Calcutta High Court
Debi Prosad Chakraborty And Ors. vs Mathur Chandra Pratihar And Ors. on 13 September, 2002
Equivalent citations: (2003)3CALLT138(HC)
Author: D.K Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K Seth, J.
1. The judgment and decree dated 30th August, 1994 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta, in Title Suit No. 1582 of 1987 has since been assailed in this appeal.
2. Mr. Bhaskar Ghose, learned counsel appearing for the appellants, has contended that originally the father of the plaintiff's and the defendant were subtenants under one Smt. Barindra Bala Dassi with some other sub-tenants. The said Barindra Bala Dassi was a tenant under one Smt. Pramila Sundari Paul. The interest of Smt. Pramila Sundari ultimately developed upon Smt. Arati Basu. The interest of the tenant Smt. Barindra Bala Dassi developed upon one Kalyan Mitra. These facts are not in dispute. The defendant No. 1, one of the sub-tenants, ultimately acquired the interest of the landlord, Smt. Arati Basu, sometimes in 1976. The said defendant after having acquired the interest of the landlord instituted a suit for eviction against the said Kalyan Mitra on various grounds including sub-letting, being Ejectment Suit No. 502 of 1986. The said suit was ultimately decreed exparte. The present suit, being Title Suit No. 1582 of 1987, has since been filed by the plaintiff's claiming interest of the respective sub-tenants in respect of the suit premises seeking relief in the form of a decree for declaration that the said decree passed in Ejectment Suit No. 502 of 1986 is fraudulent, void, bad in law, collusive and not binding upon the plaintiff's and also for a decree declaring that the plaintiff's are the direct tenants under the defendant and for injunction. This suit was dismissed by the judgment and decree dated 30th August, 1994.
3. Mr. Ghose, learned counsel, appearing on behalf of the appellants in this appeal has pointed out that since the plaintiff's and the defendant were sub-tenants under the original landlord since 1943, namely, before the West Bengal Premises Tenancy Act, 1956 had commenced and the sub-tenancy was granted with the consent of the landlord and the defendant, having been one of the sub-tenants, could not claim the benefit of Section 13(1)(a) of the West Bengal Premises Tenancy Act even in the absence of any notice under Section 16(2) of the said Act. On the other hand, in the facts and circumstances of the case, the plaintiff's are entitled to the benefit of Section 13(2) of the said Act. Inasmuch as, Section 16(2) of the said Act does not contemplate giving of notice between the two sub-tenants, one of whom, subsequently became the landlord of the premises and the others remained sub-tenants in the same premises. The period of six months provided for in issuing such notice by the sub-tenant to the landlord could not have been given to the present defendant, being the landlord and he himself having been a sub-tenant at that point of time could not claim any benefit on account of default of giving such notice by the sub-tenant to the landlord since the said defendant was also equally situated with the plaintiff's vis-a-vis the sub-tenants and the original landlord. Mr. Ghose next contended that the provision of Section 16(2) of the West Bengal Premises Tenancy Act, 1956 is not mandatory. In a giving circumstances, non-service of notice under Section 16(2) of the said Act could not be fatal. It is one of such case where both the plaintiff's and the defendant were sailing in the same boat until 1976 and, therefore, it would not affect the right of the plaintiff's claiming the benefit under Section 13(2) of the said Act even without any formal notice, since, even before the formal notice so required under the rules, the defendant had the knowledge and notice of sub-tenancy which is sufficient for allowing the benefit of Section 13(2) of the said Act. Mr. Ghose had relied on the decision in Shantilal Rampuria and Ors. v. Vega Trading Corporation and Ors., and has sought to distinguish and draw inference from the said distinction in favour of his contention with regard to the necessity of service of notice under Section 16(2) of the said Act. He had also relied on the decisions in Dilip Narayan Roychowdhury v. Amarendra Kumar Dutta, 64 CWN 284; Sm. Krishna Debi v. Shalimar Paint, Colour and Varnish Co. (P) Ltd. and Ors., 67 CWN 272 and Bengal Wire Nails Co. (P) Ltd. v. Jagmohandas Mundra and Ors., 67 CWN 275 to support his contention with regard to the point that the provision of Section 16(2) of the said Act is directory and not mandatory. He had also relied on the decision in Smt. Hiranmoyee Devi and Ors. v. Maharaj Kumar Somendra Chandra Nandy and Ors., 1982(1) CLJ 229 in order to distinguish the proposition laid down therein and contends that in the facts and circumstances of this case, the said decision would not apply.
4. Mr. Asoke Banerjee, learned counsel appearing on behalf of the respondents, on the other hand, contended that the provision of Section 16(2) of the said Act is mandatory and as such notice is to be given within the time stipulated in the Act, namely six months after the commencement of the 1956 Act in the format provided in the rules in writing. The absence of such notice under Section 16(2) of the said Act will disentitle the subtenant from getting the benefit of Section 13(2) of the said Act and would render him liable to be bound by the decree that might be passed against the tenant under whom he is a sub-tenant in view of Section 13(1)(c) of the said Act. Relying on the decision in Smt. Hiranmoyee Devi reported in 1982(1) CLJ 229 (supra), he contends that this Court held that it is mandatory which finds support in the decision in Shantilal Rampuria (supra) where the Supreme Court had taken the same view. He has also relied on the decision in Silverline Forum Pvt. Ltd. v. Rajiv Trust and Anr., to support his contention that where dealing with the 1956 Act, the Supreme Court had laid down the proposition which supports the view taken by this Court in Smt. Hiranmoyee Debi & Ors. (supra). He has also relied on the decision in Manik Majumder v. Bhupendra Kumar Bakshi and Ors., 94 CWN 915 where identical view was taken. He had also relied on the decision in Bholanath Chatterjee and Anr. v. Somendra Chandra Nandi and Ors., where the same view was again reiterated. According to him, the defendant being a sub-tenant with the plaintiff's under the landlord will not change the situation and cannot attract the provisions of the Act differently.
5. The facts are more or less admitted as we have been able to appreciate after hearing the respective learned counsel for the parties at length. Admittedly both the plaintiff's and the defendant were sub-tenants. This sub-tenancy was created sometimes in 1943, that is, it was a Pre-Act subtenancy. After the 1956 Act was commenced, the sub-letting continued. But one of the grounds for eviction contemplated under Section 13(1)(a) of the said Act relates to the cases where sub-tenancies are created without the written consent of the landlord. But it protected sub-tenancy under Section 13(2) of the said Act in cases where the sub-tenancies are created with the written consent of the landlord where Post-Act sub-tenancies are concerned and giving notice under Section 16(1) or Section 16(2) of the said Act where Pre-Act sub-tenancies are concerned. However, Section 16(2) of the said Act makes it incumbent on the sub-tenant or the tenant, as the case may be, to give notice of creation of sub-tenancy in the format prescribed by the rules in writing. Such notice may be given either by the tenant or by the sub-tenant or both. But it is to be given within the time stipulated and in the format, if it was given after the rules were framed. The format would be immaterial if such notice was given before the rules were framed. But, in any event, such notice is to be given within six months from the commencement of the 1956 Act. The provision of Section 16(1) and 16(2) of the said Act, if read together, makes it clear that even where the Pre-Act sub-tenancy was created with the consent of the landlord in writing, still then notice under the said provision either by the tenant or by the sub-tenant was mandatory. It might be or might not be mandatory as was held in some cases in respect of initiation of the proceeding under Section 16(3) of the said Act. Non-service of such notice would not make such proceeding under Section 16(3) of the said Act not maintainable. But the right of the sub-tenant can be established only when such notice has been issued even in a proceeding under Section 16(3) of the said Act and not otherwise. In fact, this Court in the decision in Smt. Htranmoyee Debi (supra) had clearly laid down the proposition in praragraphs 6 and 7 of the said decision which may be quoted for our benefit.
"6. So far as the first point raised by Mr. Bose is concerned, Section 13(1) of the said Act, in Clause (a), contemplates that a tenant is liable to be evicted where he transfers, assigns or sub-lets in whole or in part the leasehold premises without the previous consent in writing of the landlord.....
7. On the terms of Sub-section (2) of Section 13 as aforesaid, the legislature had made it incumbent for the sub-tenants to give notice of their sub-tenancies in order to be entitled to claim protection thereunder. In our view, no Court can dispense with fulfillment of such statutory requirement by taking the view that since the landlords were aware of the sub-tenancy it is immaterial whether a notice under Sub-section (2) of Sub-section 16 of the Act had been given or not. To apprise the landlord of such sub-tenancy is not the only object behind the provision in Section 16. Had it been so Sub-section (1) of Section 16 would not have provided that even where a sub-letting is made with the consent of the landlord in writing after the Act, such a sub-tenant also is to give of such sub-letting in the manner prescribed. The more important object behind the provision is to render the issue of sub-letting whether or Post-Act uncontroverslal so that none oan set up a frivolous claim of subletting when he had not given any notice nor can a landlord who has been served with such a notice wrongfully deny the sub-letting. In cases of Pre-Act sub-letting, Sub-section (3) again goes on to provide that where such sub-letting is without any consent in writing of the landlord and the landlord denies to have given any 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 from the date of receipt of the notice 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 sub-let shall cease and that the sub-tenant shall become a tenant directly under the landlord. Thus, in cases of Pre-Act sub-letting where there is no consent of the landlord in writing, the statute made a further provision for determination of any dispute regarding such sub-tenancy being with or without the consent of the landlord by the Controller and the landlord's right to dispute the sub-tenancy under Sub-section (3) is dependent upon service of the notice on him. The object of Section 16, on the whole, was to provide a scheme and a machinery to render it certain as to who are the sub-tenants that would be entitled to relief under the other provision of the Act, namely, Section 13(2) thereof....."
6. Mr. Ghose had attempted to distinguish this decision, but we do not find that there was any substance in the submission of Mr. Ghose, which can lead us to appreciate any distinction in the said judgment. The decisions in Sm. Krishna Debi (supra), Dilip Narayan Roychowdhury (supra) and M/s. Bengal Wire Nails Co. (P) Ltd. (supra) relate to the point with regard to the maintainability of the proceeding under Section 16(3) of the said Act in the absence of any notice under Section 16(1) or Section 16(2) of the said Act, as the case may be, and it was held that such notice is not mandatory for the purpose of initiation of such proceedings. These decisions do not lay down that for the purpose of establishing the claim of protection under Section 13(2) of the said Act, the notice under Section 16(1) or 16(2) of the said Act is not mandatory. Therefore, these decisions do not help us in order to hold that with regard to the question of establishment of independent right of sub-tenant claiming the benefit under Section 13(2) of the said Act, the notice under Section 16(2) of the said Act is not mandatory. However, we are unable to agree with the contention of Mr. Ghose in this regard. On the other hand, the decisions in Silverline Forum Pvt. Ltd. (supra), Manik Majumder (supra) and Bholanath Chatterjee (supra), it has been clearly laid down that such notice is required to establish the right claiming the benefit under Section 13(2) of the said Act.
7. A sub-tenant who has given notice under Section 16 is protected in a suit for eviction under Sub-section (2) of Section 13 and it treated as a direct tenant and cannot be evicted unless any ground in Clauses (b) to (e) and (h) of Section 13 is established against him except in cases covered under Clause (f) and (g) thereof. Therefore, the protection is available only in a case where the sub-tenant has given notice under Section 16 of the said Act. Section 16 postulates two kinds of sub-tenancies, Post-Act and Pre-Act sub-tenancies. Sub-section (1) deals with Post-Act sub-tenancies. Sub-section (2) deals with Pre-Act sub-tenancies. Post-Act sub-tenancy can be created only be a written consent of the landlord obtained previously and notice of such creation of sub-tenancy is to be given by the tenant and the sub-tenant within one month. Whereas Sub-section (2) dealing with Pre-Act sub-tenancies requires giving of notice by the tenant and every sub-tenant whether created with consent oral or in writing of the landlord within six months of the commencement of the Act in the prescribed manner. When such notice is given, if the landlord denies consent, then upon an application made either by the landlord or by the sub-tenant within two months of the receipt or issue of the notice, the Controller may determine the question.
8. However, here we are concerned with Pre-Act sub-tenancy since it is alleged that the sub-tenancy was created with consent in 1943. The scheme of Section 16 is enacted with a view to prevent frivolous claim of creation of sub-tenancy. In respect of Pre-Act sub-tenancies, a notice under Sub-section (2) of Section 16 is mandatory. It was to be given within the period prescribed viz. six months of commencement of the Act in the prescribed manner. The manner was prescribed after the rules were framed. Therefore, notice in any form or manner given before the rules were framed would suffice. But as soon as the rule came into force, the notice was to be given in the format prescribed by the rules. But in all cases within the time specified. Unless such notice is given, a sub-tenant cannot claim the benefit of Sub-section (2) of Section 13 to protect his right. In the absence of any notice under Sub-section (2) of Section 16, Section 13(1)(a) is attracted and the application of Section 13(2) is wholly excluded. No benefit could be claimed by a Pre-Act sub-tenant without a notice under Section 16(2) or without a determination under Section 16(3). Inasmuch as, if there is or was a determination by the Controller under Sub-section (3) holding a person to be a sub-tenant, determining rent with the cession of the right of the tenant, then the same would be binding between the parties even though there may not be a notice under Section 16(2). But where there is no determination under Sub-section (3), notice under Section 16(2) is mandatory. The decision cited by Mr. Ghose, therefore, on the question of notice under Section 16(2) not being mandatory in relation to a proceeding under Section 16(3) would not help him to sustain his contention to establish Pre-Act sub-tenancy without a notice under Section 16(2), in the absence of any determination declaring creation of sub-tenancy under Section 16(3).
9. Section 16(2) postulates giving of notice by a tenant or a sub-tenant to the landlord. The consent mentioned in Section 16 is that of the landlord. If one of the tenants or sub-tenants steps into the shoes of the landlord by acquiring the interest of the landlord, he acquires all the rights of the landlord in relation to the tenancy and becomes a landlord with all the incidents. He exercises the right, which the landlord had as against the tenants. Unless he is the tenant, who had created the sub-tenancy, no right can be claimed by a sub-tenant as against such tenants/sub-tenants turned landlord to protect his interest within the scope and meaning of Section 13(2). Section 16 does not postulate giving of any notice to the tenant or the sub-tenant by a sub-tenant. The consent occurring in Section 16 is not the consent of the tenant or sub-tenant turned landlord unless such tenant turned landlord himself had created the tenancy. The expression "consent" occurring in Section 16 means an active approval orally or in writing. It is not a knowledge. If a tenant creates more than one sub-tenancy, one of the sub-tenants acquires the interest of the landlord, the knowledge of the sub-tenant about the creation of the other sub-tenancy does not amount to giving of consent by the landlord at a point of time when the sub-tenant turned landlord was himself a sub-tenant and the landlord was someone else. If subsequently such sub-tenant acquires the interest of the landlord, he steps into the shoes of the landlord, his knowledge of creation of sub-tenancy when he himself was a sub-tenant cannot be equated as a consent of the landlord outside the scope of Section 16(2) of the Act. Therefore, Mr. Ghose's contention that Section 16(2) has no application in such a case and a sub-tenant is entitled to protection under Section 13(2) when a sub-tenant becomes a landlord does not seem to be of any substance.
10. Now the question arises as to whether in between the two subtenants who were the Pre-Act sub-tenants under the same tenant in respect of the suit property, this provision contained in Section 16 of the said Act would be inapplicable? Since the Act provides that such notice is to be given within six months from the commencement of the Act and as the rule provided the format for such notice which is basically in writing, therefore, there cannot be any alternative to hold that the benefit under Section 13(2) of the said Act would be available to a sub-tenant because another subtenant subsequently became the landlord without such notice. Inasmuch as the benefit under Section 13(2) of the said Act can be claimed only if the provision under Section 16(2) of the said Act is complied with within six months from the commencement of the 1956 Act in the manner provided in the rules. All right, that is being claimed, is claimed under the landlord. It is the interest of the landlord, which is acquired by the sub-tenant who stepped into the shoes of the landlord. There was no cause of action as between the two sub-tenants when the defendant, who happened to be a sub-tenant along with the plaintiffs, was not claiming as landlord. Therefore, his notice of the sub-tenancy would not be material to supersede the provisions of Section 16(2) of the said Act and the rules framed thereunder. When a specified provision has been provided in the statute with a particular object, the same cannot be negatived because of the raising of a particular situation, which has no concern with the cause of action at the material point of time. The situation in law cannot be altered in view of the subsequent alteration in the situation of fact. The defendant had claimed the interest of the landlord in whose shoes he has stepped in. He did not claim any right on account of his being as sub-tenant. His right as a landlord is independent of his being a sub-tenant under the original tenant of the original landlord form whom he had acquired the interest. The two cases are completely distinct and different. One cannot be confused with the other nor can be mixed up. Therefore, when the defendant claims as landlord, he claims the same interest, which the original landlord had against the tenant and the sub-tenants as the case may be. The right of the sub-tenant or tenant would be governed by the mutual right between the landlord and the tenant and the sub-tenant respectively and not by the mutual relationship between two sub-tenants, one of whom has stepped into the shoes of the landlord subsequently. Therefore, though argued very convincingly, we regret that we are unable to convince ourselves to the proposition sought to be advanced by Mr. Ghose.
In view of this proposition of law which has since been applied in an admitted position of fact, we need not go into the detailed discussion of the fact and applying the test in the facts and circumstances of this case as appears to have been admitted, as is appearing from the record, we do not find any merit in the appeal. We are unable to find any fault with the ultimate finding of the learned trial Court though we might differ with the reasons therefor.
In the result, this appeal fails and is accordingly dismissed. The judgment and decree appealed against is hereby affirmed.
There will be no order as to costs.
J. Banerjee, J.
I agree.