INDIAN IRON AND STEEL CO LTD Vs. BAKER ALI
LAWS(CAL)-1960-4-7
HIGH COURT OF CALCUTTA
Decided on April 29,1960

INDIAN IRON AND STEEL CO. LTD. Appellant
VERSUS
BAKER ALI Respondents

JUDGEMENT

P.N.Mookerjee, J. - (1.) Only a short point arises for consideration in this reference. The point is what is the true meaning of the phrase or expression 'a year of the tenancy' in Section 9 (1) (b) (iii) of the West Bengal Non-Agricultural Tenancy Act, 1949, in relation to tenancies from month to month. There is one direct decision on this point, namely, in the case of Radha Charan Das v. Pravabati Dassr, 63 Gal WN 535, where Banerjee, J., held inter alia -- and that is how he has explained it in the present "letter of reference," -- that, under the aforesaid section, in case of tenancies from month to month, six months' notice must be given expiring, -- and terminating the tenancy, -- with "the anniversary of the expiration of the month of the tenancy" or, in other words, that a year in the above expression "a year of the tenancy" in Section 9 (1) (h) (iii) of the West Bengal Non-Agricultural Tenancy Act, 1949, means a year or a period of twelve months, expiring on the anniversary of the expiration of the month of the tenancy in the succeeding year or years.
(2.) Three other decisions have also been referred to in the above connection. The first & the case o Sudhindra Math Roy v. Haran Chan-dra Mistry, Section A. No. 879 of 1950, D/- 25-1-1955, not yet reported, where Das Gupta, J., as he then was, sitting with Guha, J., while rejecting the argument that the above provision (Section 9 (1) (b) (iii)) would not apply to tenancies other than yearly tenancies or tenancies from year to year, made incidentally, in the course of the judgment, the following observations: "Even where the tenancy is from month to month, 12 months will make a year and when the 12 months have expired a year of the tenancy has expired." obviously suggesting thereby that, in the case of monthly tenancies or tenancies from month to month, the above section may well be applied by construing the phrase in question and computing or calculating "a year of the tenancy" as comprising a period of 12 months from the beginning of the tenancy and each successive period of 12 months thereafter. The second case Narayan Chandra Sen v. Sripati Charan Kumar, Section A. No, 425 of 1952, D/- 9-8-1955, by Das Gupta and Bachawat, JJ.. also unreported, does not add anything material for our present purpose, but merely follows the above earlier decision upon the actual point decided, which was the same there as in the said earlier case, namely, whether Section 9 (1) (h) (iii) of the West Bengal Non-Agricultural Tenancy Act, 1949, would apply at all to monthly tenancies or tenancies from month to month, and apparently also with regard to the above incidental observations, made in tile said earlier pronouncement of this Court The third case, Jagannath Upadhyay v. Amarendra Nath Banerjee, MANU/WB/0131/1957. is a decision of Renupada Mukherjee, J. and myself, in which the validity and sufficiency of the notice to quit was challenged on the ground that the tenancy there having commenced under a Kabuliyat dated the 8th Sravan, 1344 B. S. which was also the date of the tenant's entry into possession, the notice to quit expiring with the end of Chaitra, 1356 B. S. was invalid and insufficient, or, in other words, that the disputed tenancy having commenced on the 8th of a Bengali Calendar month could not be validly terminated by a notice to quit expiring with the end of such a month. This contention was overruled by the Court upon the finding that, in the particular facts and circumstances of the case, as noted' in the judgment, and on a proper interpretation of the relevant Kabuliyat, the said tenancy must be deemed to have commenced on the Jst of Sravan, 1344, B.S. notwithstanding execution of the Kabuliyat and the tenant's entry into possession on the 8th, or, in other words, that the tenancy ran according to Bengali Calendar month and, accordingly, the notice to quit expiring with the end of Chaitra, 1356 B.S., that is, with the end of a Bengali Calendar month was valid and sufficient. The validity and sufficiency of the notice to quit, however, so far as Section 9 (1) (b) fiii) of the West Bengal Non-Agricultural Tenancy Act, 1949, is concerned, was not argued in the above case, as, indeed, it could not be, in view of the peculiar circumstances thereof, which were such that this Court could not, in the facts bcfore it, allow the said question to be raised here, except at the risk of doing grave injustice to the respondent landlord. As a matter of fact, when the second appeal in that case was heard by Guha, J., the tenant appellant appears to have sought to argue this particular question also, but he was not allowed to do so as it had not been raised at any earlier stage and, when the Letters Patent appeal was heard, the learned Advocate for the tenant appellant did not even mention this point and the memorandum or the grounds of appeal also did not contain any indication thereof. The Letters Patent Bench, therefore, was not called upon to decide this particular point, and would not, as, indeed, it could not, have decided the same to hold that the notice was invalid, howsoever bad the notice might have been from the point of view of the aforesaid section. The mere fact, therefore, that the tenancy in that case started or was held to have started on the 1st of Sravan, and the notice given expired with the end o the Bengali month of Chaitra and that was held to be a good and valid notice for purposes of that case would not justify any inference that the decision in the above case cited contained or involved, even remotely, any pronouncement or ex-prission of opinion on the present question. As the point was not and could not be urgued and as it was not actually entertained or allowed to be raised or argued the validity and sufficiency of the notice from the point of view of the above section (Section 9 (1) (b) (iii) of the West Bengal Non-Agricultural Tenancy Act, 1949) must be taken to have been assumed and accepted ex con-cessis or ex concessionis and without any decision on the merits. In the context, the above decision cannot be cited as any authority on the construction of the above section or as any authority or decision on the point, now before us, One way or the other, or as affording any foundation for any argument thereon, and it must be left out of consideration for the decision of this particular reference.
(3.) On the subject of decided cases on the present point, it is necessary to refer to one more decision of this Court. That is the recent Rench decision in Dip Narain Singh v. Kanai Lal Gos-wami, 64 Cal WN 293, where the validity and sufficiency of a notice under the aforesaid Sec. 9 (1) (b) (iii) of the West Bengal Non-Agricultural Tenancy Act, 1949, appears to have been dealt with on the footing that 'a year of the tenancy', as used in the said section, would mean and comprise, in the first instance, a period of 12 months according to the calendar, governing the particular tenancy, commencing with the date of commencement of the said tenancy according to the said calendar and, thereafter, succeeding periods of 12 months each according to the same calendar.;


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