renewal is exercised by the lessee who continues in possession after expiry of the period of the original lease, his continuance in possession would not be deemed to be under the original registered deed of lease and fresh registration would be necessary in case of such renewal of lease made under the renewal clause of the original lease deed which was an integral part of it. In other words, in the case of Provash Chandra Dalui (supra) the Supreme Curt had no occasion to consider or make any finding on legal consequences of continuance of possession of the lessee under the old registered deed for a further period in terms of the renewal clause without a fresh deed of lease. In view of such legal position continuance in possession under a renewal clause without a new registered deed has the effect of prolongation/extension as held in , and (1984)1 CLJ 16. This aspect of the matter has been pointed out as well in . In my view the decision of the Supreme Court in Provash Chandra Dalai (supra) as cited by the learned senior advocate for the defendant has not at all overruled the aforesaid decisions of the Division Bench of this Court and (1984) 1 CLJ 16 which have been cited by the learned senior advocate for the plaintiffs. The learned senior advocate for the defendant has cited Pieco Electronics and Etectricals Limited v. Smt. Tribeni Debi wherein the Division Bench has held that the lessor cannot ask for ejectment of the lessee solely on the basis of the duration clause in the unregistered deed of lease and such unregistered deed can at best be looked into for ascertaining the commencement of possession, rate of rent or similar other provisions which are collateral to the principal transaction. Since in the instant suit the deed of lease in respect of the suit premises is admittedly a registered one and the facts and circumstances of the instant suit are completely different, the said decision in the case of Pieco Electronics and Electricals Limited (supra) has got no manner of application to the present suit.
32. From the materials on record it is quite evident that after exercising option in terms of the renewal clause of the original lease deed the defendant continued in possession of the suit premises for further period of 5 years and paid rent up to June, 1982 and thereafter stopped payment of rent to the original plaintiff or the present plaintiffs since July, 1982.
33. As mentioned hereinbefore, the materials on record do not indicate that on expiry of the term of the lease there was any desire of the Central Government for renewal of the lease as contemplated under Sub-section (2) of Section 5 of the Burmah Shell (Acquisition of Undertakings in India) Act, 1976. However, it appears from the evidence on record that the defendant exercised option for renewal of the lease and the original plaintiff was also willing to renew the lease. The materials on record unequivocally point out that on expiry of the period of the original lease for 25 years the defendant as lescee continued in possession thereof after exercising option in terms of the renewal clause and paid rent from 15th August, 1981 till June, 1982 and the lessor accepted rent from the lessee. The learned senior advocate for the defendant has argued that after expiry of the period of 25 years which was fixed in the original lease deed, the defendant paid rent to the original plaintiff from 15th August, 1981 till June, 1982 and in view of Section 116 of the Transfer of Property Act the defendant became a tenant by holding over and the defendant being a monthly tenant, its tenancy will be governed by the provisions of the West Bengal Premises Tenancy Act, 1956. He has cited Kai Khushroo Bezonjee Capadia v. Bai Jerbat Hirjibhoy and Anr. , Karnani Industrial Bank Ltd. v. The Province of Bengal and Ors., , Biswabani Put. Ltd. v. Santosh Kumar Dutta and Ors., and Satish Makhan and Ors. v. Govardhan Das Byas and Ors., in support of his argument. The said decisions of the Federal Court and the Supreme Court as referred to above clearly delineate how the provisions of Section 116 of the Transfer of Property Act operate. But those decisions cannot render any assistance to the defendant and have no manner of application to the facts and circumstances of the case in hand.
34. It is no doubt settled law that tenancy of holding over is a creature of a bilateral act and does not come into existence by a mere unilateral intendment or declaration of one of the parties. The intention of Section 116, as held by the Division Bench comprising Rankin CJ. and Buckland, J. (as their Lordships then were) in the Bengal National Bank Ltd. v. Raja Janoki Nath Roy and Ors., 31 CWN 973 at page 981, is that the lessee holding over with the landlord's mere consent has still a lease but only from month to month. In Annapurna Seal v. Tincowrie Dutt and Anr. reported in 66 CWN 338 at page 360 the Division Bench of this Court held as follows:
"By Section 116 of the Transfer of Property Act a new tenancy is implied from the continuing possession of the demised property by the lessee after the determination of the lease and the assent of the lessor to the continuing occupation by acceptance of rent or otherwise, see KB. Capadia v. Bai Jerbai Warden and Anr., 1949 FCR 262 at 270. The implication of the new tenancy rests upon the presumed intention of the parties and is subject to any agreement to the contrary. The presumed intention may be negatived and it may be shown that the parties never intended to create a new tenancy."
35. As observed by Rankin, CJ. in Gopal Chandra Rudra v. Khater Karikar reported in 33 CWN 1207, the act of holding over after the expiration of the term does not necessarily create a tenancy of any kind, it being in each case a question of fact what the intention of the parties was. This observation of Rankin, CJ. (as His Lordship then was) was quoted by the Division Bench of this Court in the case of Annapuma Seal (supra) at page 360.
36. Payment and acceptance of rent by a less to the lessor after expiration of the lease is of itself not sufficient evidence to show that the parties intended to create a new tenancy. This settled principle of law is fortified with a catena of decisions viz. Davies v. Bristow, (1920)3 KB 428, Morrison v. Jacobs, (1945)2 AER 430, Monindra Nath De v. Man Singh, as referred to on page 363 in the case of Annapuma Seal (supra).
37. In Marcroft Wagons Ltd. v. Smith, (1951)2 KB 496 at page 506 Lord Denning made the following observation:
"If the acceptance of rent can be explained on some other footing than that a contractual tenancy existed as, for instance, by reason of an existing or possible statutory right to remain, then a new tenancy should not be inferred."
38. As mentioned hereinabove, in the instant suit the lease was originally for a period of 25 years from 15th August, 1956 with an option of renewal for a further period of 5 years and by the letter dated 30.7.81 copy of which is marked as Exhibit 'A' the defendant exercised option of renewal of the lease in terms of the renewal clause for further period of 5 years from 15.8.81. Admittedly rent was paid by the defendant to the original plaintiff from 15.8.81 till June, 1982. Such rent was paid and accepted on the footing that the defendant lessee had an antecedent right under the original lease to remain as lessee until the expiry of 14.8.86. Unfortunately the defendant stopped payment of rent to the plaintiff from July, 1982 in breach of the terms of the deed of lease for which the original plaintiff had to issue the notice dated 18th April, 1983 copy of which is marked as Exhibit '2' calling upon the defendant to hand over the vacant and peaceful possession of the suit premises on expiry of 14th June, 1983. Since there was stipulation in the lease deed that in case of non-payment of rent for a period of two calendar months of the written demand or in case of breach of any of the conditions on the part of the lessee the lessor shall have right to re-enter, possess and enjoy the demised remises and shall have option to determine the lease the said notice was issued by the original plaintiff to the defendant. In reply to the said notice the defendant admitted the factum of default in payment of rent but at the same time raised dispute about title of the original plaintiff in respect of the suit premises the written reply dated 2nd May, 1983 copy of which is marked as Exhibit 'B' bears testimony to that. However, it is quite evident from the materials on record that the lease expired by efflux of time on 14.8.86 whereupon the plaintiff instituted the present suit against the defendant seeking decree for possession, damages or occupation charges from 15th June, 1983 to 14th August, 1986 and mesne profits for the subsequent period in the manner as already stated. Failure on the part of the defendant to pay rent to the original plaintiff/ present plaintiffs since July, 1982 is a notorious fact which can scarcely be doubted. The facts and circumstances gleaned from the materials on record unmistakably point out that the parties intended to continue the supposed existing tenancy and no new tenancy was created. On the facts proved in evidence the plea of holding over a monthly tenancy under Section 116 of the Transfer of Property Act as raised on behalf of the defendant is utterly unsustainable. In such circumstances the defendant's continuance in possession of the suit premises in terms of the renewal clause after expiry of the term of the original lease dated 17.9.56 can be said to be holding the suit premises under the registered lease dated 17.9.56 and not under a new contract of tenancy.
39. To wriggle out of the predicament stemming from non-payment of rent since July, 1982 the defendant by the petition being G.A. No. 4095 of 2002 which was filed at a belated stage of trial of the instant suit has sought leave to deposit the sum of Rs. 3,30,750/- with the Registrar, Original Side of this Court with a direction upon him to invest the sum for such term as deemed fit and has also sought some other directions after condoning the delay. I am afraid such application cannot be entertained at such belated stage and if the same is allowed, it would be contrary to the principles of Justice and fair play. Had there been any dispute regarding title of the landlord in respect of the suit premises after coming into force of the Calcutta Thika and other Tenancies and Land (Acquisition and Regulation) Act, 1981 as raised by the defendant, the amount of rent could have easily been deposited by the defendant in time after obtaining leave from the Court without prejudice to the rights and contentions of the defendant. Since no endeavour whatsoever was made by the defendant to pay or deposit rent since July, 1982, there was utter violation of the terms of the lease. The defendant cannot now be allowed to take advantage of its own wrong. There is no legal basis for allowing prayer made by the defendant in the said application which was filed when trial of the suit was going to be concluded. In the circumstances the said application being G.A. No. 4095 of 2002 filed by the defendant is liable to be dismissed and the same is dismissed accordingly.
40. From all that has been stated above I am clearly of the view that the original plaintiff/present plaintiffs had/have cause of action to institute the instant suit against the defendant. The defendant lessee continued in possession of the suit premises in terms of the renewal clause of the original lease deed and in the circumstances already stated relationship between the plaintiffs and the defendant was governed by the Transfer of Property Act and after expiry of the lease on 14.8.86 the plaintiff had initiated action for eviction of the defendant. The defendant did not hold over a monthly tenancy under Section 116 of the Transfer of Property Act and is not entitled to get any protection under the West Bengal Premises Tenancy Act, 1956. All these issues are decided accordingly in favour of the plaintiff.
41. Issue Nos. 9, 10 and 11:
The term of the lease as evident from the materials on record expired by efflux of time on 14.8.86. After expiry of the lease it is the obligation of the defendant to hand over vacant possession of the suit premises to the plaintiffs but the defendant the erstwhile lessee remains in possession of the suit premises after expiry of the term of the lease. As mentioned hereinabove, the defendant made default in payment of rent in terms of the lease for which there is a specific clause in the lease deed by virtue of which the lessor could re-enter, possess and enjoy the demised premises and determine the lease. It is manifestly clear from the terms of the lease deed that in case of violation thereof on the part of the lessee the lessor could have exercised the option to determine the lease and evict the lessee even prior to expiry of the period of lease. However, the plaintiffs did not exercise such option. The instant suit was instituted against the defendant after the period of lease expired. Even if it is accepted for the sake of argument that relationship between the original plaintiff/present plaintiffs and the defendant was/is governed by the provisions of the West Bengal Premises Tenancy Act, 1956 as contended by the defendant, no effort whatsoever was made by the defendant to deposit the rent with interest in the Court in terms of the provisions of that Act. In these circumstances the plaintiffs are entitled to get decree for possession of the suit premises by evicting the defendant therefrom. The plaintiffs are also entitled to get decree for occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986 against the defendant. The plaintiffs are also entitled to get decree for mesne profits at the rate of Rs. 1350/- per month from 15th August, 1986 till delivery of vacant possession of the suit premises to them on payment of the required Court fees payable on the amount due in accordance with law.
42. These issues are decided accordingly in favour of the laintiff. Court fees paid are sufficient.
The suit be decreed with costs in favour of the plaintiffs in the following manner. The plaintiffs do get decree for possession of the suit premises as mentioned in the schedule to the plaint by evicting the defendant therefrom. The plaintiffs do get decree for occupation charges at the rate of Rs. 1350/- per month from 15th June, 1983 to 14th August, 1986 against the defendant. The plaintiffs do further get decree for mesne profits at the rate of Rs. 1350/- per month from 15th August, 1986 till delivery of vacant possession of the suit premises to them against the defendant on payment of the required Court fees payable on the amount due in accordance with law. The plaintiffs do get costs of the suit against the defendant.
Decree be drawn up as expeditiously as possible.