Calcutta High Court
Pundarikaksha Basu And Ors. vs Sardar Chanda Singh And Ors. on 15 December, 1966
Equivalent citations: AIR1967CAL538, AIR 1967 CALCUTTA 538
JUDGMENT P. Chatterjee, J.
1. The substantial question involved in this Second Appeal is to interpret Clause VI of the lease Clause VI runs as follows:--
"To erect only temporary structures as may be necessary for their pupose: and if any structure of permanent or substantial character is erected by the lessees that will be done by them at their own risk, to remove the structures within a fortnight from the expiry of the lease by efflux of time, in default they will lose all rights in the structure and their rights therein will be extinguished......"
2. This lease was executed on the 30th December 1946 This lease should be interpreted not merely in the context of the Transfer of Property Act which was then in force but also in the context of the Non-Agricultural Tenancy Act which came in force later. Under Section 7. Sub-section 5 of the said Act "notwithstanding anything contained in any other law for the time being in force or any contract, if the landlord has allowed pucca structures to be erected on any non-agricultural land held under a lease in writing for a period specified therein, whether such structures have been erected before the expiration of the said period then the tenant holding the non-
agricultural land comprised in such tenancy shall not of ejected by his landlord."
There is no dispute that the structures of permanent or substantial character are pucca structures within the meaning of the West Bengal Non-Agricultural Tenancy Act. The question is has the landlord 'allowed pucca structures to be erected'. If the landlord has allowed such pucca structures to be erected the suit must be dismissed. If, on the other hand, the Landlord has not 'allowed pucca structures to be erected' then the landlord will succeed and he will get a decree for ejectment.
The trial court decreed the suit; the appeal court allowed the appeal and hence this Second Appeal by the landlord.
3. We are to interpret the terms of a lease in 1947 That lease was executed with reference to the law then in force. Section 108 of the Transfer of Property Act provides for rights and liabilities of the lessor and the lessee and it further says that in the absence of a contract or a local usage to the contrary the provision as under Section 108 would apply. The lease in question refers to many of the provisions of Section 108; but we are not to consider any of them except Clause VI at the present stage. The relevant provision in Section 108(p) is as follows: --
"He must not without the lessor's consent erect on the property any permanent structure except for agricultual purposes".
Hence, under the law, then in force, the tenant could be successfully injuncted by the landlord if the tenant attempted to raise any permanent structure. But the prohibition under Section 108(p) is not absolute prohibition. By a contract between the parties they could do away with the prohibition wholly or partially; with reference to Section 108(p) the parties agreed that temporary structures might be erected but if a permanent or substantial structure would happen to be erected by the lessee that would be done by him at his own risk and further he would remove such structure within a fortnight from the expiry of the lease by efflux of time. In default, the structure would vest in the landlord. This is the contract.
4. We are first to interpret what does this phrase 'erect at their own risk' means. Had there been no provision as Clause VI in the lease the landlord would get an injunction against such erection; hut because of the provision in Clause VI the tenant is in a better position. Therefore, the phrase 'erect at their own risk' does mean something to the tenant. The parties intended to say if such a structure would be erected by the tenant the landlord would not be entitled to stop that construction by injunction But such construction would still be at the risk of the tenant; this means the tenant would expose himself to hazard on such erection The risk was to remove such structure, permanent or substantial, within a fortnight from the expiry of the lease by efflux of time and if he did not remove the structure it would vest in the landlord. Hence, no grant was intended but the tenant was warned against hazard; he would gain no advantage by raising such structure but on the expiry of the lease his risk is either to remove the structure or allow it to vest in the landlord. Under the terms of the contract, the lease has expired and a fortnight thereafter has also expired Therefore, under the terms of the lease and apart from the provisions of the Non-Agricultural Tenancy Act the tenant would be liable to be ejected and the structure would vest in the landlord.
5. The next question is how Section 7, Sub-section 5 of the Non-Agricultural Tenancy Act affects the aforesaid legal position. That section as we have referred to is that even though there is some other law to the contrary and even though there is 8 contract to the contrary if the landlord has allowed pucca structures to be erected on any non-agricultural land under a lease in writing for the period specified, the tenant shall not be ejected. We have already referred to the lease and it was executed on the 30th December. 1946. The lease was for a period of 10 years from the 1st January, 1947, to the 31st December, 1966. Hence, before the expiry of the period of the lease i.e., before the structure vested in the landlord on ejectment under the contract, Section 7 Sub-section 5 came into operation. Therefore, Section 7, Sub-section 5 would operate notwithstanding the contract and notwilhstanding the provision of the Transfer of Property Act, Hence, we have to examine if the tenant is given the liberty to raise pucca structure at his own risk subject to removal of the same within a fortnight of the expiry of the lease, does the landlord really 'allow' pucca structure to be erected? It is quite clear that the landlord has not prohibited the construction of pucca structure. The prohibition would be there, because of Section 108(p) of the Transfer of Property Act and that prohibition must have been intended to be removed by Clause (vi) of the lease. I may also say that the landlord has agreed to suffer such erection because he has limited his right under Section 108(p), but even then such agreement to suffer is not absolute It is conditional He would suffer provided the structures vest in him or provided the tenant takes the risk of removing the valuable structures.
6. In Stroud's Judicial Dictionary, Vol.
(I), the word 'allow' means as follows:--"To 'allow' a thing to be done or omitted there must be some direct or indirect, sanction of it, unlike the mere responsibility of an innkeeper if he 'suffers' things contrary to the Licensing Act " In this connection we would also refer to the meaning of the words 'permit' or 'permit and suffer' According to Stroud's Judicial Dictionary, "a person 'permits or suffers' that which he can prevent or might have prevented: therefore, if an owner, bound by a restrictive covenant, lets the premises for the prohibited purpose, he 'permits or suffers a user contrary to the restriction".
Hence, Clause (vi) of the lease may mean that the 'landlord permitted or suffered' the tenant's raising of structures because the landlord could have prevented the raising of such structures and the landlord might not have suffered it. The statute namely. Section 7(5) of the Non-
Agricultural Tenancy Act does not use the phrase 'permil or suffer'. If that phrase had been used I would have no doubt that Clause
(vi) would come within the mischief of Section 7(5). I have no difficulty in holding that under Clause (vi) of the lease the landlord per mitted and suffered the construction of pucca structure which he could have prevented under the law in force But the legislature has chosen not to use that phrase which is not very uncommon in legal language but has used another word which means something more than 'permit and suffer'. The word 'allowed' as has been stated in the Judicial Dictionary means and implies a sanction granted, not a risk undertaken The tenant merely had a risk if he raised structure, the landlord did not grant him any positive sanction but that the landlord would suffer such construction to the extent that he would not injunct the tenant From constructing such pucca structures, but still he would get no benefit by such construction.
7. I am, therefore, of opinion, that the word 'allow' means some positive sanction and not mere permission or sufferance. In this case there is nothing positive in the sanction, though the landlord has restrained himself from injuncting the tenant. In this view of the matter. I would hold the landlord 'did not allow' pucca structure to be raised.
8. Mr. Guha has further urged that if there is any ambiguity in the meaning of the word 'allow' that ambiguity should be constructed in favour of the tenant. 1 have held that the word 'allow' means something more than 'permit and suffer' and I have further held that the word 'allow' involved some positive sanction by the landlord, i.e., the landlord must state positively either directly or indirectly that he would allow the tenant to raise pucca structures. I have further held that in the context of Section 108(p) of the Transfer of Properly Act with reference to which the Clause in question was introduced, the landlord merely agreed not to injunct the tenant from raising pucca structures as he would otherwise be entitled to At the date of the contract the tenant could not have in the absence of a contract to the contrary raise any pucca structure and the landlord could on the language of Section 108(p) successfully injunct the tenant from raising any pucca structure The landlord agreed to forbear it, or in other words, the landlord permitted and suffered the tenant to raise pucca structure: but did not positively allow him. Moreover, this permission or sufferance was subject to a risk. The word 'allow' again does not imply imposition of condition and in the context of Section 7(5) of the Non-Agricultural Tenancy Act, it means allow without any condition whatsoever. I find no ambiguity. The question is the meaning of the word 'allow' in law and that is not ambiguous. Hence, this point is overruled. The appeal is allowed, the order of the Appeal Court set aside and that of the Trial Court is restored. No order as to costs.
9. The defendants tenants are given two months time to vacate provided they deposit all sums which have become due to the plaintiff's landlords on account of the use and occupation of the property and provided they deposit a sum of Rs. 100 (rupees one hundred) only for use and occupation of the property for the next two months in terms of the judgment of this Court These deposits must be made within one month from this date in the trial court The plaintiffs will be entitled to withdraw these sums, if deposited and also the sums which are already in deposit without furnishing any security.
10. In default of the deposits aforesaid, the decree would become executable at once.
11. Leave to file appeal under Clause 15 of the Letters Patent is asked for and is refused.