PABITRA KUMAR ROY AND ANR. versus ALITA DSOUZA

Citation: [2006] SUPP. 6 S.C.R. 678 · Decided: 27-09-2006 · Supreme Court of India · Bench: A.K. MATHUR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
PABITRA KUMAR ROY AND ANR. 
v. 
ALITA D'SOUZA 
SEPTEMBER 27, 2006 
[A.K. MATHUR AND ALT AMAS KABIR,JJ.] 
West Bengal Premises Tenancy Act, 1956-Section 3(2) (as added by 
Amending Act XXIV of 1965)-Applicability of the provision to leases for 
C over 20 years, but containing a clause allowing prior determination thereof 
at the instance of either of the parties-Lease for over 20 years-Prior 
determination of by lessor-Suit under Transfer of Property Act for vacation 
of leased premises-Lessee not seeking protection under 1956 Act-Suit 
decreed-Lessee seeking Protection under Transfer of Property Act and 
continuing in possession thereby-Completion of lease period-Lessor seeking 
D possession from lessee-Failure to give possession-Suit-Lessee questioning 
maintainability of suit on the ground that tenancy was governed by the 
provisions of 1956 Act-Trial Court and First Appellate Court held that 
protection under 1956 Act not applicable-High Court holding that 1956 
Act was applicable-On appeal, held: The protection under the provision is 
E applicable only when ti/!! lease is terminated before its expiry period and not 
after the lease was allowed to run its full course-In the present case defence 
under the provision riot available as the same was taken after expiry of the 
lease period-Lessee was also estopped from taking protection thereunder 
having obtained benefit und<;r proviifion of Transfer of Property Act in the 
earlier suit and_ not having sought p'rotedtion under the 1956 Act-Transfer 
F of Property Act, 1882-Sections} l l(g) and 114-Doctrine of estoppel. 
On application of the lessee, after the suit ·med against her was decreed 
protection under Section 114 of Transfer of Property Act was granted and as 
such she retained the possession of the suit premises. 
G 
Thereafter, on completion of the lease period, lessor called upon the 
lessee to give possession of the suit premises. On failure to do so, lessor 
filed another title suit. Lessee questioned the maintainability of the suit on 
the ground that she was protected under Section 3(2) of West Bengal 
Premises Tenancy Act, 1956. The suit was decreed on the ground that the · 
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PAB!TRA KUMAR ROY v. ALITA D'SOUZA 
679 
lessee was not liable to seek protection under 1956 Act, she having not sought A . 
protection under the same in the previous suit and on the contrary herself 
seeking protection under Section 114 of Transfer of Property Act. In first 
appeal, order of Trial Court was confirmed. In Second Appeal, High Court 
reversed the findings of the courts below and held that Section 3(2) of 1956 
Act was applicable to the deed of lease in question. Hence the present appeal. B 
Allowing the appeal, the Court 
HELD: 1. On a construction of the provisions of Sub-section (2) of 
Section 3 of West Bengal Premises Tenancy Act, 1956, this Court is unable 
to subscribe to the view expressed by the High Court. The intention of the C 
Legislature in amending Section 3 appears to have been to prevent landlords 
from using long term leases as a camouflage for excluding them from the 
protection of the 1956 Act and yet retaining the right of prior determination. 
Sub-section (2) appears to have been enacted to prevent such abuse, inasmuch 
as, once the lease was determined before the fixed period, it attracted the 
proviso thereof. (648-EJ 
D 
Mahindra & Mahindra Ltd. v. Kohinoor Debi; 93 C.W.N. 773, referred 
to. 
2. Mere inclusion of a clause for prior determination of a lease, which 
is otherwise for a fixed period of more than twenty years, will not ipso facto E 
bring it within the exception contemplated in the proviso to sub-section (2) of 
Section 3 of the 1956 Act. The inclusion of such a clause may be taken by 
the tenant as a defence in the event the option under the said clause is 
exercised. Such a defence was not set up by the ~essee in the earlier suit 
when it was available to her and the same is not available to her after the 
lapse of the fixed period of the lease. (685-E-FJ 
F 
3. The law is clear that lease deeds for periods of twenty years or more 
would stand excluded from the operation of the 1956 Act except in matters 
relating to Sections 31 and 36 thereof, unless the same were terminable before 
their expiration at the option either of the_landlord or of the tenant. In other G 
words, if such a lease is terminated before its' fixed period expired, the proviso 
to Section 3(2) would be attracted as a defence against evictio

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