Skip to content


Nandalal Das Vs. Monmatha Nath Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case Nos. 1789, 1815 to 1817 and 1861 to 1889 of 1958
Judge
Reported inAIR1962Cal597
ActsWest Bengal Premises Tenancy Act, 1956 - Sections 16 and 29; ;Code of Civil Procedure (CPC) , 1908 - Section 115; ;Constitution of India - Article 227; ;Transfer of Property Act, 1882 - Section 116
AppellantNandalal Das
RespondentMonmatha Nath Ghose and ors.
Appellant AdvocateA.C. Gupta, ;Bijan Behari Das Gupta and ;Ashutosh Gangully, Advs.
Respondent AdvocateS.M. Bose, Adv. General, ;Subimal Roy, ;Gouri Mitter, ;Lala Hemanta Kumar and ;Sushil Kumar Biswas, Advs.
Cases ReferredMahadeb Ram Kahar v. Tinkori Roy
Excerpt:
- amaresh roy, j.1. this rule was obtained by a tenant against an appellate order in a proceeding under section 16(3) of the w. b. premises tenancy act, 1956 in respect of premises no. 157(a) dharmatala street. the order passed by the appellate officer under the premises tenancy act, 1956 allowed the appeal of the landlord and remanded the case to the rent controller for trial on merits of the landlord's application playing that the sub-tenant in respect of the portion of the premises be declared to be a direct tenant under the landlord.2. this case was heard analogously with 32 other similar rules obtained by the same petitioner in respect of 32 other portions of the same premises which were the subject-matter of 32 other applications by the same landlord under section 16(3) of the.....
Judgment:

Amaresh Roy, J.

1. This Rule was obtained by a tenant against an appellate order in a proceeding under Section 16(3) of the W. B. Premises Tenancy Act, 1956 in respect of premises No. 157(a) Dharmatala Street. The order passed by the Appellate Officer under the Premises Tenancy Act, 1956 allowed the appeal of the landlord and remanded the case to the Rent Controller for trial on merits of the landlord's application playing that the sub-tenant in respect of the portion of the premises be declared to be a direct tenant under the landlord.

2. This case was heard analogously with 32 other similar Rules obtained by the same petitioner in respect of 32 other portions of the same premises which were the subject-matter of 32 other applications by the same landlord under Section 16(3) of the Premises Tenancy Act 1956 and common questions of law have arisen in all these 33 cases. For appreciating the questions of law that require to be decided in these cases, it is necessary to advert to the history of the lease and the sub-leases in respect of this particular premises and other portions of that premises.

3. The relevant facts shortly stated are these:

Municipal premises No. 157-A, Dharmatala Street originally belonged to one Amar Nath Ghose. He died leaving his widow Indubala Dasi as his only heir. There are now pending two suits in respect of the said property in the Original Side of this Court, being suits Nos. 1271 of 1924 and 2336 of 1925 and in those suits the Official Receiver was appointed the Receiver in respect of the said property. On 1st September, 1931, the said Receiver, by a registered lease, let out the said premises to the petitioner at a monthly rent of Rs. 820/- for a period of 3 years. The lease in respect of the premises was renewed successively by successive documents of lease and the last lease was granted on 1st of January, 1947 and the period of that lease expired with 31st December, 1950. After such expiry, the petitioner is holding over as a tenant and there is no written document of lease from 1st January 1951. In the lease of 1931 the tenant was given power to sub-let and it was clearly mentioned in that document- 'That the lessee shall be at liberty to underlet the whole or any part of the said demised premises to one or more tenants as the case may be'.

It is the common case of the parties that in each of the renewed leases the same liberty to sub-let was expressly given to the tenant and in the last lease of 1947 also that liberty was given in the same language as in the deed of lease of 1931. It is also the common case that sub-tenancy in favour of Diana Rolling Shutters Engineering Works, which is the subject-matter of Civil Revision No. 1789 of 1958, was created in January 1949 during the currency of the lease of 1947. Of the other 32 cases before us, in 25 cases the sub-leases were cheated in favour of the respective sub-tenants during the currency of one or the other deeds of lease. In one case only, which is the subject-matter of Civil Revision No. 1815 of 1958, Dharma Deo Singh was already in occupation of that part of the premises which he is now occupying from before the first lease in favour of the petitioner in 1931. The remaining 6 sub-tenancies were created in favour of the respective sub-tenants after the expiry of the period of the last lease of 1947, when the petitioner was holding over. In some of these cases the interest of the subtenants has devolved on the present occupants of the respective portions either by inheritance or by assignment. That was the state of affairs when, in 1956, the landlord, the present opposite party No. 1, made 33 applications under Section 16(3) of the Premises Tenancy Act, 1955 giving rise to 33 cases before the Rent Controller. In each of those cases the tenant appeared and raised objections that the sub-tenancies had been created upon written consent of the landlord contained in the deeds of lease and, therefore, the landlord's application under Section 16(3) of the Premises Tenancy Act, 1956 was not maintainable and in each of these cases, the Rent Controller gave effect to that contention and dismissed the landlord's application under Section 16(3) as not maintainable. Against that order, appeals were taken to the Appellate Officer, under the provisions of Section 29 oi the Premises Tenancy Act, 1956 and the Appellate Officer in each of these cases allowed the appeal, on the view that the lease having expired the permission to sub-let contained therein ended therewith. Therefore, he set aside the order of the Rent Controller dismissing application on the preliminary point and remanded each case for decision on merits. Against that order this Court was moved to exercise Revisional powers and jurisdictions both under Section 115 Civil Procedure Code and Article 227 of the Constitution of India. Upon such 33 applications, 33 Rules above mentioned were issued.

4. Before we proceed to consider the contentions on behalf of the petitioner raised by Dr. Atul Chandra Gupta, we have to consider and dispose of a preliminary objection raised on behalf of the landlord opposite party, by the learned Advocate General, regarding the maintainability of the applications for Revision in each of the cases. The learned Advocate General pressed his preliminary objection in two branches, namely, (1) that the Appellate authority under Section 29 of the Premises Tenancy Act is neither a 'Court' nor a 'Tribunal' but is merely a persona designate named in Section 16 as 'Appellate Officer' and, therefore, the order made by such Appellate Officer is not revisable by this Court either under Section 115 Civil Procedure Code or under Article 227 of the Constitution of India, and (2) that even if such Appellate Officer is held to be either a 'Court' or a 'Tribunal' even then the order made by him is within his jurisdiction and competence, and that order is not revisable by this Court even when it is shown to be erroneous in law, unless by such error of law a jurisdiction has either bean assumed or denied. These contentions by the learned Advocate General require careful consideration.

5. In his endeavour to substantiate the contention that the Chief Judge of the Court of Small Causes of Calcutta or the District Judge of the district, to whom an appeal lies under Section 29 of the Premises Tenancy Act, 1956, is not a Court or Tribunal, the learned Advocate General emphasized the use of the expression 'Appellate Officer' in Sub-section (3) and (5) of that section and contended that employment of that expression clearly indicated that the Legislature was conferring power to hear appeals to the persons or officers designated and not to 'Courts' or 'Tribunals'. He, however, made it clear in his address that if the authority under Section 29 was not a persona designate then that authority was certainly a 'Tribunal' or may be a 'Court'.

6. We, therefore, proceed to examine Section 29 to see if the authority to hear appeals has been entrusted to persona designata or not. The first sub-section of Section 29 creates a right of appeal and provides that an appeal shall lie.

'(a) to the Chief Judge of the Court of Small Causes of Calcutta, in cases relating to premises situated within the Ordinary Original Civil Jurisdiction of the Calcutta High Court;

(b) to the District Judge of the district in cases relating to premises situated in a district.'

7. Sub-section (2) of Section 29 provides limitation for filing an appeal and Sub-section (3) provides that the procedure for filing an appeal and powers to be exercised and procedure to be followed by an Appellate Officer in admitting and dealing with an appeal snail be same as in the case of appeals from orders under the Code of Civil Procedure. Sub-section (4) gives power to transfer an appeal and to withdraw an appeal so transferred under that provision. Sub-section (5) provides that Controller and an Appellate Officer shall be deemed to be a Court for the exercise of powers under Sections 151 and 152 and Order 47 of the Civil Procedure Code and Sub-section (6) provides that provisions of Civil Procedure Code shall apply to all suits and proceedings referred to in Section 20 except suits or proceedings which lie to the High Court.

8. That being the structure of the section, we have to notice at the first instance that the Act does not contain any definition of 'Appellate Officer' and in creating the authority for entertaining an appeal Sub-section (1) of Section 29 does not mention 'Appellate Officer' but mentions the official designation of the presiding officers of two well known courts. That feature inevitably leads us to consider that if the Legislature was intending that the presiding officer of the two courts shall function not as 'Court' but merely as 'Appellate Officer' and the official designations were employed only for the description and identification of the 'persona designate,' that object could much more easily and clearly be achieved by providing a definition of 'Appellate Officer' in the definition section and simply providing in Sub-section (1) of Section 29 that an appeal shall lie from an order of the Controller to the 'Appellate Officer'. In that simple scheme the two paragraphs (a) and (b) of Sub-section (1) of Section 29 could easily be incorporated in the definition.

9. Then again in Sub-section (3) itself, wherein the words 'Appellate Officer' for the first time occur, the procedure under the Code of Civil Procedure has been invoked in the matter of filing an appeal and powers and procedure for admitting and dealing with appeals. This clearly refers to Order 41 of the Civil Procedure Code. Rule 1 of that order provides that the Memorandum of Appeal shall be presented to the 'Court or to such officer as it appoints in this behalf.' The Premises Tenancy Act, 1956 has not provided any machinery for appointment of an officer for accepting Memorandum of Appeals on behalf of the Appellate Officer. If, therefore, the Appellate Officer mentioned in Sub-section (1) of Section 29 of the Premises Tenancy Act is not a 'Court' then two results follow:

(1) All Memoranda of appeals must be presented to the Appellate Officer personally and the other part of Rule 1 of Order 41 which has been invoked by Sub-section (3) of Section 29 is rendered nugatory.

(2) The Ministerial Officers in the Court of Small Causes or in the Court of the District Judge are officers appointed to act on behalf of the Court and certainly not on behalf of any 'persona designata' and therefore Memorandum of Appeal presented to any such officer will not be proper presentation of the appeal at all. It is difficult to contemplate that Legislature intended such an unworkable arrangement although it was clearly invoking the provisions of Order 41 of the Code of Civil Procedure.

10. Lastly again, the power to transfer an appeal can hardly be attributed to a 'persona designata,' who is not a Court, because of two reasons. First, the Judge to whom an appeal may be transferred is not a 'persona designata' for the purpose of hearing appeals and the absence of any definition of 'Appellate Officer' to include such transferee Judge within its ambit, creates a situation that Legislature was providing for transfer of an appeal to a person whom it had not designated to hear appeals. Secondly, this power to transfer is essentially an attribute of a 'Court' and only if the transferor authority and the transferee authority are both courts, this provision for transfer may have any rational use or meaning. In this aspect we have the authority of a judgment delivered by Late Dr. Bijon Kumar Mukharji, while he was a puisne Judge of this Court, reported in 46 Cal WN 473 (sic). That was a case where Section 40-A of the Bengal Agricultural Debtors Act fell to be considered by his Lordship and all the reasons mentioned by that learned Judge are, in our view, applicable to the present case. In this respect the learned Advocate-General argued that the language of Section 40-A of the Bengal Agricultural Debtors Act was very much different from the language of Sub-section (4) of Section 29 of the Premises Tenancy Act, 1956 and he pointed to the difference that in the other Act the words 'Judge subordinate to him' were employed whereas in the Act we are considering that language is absent To our mind this difference in language does connote (sic) the effect as the learned Advocate-General has contended for.

11. It is true that if the authorities mentioned in Sub-section (1) of Section 29 are really courts then the provision in Sub-section (5) that they shall 'deem to be a Court' has all the look of superfluity and redundance and because that language in Sub-section (5) has been used the learned Advocate-General has contended that that is an indication that outside the scope of Sub-section (5) the Appellate Officers are not Courts. The force of this reason cannot be denied but in the matter of legislative draftsmanship in recent years we are not unaccustomed to such inconsistencies and it has been our heavy task to discover the intention of Legislature from certain consistencies. In the present instance this deeming clause occurs not merely in relation to Appellate Officer in isolation but in conjunction with the 'Controller'. With reference to the Controller this was a very necessary provision and the draftsman while putting in this clause may have acted 'ex abundanti cautela' in including Appellate Officer also, which he might have well left out. Therefore, because of Sub-section (5) alone we are unable to accede to the contention of the learned Advocate-General and we hold that the authority empowered to hear appeals by Section 29 of the Act is a Court and not merely a 'persona designata.' That disposes of the first part of the preliminary objection of the learned Advocate-General and we now proceed to deal with his second part.

12. Next branch of the learned Advocate-General's argument was that even if the authority hearing appeals under Section 29 of the Act is a Court or a Tribunal, an order made by that authority is not revisable on a mere error or even a grave error of law, unless such error is on a jurisdictional point According to this contention, in the present case, even if this Court holds that the order of the Appellate Court proceeded on an error of law on the point that the written permission to sub-let contained in the documents of lease expired with the expiry of the period of the lease, that is to say on 31st of December, 1950, and the sub-tenants continuing to hold after that date are to be regarded as sub-tenants without written permission of the landlord, as contemplated under Section 16 (2) of the Premises Tenancy Act, 1956, even then it was an error not affecting the jurisdiction either of the Controller or of the Appellate Court but was merely an error on a cardinal point, in a matter which the Legislature has given him jurisdiction to decide. In elaborating this contention the learned Advocate-General referred to Sub-section (3) of Section 16 and contended that it was a special right created by a special statute and the Controller alone could give the relief and none else can in exercise of that jurisdiction the Controller has got to decide the cardinal points involved in the matter, one of them being whether or not the sub-letting was with or without written permission of the landlord. The decision, of that cardinal point was within the exclusive jurisdiction of the Controller and in deciding that point the Controller does not decide any collateral point affecting jurisdiction but decides what the Legislature gave him jurisdiction to decide. In short, the jurisdiction entrusted to the Controller is to decide whether or not the sub-letting was with or without written permission of the landlord and an error in the decision on that point is not a jurisdictional error and is, therefore, not revisable either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution. For emphasizing the limits of the scope of Section 115 of the Civil Procedure Code the learned Advocate-General relied on the Privy Council decision in the case of Rajah Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind App 237 (PC). Dr. Atul Chandra Gupta appearing for the petitioner did not dispute the correctness of the decision of Amir Hassan's case, 11 Ind App 237 (PC), which has been followed in all the High Courts in India including ours but he has contended that although mere erroneous decision was not revisable under Section 115 of the Civil Procedure Code, nevertheless if the erroneous decision resulted in the subordinate Court exercising a jurisdiction not vested in it by law or falling to exercise jurisdiction so vested, a case for revision arose under Clauses (a) or (b). In support of his contention Dr. Gupta relied on the decision of the Privy Council in the case of Joy Chand Lal v. Kamalaksha Chaudhury and also on the Supreme Court decision in the case of Warryam Singh v. Amarnath : [1954]1SCR565 , which latter was a decision regarding the scope of Article 227 of the Constitution of India. We may also make a reference to another Privy Council decision in the case of Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras . In our view the true scope of Section 115 of the Civil Procedure Code is now firmly established by the two decisions of the Privy Council reported in 76 Ind App 131 and 67 : (AIR 1949 PC 239 and 156), above referred to and that scope can be summarised thus. Section 115 of the Civil Procedure Code applies to jurisdiction alone and empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate Court is within its jurisdiction (b) that the case is one in which the subordinate Court ought to exercise jurisdiction and (c) that in exercise of jurisdiction the Court has not acted illegally, i.e., in breach of some provision of law or with material irregularity, i.e. by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on these three matters it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on questions of fact or law. While that is the limit yet although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference by the High Court in revision, nevertheless if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises. Similar is the position in law under Article 227 of the Constitution.

13. That being the true scope of Section 115 of, the Civil Procedure Code and Article 227 of the Constitution we have to examine this present case so as to find out whether there is any error of law in the decision of the Courts below that has resulted in the subordinate Court exercising a jurisdiction not vested in it by law. Upon examination of Section 16 (3) of the West Bengal Premises Tenancy Act we are unable to accept contention of learned Advocate-General that the point whether or not the subletting was with or without the written permission of the landlord is not a jurisdictional point. In our view, under Section 16 the Controller's jurisdiction to make a declaration as contemplated in Sub-section (3) of that section is limited only to cases where the sub-letting was before the commencement of the Act and there was no consent in writing of the landlord and the landlord denied that he gave oral consent. Truly the Controller's jurisdiction is to make a declaration but that jurisdiction is limited only to the cases mentioned in the opening words of Sub-section (3). In cases not within that description the Controller has no jurisdiction to make an order of declaration.

14. In the case before us it is well to remember that the Controller at the first instance held that it was a case in which a sub-letting was with written consent of the landlord and therefore he had no jurisdiction to deal with the application of the landlord under Sub-section (3) of Section 16 of the Premises Tenancy Act. The appellate Court held to the contrary and has remanded the cases to the Controller to proceed under that sub-section, if the Controller was right and the appellate Court was wrong on this point, then by the order of remand the appellate Court is compelling the Controller to exercise a jurisdiction which in law it does not possess. We, therefore, overrule the preliminary objection of the learned Advocate-General and proceed to deal with the merits of the case. 15. Now on the merits the question is whether on the facts of the present case it can be said that this was a case in which there was no consent of the landlord in writing so as to bring it within Section 16(3) of the premises Tenancy Act, 1956. That in the leases there was such consent in writing there is no dispute and therefore the cases in which the sub-tenants were inducted during the periods covered by the leases, they were so done initially with the consent of the landlord in writing. In the case of those sub-tenants also the learned Advocate-General contended that although at the commencement of the sub-tenancies, there was the consent in writing contained in the lease then current, on the expiry of the period of lease in 1951 they too became sub-tenants without the consent of the landlord in writing. The other seven sub-tenants were inducted after the period of lease had expired and when tenant of the first degree was holding over. Therefore the question that falls for our decision is what holding over really means. Does it mean that the lease that was being held under the Deed is renewed that is, continues to have effect on the same terms and conditions or does it mean that by holding over the same contract does not continue and only a new tenancy is created. Dr. Gupta basing his argument on Section 116 of the Transfer of Property Act has contended that by terms of that section by holding-over the lease is renewed, i.e., the tenancy created by the documents of the lease with all that is contained in that document continues. He has also relied on the definition of 'tenant' contained in Section 2 (h) of the Premises Tenancy Act, 1956 for the result that by that definition even after holding over he remains a tenant under the definition. He has also drawn our attention to the fact that Section 16 of the present Act does not make any distinction between classes of tenants i.e. a tenant under a contract or a document of lease and a tenant holding-over after the expiry of the period of the written lease. In elaboration of his contention Dr. Gupta submitted that the tenant holds an 'estate' and that estate is a right to possess the property demised by paying rent. As an authority for the proposition of his Dr. Gupta has relied on Lowther v. Clifford, 1927-1 KB 130. He has drawn support not only from the passage occurring in the judgment of Scrutton, L. J. in that case at page 148 of the report saying,

'I do not see any difficulty when tenant has occupied the premises on terms of incurring this liability for seven years stays on for another year or indeed for thirty other years, in implying that he stays on the terms on which he previously held,'

but also from the more elaborate passage in the judgment of Sargant, L. J. occurring at page 149 of the report saying,

'If then this was so during the term of the original lease, is any difference caused by the fact that this lease has long since expired, and that since its expiration The lessee has continued to hold over as an annual tenant and at the old rent, but without any express new bargain? The answer to this question must, in my judgment be in the negative. The rule of law in such cases is well settled, and is that the tenant is deemed to hold on the terms of the original letting, so far as these terms are not inconsistent with an annual tenancy.'

16. In answer to Dr. Gupta's contention in this respect the learned Advocate-General placed reliance on the case of Okley v. Monck, (1865-66) 1 Ex. 159, and contended for the proposition that by holding over the same contract of tenancy does not continue but a new contract is created. We may say at once that in that case the determination of the tenancy was not by efflux of time but by the expiration of the landlord's estate and the tenant continued to hold-over under the remainderman and in those circumstances it was held in that case that the question whether a term contained in the former tenancy is adopted into the contract of demise was a question of fact and it was also held that if such a tenant, continues to hold under the remainder-man and nothing passes between them except the payment and receipt of rent and the new landlord is not bound by a stipulation contained in the former tenancy which is not known to him in fact nor is according to the custom of the country. In our view the peculiarities of the circumstances of holding over is the real issue and in the case before us those peculiarities are not existent and therefore that case cannot be taken as laying down the broad proposition that by holding over what is renewed is the tenancy, that is, liability to pay the rent for occupation of the premises, and the terms contained in the document of lease on expiry of which the holding over occurs are not renewed. We may also add that to hold in favour of such a proposition would in our View, abrogate Section 116 of the Transfer of Property Act which says that,--

'The lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.'

Next case relied on by the learned Advocate-General is the case of Blane v. Francies, (1917) 1 KB 252. That case was decided under Section 10 of the Conveyancing Act, 1881 (44 and 45 Vict. c. 41) and it was held that section does not apply to lease which is not in writing and also it was held,

'Where, therefore, the tenant of a house for a term under a lease by deed containing a covenant to repair held over after the expiration of the term, no further document being signed, as tenant from year to year upon the terms of the expired lease so far as they were applicable to such a tenancy, and the reversion was subsequently assigned : Held, that the assignee of the reversion was not entitled to sue the tenant for breaches of the express covenant to repair contained in the expired lease; nor was he entitled to demand that the tenant should execute a lease so as to enable him to sue upon the covenant.'

17. To our mind that case also is not an authority on the question we are considering in the present case. The other two cases relied on by the learned Advocate-General are reported in Mahadeb Ram Kahar v. Tinkori Roy : AIR1954Cal539 and 64 Cal W N 449 (sic). Those were cases under Non-agricultural Tenancy Act and Section 116 of the Transfer of Property Act fell to be discussed in relation to the provisions of the Premises Rent Control Act, 1950. That latter Act provided for statutory tenancy who were clothed with only such rights as that Act conferred. An examination of the provisions of that Act shows that the right conferred by that Act was only a personal right and not an estate or interest in the property. Therefore, that case also is of no assistance to us.

18. We, therefore, accept the contention of Dr. Gupta and hold that when the lessee after the expiry of the period fixed by the document of lease holds over, under Section 116 of the Transfer of Property Act it is the lease that is renewed with all the terms and conditions contained in the document of the lease which are not inconsistent with an annual tenancy. In the present case the consent in writing for sub-letting is certainly not inconsistent with the annual lease during the period of holding-over and therefore sub-tenancy created during the continuance of the lease and also during the period of holding-over were sub-tenancies created with the consent of the landlord in writing and therefore Section 16 (3) of the Premises Tenancy Act, 1956 does not apply and the Controller has no jurisdiction under Section 16 to make any order of declaration under that section in respect of those sub-tenancies. In the result, we hold that the learned appellate Court committed a grave error of law and by that error has directed the Controller to do something which the Controller has no jurisdiction to do under the law. The order of the appellate Court, therefore, is a fit one for revision under Section 115 of the Code of Civil Procedure and certainly it can be revised under Article 227 of the Constitution. We, therefore, set aside the orders of the appellate Court and restore the orders of the Controller in each of the 33 cases before us.

19. The Rules are accordingly made absolute but in the circumstances of the case we make no order as to costs in any of the revision cases.

Banerjee, J.

20. I agree with the order made byMy Lord.


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