Skip to content


M/S. J. S. Chandhok (Developers) Pvt. Ltd. Vs. M/S. J. Sen and Sons Pvt. Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantM/S. J. S. Chandhok (Developers) Pvt. Ltd.
RespondentM/S. J. Sen and Sons Pvt. Ltd.
Excerpt:
in the high court at calcutta ordinary original civil jurisdiction original side before: the hon’ble justice soumen sen e.c.no.314 of 2012 g.a. no.977 of 2013 g.a. no.1075 of 2013 g.a. no.1076 of 2013 g.a. no.1116 of 2013 m/s. j.s. chandhok (developers) pvt. ltd. vs. m/s. j.sen & sons pvt. ltd. for the decree-holder : mr. pratap chatterjee, sr. adv., mr. mrinal kanti chatterjee, mrs. somali mukhopadhyay. for g.a. no.977 of 2013 : mr. amitava das, mr. pingal bhattacharyya. for g.a. no.1075 of 2013 : mr. jishnu chowdhury, mrs. noelle banerjee, mr. dipak dey. for g.a. no.1076 of 2013 : mr. joyak gupta, mr. brotindro mullick. for g.a. no.1116 of 2013 : mr. raja basu chowdhury, mr. p. karan singh. heard on :27. 02.2015, 19.03.2015, 24.03.2015, 21.07.2015 judgment on :18. h september, 2015.....
Judgment:

IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE BEFORE: The Hon’ble JUSTICE SOUMEN SEN E.C.No.314 of 2012 G.A. No.977 of 2013 G.A. No.1075 of 2013 G.A. No.1076 of 2013 G.A. No.1116 of 2013 M/S. J.

S. CHANDHOK (DEVELOPERS) PVT. LTD. VS. M/S. J.

SEN & SONS PVT. LTD. For the Decree-holder : Mr. Pratap Chatterjee, Sr. Adv., Mr. Mrinal Kanti Chatterjee, Mrs. Somali Mukhopadhyay. For G.A. No.977 of 2013 : Mr. Amitava Das, Mr. Pingal Bhattacharyya. For G.A. No.1075 of 2013 : Mr. Jishnu Chowdhury, Mrs. Noelle Banerjee, Mr. Dipak Dey. For G.A. No.1076 of 2013 : Mr. Joyak Gupta, Mr. Brotindro Mullick. For G.A. No.1116 of 2013 : Mr. Raja Basu Chowdhury, Mr. P. Karan Singh. Heard On :

27. 02.2015, 19.03.2015, 24.03.2015, 21.07.2015 Judgment On :

18. h September, 2015 Soumen Sen, J.:- The applications filed by the four interveners questioning the executability and enforceability of a decree dated 9th December 2011 passed in C. S. No.118 of 2010 as against them are the subject matter of consideration in this execution proceeding. On 11th May, 2010 the plaintiff instituted a suit against the defendant claiming essentially a decree for recovery of vacant possession of 5 rooms together with passage admeasuring an area of 1600 sq. feet, more or less, on the ground floor at premises no 15, Princep Street, PS Bowbazar, Kolkata – 700072, by evicting the defendant. (hereinafter referred to as the “suit premises”.) The said suit was decreed on 9th December, 2011. The defendant although filed a written statement but ultimately did not contest the suit. The suit was decreed ex-parte in terms of prayer (a) and (b) of the plaint after taking into consideration the evidence on record. The said prayers are:(a) A decree for recovery of ‘khas’ possession of five rooms together with passage, ad-measuring an area of 1600 square feet, more or less, on the ground floor, at the premises No.15, Prinsep Street, P.S. Bow Bazar, Kolkata – 700072, fully particularized in Schedules ‘A’ and ‘B’ hereunder being ‘suit property’, by evicting the defendant therefrom; (b) A decree for outstanding rent at the rate of Rs.1250/- per month from April, 2008, to March, 2010, aggregating to a sum of Rs.30,000/-. A decree for interest was also passed as mentioned in claim (b) of the plaint at the rate of 10% per annum payable from the date of the institution of the suit namely 11th May, 2010 till the decree is satisfied together with cost assessed at Rupees 50,000/-. The said decree was put to execution by filing an execution application being E.C. No.314 of 2012, following which the four several applications were filed challenging the executability and enforceability of the said decree against the said applicants. The four applicants are Deep Chand Bansal, Mohini Thakur Jeswani, M/s. Desai Automobile and M/s. Janta Cardboard Box Pvt. Ltd. (hereinafter referred to as first, second, third and fourth applicant respectively). The dispute relates to recovery of possession from the said applicants of areas under their occupation in execution of the decree. All the applicants claim that they were inducted as tenants and/or sub-tenants by the Judgement–debtor and the plaintiff was aware of the existence of the said tenants and/or sub-tenants when the plaintiffs purchased the property between August, 1997 and July, 1998. The first applicant claims to have been inducted as tenant by the Judgement-debtor in respect of a shop room No.4 measuring approximately 260 square feet on the ground floor and 260 square feet on the mezzanine floor, (hereinafter referred to as the ‘tenanted portion’) in the year 1991 initially at a monthly rent of Rupees 250/-, which was subsequently enhanced to Rupees 1095/-. Until 2006, the Judgement-debtor accepted the rent. Upon refusal, the rents month by month are being deposited with the Rent Controller. In or around 2006, the applicant discovered that some unknown men and labourers were engaged in demolishing the structure at the behest of one Jaspal Singh Chandhok, a real estate promoter, who was intending to construct a multi-storied building thereat. On the apprehension that the said promoter in the process of demolition might evict the applicant from its tenanted portion, the applicant filed a suit being C.S. No.2 of 2007 in this Court and in the said proceeding an order of injunction was passed on 5th January, 2007 restraining the Judgement-debtor and Jaspal Singh Chandhok from interfering with the possession, occupation and use of the tenanted po rtion only. The said suit is pending. In the year 2009, an ejectment suit was filed by the Judgement-debtor against the applicant being Ejectment Suit No.533 of 2009, before the learned Fourth Judge in the Small Causes of Court at Calcutta. The said suit was dismissed by a judgement and decree dated 20th July, 2012. The appeal preferred by the Judgement-debtor is pending. The appeal is being pursued by the judgment debtor even in February, 2015 although the judgment debtor claims to have surrendered the tenancy in 2009 and did not resist the present suit and execution proceedings. The second applicant states that the husband of the applicant Mohini Thakur Jeswani in the year 1963 started a proprietorship business under the name and style of “Radiant Diesels”. from a room identified as Shop Room No.1, Ground Floor premises for the purpose of carrying on business in Motor parts after obtaining a monthly tenancy from the judgment-debtor company. The husband of the applicant died intestate on 14th November, 2007 leaving behind the applicant and two sons and daughters as legal heirs of the said deceased. Thereafter, on the basis of the family settlement arrived at between the said legal heirs, it was decided that the applicant alone would be entitled to the assets or properties of the business and right to carry on sole proprietorship hereof. Consequently all requisite licenses and/or permissions in respect of the business were obtained in the name of the applicant. The husband of the applicant was inducted as a tenant by the judgment-debtor in 1963. The tenancy agreement between the judgment-debtor and the previous owners dated 27th March, 1991 would show that the husband of the applicant was a tenant and not a sub-tenant. The rent receipts would show that the judgment-debtor had recognized the applicant as a tenant. The occupancy of the applicant in the suit premises is lawful, valid, protected and it is not an unauthorized sub-tenancy. As the defendant company refused to accept rent from the applicant since June, 2009 the applicant is depositing rent with the Rent Controller. Since the defendant company started disturbing and/or interfering with the enjoyment of the said tenanted portion, a suit was filed in the City Civil Court for proper declaration and injunction. The husband of the applicant was also constrained to file a writ petition before this Hon’ble Court against Kolkata Municipal Corporation, the plaintiff and the defendant in view of illegal attempts on their part to evict the husband of the applicant by carrying out demolition of the structure. The said writ petition was disposed of by an order dated 6th December, 2007 directing the Municipal Authorities to pass a reasoned order upon hearing the parties. In 2009, the defendant company filed a suit for eviction against the applicant and her sons and daughters being Ejectment Suit No.498 of 2009 before the Small Causes Court at Kolkata. The defendant in the suit filed written statement. The said suit was, however, dismissed for default. In 2012, the defendant company again filed an eviction suit on the self-same allegations against the applicant and her sons and daughters. The defendant in the suit has filed a written statement. The suit is pending. On March 18, 2013, the applicant for the first time became aware of the present eviction proceeding as the receivers appointed by this Court in the eviction proceeding visited the shop room and directed the applicant to vacate the said shop room by 21st March, 2013 failing which physical possession would be taken with police assistance. The representative of Jashpal Singh gave copies of the order dated 12th February, 2013 and 5th March, 2013 to the representative of the applicant. The said decree was obtained by suppression of material facts and committing fraud. The third applicant is the wife of one Late Sailesh Chandra Anup Chandra Desai who was originally inducted as a tenant in 1976 in respect of a Shop Room No.2 measuring about 230 sq.ft. at the Premises No.15, Princep Street, Kolkata – 700 072 at a monthly rental of Rs.212.00 payable according to English calendar month under the landlord, namely M/s. J.

Sen & Sons Estate P. Ltd. On 14th October, 1976 a Partnership Deed was executed between Smt. Indiraben Desai (since deceased), the said Mr. Sailesh Chandra A. Ch. Desai (since deceased) and Dhanvanth Rai Desai. The partnership business started from the tenanted premises under the name and style of M/s. Desai Automobiles and was registered under The Partnership Act, 1932 on 20th November,1976 vide Registration No.96009. On or about 12th January, 1977 the address of the partnership firm was registered as a shop under the West Bengal Shops and Establishments Act, 1963 which was thereafter renewed from time to time. The Landlord M/s. J.

Sen & Sons Estate Pvt. Ltd. was all along aware with regard to formation of the partnership. In order to carry on the business, the firm obtained the Certificate of Enlistment [Trade License]. in the name of M/s. Desai Automobiles valid till 31st March, 1985 and thereafter renewed it from time to time after payment of necessary fee. M/s. J.

Sen and Sons Estate (P) Ltd. continued to issue rent receipts. However, since the month of April, 1992 the rent receipts were issued in the name of M/s. Desai Automobiles at the rate of Rs.212.00 by formally recognizing the creation of partnership. The applicant has been regularly paying the rent in respect of the said tenanted premises to its landlord i.e., M/s. J.

Sen and Sons Estate (P) Ltd. Upon being apprehensive about forceful dispossession at the instance of the judgment debtor and Mr. J.S. Chandok, the applicant instituted Title Suit no.5268 of 2008 before the learned City Civil Court at Calcutta. In the said suit Mr. J.S. Chandok was specifically restrained from dispossessing the applicant from its tenanted premises without due process of law. In retaliation thereof, J.

Sen & Sons Estates (P) Ltd. instituted Ejectment Suit No.509 of 2009 against the applicant before the City Civil Court at Calcutta, inter alia, claiming eviction of the applicant from its tenanted premises. The applicant is contesting the said suit by filing the written statement. The said suit is still pending. The fourth applicant is claiming to be a tenant under the judgment debtor since February, 1965 in respect of side shade with a small inside back shade with darwans’ room described as Godown No.5 at the suit premises initially at a monthly rent of Rs.159/- inclusive of commercial surcharges. The applicant paid rent upto December, 1987 and thereafter on refusal to accept rent the applicant started depositing of rent to the learned Rent Controller at Kolkata from 1988 and continued to pay the rent till date. The occupation of the applicant in the suit premises is undisputed and the same would be evident from the certified copy of the Inspection Book issued by the Kolkata Municipal Corporation in respect of the said premises which would show that the petitioners are in occupation of the suit premises. Sometime in the year 2006 the Decree-holder of the instant suit in collusion with the judgment-debtor of the instant suit had started to demolish the said suit premises including the petitioner’s tenanted portion of the suit premises but due to objection, petitioner’s tenanted portion could not be demolished and ultimately in the year of 2006, the petitioner filed a civil suit before the learned City Civil Court at Calcutta against the judgment-debtor and Jaspal Singh one of the then directors of the Judgement-debtor in which an order of injunction was passed restraining the Judgement-debtor and Mr. Jaspal Singh from demolishing any portion of the said suit premises and disturbing the peaceful possession of the intervener herein. Thereafter, in the year 2008 the decree-holder and the judgmentdebtor herein again tried to demolish the suit premises including the intervener’s tenanted portion in order to evict the intervener herein without due process of law. Then the intervener filed a writ petition before this Hon’ble Court against the Kolkata Municipal Corporation and the judgmentdebtor and decree-holder herein, when the Hon’ble High Court at Calcutta on 22nd February, 2010 was pleased to dispose of the said writ petition with a direction restraining the Kolkata Municipal Corporation from evicting and/or interfering with the possession of the petitioner being the intervener herein with an observation that the intervener’s right to remain in possession shall be subject to the order to be passed by the learned Civil court. Suddenly, on 18th March, 2013, a Police Officer of Bowbazar Police Station came to the petitioner’s premises and informed about the order passed in the aforesaid execution case being E. C. No.314 of 2012. After knowing about the aforesaid execution case, the intervener filed the instant petition in order to adjudicate the matter and prayed for an injunction against the order passed in execution case. The learned Counsels for the applicants have strenuously argued that since the decree was obtained by fraud and collusion, the said decree is not enforceable against the applicants. One Mihir Sen and his brothers became the owners of the Premises No.15, Princep Street, Kolkata – 700 072 (hereinafter referred to as the said premises) by purchasing the said property in 1952. In 1956, J.

Sen & Sons Estate Pvt. Ltd., the Judgment Debtor/Defendant herein, was incorporated. The said company was incorporated with the object of taking a lease of premises no.14 and 15, Princep Street, Kolkata. The grant of lease by the Sens to the company is evident by a registered deed of lease dated 15th May, 1956, long prior to induction of any sub tenant. Mr. Chandhok and his family acquired the majority share in 1997 of the lessee company being J.

Sen and Sons Pvt. Ltd. and such shares were sold by 2009. Thereafter Chandhok family held no share in the said company. The plaintiff/decree-holder purchased 1/3rd share of the suit property in 1997 from Smt. Jayshree Sen and Sri Ramanuj Sen and 2/3rd share in the year 1998 from Sri Samir Sen and Shri Timir Sen. The judgment-debtor company was brought into existence for the sole object of obtaining lease of the suit premises and some other properties owned by Sens at the material point of time. This would be evident from the objet clause of the memorandum of the said company. The purpose and object of the agreement could have been to avoid the provisions of the Urban Land Ceiling Act or similar legislations coming in the way of the Sens from holding the said property. Taking the lease of the suit premises would also be evident from the object clause of the memorandum of the said company. In terms of the said Indenture of Lease, the lessee company was authorized to sublet the whole or part of the demised premises. On the strength of such authority, the lessee granted a monthly tenancy in favour of the applicants on certain terms and conditions. The applicants claimed to be authorized sub-lessees. The said property came to be owned by the four co-owners following the death of Mihir Sen, one of the three original owners. The said co-owners by four several Deeds of Conveyance, two of which are dated 20th August, 1997 and the remaining two are dated 8th July, 1998, sold the said property to M/s. Chandok (Developers) Pvt. Ltd., owned by the members of Chandok family. The first applicant contended that in 1991, the Judgement-debtor represented that the Judgement-debtor was the owner of the property in question. It was on the basis of such representation, that the applicant agreed to take the tenancy and was inducted as a tenant in respect of the said tenanted portion of the suit premises. In or about 21st June, 1997, Jaspal Singh Chandhok and Amarpal Singh Chandhok became the directors of the Judgement-debtor. Between 20th August, 1997 and 8th July, 1998, the decree holder purchased the suit property from Samir Sen, Timir Sen and the heirs of Mihir Sen. On 6th September, 2006, the judgement-debtor, by a letter of surrender agreed to surrender the tenancy on or before 31st October, 2006 following which demolition activities started in the said premises which led to the filing of the suit by the applicant as mentioned hereinbefore. Between 20th July, 2009 and 3rd August, 2009, Jaspal Singh Chandhok and Amarpal Singh Chandhok resigned as the directors of the judgement debtor company. Sanjay Kumar Shaw and Uday Chand Dey were made the directors of the Judgement-debtor. Jaspal Singh Chandhok and Amarpal Singh Chandhok also sold their shares during the year 2008-2009. On 26th November, 2009, the Decree-holder issued a notice to quit and vacate upon the Judgement-debtor on the basis of a letter of surrender dated 6th December, 2006 issued by the Judgement-debtor. It is alleged by the applicants that the present suit is a collusive suit in which a collusive decree was obtained as the Judgement-debtor did not contest the suit at all. It is submitted that Chandhoks were in management and control of the judgment debtor company till about 2009 and thereafter had resigned in 2009 and the present directors of the judgment debtor company are the nominees of the said Chandhok. The judgment debtor is an alter ego of the decree-holder. The present shareholders and directors of the judgment debtor are co-nominees and/or employees of Jashpal Singh Chandhok. Jashpal Singh Chandhok was a common director till July, 2009 in both the plaintiff and the judgment-debtor. In the plaint in C.S.No.118 of 2010 it was averred that the judgment debtor stopped paying rent from April, 2008. Jashpal Singh Chandhok was a common director for almost 12 years in both the companies and in April, 2008, the judgment debtor deliberately stopped paying rent in order to become a defaulter to furnish a ground to the plaintiff for instituting a proceeding for eviction of the judgment debtor. It is submitted that the above suit is not a suit for eviction. The defendant judgment-debtor were required to vacate the premises in order to enable the plaintiff to carry out with the proposed new construction in conformity with building plan to be sanctioned and in consideration of vacating the said house for the purpose of construction of the new building the plaintiff would provide the defendant flats or the rooms ad-measuring an area 2000 sq. ft. out of the total area to be constructed. Accordingly, the suit is in the nature of specific performance of a contract. In view thereof, it is submitted that since the applicants admittedly are in occupation of a portion of the suit property, the applicants were required to be impleaded in such suit as the valuable right of the applicants to occupy and enjoy the tenanted portion would be affected by reason of a decree that may be passed in the said proceeding. The agreement dated 27th March, 1991 recorded in the conveyances by which the said property was sold to the plaintiff would show that the applicants are occupants and the presence of the said applicants are necessary in any proceeding for eviction of such occupant. Even if it is assumed that the applicants are trespassers, it is well-settled that a trespasser cannot be evicted without a suit being filed for its eviction. The Sen family as the original owner of the suit property and the subsequent owners were always aware of and had recognized and consented to the continuation of the applicant as a sub-tenant. The applicants were never made aware of the above suit. It is submitted that even if the provisions of Section 13(2) of the WBPT Act, 1956 are taken into consideration it would appear that the applicant would be a necessary party in the said suit. Mr. Moloy Kumar Ghosh, the learned Counsel appearing on behalf of one of the applicants has relied upon a decision of this Court in Graphite India Limited Vs. Smt. Bandana Bose & Anr. reported at 2005 (3) CLT101HC) for the proposition that when a post-decree proceeding of like nature can very well be anticipated even prior to the disposal of the suit for avoiding multiplicity of proceeding, the applicant should have been impleaded as a party in the said suit so that the rights of the respective parties concerning the said tenancy could be decided completely and effectively in presence of the applicants. It is submitted that the order passed by the Executive Engineer (Civil) dated 24th December, 2007 would show that the plaintiff had given an undertaking that all the tenants of the judgment-debtor shall be provided with identical shop room as shown in the Building Plan in the newly constructed building. Under such circumstances, the ploy to evict the applicants from the suit premises by obtaining a collusive decree is required to be stayed and the parties shall be restrained from enforcing and executing the said collusive decree against the applicants. Under such circumstances, it is submitted that the decree dated 9th December, 2011 should be declared to be a nullity and nonest as the said decree has been obtained by collusion of parties which is not binding on the applicant. The applicants submitted that in view of the aforesaid circumstances, the applicants should be declared to be a direct tenant under the decree-holder. It is submitted that the filing of the said suit and the entire exercise that followed culminating in an ex parte decree is a contrive and the letter of surrender was pre-planned to obtain a decree with a mock show of resistance as the judgment debtor although had filed a written statement but ultimately did not contest the proceeding. Consequent upon the disclosure of a registered deed of lease being Deed No.2328 dated 15th May, 1956 entered into between the then owners of the premises, namely, Sens and the judgment-debtor company on the basis of which the judgment-debtor was put in possession and occupation of the property initially for a term of 20 years with an option for renewal at an enhanced rent for another term of 20 years, it is submitted that the applicants sub-lessees are protected by the Rent Control Act inasmuch as the said deed of lease permits the judgment-debtor to create sub-lease. It is submitted that the notice to quit issued by the decree-holder may apparently appear to be innocent and seemingly a lawful exercise to enforce its right as owner but it is a part of a larger conspiracy to evict the applicants from the suit premises. It is submitted that the eviction decree obtained by fraud is a nullity and not binding on the sub-tenant. The learned Counsels for the applicants have referred to the decisions in Mehta Suraya & etc., Vs. United Investment Corporation reported at AIR2002Cal 108, Tirath Ram Gupta Vs. Gurbachan Singh & Anr. reported at AIR1987SC770and Mehta Suraya Pvt. Ltd. Vs. United Investment Corporation reported at 2008 (112) CWN859for the proposition that the said decisions clearly state that one of the exceptions to the general principle that sub-tenant cannot question the decree for eviction of the tenant is when the decree is obtained by fraud and collusion. That fraud unravels everything and makes a decree a nullity is the submission based on the decision of the Hon’ble Supreme Court in Ram Chandra Singh Vs. Savitri Devi reported at 2003 (8) SCC319 It is emphatically argued that the surrender by the said judgment-debtor cannot affect the right of the sub-tenant and the sub-tenant becomes a direct tenant under the landlord upon surrender. It is submitted that the lessee can only give to his lessor by surrender to the same extent that he could give to any person by assignment and such assignment would be subject to sub-tenancy is the principle embodied in Section 115 of the Transfer of Property Act which also says that a sub-lessee is not affected by surrender. In this regard Mr. Jishnu Chowdhury has relied upon Walter Vs. Yalden reported at 1902 (2) KB304at pages 308 and 310. A Division Bench judgment of the Bombay High Court in Suleman Haji Ahmed Oomar Vs. Darabshaw Pirojshaw Dubash reported at AIR1939Bombay 98 is referred to for the proposition that when a lessee has given a sub-lease and thereafter surrenders the head-lease to the lessor, the position of the sub-lessee remains unaffected and he becomes the lessee of the original lessor on the same terms as in the said lease. If, however, the lessee surrenders the head-lease for the purpose of obtaining a new lease, the sub-lessee continues as before to hold under the lessee. The learned Counsels have referred to the four several conveyances and submitted that the said conveyances contain identical terms and record by way of recital and otherwise some significant facts: First, the vendors i.e., the Sens created a tenancy on 27th March, 1991, in respect of the said premises in favour of J.

Sen & Sons Estate (P) Ltd. at a monthly rent of Rs.1250/- with right to construct on the demised premises. Second, the tenant company came to be owned by Jaspal Singh Chandok and his family holding 100% shareholding. Third, the tenant company would have the right to assign, mortgage, transfer, sell any portion of the existing building on the demised premises. Fourth, the tenancy in terms recorded consent of landlord in writing to all the things mentioned above. Fifth, the tenancy also recorded that the tenant company had been collecting rents from occupiers by virtue of the said registered lease meaning thereby the registered lease dated 15th May, 1956 and the tenant otherwise had been enjoying the right of sub-letting. It is submitted that the Deed of Conveyance dated 20th August, 1997 speaks about Tenancy Agreement dated 27th March, 1991. It recognises the status of the applicants as tenants. J.

Sen & Sons Estate (P) Ltd., the tenant company at all material times was a lessee/tenant with right to sub-let the premises demised to them by Sens, the original owners. The plaintiff/decree-holder purchased the property in August, 1997, subject to all existing rights of the tenant company and with the knowledge that the applicants are a lawful sub-lessee and/or a sub-tenant. It is argued that as a general rule, while it is correct to say that when a landlord institutes a suit against a lessee for possession of land on the basis of a valid notice to quit, served on the lessee and does not implead a sub-lessee as a party with the object of evicting the sub-lessee from the land, such object is quite legitimate but as has been held in Burma Shell Oil Distributing, now known as Bharat Petroleum Oil Corporation Limited Vs Khaja Midhat Noor & Ors. reported at AIR1988SC1470 that this is subject to the qualification that it must not be a result of any collusion. The facts as recorded in the recitals of the several Deeds of Conveyance referred to above make it absolutely clear that the suit has been filed in collusion with each other to defeat the legitimate right of the applicant as lawful sub-tenant. The decree obtained in such fashion is fraud on the sub-tenant’s right and not binding on the applicant. It is submitted that the plaintiff has proceeded in the suit not on the basis of a valid notice to quit to the lessee, but on the basis of alleged agreement to surrender by the lessee, namely, J.

Sen & Sons Estate (P) Ltd., the provision of Section 115 of the Transfer of Property Act would be attracted with the consequence that the applicants have now become a direct tenant under the lessor, the underlying principle being that a lessee cannot derogate from his own grant and cannot surrender his interest to the prejudice of the under-lessee. This legal position has been most succinctly explained in the case of Sailendra Nath vs. Bijan Lal reported at AIR1945Cal 283 at pages 290, 292 and 293. This case has been followed in numbers of cases of which reference was made to:1) AIR1985Cal 172 (Para 3 and

7) (Benimadhab Mahrotra v. Howrah Flour Mills Ltd. & Anr.);

2) AIR1953SC514(Shri Jagadguru Gurusiddhaswami Guru Gangadharswami Murusavirmath Vs. The Dakshina Maharashtra Digambar Jain Sabha);

3) AIR1957Cal 252 Para 6. (Gaya Nath Ghose Vs. Amulya Chandra Sarkar & Anr). As the applicants have become direct tenants under the lessor J.

S. Chandok (P) Ltd., it could only be evicted in accordance with the provisions of West Bengal Premises Act, 1997 and not in execution of a decree passed in a collusive suit. The fraudulent conduct of the parties is also apparent from the fact, that at no stage either the lessor nor the lessee informed the applicant that Chandok Developers had purchased the suit premises from the Sens in August 1997 and there is no evidence on record showing that the existing tenancy was attorned in favour of Chandok Developers (P) Ltd; hence there was no question of the applicants as sub-tenants serving any notice to the lessor under Section 26(2) of the 1997 Act. As a matter of fact, the Judgment Debtor continued to accept the rent from the applicant as late as March, 2008. In such circumstances, the question of applicant giving any notice to the decree-holder recording such sub-letting in terms of Section 26(2) of the West Bengal Premises Tenancy Act, 1997 could not and does not arise. By withholding the alleged tenancy agreement dated 27th March, 1991 between the Sens, the original owners/lessors and lessee J.S. Sons Estate (P) Ltd., the plaintiff perpetrated a fraud on Court. Fraud unravels everything as has been held in S.P. Chengalvaraya Naidu (Dead) by L.Rs Vs Jagannath (Death) by L.Rs reported at AIR1994SC853 It is submitted that Section 26 (1) of the West Bengal Premises Tenancy Act 1997 is not applicable in the instant case as the interveners were inducted under the West Bengal Premises Tenancy Act, 1956. Furthermore as per the said Act, the judgment debtor is responsible for intimating about interveners’ tenancy because the interveners were not at all aware about the transfer of suit property in 1997. As there is a suppression of material facts by the decree-holder and as the decree-holder did not come with a clean hand in order to get the ex parte decree, the said decree should be declared as a nullity in the eye of law. The other objection raised is that at the time of creation of tenancy by the Judgement-debtor company, it was never represented that the Judgement-debtor company is a tenant in respect of the suit premises. Even if it is assumed that the Judgement-debtor Company is a lessee in respect of the suit property, no new tenancy could have been created in the year 1991 in favour of M/s. J.

Sen & Sons Estate (P) Ltd. in respect of the portion which was already tenanted in favour of the applicant as the law of the land does not recognize creation of concurrent tenancies. The conduct of the parties to the suit would also demonstrate that the interest of the Defendant in the suit property upon acquisition of interest thereof by the plaintiff had merged in the plaintiff which had the effect of determination of the alleged tenancy created in favour of the defendant. The status of the applicant consequent to the aforesaid became that of a direct tenant under the plaintiff. The officers of both the plaintiff and the defendant actively concealed such fact in order to practice fraud. By creating a concurrent lease in the year 1991, the Sens could not have altered the applicant’s status from a tenant to that of a sub-tenant. With regard to the bar on creating concurrent tenacy on the self-same property without handing over physical possession, reference was made to the judgments of Prabhat Kumar Paul Vs. Shree Shree Lakshmi Janardan Thakur & Ors. reported at 2008 (2) CHN445and West Bengal Sate Promotion Organisation Vs. Indian Crafts Village Trust reported at 2011(2) CHN641 Per contra, Mr. Pratap Chatterjee, the learned senior Counsel appearing on behalf of the plaintiffs submits that all the applicants had been granted tenancy by J.

Sen and Sons Pvt. Ltd. (Company). Therefore, they were sub tenants, owners being the Sens and main tenant was the said company. No notice as it was mandatory under Section 16 of WBPT Act, 1956 or WBPT Act, 1997 (S26 was served by the sub tenants as such they have no defence against eviction. The said illegal sub tenants are not even entitled to make any application before this Hon’ble Court as they have done. Even allegations of fraud are not required to be gone into by the Hon’ble Court. There is nothing improper about the landlord and lessee acting together. Sub tenants have no right to apply for addition of party. The learned senior counsel has referred to Rupchand Gupta Vs. Raghu Banshi reported at AIR1964SC1889and Birla Corporation Limited Vs. Basant Properties Limited reported at 2011 (3) CHN (Cal) 193 for the proposition that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sublessee that the lessor had even a plausible defence in the plaint for ejectment. It is argued that no case is made in the pleadings that J.

Sen and Sons Estate Pvt. Ltd. was never a tenant under the Sens. Such a case cannot be argued. Whatever has been done by the decree-holder was known even to the sub tenants. The case of under-lease is not sustainable Section 115 of the Transfer of Property Act contemplates a situation where the terms of the under lease is identical. The applicants being illegal monthly tenants under J.

Sen & Son Estate Pvt. Ltd. are not entitled to any protection against eviction in view of lack of mandatory notice required to be served under Section 16 of the 1956 Act and Section 26 of the 1997 Act. It is argued that even if the lease deed conferred power to grant subtenancy, requirement of the Rent Control Acts are to be fulfilled as has been held in the following decisions:(1) 1988 (2) CLJ491(Zodiac Investment Limited Vs Durga Investment Trading & Co. & Anr.) (2) AIR1989SC1819(Shantilal Rampuria & Ors. Vs M/s. Vega Trading Corporation & Ors) (3) AIR1988SC145(M/s. Shalimar Tar Products Limited Vs H. C. Sharma). The moot point that has fallen for consideration is if the applicants are entitled to protection under the provisions of the West Bengal Premises Tenancy Act, 1997. The undisputed facts emerge from the pleadings and the documents disclosed in the proceedings are that one Mihir Sen and his brothers became the owners of the suit premises by purchasing the said property in 1952. In 1956, J.

Sen & Sons Limited, Judgement-debtor was incorporated. The said company was incorporated inter alia with the object of taking a lease of Premises No.14 and 15, Princep Street, Kolkata. The deed of lease dated 15th May, 1956, entered into between Sens and the Judgement-debtor company records that under the said lease, Judgement-debtor was put in possession and occupation of the property initially for the term of 20 years with an option on the part of the judgement-debtor to renew the lease at an enhanced rent after expiration of the said lease for another 20 years. Under the said lease, the Judgement-debtor was permitted to erect buildings and edifices and sub-let the same to tenants during the said term without any interruption from the lessor or any person or persons lawfully claiming from or under them. It appears that on 27nd March, 1991, the owners had entered into an agreement of tenancy with the Judgement-debtor company on certain terms and conditions which inter alia include - “ii. That for the purpose of vacating the said premises the Landlords hereby authorise and empower the Tenant to take all steps including filing of suits for the eviction of the occupants or to settle disputes amicably and to get the said premises vacated for the purpose of construction of new buildings on the land of the said premises, after demolishing the existing structure of the said premises, or otherwise. iv. It is agreed by the parties and specifically clarified here that in the event the tenant surrenders it’s tenancy in respect of the said premises the occupants under the Tenant shall have no right to remain in possession and/or occupy the said premises in any manner whatsoever and the Tenant is bound to handover peaceful vacant possession of the said premises to the Landlords. v. That the Tenant shall pay to the Landlords a sum of Rs.1,00,000/- (Rupees one lac only) at the time of submission of plan for sanction by the Calcutta Municipal Corporation for construction of building or buildings on the land comprised in the said premises. xii. The tenant shall have every right to assign mortgage transfer sell any portion of the existing building on the land comprised in premises No.15, Princep Street, Calcutta and the Landlords shall co-operate with the Tenant in all respect in this regard and shall not interfere or disturb or hinder any work or works to be executed by the Tenant in this regard the Landlords are giving consent in writing to the Tenant in this presents. xiv. It is agreed and clarified that the Tenant has been collecting rents from the occupiers of the said premises and by virtue of the said registered Deed of Lease and/or otherwise the Tenant has been enjoying the right of sub-letting underletting parting with the possession and collecting of rents, issues and profits of the said premises. xv. It is agreed by the Landlords that the Tenant hereinafter shall peaceably and quietly hold possess and enjoy the said premises in khas or through tenants, occupiers without any claim demand whatsoever from the Landlords or any person claiming through or under them.”

. The plaintiff decree-holder between 20th August, 1997 and 8th July, 1998, purchased the property from Samir Sen, Timir Sen and the heirs of Mihir Sen for valuable consideration. On 6th September, 2006, the Judgement-debtor, by a letter of surrender agreed to surrender the tenancy on or before 31st October, 2006. The applicants claim to have been inducted by the Judgement-debtor between 1965 and 1991. The plaintiff appears to have filed a suit for eviction against the Judgement-debtor, inter alia on the ground that in spite of the notice to surrender and quit dated 6th September 2006, the defendant-tenant save and except making over peaceful and vacant of four rooms admeasuring area 2300 square feet more or less on the ground of the said premises had failed and neglected to deliver vacant possession of the balance 5 rooms by 31st October, 2006 admeasuring an area of 1600 square feet by reason whereof the plaintiff was unable to demolish the existing structure and to construct a building on the suit premises in terms of the agreement arrived at between the plaintiff and the defendant in January, 2006. The defendant has also failed and neglected to pay the monthly rent @ Rs. 1250/- per month amounting to Rs. 30,000/- in aggregate until the date of filing of the suit. The defendant also wrongfully and illegally inducted the occupiers without the consent of the plaintiff/landlord in writing or in any manner whatsoever, as a result thereof, the defendant is liable to be evicted by and under Section 6(1)(a) of the West Bengal Premises Tenancy Act, 1997. The ground for eviction thus appears to be failure to surrender the suit premises coupled with default in making payment of rent and illegal subletting. The learned Counsels for the applicants argued that the four several Deeds of Conveyances would show that Chandhoks who owns and controls the plaintiff purchased the entire shareholding of the defendant and the said defendant is an alter-ego of the plaintiff, notwithstanding the fact on 2009, the Chandhoks had sold their shares in the Judgement-debtor company to outsiders. The default in making payment of the rent by the defendant company was deliberate in order to create a ground for eviction of the defendant so as to enable the plaintiff to obtain a decree against the defendant and in the process to throw the applicants out of the premises on the strength of such decree. The applicants have referred to some orders passed in pending litigations to show that the protective orders the applicants were enjoying are attempted to be nullified by the collusive decree obtained by the plaintiff against the defendant. A sub-tenant is bound by the decree for eviction of the tenant if the decree is based upon a ground which determines the sub-tenancy and he may then be removed in execution of the decree. However if a sub-tenant claims a statutory right to occupy a property independently of the tenant under the Rent Control laws, he is not a representative of the judgementdebtor tenant and is not bound by the decree of ejectment and he may not therefore be removed in execution of the decree against the tenant. He is therefore entitled to resist execution of the warrant and if he is dispossessed, he may apply under Order 21, Rule 100 for restoration of possession. A sub-tenancy validly created during the subsistence of the lease cannot be set at naught and the sub-tenant cannot be evicted prior to the expiry of the original lease period merely because the lessee during the subsistence of the lease had agreed to surrender possession to the lessor before the expiry of the lease period as the lessee would have the statutory and independent right to continue in possession which would be coterminous with the expiry of the lease and would be entitled to enjoy the entire duration of the lease. In such a situation, if a suit is filed for eviction of the lessor on the basis of a letter of surrender and a consent decree is passed, the lessor on the strength of such decree cannot evict the sublessee. this is the spirit of Section 115 of the Transfer of Property Act, which has been discussed in Tirathram Gupta (supra) which are stated below:“9. There was also a contention that when there was a surrender of tenancy rights restricted to the two flats in question, the first respondent is bound by the surrender and cannot claim subtenancy rights any further. The contention is unsustainable for a host of reasons. A lease is a transfer of a right to enjoy the property. It creates an interest in the property by virtue of the contract of lease which may be either oral or written. The interest created in the property can be put to an end to be terminating the contract. The contract, however, cannot be terminated in part. In this case though the two items of property were given on lease as a composite one and that was why a common notice had been issued for terminating the tenancy of both the items and furthermore a single petition had been filed under S. 13(2) to seek an order of eviction in respect of both the items of the lease property.

10. The lessee has a right to transfer by sub-lease even part of his interest in the property as provided in S. 108(j), T.P. Act. A transferee from the lessee has a right to claim the benefit of contract to the lessee’s interest, vis-à-vis the landlord, (vide S. 108 second paragraph of Cl. (c), T. P. Act). Thus a sub-lessee who has obtained a part of the interest of the head tenant will be entitled to claim the benefit of the contract vis-à-vis the lessor, as the lessee (head tenant) cannot surrender the lease in part. Section 111(e) contemplates a surrender of the entire interest under the lease and not a part of the interest alone. Moreover, a lease can be determined only by restoring possession in respect of the entire property which has taken on lease (see S. 108(m)). Section 115, T. P. Act, provides that the surrender of a lease does nhot prejudice the under-lease of the property or in part thereof previously granted by the lessee. the lessee, having parted with a part of the interest in the property in favour of the sub-lessee, cannot surrender that part of the property which is in the possession of the sub-lessee for he cannot restore possession of the same to the lessor apart from the fact that he can terminate the contract of lease only as a whole and not in respect of a part of it. Having regard to all these factors, even without going into the question of the partial surrender of lease being vitiated by collusion, it is not open to the appellant in law to contend that the second respondent is entitled to and had validly surrendered a portion of the lease-hold property and the first respondent, being the sub-tenant is bound by the surrender and should deliver possession.

11. The last argument of the appellant’s counsel was that the Act gives protection only to tenants and not to sub-tenants against unreasonable eviction and hence the first respondent cannot claim protection under the Act from eviction. Reference was made in this connection to S. 2(ii) of the Act which excludes a subtenant from the definition of tenant. The argument stems from an erroneous assumption that the first respondent is seeking protection under the Act from being evicted. The true position is that the first respondent has only taken the stand that the appellant is not entitled to evict him under S. 13(2) of the Act since the sub-lease in his favour had been created before the Act came into force.”

. The same principle is followed in Mehta Suraya Pvt. Ltd. (supra) in paragraph 66 to 69, which states that:“66. If a notice to quit is given by either the lessor or the lessee to the other and such notice is not in derogation of the terms of the lease, the effect of the notice and the decree that may be passed in a suit founded on such notice would reign over the rights of all who claim under either the lessee or the lessor. But if the notice is contrary to the tenor of the contract, it will not bind any person claiming under the noticee or under the party that issues the notice unless such person is a party to the suit. This is the key to the present matter, notwithstanding the complex web that has been spun around. If a lessee takes a lease for a certain duration and creates sub-leases which do not run against the grant obtained by the lessee in its lease, the sub-lessees cannot be bound by a notice to quit issued either by the lessee or upon the lessee if such notice is at variance with the terms of the principal lease. It would run against all cannons of justice, equity and good conscience to hold otherwise. If a person enters upon an immovable property as a sub-lessee, he is required to inform himself of the extent of his lessor’s right. He cannot obtain a sublease that exceeds the period of the grant that his lessor has. But if he takes under a sub-lease for a duration covered by the grant unto his lessor, his lessor’s waiver of the rights under the superior lease in issuing or receiving a notice to quit or in forfeiting the superior lease, would leave the sub-lessee unaffected and the sub-lessee will have a right to the leased property directly under the lessor unless he is a party to the decree for eviction. The sub-lessee need not cite or establish any fraud in such case to retain possession.

67. There is no doubt that it is the under-lessees who must aver and prove the fraud in the pure case of forfeiture to avoid its disagreeable effect on them, but despite the onus to do so being on the under-lessees, in the state of the evidence, the burden may shift. It is best that the wording of Section 115 be first noticed:

“115. Effect of surrender and forfeiture on under-leases.The surrender, express or implied, of a lease of immoveable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor. The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under Section 114.”

.

68. The under-lessees in the present case entered upon possession of parts of the building on their understanding as to the long tenure of the lease that their lessor had obtained from the decree-holder. It is to be appreciated that the decree was passed on admission found in a document issued by the judgment-debtor. The judgment-debtor could admit, and give up or waive, only its rights under the lease and could not speak for the under-lesees or give up the under-lessees’ rights by its admission, for it was not the judgment-debtor’s any more to concede as the judgment-debtor had granted rights, permissible under its lease with the decreeholder, to the under-lessees.

69. There was no forfeiture of the lease as the decree-holder suggests, and even if there was forfeiture, it was procured in fraud of the under-lessees. The decree was based on admission pursuant to a notice to quit given by the judgment-debtor which was followed up by notices to quit being issued by the decreeholder. But any action founded on a notice in each case could yield only such of the rights that the lessee had and not any of the rights that was not the lessee’s to give to the lessor upon the lessee having conferred them on the under-lessees.”

. The mere fact that the Judgement-debtor has filed the written statement but did not ultimately contest the suit does not mean that the decree is obtained by collusion. The decree-holder on the basis of the letter of surrender could have obtained possession. A similar situation occurred in Rupchand Gupta (supra). In that case, the landlord brought a suit against his lessee for ejectment after serving a valid notice to quit but without impleading the sub-lessee as defendant. The lessee did not contest the suit in pursuance of his agreement with the plaintiff landlord and an ex parte decree was passed. The sub-lessee thereupon brought a suit against the landlord and the lessee for a declaration that he was not bound by the decree which had been obtained by collusion between the defendants in order to injure the plaintiff and to evict him from the premises without a decree being passed against him. The suit was dismissed on the ground that the plaintiff failed to establish collusion. On such facts it was held that the suit was rightly dismissed. The mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit did not render the decree passed in the suit as collusive especially when it was not suggested by the sub-lessee that the lessor had even a plausible defence to the claim for ejectment. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purpose. Where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This may act harshly on the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. The mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded. This was followed in a fairly recent decision of our High Court in Birla Corpn. (supra). Even if it is accepted and held in favour of the applicants that the 1991 agreement between the owners and the Judgement-debtor creating fresh tenancy could not have curtailed the period which the Judgement-debtor company is entitled to enjoy under the parent lease of 1956, even then, on the expiry of 40 years from the date of execution of the head lease all other sub leases would perish, unless it is shown that there was consent in writing by the landlord to the creation of sub-tenancy and their continuation thereof in the respective tenanted portion of the suit premises is on the basis of such consent. Moreover, there is nothing on record to show that the lease was extended beyond the period of 20 years. The applicants after the expiry of the lease are to establish that such tenancy was created with the consent of the landlord. The agreement of 1991 relied upon by the applicants would clearly show that the tenants would have no right to remain in possession and/or occupy the premises in any manner whatsoever in the event the tenant surrenders its tenancy. The said agreement only records that the tenant was collecting rents from the occupiers by virtue of a registered deed of lease and/or otherwise and is enjoying the right of sub-letting. This agreement does not extend the lease nor it can be contended that even after 1996 when the entire 40 years’ period was over, the applicants would have the undoubted legal right to remain in possession as a lawful tenant, unless it is established that the landlord has given consent in writing for continuation beyond the period of 40 years. There is no subsequent renewal of lease with the same rights and obligations. The requirement of previous consent in writing was considered and discussed in detail in Biswanath Poddar Vs. Archana Poddar reported at AIR2001SC2849 (2001) 8 SCC187 Section 26(2) of the West Bengal Premises Tenancy Act, 1997 in this case has fallen for consideration. For the purpose of brevity, Section 26(1) and (2) are stated below:“S.

26. Creation and termination of sub-tenancy to be notified.(1) Where after the commencement of this Act, any premises is sublet, either in whole or in part, by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises is sublet, shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within on month from the date of such subletting and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination. (2) Where before the commencement of this Act, the tenant has, with or without the consent of the landlord, sublet any premises either in whole or in part, the tenant and every subtenant to whom the premises has been sublet, shall give notice to the landlord of such subletting in the prescribed manner within [two years]. of the commencement of this Act and shall, in the prescribed manner, notify the termination of such sub-tenancy within one month of such termination.”

. Although under the general law, the tenant enjoys the right to sublet without the landlord’s consent but such sub-tenant is bound by the decree for eviction passed against the tenant and cannot resist such eviction. However, both under the West Bengal Premises Tenancy Act, 1956 and under the present Act, the tenant cannot sublet without the written prior permission of the landlord. Section 26 of the 1997 Act is the same as Sections 14 and 16 of the old Act of 1956. Sections 14 and 16 of the 1956 Act reads:“S.14.Restriction of subletting.- (1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord, (a) sublet the whole or any part of the premises held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof. (2) No landlord shall claim, demand or receive any premium or other consideration whatsoever for giving his consent to the subletting of the whole or any part of the premises held by a tenant. S.16.Creation and termination of sub-tenancies to be notified. – (1) Where after the commencement of this Act, any premises are sublet either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant and every sub-tenant to whom the premises are sublet shall give notice to the landlord in the prescribed manner of the creation of the sub-tenancy within one month from the date of such subletting and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. (2) Where before the commencement of this Act, the tenant with or without the consent of the landlord, has sublet any premises either in whole or in part, the tenant and every subtenant to whom the premises have been sublet shall give notice to the landlord of such subletting in the prescribed manner [within six months]. of the commencement of this Act and shall in the prescribed manner notify the termination of such sub-tenancy within one month of such termination. (3) Where in any case mentioned in sub-section (2) there is no consent in writing of the landlord and the landlord denies that he gave oral consent, the Controller shall, on an application made to him in this behalf either by the landlord or the sub-tenant within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the sub-tenant, as the case may be, by order declare that the tenant’s interest in so much of the premises as has been sublet shall cease, and that the sub-tenant shall become a tenant directly under the landlord from the date of the order. The Controller shall also fix the rents payable by the tenant and such sub-tenant to the landlord from the date of the order. Rents so fixed shall be deemed to be fair rent for purposes of this Act.”

. There is practically no difference between the new law and the old law as regards statutory requirement of giving notice for creation and termination of sub-tenancies except that the notice is to be given within two years of the commencement of the Act of 1997. Section 14 of the 1956 Act and Section 5 sub-section 5 of the present Act, the requirement of a written prior permission of the landlord is essential. It has clearly provided that no tenant shall sublet premises without the consent of the landlord in writing. Over and above, this prohibition of Section 16 of the 1956 Act made specific provision for giving notice both by the tenant as well as by the sub-tenant as well as the creation of sub-tenancy after the introduction of the 1956 Act. In respect of sub-tenancy created prior to 1956 sub-section 2 of Section 16 of 1956 Act also provided for giving notice both by the tenant as well as by the sub-tenant. Rule 4 of the West Bengal Premises Tenancy Act, 1956 requires the notice under Section 16 to be given by registered post with acknowledgement due and such notice is to contain the particulars specified in the said rule giving of such a notice is mandatory. In Biswanath Poddar (supra) the Hon’ble Supreme Court held that unless requirement of 1956 Act is complied with the provision of Section 16 and the mandatory requirement of a notice under Section 16(1) was issued, the sub-tenant has no right to challenge the decree of eviction passed by the Court even if such sub-tenant has not been impleaded. Section 26(2) deals with pre-Act sub-tenancy whether such subtenancies were with or without the landlord’s consent. Both the tenant and the sub-tenant were to give notice of the creation of pre-act sub-tenancies. Such notice has to be issued within two years of the date of commencement of the 1997 Act. The manner of service of notice has been prescribed in Rule 12 of the West Bengal Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. Rule 12 has been divided into two laying down the duties to be complied with when the cases come within the fold of Section 26(1) and the cases coming within the ambit of Section 26(2) of the Act of 1997. It has to be sent by registered post with acknowledgement due. The requirement of the first part of sub-section (2) of Section 26 of the new Act is that there must be notice of subletting once again to the landlord within two years of commencement of the new Act. The second part of sub-section 2 requires that tenant and sub-tenant shall notify the termination of subtenancy within one month of such termination. The reading of the said two sub-sections shows that it is obligatory for every sub-tenant to give notice to the landlord of the creation of sub-tenancy. Unless this is done a sub- tenant has no locus standi to come forward and challenge the legality of eviction decree passed against the tenant unless he alleges fraud. It has to be a fraud going to the extent of suppression of fact of notice given by him and keeping him in dark intentionally about the ejectment suit. Then and then only sub-tenant can oppose the execution of the decree. In Biswanath Poddar (supra), it was contended that the bilateral agreement between the tenant and the sub-tenant creating sub-tenancy which contained clause that the landlord had given consent to sub-let would bind the landlord and the sub-tenant cannot be evicted and the sub-tenant is a necessary party in a suit for eviction by the landlord against the tenant was negative. The decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar & Anr. reported at 2000(2) CLJ204was reversed by the Hon’ble Supreme Court. It is stated in Biswanath Poddar (supra) that under provisions of the Act the requirement of previous consent of the landlord as also intimation in writing in the manner prescribed under the Act by the tenant as well as the sub-tenant within the time stipulated thereunder being a mandatory requirement, the creation of sub-tenancy without fulfilling these requirements becomes opposed to S.14 of the Act. If it is a sub-tenancy created contrary to the provisions of the Act then as could be seen from S. 13(2) of the Act, it becomes unnecessary for the land to implied the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. In the aforesaid case based on evidence the trial Court had come to the conclusion on facts that neither of the twin requirements, namely the previous consent of the landlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of S.13(2) of the Act. A bilateral agreement between the tenant and the sub-tenant to deprive the owner of a statutory right of eviction by a contract inter se between themselves cannot be relied upon and on basis of clause in agreement “and whereas the first party by virtue of the consent of the tenant in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons”., it cannot be contended the landlord had given previous consent to the original tenant to sublet or part with possession of the premises to any person (s), and therefore, a separate previous consent of the original landlord (the appellant) is not essential. agreement. The landlord was not a party to the above Any statement made in the said agreement would not be binding on the landlord and there being no other evidence to show that in fact there was such written previous consent given by the landlord to create a sub-tenancy. This being a mandatory requirement of law, it was held that the sub-tenant has failed to establish this mandatory requirement of the Act, i.e., S.14 of the Act. The language of S.14 clearly bars creation of any sub-tenancy without the previous consent in writing of the landlord. This requirement of notice is further qualified by the prescribed method of issuance of notice which is found in R.4 of the West Bengal Premises Tenancy Rules. The Section also prescribes the time limit within which such notice has to be given. Under R.4 the notice has to be sent by registered post. It also statutory prescribes the contents of the notice and the place to which it should be addressed. All these conditions coupled with the use of the word “shall”. both in Section and the Rules indicate that the Legislature intended this requirement of notice under S.16 of the Act to be mandatory. Therefore, the requirement of S.16 is mandator


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //