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Sm. Gangamoyee Dey Vs. Manindra Chandra Nundy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Case NumberSuit No. 2008 of 1947
Judge
Reported inAIR1950Cal225
ActsWest Bengal Premises Rent Control (Temporary Provisions) Act, 1948 - Section 11 and 11(1); ;Transfer of Property Act, 1882 - Section 106
AppellantSm. Gangamoyee Dey
RespondentManindra Chandra Nundy
Appellant AdvocateA.K. Sen and ;S. Roy, Advs.
Respondent AdvocateJ.C. Gupta and ;D.K. De, Advs.
Cases ReferredWest v. Gwynne
Excerpt:
- .....a tenant there were existing sub-tenants on the premises. he claims protection under the calcutta rent ordinance, 1946, and pleads deposit of all rents with the kent controller.3. on behalf of the defendant the following issues were raised: (1) was there any agreement as alleged in para. 2 of the written statement? (2) has the defendant sublet the major portion of the said premises for more than six consecutive months without the plaintiff's consent? even if so, if such subletting was not for six months from 1st december 1948, can such subletting be a ground of ejectment? (3) has the defendant de. posited all rents under the rent ordinance act up to date? (4) is the notice to quit bad in law under the new rent act? (5) to what reliefs, if any, is the plaintiff entitled?4. issue.....
Judgment:

P.B. Mukharji, J.

1. This is a suit for possession of premises No. 3A, Anukul Mukherjee Road, Calcutta, for arrears of rent for the two months of Jaistha and Aswar 1354 B. S. corresponding to 16th May to 17th July 1947 amounting to Rs. 202 and for mesne profits and other reliefs. The plaintiff's case is that she is the owner of the said premises and that the defendant was a monthly tenant under her at a rent of Rs. 101 per month. The plaintiff gave a notice of ejectment through her Solicitors Messrs. Mitter & Bural on 29th May 1947 calling upon the defendant to quit and vacate on the expiry of the month of Aswar 1354 B. S. corresponding to 17th July 1947. The plaintiff alleged that the defendant sub-let the premises without her consent. This suit was filed on 21st July 1947.

2. The defendant filed his written statement admitting the receipt of notice to quit. He also admits sub-letting but states in his written state. ment that it was a condition of the tenancy that he should sub-let portions of the premises. The defendant states also that at the time when he took over the said premises as a tenant there were existing sub-tenants on the premises. He claims protection under the Calcutta Rent Ordinance, 1946, and pleads deposit of all rents with the Kent Controller.

3. On behalf of the defendant the following Issues were raised: (1) Was there any agreement as alleged in para. 2 of the written statement? (2) Has the defendant sublet the major portion of the said premises for more than six consecutive months without the plaintiff's consent? Even if so, if such subletting was not for six months from 1st December 1948, can such subletting be a ground of ejectment? (3) Has the defendant de. posited all rents under the Rent Ordinance Act up to date? (4) Is the notice to quit bad in law under the new Rent Act? (5) To what reliefs, if any, is the plaintiff entitled?

4. Issue No.1.--The agreement pleaded in para. 2 of the written statement is that the plaintiff let the premises to the defendant on condition that the defendant would take it subject to the sub-tenancies then existing and to be entitled to sub-let portion thereof not required for his own purpose. After discussing the evidence, his Lordship proceeded;] On these facts I have no hesitation in holding that there was no agreement as stated in para 2 of the written statement and answering issue No. 1 in the negative.

5. Issue No. 2.--[After discussing the evidence, his Lordship proceeded:] I hold therefore on the evidence that- the defendant sublet the major portion of the said premises for more than six months, without consent in writing of the plaintiff. It will be proper at this stage to deal with a point of law raised by Mr. J. O. Gupta and which is concerned with the interpretation of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948. Mr. Gupta has argued first that the words 'in writing' qualify the word 'authority' only and not the word 'contract' in Section 11. Proviso (b) (i), Rent Act. On an anxious consideration of this argument I find I cannot accept this construction. In my judgment any contract to sub-let is a kind of authority given to the tenant by the landlord and the words 'contract' and 'authority' are to be read as ejusdem generis in this section. That is why the word 'other' is used in that part of the statute under consideration. If the words 'contract' and 'authority' were not to be read ejusdem generis then the word 'other' would be meaningless. Besides the use of the word 'expressly' in my opinion indicates that the Legislature intended that the contract must be expressed. The word 'expressly' qualifies also 'in writing'. In other words an authority in writing from which it might follow by implication a permission of sub-letting will not protect the tenant. The Legislature therefore intended to exclude cases of implied as opposed to express permission of sub-letting. If in the case of even an authority in writing the permission has to be expressly stated and not implied I fail to see why an interpretation should be put upon this section so as to mean that a mere oral or verbal contract to sub-let will protect the tenant. There is no sensible reason in being severe on 'authority in writing' as opposed to contract to sub-let. No logical principle of interpretation of statute or common sense can justify such difference being made between a contract and an authority. The absence of the word 'authority' in Proviso (b) (ii) of that section does not help Mr. Gupta because in that sub-section a prohibition is dealt with and a prohibition is an interdict and can never be regarded as an authority. If Mr. Gupta's argument were to prevail then it would have meant that while the prohibition on sub-letting has always to be in writing the permission to sub-let by contract could be oral. I see no justification for making such a difference between prohibition and permission. Mr. Gupta has argued on the policy of the Act contending that the Act was indulgent to sub-letting on the ground of dearth of accommodation in Calcutta and therefore the Act required no writing in the contract to sub-let but the Act did not favour prohibition on subletting on the same ground of dearth of accommodation and therefore requires the prohibition to be in writing. The policy of the Act is to be gathered from the language used in the different sections read in the light of the object of the Act as set out in the preamble. On such a consideration, I cannot accept Mr. Gupta's unqualified and sweeping suggestion that such policy was indulgent to sub-letting in any and every case because if that were BO proviso (b) (i) need not have been enacted at all. In my opinion therefore the protection of the tenant, can only be claimed in case there is a contract in writing expressly permitting sub-letting. There is in this case no such express contract in writing permitting such subletting. The contracts in this case were recorded by the defendant in writing dated 22nd March 1943 and 29th May 1947 and the defendant has not 'expressly' or 'in writing' said there that the defendant can sub-let.

6. The next point argued by Mr. Gupta is that the subletting for six consecutive months which disentitles the tenant to the protection given by Section 11, Rent Act, 1948, must be subletting under Rent Act, 1948, and therefore it must be six months' subletting since 1st December 1948 when the Act came into operation. According to him no matter for how long more than six months the tenant may have sublet prior to 1st December 1948 all that period of subletting even though for more than six months is of no avail as that was not offensive subletting under the Rent Act, 1948, As six months have not elapsed since 1st December 1948 in this case even now the plaintiff according to Mr Gupta cannot avail of Proviso (b) (i) of Section 11 of the Act.

7. This argument requires careful consideration and raises a very important question. There are three decisions on somewhat similar point raised under the Calcutta Rent Ordinance, 1946 (Bengal Ordinance V [5] of 1946). The first decision is of Sen J. on 1st March 1948 in Atul v. Ganesh reported in 52 C. W. N. 379. There the learned Judge considered Proviso (b) to Section 12 (1) of the Ordinance 1946 which also disentitles a tenant to the protection under Section 12 of the Ordinance if he sub-let the premises without the consent in writing of the landlord. In that case the learned Judge interpreted Calcutta Rent Ordinance and came to the conclusion that subletting prior to the Ordinance was also affected with the result that the tenant lost the immunity conferred by Section 12 of the Ordinance even though he sub-let prior to the Ordinance. At p. 381 the learned Judge notices the well-known principle that the Act should not be given retrospective effect unless the words of the Act expressly or impliedly indicate that such effect is to be given and the Court should construe an Act as having effect only from the date on which it comes into force unless by express words or by necessary implications it is given a retrospective operation. The learned Judge followed the decision of Purushottam v. Mt. Hawi Bai reported in : AIR1947Cal401 .

8. The second decision is of Biswas J. which came a month later on 9th April 1948 in Guru-pada Haldar v. Arjundas reported in 52 C. W. N. 604 : (A. I. R. (36) 1949 Cal. 61). That was also a decision under the Calcutta Rent Ordinance, 1946 and the learned Judge came to the conclusion that the tenant who sublet the premises without the consent of the landlord lost the protection given by Section 12 (1) of the Ordinance and was hit by Clause (b) of the proviso of that section even though the subletting was done before the Ordinance came into force. There the subletting continued after the Ordinance came into force. In the other case decided by Sen J. there also the subletting continued after the Ordinance of 1946 had come into force.

9. The third decision is of Clough J. on 24th June 1947 (earliest in point of time but last to be reported) in Sk. Mohammed Omer v. T. B. Timms reported in 52 C. W. N. 693. That also was a decision under the Calcutta Rent Ordinance, 1946 and the learned Judge came to the same conclusion as in the other two decisions I have mentioned. In addition to what was stated by Sen and Biswas JJ. the learned Judge in this case decided that the question of construction of that section of the Ordinance was not to be approached as if it was one that deprived person referred to in it i. e., tenants of any right. The learned Judge also construed and emphasised the word 'has' in the expression has sublet.

10. There is one decision under the Rent Act, 1948 of Banerjee J. in Suit No. 733 of 1948 Sm. Santilata Ghose v. Sk. Ibrahim delivered on 4th January 1949 which is unreported and to which my attention has been drawn. The learned Judge there has held following the two decisions of Clough J. and Biswas J. which I have quoted above and one other unreported decision that the fact of subletting before the Act makes no difference to the tenant. The learned Judge has given no further reasons.

11. The provisions of the Rent Act are not exactly similar to the provisions of the Calcutta Rent Ordinance 1946 and they are different in two material particulars. First there is no provision in that Ordinance that sub-letting has to be for more than six months as under the Rent Act of 1948. Secondly there was also no provision in Rent Ordinance of 1946 similar to that contained in Section 13, Rent Act. The question, therefore, for determination is whether these two special provisions make any difference and whether the principles laid down in three cases decided by Biswas J., Sen J. and Clough J. under the Calcutta Rent Ordinance 1946 are applicable to the Rent Act of 1948.

12. Mr. D. K. Dey who followed Mr. Gupta in argument on this point has submitted that these two factors do make a difference. According to him as no period of subletting was specified under the Rent Ordinance 1946, if the sub-letting continued a day after the Ordinance came into force that was enough to throw out the tenant from the protection of Section 12 of the Ordinance. He has drawn my particular attention to the observation of Biswas J. in Gurupada Haldar v. Arjundas, 52 C. W. N. 604 at p. 607 : (A. I. R. (36) 1949 Cal. 61) which are in these terms:

'It may be that at the inception of the tenancy there was no question of obtaining the consent of the landlord in writing before the tenant could sublet. All the same the tenancy subsisted at the date of the Ordinance and continued during its currency.'

13. On that ground Mr. Dey distinguished the decision of Biswas, Sen and Clough JJ. who held that subletting prior to the Ordinance was sufficient to disentitle the tenant to the protection offered by Section 12 of the Ordinance.

14. In my judgment Section 11 (1), Rent Act should be construed as a whole. Sub-section (l) of that section should be construed and read along with the proviso that follows. While Sub-section (1) says that that no order or decree for recovery of possession should be made it also says in the same instance by way of a proviso that this embargo on the making of a decree will not operate in the case where the tenant 'has sublet' for more than sis consecutive months without landlord's consent. In Jennings v. Kelly, 1940 A. C. 206 : (109 L. J. P. C. 38) the House of Lords say that there is no rule that the first or enacting part is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. Viscount Maugham in his speech at p. 219 says: 'The principle is equally applicable In the case of different parts of a single section and none the less that the latter part is introduced by the words 'provided that' or like words. There can I think be no doubt that the view expressed in Kent's Commentaries on American Law (Cited with approval in Maxwell 8th Edn. p. 140) is correct. The true principle undoubtedly is, that the sound interpretation and meaning of the Statute on a view of the enacting clause, saving clause and proviso, taken and construed together, is to prevail.'

15. The point of time is the time when the decree is going to be made and at that point of time the words 'has sublet' have to be given a meaning. The only consistent possible and natural meaning will be to look to a period anterior to the point of time when the decree is being made and when once that construction is followed any prior period of six months will necessarily come in. No question of disturbing or affecting vested rights is involved by adopting this interpretation. Prior to the Rent Act 1948 the tenant had no vested or any right to resist a suit for ejectment after notice to quit under the general law of the Transfer of Property Act on the ground that he has not sublet for more than six months. Indeed under the law previous to the Rent Act, 1948, even a day's sub-letting without permission was enough to turn out the tenant of protection under the Ordinance of 1946. Therefore, the consideration of the principle that a statute should not be given a retrospective effect so as to affect vested right (Maxwell, Interpretation of Statutes 9th Edn. pp. 222-23) is inappropriate in such context. In fact the construction which I put on this section and which affects subletting prior to 1st December 1948 does not disturb vested rights and instead of doing violence to the rights of the subject under the general law is in consonance therewith.

16. In my opinion, the question is as to the ambit and scope of the Rent Act and not as to the date from which the new law as enacted by the Act is to be taken to have been the law. Similar considerations and arguments were considered in West v. Gwynne, (1911) 2 Ch. D. 1 : (80 L. J. Ch. 578), where the question was if Section 3, Conveyancing and Law of Property Act, 1892 engrafting a proviso on all leases containing a covenant against subletting without consent of the landlord to the effect that no sum of money shall be payable in respect of such consent, was applicable to leases before the Act. The question arose whether such a provision would apply to a lease executed before the Act came into operation but continued during the currency of the Act when the Act did not use any express language of retrospective operation. At pp. 11 and 12 of that Report, Buckley L. J. says:

'During the argument the words 'retrospective' and 'retroactive' have been repeatedly used and the question has been stated whether Section 3, Conveyancing Act 1892 is retrospective. To my mind the word 'retrospective' is inappropriate and the question is not whether the Section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some, namely, leases executed after the passing of the Act. The question is as to the ambit and scope of the Act and not as to the date from which the new Law as enacted by the Act is to be taken to haw been the Law.'

17. If this were not the construction, then it will mean suspending the operation of this particular statutory provision for six months from 1st December 1948 in respect of the ground of subletting although the Act says it shall come into operation under Section 1 (2) of the Act on such date as the Provincial Government may by notification appoint, and the date so appointed is 1st December 1948. Reading therefore Section 11 (1) of the Rent Act with the provisos that follow and with a view to give effect to the entire section along with the proviso and with a view to avoid suspending operation of the Statute and making it applicable in different parts to different points of time, a result which is always whenever possible to be avoided the proper construction in my opinion is to give a meaning to the words 'has sublet' as capable of affecting a period of time anterior to the operation of the Act.

18. The next consideration is whether Section 13 of the Rent Act makes any difference. It is argued on the basis of this section that the Legislature has made the special provision where a tenant has sublet in whole or in part any premises let to him for a period of not less than seven years and such period expires on or after the 1st day of October 1946 the tenant shall not be entitled to the benefit of Section 11 of the Act date 1st October 1916, was the date on which the Rent Ordinance of 1946 came into operation. The argument therefore is that where the legislature thought fit to affect subletting anterior to the date when the Act came into operation i. e., 1st December 1948, it has said so expressly and the only anterior subletting which is affected by the Act is therefore that class of subtenancy which lasted for at least seven years expiring on or after 1st October 1946, and not any other subletting prior to the Act for a period less than seven years. If a subletting for more than six consecutive months prior to the date of coming into operation of the Act was to come within proviso (b) (i) of Section 11 then it is argued Section 13 of the Act, is redundant.

18a. On a careful consideration of this argument I am unable to accept it. I do not consider that Section 13 of the Act, will be redundant if by proviso (b) (i) of Section 11 subletting for more than six months prior to 1st December 1948, is hit. The purpose of Section 13 is clear enough from the words 'notwithstanding anything contained in this Act.' This according to my interpretation means that even where the tenant has express permission in writing for subletting from his landlord that is no protection for him if he has sublet for a period not less than seven years expiring on or after 1st October 1946. The purpose of Section 18 of the Act, is to make a special provision where the sub-tenancy is for not less than seven years and the legislature has thought fit that in such a case a tenant does not need to retain his tenancy and he is deprived of the protection under Section 11 of the Act. In that case therefore the further provision is made which follows from the words of Section 18 that the subtenants with such long duration of not less than seven years will be deemed to be tenants directly under the landlord.

19. In my judgment on a proper construction of Section 11 and Section 13 of the Act, I am of the, opinion that under proviso (b) (i) of Section 11 of the (Rent Act, any period of subletting prior to and continuing on or after 1st December 1948, disentitles a tenant from any protection under Section 11 (1) of the Act, if such subletting has been for more than six consecutive months for the whole or a major portion of the premises without a contract in writing expressly permitting such subletting.

20. Accordingly I answer the issue 2 in the affirmative.

21. Issue 3 -- [After discussing the evidence his Lordship answered Issue 3 in the negative.]

22. Issue 4--The notice to quit is dated 30th May 1947. A notice to quit in my opinion does not need to state any ground at all. In this case the ground however was stated and that was subletting without the knowledge and consent of the plaintff. Mr. Gupta has argued that under Section 11 of the Rent Act, the notice must state subletting not merely without the consent of the landlord but also for a period for more than six consecutive months and he has submitted that on this ground the notice is bad under the Rent Act. The argument in my opinion is unsound. Section 11 of the Rent Act, has nothing to do with notice to quit and it is not necessary that the notice to quit should be in any particular form except as required by the Transfer of Property Act. Section 11 of the Rent Act, does not put a fetter on the passing of any decree or order for recovery of possession if while passing such decree it is brought to the notice of the Court on the evidence or otherwise that there has been an offensive subletting within the meaning of proviso (b) (i) of Section 11 so as to deprive the tenant of his immunity under that section. That however does not mean that the notice to quit is bad. Besides that notice to quit was given under the Transfer of Propterty Act as it must be and at a time before the Rent Act came into operation.

23. I therefore hold that the notice is not bad and accordingly answer this Issue in the negative.

24. Issue 5. -- It follows from my findings on the other issues that the plaintiff is entitled to the reliefs he has claimed in the plaint.

25. There will accordingly be judgment for the plaintiff for possession, forarrears of rent amounting to Rs. 202, for mesne profits as claimed in prayers (a), (b) and (c) of the plaint. The defendant will pay the costs of the suit to the plaintiff. Certified for two counsel. No order is asked for and I make no order in respect of the sub-tenants.


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