Holding

The Supreme Court held that the notice to quit was valid, the tenant had breached Section 108 of the Transfer of Property Act and committed nuisance, thereby justifying eviction under the West Bengal Premises Tenancy Act.

Summary

The landlord filed a suit for eviction and mesne profits against the tenant under the West Bengal Premises Tenancy Act, 1956. The trial court held that the notice to quit was invalid and dismissed the suit. On appeal, the lower appellate court and the High Court found that a valid one‑month notice had been served, the tenant had cut and replaced a collapsible gate without permission, threatened the landlord and his son, and caused nuisance, thereby violating clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882. The Supreme Court examined the statutory requirements of notice under Section 13(6) of the Tenancy Act and Section 28 of the West Bengal General Clauses Act, concluding that the notice need not be served by registered post and was valid. It affirmed the findings of the lower courts that the tenant’s acts constituted nuisance and breach of the Transfer of Property Act, justifying eviction. Consequently, the appeal was dismissed and the tenant was ordered to vacate the premises within two months.

Issues considered

Whether the notice to quit was legal, valid and sufficient.
Whether the tenant violated clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, 1882.
Whether the tenant was guilty of causing nuisance and annoyance.

Legislation cited

Code of Criminal Procedure, 1973s. 144
Transfer of Property Act, 1882s. 108
West Bengal General Clauses Act, 1899s. 28
West Bengal Premises Tenancy Act, 1956s. 13(1)(b), s. 13(6)

Subjects

rent controlevictionnotice to quitpremises tenancy actnuisancetransfer of property actlandlord-tenant disputeWest Bengal

Judgment

RANJU@ GAUTAM GHOSH A
v.
REKHA GHOSH & ORS.

DECEMBER 14, 2007
B
[R.V. RAVEENDRAN AND P. SATHASIVAM, JJ.]

Rent Control & Eviction:
West Bengal Premises Tenancy Act, 1956; S 13(1)(e), (6)/Transfer C
ofProperty Act, 1882; S.108/West Bengal General Clauses Act, 1899;
S.28:
Eviction Petition for recovery ofpossession and mesne profit-
Notice to tenants-Requirements of-Tenant causing damage to
collapsible gate and putting additional construction-Violation of D
Clauses (m), (o) and (p) of S.108 of Transfer of Property Act-
Eviction on grounds of nuisance and annoyance-Held: Sub-section
6 of S.13 of 1956 Act makes it obligatory on the part ofLandlord to
issue one month's Notice to tenants to quit-No provision under 1956
Act mandates service ofNotice by registeredpost-Therefore, a tenant E
cannot claim that the Notice should be served by registered post- On
the basis of evidence and in terms of the provisions, first appellate
Court and also High Court rightly held that a valid Notice to quit was
duly served by landlord to tenant-First appellate Court, based on
oral and documentary evidence, came to the conclusion that the F
collapsible gate had been cut and replaced by the tenant without the
permission ofthe landlord-Tenant also threatened the landlord and
his son to kill them and abusing in filthy language-These acts of
tenant would amount to nuisance and annoyance-The factual
conclusion so arrived at by the first appellate Court directing the G
decree of eviction against the tenant as affirmed by High Court,
cannot be ignored in the absence of any contra evidence in terms of
provisions u/Ss.13 (I) (b) & (e) of1956 Act-Appellant-tenants directed
to deliver vacant possession ofthe suit premises to landlords.
763 H
764 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

.,
A The predecessor-in-interest of respondent Nos. 1-6, owner of
the premises in dispute, instituted a suit against the predecessor-
..
in-interest of the appellant-tenant for recovery of possession and
mesne profit in respect of the premises in question. The suit was
dismissed by the trial Court. Aggrieved, the landlord filed an appeal
B before the first appellate Court. During the pendency of the appeal
the original tenant passed away and his L.Rs were brought on record.
The appeal was allowed with cost and the respondents were directed
to give the vacant possession of the suit premises and also granted
a decree for mesne profit. The tenants preferred a second appeal
c before the High Court. High Court dismissed the appeal and
confirmed the order of the first appellate Court. Hence the present
appeal.
The questions which arose for consideration in this appeal were
as to whether notice to quit was legal, valid and sufficient; as to
D whether the tenant did any act which violated clauses (m), (o) and
(p) of Section 108 of the Transfer of Property Act, 1882; and as to .,
)
whether the tenant was guilty of causing act of nuisance and
annoyance.
Dismissing the appeal, the Court
E
HELD: 1.1. The language used in sub-section 6 of Section 13
of the West Bengal Premises Tenancy Act makes it clear that it is
obligation on the part of the landlord to issue one month's notice
expiring with the month of the tenancy to the tenant.
[Para 9] [770-D]
F -..
1.2. Neither sub-section 6 of Section 13 nor any other provision
of the Tenancy Act mandates that notice "to be served by registered
post". [Para 9) [770-G]
1.3. The Provision u/s. 28 of the Bengal General Clauses Act,
G 1899 makes it clear that after the commencement of the said Act
any document to be served by post, the service shall be by mentioning
'I
proper address, prepaying and posting by registered post a letter
"
containing the document. In the present case, clause 6 of the
agreement provides mere "one month notice", in such event, the said ·
H notice can be served in any manner and it cannot be claimed that
RAN JU @GAUT AM GHOSH v. REKHA GHOSH 765

r
. the same should be served only by registered post with A
acknowledgement due. [Para 10] (771-C]

1.4. Considering the materials available on record, the lower
-
(
appellate Court found that notice was duly served on the tenant and
be was very well aware about the contents of the notice. On going
through the evidence placed before this Court and the relevant B
provisions, the conclusion of the first appellate Court, as affirmed
by the High Court, that there was valid notice to quit, is agreed
to. [Para 10] [771-F]

2. The first appellate Court was right in pointing out that since c
the suit premises was inspected by an Advocate Commissioner about
1Yz years after the alleged occurrence, no credence would be attached
to the Commissioner's report. The appellate Court based on the
evidence of PW 1, PW 6 complainant, entry in General Diary, Ex 17
came to the conclusion that the collapsible gate had been cut by D
'-1
,I 516" and again it was replaced without the consent and permission
of the landlords. In the light of the abundant material, factual
conclusion arrived by the first appellate Court and confirmed by the
High Court cannot be ignored lightly in the absence of any contra
evidence. [Para 11] (772-B-C]
E
3.1. In addition to the oral evidence/statements of PWl, PWS
and PW9, the first appellate Court and the High Court adverted to
complaint given to the police, the subsequent criminal proceedings
"} and other relevant materials and came to the conclusion that the
respondents-landlords made out a case for eviction on the ground F
of nuisance and annoyance which is concurred with the factual
finding. [Para 12] [773-A-B]
3.2. This Court agrees with the conclusions of the First
Appellate Court as affirmed by the High Court in Second Appeal G
that the activities of threatening to kill the plaintiff/landlord, beating
,
~

his son and abusing him with filthy language would amount to
nuisance and annoyance, furnishing a ground of eviction under clause
(e) of section 13 (1) of the 1956 Act; that causing damage to the
collapsible gate of the tenanted portion and putting up a concrete
H
766 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A elevation of the floor, would amount to doing acts contrary to the ""T

provisions of clauses (m), (o) and (p) of section 108 of the Transfer •
of Property Act, 1882, thereby furnishing a ground of eviction under
clause (b) of section 13(1) of the 1956 Act. [Para 13] (773-C-E]
4. The appellant is granted two months' time to deliver vacant
B possession of the suit premises to the respondents.
[Para 14] [773-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7116 of
2004.
c From the Final Judgment and Order dated 30.1.2004 of the High
Court of Calcutta in S.A. No. 212of1992.
Ranjan Mukherjee, S~joy Kr. Ghosh and Avijit Bhattacharjee for
the Appellant.
D Jaideep Gupta and Sujatha Mukherjee, Joyjit Ganguly, S.
Sukumaran, Alok Rai, Rajesh and K. Rajeev for the Respondent. \
I·'

The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. Challenge in this appeal is to the judgment
E and final Order dated 30.1.2004 passed by the High Court at Calcutta
in S.A. No. 212of1992 whereby the High Court dismissed the second
appeal filed by the appellant herein.
2. Brief facts in nutshell are as follows:
~

F Originally one Anil Kumar Ghosh was a tenant in respect of the shop -,.
situated at 50-C Richi Road, Kolkata and respondent Nos. 1-6/plaintiffs
are the landlords of the premises in dispute. The predecessor-in-interest
of respondent Nos. 1-6 purchased the said property from one Smt.
Manjusree Shyam Chowdhury. The predecessor-in-interest of the
G appellant was paying a rent of Rs. 20/- per month. The predecessor-in-
interest of respondent Nos. 1-6 instituted a suit against the predecessor-
in-interest of the appellant for recovery of possession and mesne profit •
in respect of the premises in question which was dismissed by the learned
Munsif, Ist Additional Court, Alipore, District 24 Parganas on 29 .9 .1986.
H Aggrieved by the said order, the predecessor-in-interest of the respondents
RAN JU @GAUT AM GHOSH v. REKHA GHOSH 767
[P. SATHASIVAM,J.]
filed an appeal before the Court of Assistant District Judge, 4th Court A
Alipore, 24 Parganas. During the pendency of the appeal the original tenant
Anil Kumar Ghosh passed away and his L.Rs were brought on record.
The said appeal was allowed with cost and the respondents therein were
directed to give the vacant possession of the suit premises and also granted
a decree for mesne profit @ Rs.1/- per diem till the recovery of the B
possession. Being aggrieved by the said order, the tenants preferred a
second appeal being S.A. No. 212 of 1992 before the High Court of
Calcutta. On 30.1.2004, the High Court dismissed the appeal and
confirmed the order of the first appellate Court and directed to vacate
the premises within 90 days from the date of the delivery of judgment. C
Challenging the said order, Ranju @ Gautam Ghosh filed this appeal before
this Court by way of special leave petition.
3. Heard Mr. Ranjan Mukherjee, learned counsel appearing for the
appellant and Mr. Jaideep Gupta, learned senior counsel appearing for
the respondents. D
4. The following points arise for consideration in this appeal:-
( 1) Whether notice to quit was legal, valid and sufficient;
(2) Whether the tenant did any act which violated clauses (m), (o) E
and (p) of Section 108 of the Transfer of Property Act, 1882;
(3) Is the tenant guilty of causing act of nuisance and annoyance?
5. Let us consider the first issue which relates to notice. It is not in
dispute that the respondent-landlord filed a suit for eviction and mesne F
profits in title suit No. 78of1976 under Section 13 of the West Bengal
Premises Tenancy Act, 1956 (in short the 'Tenancy Act'). The trial Court
on the issue of notice disbelieved the service under certificate of posting
and failed to accept the tender of the ejectrnent notice to the defendant
by peon on 27.06.1973 and thereby concluded that there was no valid G
notice to quit. In respect of other two issues, the trial Court concluded
that the plaintiff failed to prove any damage to the suit premises. Based
on the said finding it arrived at a conclusion that the defendant did not
violate the provisions of sub-sections (m), (o) and (p) of Section 108 of
the Transfer of Property Act, 1882 (in short "T.P Act"). In the last issue H
768 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the trial Court came to the conclusion that the plaintiff has failed to prove
that the defendant is guilty of causing nuisance or annoyance. With the
said findings, the trial Court dismissed the suit.
6. The appellate Court on appreciation of oral and documentary
evidence came to the conclusion that notice to quit was duly served on
B the defendant and he was well aware of the contents of the same. In
respect of other two issues, the learned Assistant District Judge found
that the defendant/tenant caused damage to his collapsible gate and also
caused nuisance and created annoyance. After arriving such conclusion
set aside the judgment and decree of the trial Court and ordered eviction.
C In the second appeal filed by the defendant/tenant, the High Court
accepted those factual findings, confinned the same and dismissed the
second appeal. Aggrieved by the judgment, the tenant has filed this
appeal.

D 7. Before going into the merits of the claim on the above issues, it is
useful to refer to the relevant provisions:- ,,
'>(

Section 13 (1) (b) and (6) of the West Bengal Premises Tenancy
Act, 1956 reads thus:

E "S. 13. Protection of tenant against eviction.-(!)
Notwithstanding anything to the contrary in any other Jaw, no order
or decree for the recovery of possession of any premises shall be
made by any Court in favour of the landlord against a tenant except
on one or more of the following grounds, namely:-
~

F (a) xxx xxxx ""'
(b) where the tenant or any person residing in the premises let to
the tenant has done any act contrary to the provisions of clause
(m), clause (o) or clause (p) of section 108 of the Transfer of
Property Act, 1882 (IV of 1882);
G
(c) xxxxxxx
'"'....
xxxxxxxxx
(2) xxx xxx xxx
H
RAN JU @GAUTAM GHOSH v. REKHA GHOSH 769
[P. SATHASIV AM, J.]
(3) xxx xxx xxx A
(4)xxx xxxxxx
(5) xxx xxx xxx
(6) Notwithstanding anything in any other law for the time being
in force, no suit or proceeding for the recovery of possession of B
any premises on any of the grounds mentioned in sub-section (1)
except the grounds mentioned in clauses G) and (k) of that sub-
section shall be filed by the landlord unless he has given to the
tenant one month's notice expiring with a month of the tenancy."
c
Sub-sections (m) (o) and (p) of Section 108 of the Transfer of
Property Act, 1882 reads thus:
- "108. Rights and liabilities oflessor and lessee.- In the absence
of a contract or local usage to the contrary, the lessor and the
lessee of immovable property, as against one another, respectively, D
possess the rights and are subject to the liabilities mentioned in
the rules next followed, or such of them as are applicable to the
property leased:-
(m) the lessee is bound to keep, and on the termination of the lease E
to restore, the property in as good condition as it was in at the
time when he was put in possession, subject only to the changes
caused by reasonable wear and tear or irresistible force, and to
allow the lessor and his agents, at all reasonable times during the
tenn, to enter upon the property and inspect the condition thereof F
and give or leave notice of any defect in such condition; and, when
such defect has been caused by any act or default on the part of
the lessee, his servants or agents, he is bound to make it good
within three months after such notice has been given or left;
(o) the lessee may use the property and its products (if any) as a G
person of ordinary prudence would use them if they were his own;
but he must not use, or pem1it another to use, the property for a
purpose other than that for which it was leased, or fell or sell timber,
pull down or damage buildings belonging to the lessor, or work
mines or quanies not open when the lease was granted, or commit H
770 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.
'f

A any other act which is destructive or pennanently injurious thereto; •
(p) he must not, without the lessor's consent, erect on the property
any pennanent structure, except for agricultural purposes;"

8. Under Section 13, a tenant is protected from eviction and in sub-
B section (1) of Section 13 certain grounds have been specified which would
made the tenant liable to be evicted. Such grounds have to be proved by
the landlord and on the proof of any such ground, the tenant will loose
protection against eviction. In such circumstances, the suit by the landlord
against the tenant governed by the Act will be maintainable only when
c any of these grounds are proved. To put it clear insistence of one or more
grounds as stated in Section 13(1) is mandatory for a decree for eviction.
9. As mentioned above, first we have to determine whether there ....
was valid notice to quit. We have already referred to sub-section (6) of
Section 13 of the Tenancy Act which makes it clear that unless the
D landlord has given to the tenant one month's notice expiring with a month
~
',,
of the tenancy he cannot avail any of the provisions either under the
Tenancy Act or the T.P Act for eviction. The language used in sub-section
6 makes it clear that it is obligation on the part of the landlord to issue
one month's notice expiring with the month of the tenancy to the tenant.
E Learned counsel appearing for the appellant placing reliance on Section
28 of the Bengal General Clauses Act, 1899 (Bengal Act 1 of 1899)
submitted that the notice shall be by registered post. He further contended
that in view of the fact that notice to quit was sent only under certificate
of posting, the same is not valid in terms of Section 28 of the Bengal ~
F General Clauses Act, 1899, hence the eviction order cannot be sustained.
On going through the relevant provisions, we are unable to accept the
said contention. First of all, the language used in sub-section (6) of Section
13 is "one month's notice expiring with a month of the tenancy to the
tenant". Neither in sub-section 6 nor in any other provision mandates that
G notice "to be served by registered post". (emphasis supplied) It is useful
J(
to refer to Section 28 of the Bengal General Clauses Act, 1899 which \
reads as under:-
"28. Meaning ofservice by post. - Where any Bengal Act or West
Bengal Act, made after the conunencement of this Act authorizes
H
RAN JU @GAUTAM GHOSH v. REKHA GHOSH 771
'I
[P.SATHASIVAM,J.]
. or requires any document to be served by post, whether the A
expression "serve" or either of the expressions "give" or "send"
or any other expression is used, then, unless a different intention
appears, the service shall be deemed to be effected by properly
addressing, prepaying and posting by registered post, a letter
containing the document, and, unless the contrary is proved, to have B
been effected at the time at which the letter would be delivered in
the ordinary course of post."
10. The above provision makes it clear that after the commencement
of the said Acf any document to be served (emphasis supplied) by post,
the service shall be by mentioning proper address, prepaying and posting c
by registered post a letter containing the document. In our case, as stated
earlier, clause 6 provides mere "one month notice", in such event, the said
notice can be served in any manner and it cannot be claimed that the same
should be served only by registered post with acknowledgement due. The
'··.,, plaintiff as PW 1 has stated that the defendant Anil Kumar Ghosh was D
not present in his shop and the notice of eviction was handed over to his
son Ranju who accepted it but refused to put his signature as a token of
acceptance. In his evidence, PW 1 further asserted that Chittaranjan Ghosh
was present at the time and after a short while he affixed another coy of
the notice in the collapsible gate and that too was endorsed by Chittaranjan E
Ghosh. Both PW 1 and Chittaranjan Ghosh made an endorsement in Ex:
9. Chittaranjan Ghosh was examined as PW 6 and he is a family physician
of the plaintiffs. According to PW 1, PW 6 holds good reputation.
f- Considering the above materials, the lower appellate Court found that
notice was duly served on the defendant and the defendant was very well F
aware about the contents of the said notice. On going through the evidence
placed before us and the relevant provisions, we agree with the conclusion
of the Assistant District Judge affirmed by the High Court and hold that
there was valid notice to quit.
11. Coming to clauses (m) (o) and (p), the appellate Court as well G
.) "' as the High Court accepted the evidence of PW 1-plaintiffNo.l, PW 6
his neighbour and physician and other documentary evidence such as
complaint to the police, entry in general diary, Ex. 17 and accepted the
case of the plaintiff. Learned counsel appearing for the appellant submitted
H
772 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A that in the light of the report of the Advocate Commissioner which has
been marked as Ex. 13 the defendant neither caused any damage to
collapsible gate nor put up any additional construction as claimed by the
plaintiff. We also perused the evidence of PW 1, PW 6 Ex. 13 and 17
and accept the factual finding of the appellate Court affirmed by the High
B Court. As rightly pointed out by the Assistant District Judge, the suit
premises was inspected by an Advocate Commissioner only on
12.03.1971 i.e. about l1h years after the alleged occurrence, hence no
credence be attached to the Commissioner's report. The appellate Court
based on the evidence of PW 1, PW 6 complaint, entry in General Diary,
c Ex 17 came to the conclusion that the collapsible gate had been cut by
516" and again it was replaced without the consent and permission of the
plaintiffs/landlords. In the light of the abundant material, factual conclusion
arrived by the appellate Court confirmed by the High Court the same
cannot be ignored lightly in the absence of any contra evidence. On the
D other hand, we agree with the said conclusion.
12. Coming to the last issue, namely, nuisance and annoyance, PW
1 Dr. Bhabani Charan Ghosh, in his evidence, has categorically stated
that on 16.09.1975 at about 6.30 p.m. the tenants dismantled the
collapsible gate of southern garage. He further deposed that when they
E were cutting the same he protested for which they threatened to kill him.
He made a complaint to the police. According to him, this was witnessed
by Chittaranjan and Sangana. As observed earlier, PW 1 is none else
than a Surgical Specialist (MS) of Government of West Bengal. He also
specifically referred to the threat made by Ranju and Sailen. According
F to him, both of them threatened him with dire consequences. It is further
seen from his evidence that at the time of cutting the collapsible gate, the
same was photographed and produced before the Court in support of
his claim. It also revealed that purs!1ant to his complaint, criminal
proceedings under Section 144 Cr.P.C was,initiated. PW 5 - Mahim
G Biswas resident of No. 65 Motilal Nehru Road, Calcutta - 29, in his
evidence, has stated that while he was returning to his house, he noticed
group of persons in front of the house of the appellant. He also referred
to the damage caused to the collapsible gate by the tenants. PW 9-second
pbintiffhas stated that on 06.02.1973 Ranju Ghosh-defendant in the said
H suit attacked their house. According to him, at the time he was in his house
RAN JU @GAUT AM GHOSH v. REKHA GHOSH 773
[P. SATHASIVAM,J.]
and studying in their verandah. He further deposed that when the police A
came Ranju Ghosh and other miscreants set up by them ran away. In
addition to the above oral evidence, as stated in the earlier paragraphs,
the lower appellate Court and the High Court adverted to complaint given
to the police, the subsequent criminal proceedings and other relevant
materials and came to the conclusion that the respondents-landlords made B
out a ease for eviction on the ground of nuisance and annoyance which
we concur with the said factual finding.
13. In view of the above, we agree with the following conclusions
of the First Appellate Court as affinned by the High Court in Second
Appeal: C
{a) that the activities of threatening to kill the plaintiff, beating the
son of the plaintiff and abusing him with filthy language would
amount to nuisance and annoyance, furnishing a ground of
eviction under clause (e) of section 13 (1) of the West Bengal D
Premises Tenancy Act, 1956;
(b) that causing damage to the collapsible gate of the tenanted
portion and putting up a concrete elevation of the floor, would
amount to doing acts contrary to the provisions of clauses (m),
(o) and (p) of section 108 of the Transfer of Property Act, E
1882, thereby furnishing a ground of eviction under clause (b)
of section 13 (1) of the West Bengal Premises Tenancy Act,
1956.
14. Consequently, we find no merit in this appeal and it is dismissed
accordingly. However, the appellant is granted two months' time to deliver F
vacant possession of the suit premises to the respondents. No costs.
S.K.S Appeal dismissed.