S.H. Sheth, J.
1. The plaintiffs filed the present suit against the defendants for recovering possession of the suit premises which consist of a school building on the ground that defendant No. 3 who is the tenant has unlawfully sublet them to defendant No. 2, Gondal Municipality. Defendant No. 3 is Gondal Taluka Panchayat to which the suit premises were let by the plaintiffs for running the school. Thereafter the Government by its Resolution dated 28th February, 1968, Exhibit 61, resolved to transfer primary schools to the Municipalities where the Municipalities were prepared to shoulder the responsibility. Accordingly the primary schools in the town of Gondal were transferred from Gondal Taluka Panchayat to Gondal Municipality. The plaintiffs, therefore, contended that Gondal Taluka Panchayat had unlawfully sublet the suit premises to Gondal Municipality and that, therefore, they were entitled to recover its possession under Section 13(1)(e) of the Bombay Rent Act.
2. It was contended by Gondal Taluka Panchayat in defence that possession had been transferred by the Government in pursuance of their resolution and that, therefore, there was no unlawful subletting.
3. The learned trial Judge held that the transfer of leasehold rights of Gondal Taluka Panchayat to Gondal Municipality was effected by operation of law and not by an act inter vivos between the parties. He, therefore, held that there was no unlawful subletting. In this view of the matter, he dismissed the suit.
4. The plaintiffs appealed against that decree to the appellate Court. The learned appellate Judge confirmed the finding recorded by the learned trial Judge and dismissed the appeal.
5. It is that appellate decree which is challenged by the plaintiffs in this Civil Revision Application.
6. In light of Section 3 and Section 4 of the Bombay Rent Act, the premises in question are governed by the provisions of that Act. Within the meaning of Section 6 of the Bombay Rent Act, since the suit premises were let out to Gondal Taluka panchayat for the purpose of education, Part II of the Bombay Rent Act applies to them.
7. The question which has been raised for my consideration is whether there has been an unlawful subletting of the suit premises by Gondal Taluka Panchayat to Gondal Municipality. The Government Resolution, Exhibit 61, inter alia states that those Municipalities which took over the administration of primary education from Taluka Panchayats shall be liable to pay rent in respect of premises which were taken on rent by the Taluka Panchayats for the purpose of running the schools. It is difficult to say that by virtue of this Resolution, transfer of tenancy rights from Gondal Taluka Panchayat to Gondal Municipality has been effected by operation of law. In order to hold that something has happened by operation of law, it is necessary to show that there is a law on the subject and that it authorizes such a transfer. It has not been shown to me by the learned advocates appearing on behalf of the parties that there is any law which empowers the State Government by Resolution or otherwise to transfer the leasehold rights of one party to another. Merely because the State Government passed a Resolution on the subject and issued a notification, it cannot mean that the transfer such as one in this case has taken place by operation of law. The concept of operation of law is much different from what the Courts below have thought of it. Operation of law pre-supposes firstly the existence of a law and secondly its operation to create a situation such as one created in the present case. Every direction given by an executive fiat issued by the State Government does not amount to operation of law.
8. It cannot be gainsaid that though the Government resolved that the Municipality to which responsibility of primary education has been transferred shall pay the rent of the premises taken on rent by the Taluka Panchayat, no premises could be transferred unless the tenant agreed to do so. In the instant case there is no evidence to show that Gondal Taluka Panchayat had expressly agreed to transfer the leasehold premises to Gondal Municipality. However, the fact remains that the Gondal Taluka Panchayat transferred to Gondal Municipality the entire responsibility of imparting primary education in the town of Gondal. In order to discharge this responsibility which was transferred by Gondal Taluka Panchayat, the Gondal Municipality started using the suit premises taken on rent by the Gondal Taluka Panchayat from the plaintiffs. Therefore, no doubt is left in my mind that if the Gondal Taluka Panchayat did not expressly transfer the suit premises to Gondal Municipality, it did so tacitly. It was open to the Gondal Taluka Panchayat to transfer the suit premises to Gondal Municipality in pursuance of the said Government! Resolution or to surrender to the plaintiffs the lease in respect of the suit premises. The fact that they did not surrender to the plaintiffs lease in respect of the suit premises and the fact that they allowed Gondal Municipality to run a primary school in the suit premises undoubtedly go to show that the Gondal Taluka Panchayat tacitly transferred the suit premises to Gondal Municipality for running the primary school.
9. There is no doubt or dispute about the fact that the Gondal Municipality has been running a primary school in the suit premises. Obviously, therefore, the Municipality is in exclusive possession of the suit premises.
10. In order to prove an act of unlawful subletting it is necessary to prove two ingredients: (1) exclusive possession of the suit premises or a part thereof by the sub-tenant; and (2) the transfer must be for valuable consideration. Since no lease can be created except for valuable consideration, no sublease or sub-tenancy can also be created except for valuable consideration. What creates the relationship of a landlord and a tenant creates sub-tenancy between a tenant and a sub-tenant because, as against each other, they stand in the position of a landlord and a tenant Depending upon the circumstances of a case, the existence of valuable consideration may be proved either expressly or may be inferred from other circumstances. In the instant case there is no evidence whatsoever to show that Gondal Municipality has been paying any rent to Gondal Taluka Panchayat for the suit premises. If the Plaintiffs wanted to prove it, they could have very easily proved it because they could have called upon the Gondal Municipality and the Gondal Taluka Panchayat to give them inspection of all necessary documents and, after having taken inspection thereof, they could have found out from the public records of the Municipality as well as the Taluka Panchayat whether the Municipality had been paying rent to the Taluka Panchayat in respect of the suit premises. On the other hand it appears that what the Gondal Municipality does is to mike an attempt to pay rent to the plaintiffs directly which the plaintiffs refuse to accept. This circumstance shows beyond doubt that the transfer of the suit premises from Gondal Taluka Panchayat to Gondal Municipality is not accompanied by valuable consideration.
11. Therefore, one of the principal of the principal] ingredients of subletting is absent in this case. It is difficult under these circumstances to hold that the suit premises have been unlawfully sublet by Gondal Taluka Panchayat to Gondal Municipality. For the reasons stated in this judgment and not for the reasons stated by the Courts below in their judgments, the finding recorded by them is confirmed. The Civil Revision Application, therefore, fails and Rule is discharged with no order as to costs.