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Bhagbati Builder Vs. Karim Bux - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 288 of 1968
Judge
Reported inAIR1971Cal319
ActsWest Bengal Premises Tenancy Act, 1956 - Section 14 and 14(1); ;Transfer of Property Act, 1882 - Section 115; ;Constitution of India - Article 254(2)
AppellantBhagbati Builder
RespondentKarim Bux
Appellant AdvocateLala Hemanta Kumar and ;Monohar Saha, Advs.
Respondent AdvocateRadhakanta Bhattacharya and ;Madan Mohan Ghosh, Advs.
DispositionAppeal dismissed
Cases ReferredTenancy Act. In Dhirendra Nath Neogi v. Pronab Kumar Neogi
Excerpt:
- .....but without the consent in writing of the landlord as required by section 14 of the west bengal premises tenancy act, 1956 (hereinafter referred to as the tenancy act). admittedly one s. c. shaw is the owner of the suit property and one b.b. sen was a tenant under him. in respect of the premises. b.b. sen inducted the appellant as a sub-tenant under him sometime in december 1960 and no consent, not to speak of in writing, was obtained from s. c. shaw. thereafter sen surrendered his tenancy and shaw granted a lease to the respondent. the respondent filed a suit against the appellant treating him as a trespasser. admittedly, the premises in suit are a premises to which the tenancy act applies. both the courts below have held that the sub-tenancy of the appellant was void because it was.....
Judgment:

S.K. Chakravarti, J.

1. The main point that arises for determination in this appeal is as to the position of a sub-lessee whose lease was created after the West Bengal Premises Tenancy Act, 1956 had come into operation but without the consent in writing of the landlord as required by Section 14 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Tenancy Act). Admittedly one S. C. Shaw is the owner of the suit property and one B.B. Sen was a tenant under him. In respect of the premises. B.B. Sen inducted the appellant as a sub-tenant under him sometime in December 1960 and no consent, not to speak of in writing, was obtained from S. C. Shaw. Thereafter Sen surrendered his tenancy and Shaw granted a lease to the respondent. The respondent filed a suit against the appellant treating him as a trespasser. Admittedly, the premises in suit are a premises to which the Tenancy Act applies. Both the courts below have held that the sub-tenancy of the appellant was void because it was granted in contravention of Section 14. The trial court dismissed the suit holding that the surrender was invalid inasmuch as Shaw did not get delivery of possession. The lower appellate court appears to have held otherwise and decreed the suit. Hence this appeal by the defendant.

2. Section 14 of the Tenancy Act Breads as follows:

'14. (1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord-

(a) sub-let 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.'

Clear and unambiguous in language, categorical in character and imperative in nature. Section 14 admits of no exceptions. If Section 14 applies, there can be no escape from the position that the sub-tenancy in the instant suit would be void. Reference may be had also in this connection to Section 23 of the Indian Contract Act under which an agreement which is forbidden by law is void. Ex facie, therefore, this subtenancy would be void. It is no doubt a fact that the Tenancy Act was enacted to enlarge the scope of the protection of the tenants which they had under the general law, namely, the Transfer of Property Act, 1882. But the Tenancy Act of 1956 clearly shows that so far as the creation of a sub-tenancy without the consent in writing of the landlord is concerned, it is not only totally forbidden but entails also penal consequences. Under Clause (a) of Section 13(1), it gives a right to the landlord to sue the tenant in ejectment Under Sub-section (3) of Section 30, such a tenant is further liable to a fine which may on the first occasion extend to Rs. 100/-and on a second or subsequent occasion extend to Rs. 200/-.

3. Mr. Lala Hemanta Kumar relies on Section 115 of the Transfer of Property Act to show that the surrender by Sen would not affect the rights of the appellant. If Section 115 applies, Mr. Lala's contention has to be given effect to. There is thus a repugnancy between Section 14 of the Tenancy Act and Section 115 of the Transfer of Property Act.

4. Mr. Lala wants to resolve this conflict by urging that a sub-tenant, whose sub-tenancy has been created without the consent in writing of the landlord, will continue still to be governed by the Transfer of Property Act but will not be entitled to the protection given to the tenants under the Tenancy Act. In effect, this proposition would mean that the Tenancy Act would not apply to a sub-tenancy. But the term 'tenant', as has been defined in the Act, would also include a sub-tenant and we cannot say that a sub-tenancy would be outside the pale of the Tenancy Act. The problem actually is not one of harmony but of authority. The question is as to which of these two provisions would prevail. The Tenancy Act received the assent of the President. Under Clause (2) of Article 254 of the Constitution, the Tenancy Act must prevail over the Transfer of Property Act within the confines of this State so far as any provision in it wouldbe repugnant to the provisions of the Transfer of Property Act. In this view of the matter. Section 14 of the Tenancy Act must prevail over Section 115 of the Transfer of Property Act. As a matter of fact in Ganesh C. Nandy v. J. N. Chatterjee & Bros., (1966) 70 Cal WN 676, this Court held that Section 114 of tha Transfer of Property Act would not apply to a case of so-called forfeiture under the Tenancy Act of 1956 on account of non-payment of rent. This Court further observed that when the protection itself is created by the statute, which also prescribes the conditions for the same and provides for its forfeiture under certain circumstances, it is difficult to hold that relief on a wider basis may be available from other statute, giving relief under different circumstances. In Santosh Kumar Gupta v. Smt. Chinmoyee Sen, : AIR1966Cal615 , this Court again refused to extend the provision of Section 114 of the Tenancy Act. In Dhirendra Nath Neogi v. Pronab Kumar Neogi, (1957) 61 Cal WN 887, this court was considering the question as to what would happen if the previous consent of the landlord was not obtained. This court observed that 'such transfer and assignment being without the previous consent in writing of the landlord is expressly prohibited by the Act; and is void and totally inoperative.'

5. The result, therefore, is that both on principle and on authorities it must be held that a sub-tenant, whose sub-tenancy has been created without the consent in writing of the superior landlord, would have no rights in law so far as that landlord is concerned. Section 115 of the Transfer of Property Act proceeds on the basis that there is a valid lease. If the basis of the lease goes, as it must go under Section 14 of the Tenancy Act, then on this ground also Section 115 of the Transfer of Property Act, would not be available to the appellant. The plaintiff respondent did not claim any rights through B.B. Sen. He was deriving his rights directly from the owner Shaw. So, if Shaw could not be bound by the underlease in favour of the defendant, the plaintiff would not also be bound. The defendant appellant would, therefore, be a trespasser in occupation of the premises, at least, so far as Shaw and the plaintiff are concerned, and the court below was justified in decreeing the suit on this basis, He could have no rights so far as the plaintiff is concerned.

6. Mr. Lala has further alleged that as the premises in question were under the possession of the appellant and as Shaw did not get back delivery of possession of the property when the surrender was made by B.B. Sen to him, the surrender would not be valid. This is an argument which found favour withthe learned trial court. But I am not in a position to accept this proposition as correct. There is nothing to show that so far as our country is concerned, delivery of possession would be essential before the surrender becomes valid. After all, it is a matter between the owner and his immediate tenant and if the owner is satisfied and accepts the surrender without getting delivery of possession, no one else can have any grievance in this matter. The interest of the sub-lessee would be protected under Section 115 of the Transfer of Property Act. Moreover, if we accept this proposition as correct. Section 115 of the Transfer of Property Act would have no meaning. As this section stands, the possession remains with the under-lessee and he is given a leg up only. If Mr. Lala's proposition is accepted as correct, it would not have been necessary to enact Section 115 at all. This section proceeds on the basis that delivery of possession has not been given by the lessee.

7. The result, therefore, is that this appeal fails and is dismissed.

8. There will be no order as to costs, however, in this court.

9. In view of the finding above, the application also stands rejected.


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