CIVIL APPELLATE JURISDICTIONION: Civil Appeal No. 1973 of 1966. Appeal from the Judgment and decree dated August 30, 1965 of the Calcutta High Court in Appeal from Appellate Decree No. 1033 of 1956. V.S. Desai, Krishna Sen and B. P Maheshwari, for the appellants. D.N. Mukherjee and A. G. Ratnaparkhi, for respondent, No. 1 (a). The Judgment of the Court was delivered by Hegde,J.--This appeal by certificate arises from the decision of the Calcutta High Court in its appellate decree No. 1033 of 1956. The appellants are the legal representatives. of the. original plaintiff Chiranji Lal Khaitan. The plaintiff was the owner of the suit property. According to the plaint case, the plaintiff leased out the property described in Sch. III to the plaint a vacant plot to the defendant in June 1943 on a monthly rental of Rs. 20/-. It was an oral lease. The defendant took on lease that property for the purpose of carrying on his motor business. But in the year 1947 without the plaintiff’s knowledge the defendant constructed several structures on the land. In 1948 the plaintiff asked him to remove those structures but the defendant did not comply with that demand, hence in September 1948, the plaintiff served on him a notice to quit determining the tenancy With effect from the 1st November, 1948. As the defendant did not surrender possession of the property,-the plaintiff instituted the suit from which this appeal M 1245 Sup CI/71 arises on January 3, 1940 in the court of Muinsif at Purulia. At the time of the institution of the suit, the suit property was within the limits of the State of Bihar. The defendant resisted the suit on various grounds. The learned trial judge rejected all those grounds and decreed the suit ill May, 1952, as prayed for and directed the defendant to deliver vacant possession of the suit plot after removing the structures put up by him. The decree of the trial court was affirmed by the List appellate court on July 11, 1952. Meanwhile in 1956, some of the border areas of the Bihar State were transferred to the State of West Bengal as a result of the amendment of the Constitution. One of the areas that stood transferred to the State of West Bengal is that concerned in the present litigation. The transfer in question took place on November 1, 1956. The defendant filed a ,second appeal. against the aforementioned decree in High Court of Patna on September 7, 1956 and the same was admitted by the High Court on September 10, 1916. That appeal stood transferred to the High Court of Calcutta under the provisions of the Bihar and West Bengal Transfer of Territories Act, 1956, the Act under which the transfer of territories mentioned earlier took place. Part VIl of that Act provided that the law then in force in the transferred ,territories was to continue until otherwise provided by the ,competent legislature or other competent authority. In 1959 the West Bengal legislature enacted the West Bengal Transferred Territories (Assimilation of Laws) Act, 1958 (to be hereinafter referred to as the ’1958 Act’). That Act came into force on July 1, 1959. The second appeal filed by the ,defendant which had stood transferred to the Calcutta High ,Court came up for hearing before that court on August 10, 1965. Before the High Court the defendant’s Counsel pressed for decision only two points viz. ,
(1)That the plaintiff’s claim is barred by
equitable estoppel and
(2) -the suit is liable to be dismissed
under’ s. 9 read with s. 80 of the West
Bengal Non-agricultural Tenancy Act, 1949 (to
be hereinafter referred to as the ’1949’ Act). The High Court rejected the first contention. Agreeing with the courts below, it came to the conclusion that there is no reliable evidence to show that the structures in question were put up either with the consent or knowledge of the plaintiff. But it accepted the second contention advanced on behalf of the defendant and dismissed the suit. Hence this appeal. All the courts below have concurrently come to the conclusion that the defendant has failed to establish his plea of equitable estoppel. That conclusion is based on findings of fact. We see no reason to review those findings. The only question that we have to consider is whether the High Court was right in holding that the suit for ejectment ought to fail for non-compliance of s. 9(1)(b)(iii). The High Court held that the plaintiff having failed to give six months’ notice before instituting the suit as required by the aforesaid provision, the suit is liable to be dismissed. It is urged on behalf of the appellants that s. 9 of the ’1949’ Act is not applicable to the facts of the case. Before instituting the suit for ejectment the plaintiff had given a notice to quit under s. 106 of the Transfer of Property Act, the governing provision, at the time of the institution of the suit. It was not disputed that the notice to quit in question at the time it was given was a valid notice. Therefore all that we have to see is whether because of the provisions of the 1949 Act read with the provisions of the 1958 Act’, the suit which was validly instituted has ceased to be maintainable. We have earlier seen that under the provisions of the Bihar and West Bengal (Transfer of Territories) Act, 1956, the existing laws were continued till appropriate provisions are made by the concerned legislatures. Therefore s. 106 of the Transfer of Property Act continued to be in force in the area concerned till the 1958 Act’ came into force. Section 3 of that Act provides
"(1) All State laws which, immediately before
the appointed day, extend to, or are not in
force in, the State of West Bengal, but do not
extend to, or are not in force in, the
transferred territories shall as from that
day, extend to or, as the caes may be, come
into force in the transferred territories.
Provided that the State law specified in Sche-
dule I shall extend to the transferred
territories subject to the amendment specified
in that Schedule;
(2)All State laws which, immediately before
the appointed day are in force in the whole or
any 1,art of the transferred territories but
not in the rest of West Bengal shall, on that
day, stand repealed in the transferred
territories :
Provided that such repeal shall not affect (a)
the previous operation of any Slate law so
repealed or anything duly done or suffered
thereunder ; or
(b)any, right, privilege, obligation, or
liability acquired, accured or incurred under
any State law so repealed ; or
(c)any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any State law so repealed ; or
(d)any investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid and any
such investigation, legal proceeding or remedy
may be instituted, continued or enforced and
any such penalty, forfeiture or punishment may
be imposed, as if this Act had not been
(The remaining,portion of the section is not
relevant for our present purpose.)
The expression "State law" is defined thus in
S. 2(b)
"" State law" means so much of any enactment,
’ordinance or regulation as relates to. any of
the matters enumerated in Lists II and III in
the Seventh Schedule to the Constitution and
include any order, by-law, rule, Scheme
notification or other instrument having the
force of law".. One of the statutes that stood extended to the transferred territories under the ’1958 Act’ is the ’1949 Act’. Section 9(1)(b)(iii) of that Act provides :
"(1) Notwithstanding anything contained in.
any other law for the time being in force or
in any contract if any non-agricultural land
has been held for a term of more than one year
but less than twelve years-
(b)without a lease in writing (C)........
then the tenant holding such non-agricultural
land shall be liable to ejectment on one or
more of the following grounds and not
otherwise namely ;
(iii)on the ground that the tenancy has been
terminated by the landlord by six months’
notice in writing expiring with the end of a
year of the tenancy served on the tenant in
the prescribed manner in the case of tenancies
of the class specified in clause (b), ;
Provided that a tenant shall not be liable to
ejectment on the ground specified in clause
(iii) except on payment of such reasonable
compensation as may be agreed upon between the
landlord and the tenant or if they do not
agree, as may be, determined by the Court on
the application of the landlord or such
tenant.--
The only other relevant provision is section
88 of that Act which says :
"The provisions of this Act shall have effect
in respect of all suits, appeals or
proceedings including proceedings in execution
for ejectment of a non-agricultural tenant
which are pending at the date of commencement
of this Act. The contention based on s. 9(1)(b)(iii) was taken for the first time in the High Court of Calcutta. The High Court as mentioned earlier has accepted that contention. If s. 9 read with S. 88 of the ’1949 Act’ governs this appeal then undoubtedly the plaintiff’s suit has to fail. But the question is whether those provisions are not subject to s. 3 of the ’1958 Act’? This question has not been considered by the High Court. The High Court was greatly impressed by the width of S. 88 of the ’1949 Act’. Read by itself there is no doubt that that provision makes applicable all the provisions of the ’1949 Act’ to all suits, appeals or proceedings including proceedings in execution for ejectment of non-agricultural tenant which was pending at the time, of the commencement of that Act. There is no dispute that the plaintiff has not complied with the requirements of S. 9(1)(b)(iii) of that Act. Therefore if the plaintiff was required to comply with the provisions of the ’1949 Act’ in all respects, he having not complied with the same, the suit ought to fail. But then, the provisions of the ’1949 Act" did not apply to the ’transferred territories’ on their own force. They were extended to those territories under the provisions of the ’1958 Act’. Therefore their application is subject to the conditions laid down by the ’1958 Act’. As seen earlier S. 3 of that Act while repealing the laws that Were in force in the ’transferred territory and extending the laws that were in force in the rest of West Bengal saved the previous operation of the existing laws so repealed and further saved anything duly done or suffered under those laws. In other words because of cl. (a) of the proviso to S. 3(2), acts duly done under the repealed laws are protected. Hence the quit notice given under S. 106 of the Transfer of Property Act by the plaintiff was an act duly done under a repealed law. That act is protected. Its validity cannot be tested on the basis of the provisions of the ’1949 Act’. This is plain from the language of S. 3(2) of the ’1958 Act’. That interpretation also advances public interest. Otherwise all ejectment suits which had been instituted before the transfer of territories had been effected would automatically fail for non-compliance of s. 9 of the ’1949 Act’, a law which was not in force in the transferred territories before their transfer. The legislature would not have intended such a result. If the plaintiff was not required to comply with requirements of S. 9(1)(b)(iii) of the ’1949 Act’-as we think he was not-then the plaintiff is not liable to pay any compensation for the structures put up by the defendant. The liability to pay reasonable compensation for the structures put up by the tenant arises under the proviso to cl. (iii) of s.9(1)(b). That proviso imposed the liability to pay reasonable compensation for the structures put up only when the termination of the tenancy is made under cl. (iii) of s. 9(1)(b) and not otherwise. As the termination of the tenancy was not made under that provision, the question of paying compensation does not arise. In the result this appeal is allowed, judgment and decree of the Calcutta High Court are set aside and that of the trial court as affirmed by the first appellate court is restored. Parties to bear their own costs in this Court and in the High Court. G.C. Appeal allowed.