Full Judgment Text
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PETITIONER:
PROVASH CHANDRA DALUI & ANR.
Vs.
RESPONDENT:
BISWANATH BANERJEE & ANR.
DATE OF JUDGMENT03/04/1989
BENCH:
SAIKIA, K.N. (J)
BENCH:
SAIKIA, K.N. (J)
OZA, G.L. (J)
CITATION:
1989 AIR 1834 1989 SCR (2) 401
1989 SCC Supl. (1) 487 JT 1989 Supl. 92
1989 SCALE (1)844
ACT:
Calcutta Thika Tenancy Act, 1949: Section 2(5)(b), Thika
tenant: if stated period of tenancy less than 12 years and
not otherwise.
Indian Contract Act, 1872---Contract--To be construed
with reference to object and whole of its terms--’Ex antece-
dentibus et consequentibus’ circumstances surrounding crea-
tion and subject matter which it was designed to apply to
should be taken into account.
Indian Evidence Act, 1872: Section 115--Estoppel and
waiver-Distinction between--Voluntary choice essence of
waiver.
Words and Phrases: ’extension’--’Renewal’---Dis-
tinction between.
HEADNOTE:
The second respondent, who is the predecessor in inter-
est of the first respondent, had on. 26th September, 1946
leased out the land in dispute to the appellant at the first
instance for a period Of 10 years. The lease however provid-
ed to the lessee/appellants option of extension at enhanced
rent, twice for successive periods of 5 years, and a third
option of extension for a further maximum period of one
year. The appellants are stated to have exercised their
option of extension for two successive periods of five
years, hot failed to exercise the option of extension for
one year thereafter. On that ground the first respondent
instituted a suit for ejectment khas, possession and mesne
profits. The appellants, as defendants, contested the malt
stating, inter alia, that they did not exercise the option
for renewal after the expiry of the original tern of 10
years as they became thika tenants from 28th February, 1949
i.e. the date of commencement of the Calcutta Thika Tenancy
Act, 1949 as admitted by the second respondent in two judi-
cial proceedings before the Controller under the Calcutta
Thika Tenancy Act, 1949. It was further stated that they
never paid any enhanced rent; and that the first respond-
ent’s claim for the differential rent was rejected in the
first respondent’s suit, and ultimately the special leave
petition filed in the Supreme Court in that matter was also
dismissed.
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402
The suit for ejectment in the present suit was decreed
by the Trial Court. The Appellate Court, while dismissing
the appellants appeal, held that (1) the lease was for a
period of 20 years and not for a period of less than 12
years, and hence sub-section 5(b) of Section 2 of the Act
had no application; and (2) the respondent were not barred
by waiver, estoppel, res judicata or principles analogous
thereto because of the earlier judicial proceedings filed by
the second respondent as there could be no question of
giving a status under the Act when in the facts of the case
such a status was not available. The High Court dismissed
the appellants’ second appeal.
Before this Court it was urged on behalf of the appel-
lants that (1) there could be no controversy about the
appellants’ status of thika tenants in view of the fact that
the lease was at the first instance for 10 years only and
its first and subsequent extensions were contingent on the
appellants regular payment of rents, rates and taxes and
enhancement of rent, which contingency did not happen as
they did not pay any enhanced rent, but simply were holding
over; (2) the second respondent admitted the Thika Tenants
status of the appellants in the earlier proceedings before
the Controller and were therefore estopped from questioning
that status.
On the other hand, it was urged on behalf of the re-
spondent that the lease having clearly been for a period of
20 years, the appellants have rightly been held not to be
thika tenants under the Act; and that there could be no
estoppel against a statute.
Dismissing the appeal, it was,
HELD: (1) Every contract is to be construed with refer-
ence to its object and the whole of its terms. The best
interpretation is made from the context. The whole context
must be considered to ascertain the intention of the par-
ties. It is an accepted principle of construction that the
sense and meaning of the parties in any particular part of
instrument may be collected ’ex antecedentibus et consequen-
tibus’; every part of it my be brought into action in order
to collect from the whole one uniform and consistent sense,
if that is possible. [409E-G]
N.E. Railway v. Hastings, [1900] A.C. 260 (267), referred
to.
(2) In the construction of a written instrument, it is
legitimate and in order to ascertain the true meaning of the
words used and, if that be doubtful, it is legitimate to
have regard to the circumstances sur-
403
rounding their creation and the subject matter to which it
was designed and intended they should apply, [410A-B]
(3) It is pertinent to note that the word used is ’exte-
nsion’ and not ’renewal’. To extend means to enlarge, ex-
pand, lengthen, prolong, to carry out further than its
original limit. Extension ordinarily implies the continued
existence of something to be extended. The distinction
between ’extension’ and ’renewal’ is chiefly that in the
case of renewal, a new lease is required, while in the case
of extension the same lease continues in force during addi-
tional period by the performance of the stipulated act. In
other words, the word ’extension’ when used in its proper
and usual sense in connection with a lease means a prolonga-
tion of the lease. [411C-E]
(4) Construction of this stipulation in the lease in the
above manner will also be consistent when the lease is taken
as a whole. The purposes of the lease were not expected to
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last for only 10 years as the Schedule specifically men-
tioned the lease as "for a stipulated period of twenty
years." [411E]
Kanai Lal v. Paramnidhi, [1958] SCR 360; Mahadeolal
Kanodia v. Administrator General of West Bengal, [1960] 3
SCR 578; Annapuma v. Tincowrie Dutt, 66 C.W.N. 338; Shaf-
fiuddin & Ors. v. G.C. Banarjee, 69 C.W.N. 842 and Sheikh
Gufan v. S.K. Ganguli, [1965] 3 SCR 364 distinguished.
(5) No particular order from the previous judicial
proceedings conferring the status of thika tenants on the
appellants has been shown. The special leave petition was
dismissed by the Supreme Court "without going into the
question whether the Thika Tenancy Act was applicable or
not." Hence, no status could be said to have been deter-
mined. [413D-F]
(6) The essential element of waiver is that there must
be a voluntary and intentional relinquishment of a known
right or such conduct as warrants the inference of the
relinquishment of such right. It means forsaking the asser-
tion of a right at the proper opportunity. [413F-G]
(7) Waiver is distinct from estoppel in that in waiver
the essential element is actual intent to abandon or surren-
der the right, while in estoppel such intent is immaterial.
The necessary condition is the detriment of the other party
by the conduct of the one estopped. An estoppel may result
though the party estopped did not intend to lose any exist-
404
ing right. Thus voluntary choice is the essence of waiver
for which there must have existed an opportunity for a
choice between the relinquishment and the conferment of a
right in question. Nothing of the kind could be proved in
this case to estopp the first respondent, who had filed the
suit at the proper opportunity after the land was trans-
ferred to him. [413G-H; 414A-B]
Shanti Devi v.A.K. Banerjee, [1981] 2 SCC 199, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2977 of
1984.
From the Judgment and Order dated 18.2.1982 of the
Calcutta High Court in S.A.T. No. 87 of 1981.
D.K. Sen, Dr. Meera Agarwal and R.C. Mishra for the Appel-.
lants.
A.K. Sen, S.K. Banerjee and P.K. Mukerjee for the Re-
spondents.
The Judgment of the Court was delivered by
K.N. SAIKIA, J. This defendants’ appeal by special leave
is from the judgment and order of the High Court of Calcutta
dated 18th February, 1982 in S.A.T. No. 87 of 1981 summarily
dismissing the Second Appeal against the appellate order in
T.A. No. 381 of 1980 which affirmed the judgment and decree
in title suit No. 56 of 1966.
The instant second respondent Narendra Nath Mukherjee
leased out the land measuring 6 cottas 5 chittaks 30 sq. ft.
at 512/A Russa Road, now known as 34/A Shyama Prasad Mukher-
jee Road, Calcutta, by a registered lease deed dated 26th
September, 1946, hereinafter referred to as ’the lease’, at
the first instance for a period of 10 years from 1st April,
1946 but if the lessee did not fail to pay the rent to the
lessor and rates and taxes to the municipality during .that
period, the lease would be extended for a further period of
5 years i.e. upto 31st March, 1961 at the rent of Rs.250 in
place of Rs.200 per month; and if he continued to do like-
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wise, it would be extended for a further period of 5 years,
that is, upto 31st March, 1966, at a monthly rent of Rs.300
in place of Rs.250; and if he continued to do likewise,
during the period of 20 years, he would be entitled to
obtain extension for a further maximum period of one year at
a rent of Rs.500 per month in place of Rs.300 per month.
405
The instant appellants are stated to have exercised
their option of extension at the expiry of 10 years for a
period of 5 years i.e. from 1st April, 1956 to 31st March,
1961 on increased rental of Rs.250 per month and then for
the second term of 5 years from 1st April, 1961 to 31st
March, 1966 at the increased rental of Rs.300 per month.
During the lease, on 31st March, 1959 the instant second
respondent by a registered instrument transferred the land
to the first respondent who thereby became the landlord.
Alleging that the instant appellants failed to exercise the
option of extension for one year at an enhanced rent of Rs.
500 and also failed to give peaceful and vacant possession
of the land to him, the instant first respondent as plain-
tiff instituted title suit No. 56 of 1966 for ejectment
khas, possession and mesne profits. The instant appellants
as defendants contested the suit by filing a joint written
statement stating, inter alia, that they did not exercise
option of renewal after the expiry of the original term of
10 years as they became thika tenants from 28th February,
1949 i.e. on the date of commencement of the Calcutta Thika
Tenancy Act, 1949 as admitted by the plaintiff’s predecessor
in interest, the instant second respondent, in Miscellaneous
Execution case No. 126 of 1953 (Thika) before the Controller
under the Calcutta Thika Tenancy Act, 1949, hereinafter
referred to as ’the Act’, and by both the respondents in
Misc. Judicial Case No. 74 of 1958 (Thika) before the said
Controller. It was also stated that they (appellants) always
paid rent at the rate of Rs.200 per month and never any
enhanced rent; and that the first respondent’s claim for the
differential rent was also rejected in the first respond-
ent’s suit No. T.S. 80 of 1965 and the appeal therefrom was
also rejected and ultimately the special leave petition
(Civil No. 1363/ 80) was also dismissed by the Supreme Court
on 10th March, 1980.
T.S. No. 56 of 1966 was decreed by the Trial Court
wherefrom the appeal, being T.A. No. 381 of 1980 was also
dismissed. The Additional District Judge while dismissing
T.A. 381/80 relied on the decision of the Calcutta High
Court, since reported in 1980 1 C.L.J. 377, holding that as
the lease was for a period of 20 years and not for a period
of 12 years sub-section (5)(b) of Section 2 of the Act had
no application; and that the respondents were not barred by
waiver, estoppel, res judicata or principles analogous
thereto because of the Misc. case No. 74 of 1958 filed by
the second respondent under Section 5 of the Act as there
could be no question of giving a status under the Act when
in the facts of the case such a status was not available.
The Second Appeal being S.A.T. 87 of 1981 having also been
summarily dismissed by the High Court by the impugned order,
the appellants have preferred this Appeal by special leave.
406
Mr. D.K. Sen, the learned counsel for the appellants
submits, inter alia, that there could be no controversy
about the appellants’ status of thika tenants in view of the
fact that the lease was at the first instance for 10 years
only and its first and subsequent extensions were contingent
on the appellants’ regular payment of rents, rates and taxes
and enhancement of rent; that contingency did not happen as
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they did not pay any enhanced rent, but simply were holding
over; that the second respondent who is the predecessor in
interest of the first respondent, admitted the Thika Tenants
status of the appellants in the earlier proceedings before
the Controller and were therefore estopped from questioning
that status; and that the learned Courts below erred in
ignoring these vital pieces of evidence.
Mr. Shankar Ghosh the learned counsel for the respond-
ents refuting submits that the lease having clearly been for
a period of 20 years, the appellants have rightly been held
not to be thika tenants under the Act; and that there could
be no estoppel against a statute.
Two questions are, therefore, to be decided in this
appeal, namely, whether the instant appellants acquired the
status of thika tenants in respect of the lease; and whether
there was estoppel, waiver, acquiesance or res judicata on
the part of the respondents as in earlier proceedings they
treated the appellants as thika tenants before the Control-
ler.
The Act was passed in 1949 to make better provisions
relating to the law of landlord and tenant in respect of
thika tenancies in Calcutta. It came into force on the day
on which the Calcutta Thika Tenancy Ordinance, 1948 ceased
to operate. Section 2(5) in Chapter I defined "thika tenant"
as follows:
"(5) "thika tenant" means any person who
holds, whether under a written lease or other-
wise, land under another person, and is or but
for a special contract would be liable to pay
rent, at a monthly or at any other periodical
rate, for that land to that another person and
has erected or acquired by purchase or gift
any structure on such land for a residential,
manufacturing or business purpose and includes
the successors in interest of such person, but
does not include a person--
(a) who holds such land under that another
person in perpetuity; or
407
(b) who holds such land under that another
person under a registered lease, in which the
duration of the lease is expressly stated to
be for a period of not less than twelve years;
or
(c) who holds such land under that another
person and uses or occupies such land as a
khattal."
This new clause (5) was substituted by
West Bengal Act 6 of 1953. The crucial words
to be noted in clause (b) are that "the dura-
tion of the lease is expressly stated to be
for a period of not less than twelve years."
In other words, if the stated period is of
less than 12 years the lessee will be a thika
tenant and not otherwise. The important fea-
ture of the provision contained in s. 5(1) of
the Act is that the application for ejectment
of the thika tenant has to be made to the
Controller. We have, therefore, to ascertain
the duration of the lease. Admittedly clauses
9, 11, 12 and 13 of the lease read as follows:
"(9). If the second party lessee keeps the
rent for two months in after at a time or if
contravenes or commits any breach in respect
of any provision of this deed or does not
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comply with his duties within 7 days in spite
of service of warning notice or does not
refrain from doing improper act, or if he is
declared insolvent then in spite of the tenure
of this lease having not expired, this lease,
that is the tenancy of the second party Lessee
will be cancelled or extinguished and the
first party Lessor will be entitled to take
khas possession of the said property. No plea
or objection of the second party Lessee will
be entertained.
11. The tenure of this lease will be for a
period of ten years firstly from the 1st
April, 1946 A.D. But if the second party
Lessee, performs acts regularly according to
provisions within this stipulated period and
pays fixed rent to the first party Lessor
regularly and pays rates and taxes to the
Municipality and does not default in doing his
duties, then the period will be extended under
all the aforesaid terms for a further period
of five years, i.e. upto the 31st March, 196
1, by fixing the monthly rent of Rs. 250 two
hundred fifty rupees in place of Rs.200 two
hundred rupees and the second party Lessee
shall be bound absolutely by the aforesaid
provisions in paragraphs 1 to 10 during the
said enhanced period and all the said terms
will remain in force,
408
only the rent of Rs.250 two hundred fifty in
place of Rs.200 two hundred will be fixed.
12. If the second party Lessee performs his
acts regularly according to the aforesaid
terms within last five years and is abide by
the rules and pays the fixed monthly rent of
Rs.250 two hundred fifty rupees to the first
party Lessor month by month and pays the rates
and tax to the Municipality then on the expiry
of the said tenure of five years, the tenure
of this lease will be enhanced for a further
period of five years, i.e. upto 31st March,
1966 having fixed the monthly rent of Rs.300
three hundred rupees in place of Rs.250 two
hundred fifty rupees under all the aforesaid
terms in paragraphs 1 to 10 and the second
party Lessee shall fully remain bound abso-
lutely by all the aforesaid terms and all the
said rules shall fully remain in force, only
the monthly rent of Rs.300 three hundred in
place of Rs.250 two hundred fifty will be
fixed.
13. If the lease is not determined for acting
contrary to any provisions within the tenure
of the aforesaid term, then on the expiry of
the said term as mentioned in this deed, i.e.
on the 1st April, 1966 A.D. the second party
Lessee on paying the entire receivable amount
in respect of the Demised premises to the
first party Lessor, will give khas possession
of the said land by treating the houses etc.
constructed on the Demised land, i.e. the
houses etc. constructed on the land by him,
i.e. the second party Lessee by treating the
same to be a portion of the Demised land shall
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vacate the said houses and said land. But if
the second party Lessee, within the aforesaid
20 years, performs acts according to all the
aforesaid provisions duly and regularly and
abide by all the same duly and regularly pays
the fixed rent and rates and taxes at the
proper place then the second party Lessee if
so desire, will be entitled to get the same
for a further extended period of maximum one
year from 1st April, 1966 A.D. by serving
written Notice at least one month prior to the
expiry of the aforesaid tenure of 20 years by
fixing monthly rent of Rs.500 five hundred
rupees in place of. Rs.300 three hundred under
all the provisions of the aforesaid paragraph
No. 1 to 10 and the first party Lessor shall
be bound to grant the said extended period and
if the second party Lessee, accepts such
extended period,
409
shall pay the entire dues of the first party
Lessor within the last mentioned extended
period upto the expiry of the said last ex-
tended period and upon that, by demolishing
the houses etc. constructed on the Demised
land will remove and replace the same. The
first party Lessor shall not have any objec-
tion to the same nor the same shall be tena-
ble-and shall give khas possession on the
Demised Land to the first party Lessor, and in
that event the first party Lessor shall be
bound to give up his claim and contention on
the houses etc. of the said second party
Lessee and shall only take possession of the
demised land that is, in such circumstances
the houses etc. constructed by the second
party Lessee to be a portion of the demised
land. But if for any reason the second party
Lessee, within the extended stipulated period
does not give khas possession to the first
party Lessor on the Demised land according to
the aforesaid manner, or if he neglects to do
so or is unable then the first party Lessor
shall not be bound to give up his claim in
respect of the houses etc. constructed by the
said second party Lessee. Moreover, by treat-
ing the houses etc. constructed on the demised
land to be a portion of the said land, shall
be entitled to take khas possession of the
said Demised land and besides the same, the
first party Lessor shall also be entitled to
get any other remedy or damage or compensation
according to law."
’Ex praecedentibus et consequentibus optima fit inter-
pretatio.’ The best interpretation is made from the context.
Every contract is to be construed with reference to its
object and the whole of its terms. The whole context must be
considered to ascertain the intention of the parties. It is
an accepted principle of construction that the sense and
meaning of the parties in any particular part of instrument
may be collected ’ex antecedentibus et consequentibus;’
every part of it may be brought into action in order to
collect from the whole one uniform and consistent sense, if
that is possible. As Lord Davey said in N.E. Railway v.
Hastings, [1900] A.C. 260 (267), "The deed must be read as a
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whole in order to ascertain the true meaning of its several
clauses, and the words of each clause should be so inter-
preted as to bring them into harmony with the other provi-
sions of the deed if that interpretation does no violence to
the meaning of which they are naturally susceptible." In
construing a contract the Court must look at the words used
in the contract unless they are such that one may suspect
that they do not convey the intention correctly. If the
words are clear, there is
410
very little the Court can do about it. In the construction
of a written instrument’ it is legitimate in order to ascer-
tain the true meaning of the words used and if that be
doubtful it is legitimate to have regard to the circum-
stances surrounding their creation and the subject matter to
which it was designed and intended they should apply.
"The habendum in the lease states:. "Upon the
prayer of the second party Lessee to take the
said land in arrangement and settlement for a
stipulated period for starting factories,
Lathe works, manufacturing and repairing of
Motor Car parts, manufacturing and repairing
Electric Fans and various manufacturing busi-
ness, constructing pucca buildings on the said
land or in portion thereof or subletting
houses etc. and for constructing shop rooms
etc. under the following terms and provisions,
to which he agreed and upon giving possession
of the said land to the second party Lessee,
the second party Lessee hereby admit and
promise that,"
Particulars and four boundaries of the
property in Schedule Ka are given as:
"In the District of 24 Parganas, within the
Police Station Bhowanipore, in Mouza Bhowani-
pore Village, within the jurisdiction of the
Sub-Registry Alipore, in Government Khas
Mahal, in Division 6, Sub Division "E" (E)
relating to Dihi 55 gram, in holding No. 224
within the surplus land of scheme No. 4 of the
Calcutta Improvement Trust, a portion of the
plot No. 62 of the said scheme, the rent free
land measuring more or less 0-6-5-30 six
kathas, five chittaks, thirty square feet
together with foundation of the wall together
with all fittings and fixtures and easement
and other rights etc. with all rights and
entire right is the property whose current
Municipal premises No. 5/2A, Russa Road and
the second party Lessee have taken the said
property on lease for a stipulated period of
twenty years".
(underlined by us)
In clause 9 of the lease it would be seen how and when
the rent is to be paid and when the lease would be liable to
be cancelled have been stated. Clause 11 stipulates that at
the first instance the period of lease was made 10 years and
in case the Lessee acted in accordance with what was expect-
ed of him under clause 9, the period of the lease
411
would be extended for a further period of 5 years upto 31st
March, 1961 at enhanced rent of Rs.250 per month, and if the
Lessee continued to act in accordance with what was expected
of him under clause 9 during this period of 5 years the
period of the lease would be extended for a further period
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of 5 years, that is, upto 31st March, 1966 at a monthly rent
of Rs.300 and in case the Lessee continued to act during
this period as expected of him under clause 9 till the end
of the period of 20 years he would be entitled by serving a
notice to obtain an extension for a further maximum period
of one year at enhanced rent of Rs.500 per month.
It is pertinent to note that the word used is ’exten-
sion’ and not ’renewal’. To extend means to enlarge, expand,
lengthen, prolong to carry out further than its original
limit. Extension, according to Black’s La Dictionary, means
enlargement of the main body; addition of something smaller
than that to which it is attached; to lengthen or prolong.
Thus extension ordinarily implies the continued existence of
something to be extended. The distinction between ’exten-
sion’ and ’renewal’ is chiefly that in the case of renewal,
a new lease is required, while in the case of extension the
same lease continues in force during additional period by
the performance of the stipulated act. In other words, the
word ’extension’ when used in its proper and usual sense in
connection with a lease means a prolongation of the lease.
Construction of this stipulation in the lease in the above
manner will also be consistent when the lease is taken as a
whole. The purposes of the lease were not expected to last
for only 10 years and as Mr. A.K. Sen rightly pointed out
the Schedule specifically mentioned the lease as "for a
stipulated period of twenty years." As these words are very
clear, there is very little for the Court to do about it.
The learned counsel for the appellants in support of his
contention that the appellants were thika tenants refers us
to AIR 1957 SC 907 = 1958 SCR 360; AIR 1960 SC 936 = 1960 3
SCR 578; 66 C.W.N. 338; 69C.W.N. 842; AIR 1965 SC 1839 =
1965 3 SCR 364.
In Kanai Lal v. Paramnidhi, [1958] SCR 360, the status
of the appellants as thika tenant was not in question. The
question therein was whether under Section 5(1) of the Act
as amended by the Amending Act of 1953 execution proceedings
taken out by the decree holder against the appellant could
be entertained only by the Controller and not by the civil
Courts. This Court held that Section 5(1) did not apply to a
case where the landlord had already obtained a decree for
ejectment against his thika tenant and consequently the
civil Court had
412
jurisdiction to entertain the application. It was noted that
until 1948 the rights and liabilities of the landlords and
their thika tenants were governed by the provisions of the
Transfer of Property Act. On October 26, 1948, the Calcutta
Thika Tenancy Ordinance XI of 1948 was promulgated because
it was thought expedient, pending the enactment of appropri-
ate legislation to provide for the temporary stay of the
execution of certain decrees and orders of ejectment of
thika tenants in Calcutta. The object of the Ordinance was
to give protection to the thika tenants in Calcutta and to
afford them interim relief by staying execution of certain
decrees and orders as mentioned in Section 3 until an appro-
priate Act was passed by the Legislature in that behalf.
The facts of the instant case are entirely different
inasmuch as the lease was dated 26th September, 1946 and no
question of eviction by executing any decree arose until the
Act was passed. The only point to be noted is that the
tenancy under the lease on the relevant date of creation was
governed by the Transfer of Property Act.
In Mahadeolal Kanodia v. Administrator General of West
Bengal, [1960] 3 SCR 578 = AIR 1960 SC 936, the question for
decision was whether the appellant against whom proceedings
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for execution of a decree for ejectment was pending, who had
applied for relief under Section 28 and when that section
was in force, was entitled to have his application disposed
of in accordance with the provisions of Section 28, which
had ceased to exist retrospectively though it remained
undisposed on the date the Amendment Act, 1953 which omitted
Section 28 of the Act, came into force. This case is there-
fore of no assistance to the appellants.
In Annapuma v. Tincowrie Dutt, 66 C.W.N. 338, it was
held on the facts of the case that what was let out was land
with structures and it could never come under the operation
of the Act inasmuch as the property in suit had a history of
24 years under the registered lease before that claim to
become a thika tenant would arise under the Act. It was also
held that where there was a covenant for renewal in a lease
and the option did not state the terms of the renewal, the
new lease, if created would be for the same period and on
the same terms as the original lease in respect of all the
essential conditions thereof except as to the covenant for
renewal itself. This case therefore is hardly relevant.
In Shaffiuddin & Ors. v. G.C. Banerjee, 69 C.W.N. 842, it
was
413
held that the status already acquired by the tenants in
Tollygunje under the West Bengal Non-Agricultural Tenancy
Act, 1949, could not be prejudiced and affected by the Act
and the landlords were therefore not entitled to any order
of ejectment under the Act. This case has, therefore, no
bearing.
In Sheikh Gufan v.S.K. Ganguli, [1965] 3 SCR 364, the
question was whether Section 30(c) of the Act was applicable
to land in respect of which betterment fee was levied. It is
therefore not relevant for us.
We do not find any reason in the above decisions to
enable us to hold that the lease in the instant case was for
a period of less than 12 years and not for a period of not
less than 12 years. The High Court correctly held the lease
to be for the less than 12 years.
The next question is that of waiver, estoppel and res
judicata. The appellants urged that there were two previous
proceedings namely Misc. Execution case No. 126 of 1953
(Thika) and Misc. Judicial case No. 74 of 1958 (Thika) under
the Act before the Controller. Except the implication that
the proceedings having been before the Controller the re-
spondents treated the appellants a thika tenants, no partic-
ular order finally conferring that status has been shown to
us. By the order of this Court dated 10th March, 1980 in
Special Leave Petition (Civil) 1363 of 1980 which was from
the judgment and order dated 16.9.1979 of the High Court of
Calcutta in F .A. No. 458 of 1978 the petition was dismissed
"without going into the question whether the Thika Tenancy
Act was applicable or not." Misc. (J) case No. 74 of 1958
wherein the first respondent prayed for being added as
petitioner No. 2 ended in a compromise. No status could,
however, be said to have been determined.
The essential element of waiver is that there must be a
voluntary and intentional relinquishment of a known right or
such conduct as warrants the inference of the relinquishment
of such right. It means the forsaking the assertion of a
right at the proper opportunity. The first respondent filed
suit at the proper opportunity after the land was trans-
ferred to him, and no covenant to treat the appellants as
Thika tenants could be shown to have run with the land.
Waiver is distinct from estoppel in that in waiver the
essential element is actual intent to abandon or surrender
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right, while in estoppel such intent is immaterial. The
necessary condition is the detriment of the other party by
the conduct of the one estopped. An estoppel may result
though the party estopped did not intend to lose any exist-
ing right. Thus voluntary
414
choice is the essence of waiver for which there must have
existed an opportunity for a choice between the relinquish-
ment and the conferment of the right in question. Nothing of
the kind could be proved in this case to estopp the first
respondent.
In Shanti Devi v. A.K. Banerjee, [1981] 2 SCC 199, it
was held that parties could not by their pleadings alter the
intrinsic character of the lease or bring about a change of
the rights and obligations flowing therefrom. The Court
would only look into the terms of the lease irrespective of
the averments in the pleadings. In the instant case as we
have already held the lease to have been for twenty years,
its character could not have been changed by the pleadings,
if any, in the above cases. Nor could the respondents be
held to have waived their rights under the lease. We do not
find any infirmity in the impugned High Court order on this
count also.
In the result, this appeal fails and is dismissed, but
without any order as to costs. Stay order, if any, stands
vacated.
R.S.S. Appeal dis-
missed.
415