Document Fragment View

Matching Fragments

"In my view, similar interpretation should be put upon Section 14(1) of the West Bengal Premises Tenancy Act. Section 14(1) has not expressly laid down that a subletting in violation of Section 14(1) shall create no legal relationship as between him and his subtenant. The effect of Section 14(1) is that a subletting after the commencement of the Act without previous consent in writing of the superior landlord is not binding upon the superior landlord. The superior landlord has a right under Section 13(1)(a) to recover possession by evicting his tenant who has sublet, transferred or assigned the whole or any part of the premises held by him. The Sub-section (3) of Section 13 has further laid down that except as provided in Sub-sections (2) and (4) a decree or order for delivery of possession of the premises shall be binding on every sub-tenant. Under Section 13(2) only those sub-tenants who have given notices under Section 16 are required to be made parties to any suit or proceeding for recovery of possession by the landlord. When a subtenancy is created after the commencement of the 1956 Act without prior consent of the landlord, the landlord is not required to make such a sub-tenant a defendant in a suit for recovery of possession filed against his tenant and an ejectment decree passed against the tenant of the first degree would be binding on such a sub-tenant. In other words, such a sub-tenant has no independent legal status and is not entitled to the benefits of protection against eviction. A tenant who sublets in violation of Section 14(1) of the West Bengal Premises Tenancy Act is also liable to be punished with fine under Section 30(3)of the West Bengal Premises Tenancy Act." (Para 20) "In our view, Section 23 of the Contract Act is not applicable to subletting after the commencement of 1956 Act made without prior consent in writing of the landlord. A consideration for a contract of subletting between the tenant of the first degree and his sub-tenants does not come within the categories enumerated in Section 23 of the Contract Act. Section 14(1) does not really forbid subletting by a tenant of the first degree but it makes unauthorised subletting not binding upon the landlord and also entitled the landlord to evict a tenant who has sublet after the commencement of the Act without his consent. The creating of unauthorised subletting would not defeat provisions of any law. Subletting under the general law was not unlawful and in the absence of a contract to the contrary a tenant could sublet. Under the Rent Control legislation some classes of subtenants have been given protection from eviction. The legal position of those subtenants who do not enjoy the benefits of the Rent Control legislation appears to be the same as that under the general law. In the absence of a privity of contract, the unauthorised sub-tenancies are not binding upon the superior landlord who can evict such sub-tenants in execution of eviction decrees obtained against the tenant of the first decree. But the mere fact that on unauthorised sub-tenant has been denied the benefits of protection under the Rent Control legislation does not necessarily mean that a subletting by a tenant is now totally forbidden or that such subletting, if permitted, would defeat the provisions of any law. The West Bengal Premises Tenancy Act has provided that a subletting shall have no effect as against the superior landlord and expresses no intention to prohibit the act of subletting; merely because the tenant, who sublets unauthorisedly may incur punishment, itdoes not necessarily mean that the subletting is forbidden by law." (Para 2)

28. In this context, the Division Bench observed as follows :

"The learned Advocate for the appellant has submitted lhat the alleged agreement of tenancy between the defendant and the appellant was perfectly valid and binding inter se between the parties. In support of his submission, the learned Advocate for the Appellant, has relied upon the recent Full Bench decision of the Andhra Pradesh High Court in Shankarlal Gupta v. Jagadishwar Rao, . The Full Bench of the Andhra Pradesh, inter alia, held that agreement of lease entered into between the landlord and the tenant in contravention of Section 3(3) of Hyderabad Rent Control Act or Section 3(3) of the Andhra Pradesh Rent Control Act will not be illegal and void inter se between the parties. These provisions required the landlord to notify the vacancy and any formation of agreement of lease contravening these provisions would be illegal and void against the Controller but the said agreement of lease is not illegal or void inter se between the landlord and the tenant. The aforesaid sections of the Hyderabad Rent Control Act and of the Andhra Pradesh Rent Control Act are not pari materia with Section 14 of the West Bengal Premises Tenancy Act. Nonetheless these decisions are of some assistance because they indicate in what manner the applicability of Section 23 of the Contract Act ought to be considered. In deciding the effect of Section 14 of the West Bengal Premises Tenancy Act, the Court ought to examine the different provisions of the Act relating to post-Act subletting and effect of unauthorised subletting by a tenant. The Court should also consider the object for enacting Section 14 of the West Bengal Premises Tenancy Act, 1956. The West Bengal Premises Tenancy Act has provided that a subletting by a tenant after the commencement of the said Act without the consent of his landlord will not be binding and shall be void so far as the landlord is concerned. The landlord will be also entitled to reject his tenant who after the commencement of the 1956 Act has sublet without his prior consent in writing. But the West Bengal Premises Tenancy Act has nowhere provided that the contract between the tenant and his sub-tenant would be null and void and not binding even upon the tenant who has sublet. The Full Bench of the Andhra Pradesh High Court in Shankarlal Gupta's case (supra), had considered the vSupreme Court decision in Waman Shriniwas Kini's case (supra), under Section 15 of the Bombay Rents Act, 1948, but rightly pointed out that the Supreme Court in the said case did not address itself to the question as to what would be the effect of the contract inter se between the parties. The Full Bench of the Andhra Pradesh High Court in the aforesaid case had really applied the law laid down by the Supreme Court in Murlidhar Aggarwal v. Ram Agyan Singh, , under Sections 3 and 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. Mathew, J. in Murlidhar Agarwal's case (supra), pointed out that the expression "public policy" has entirely a different meaning from the policy of the law and the public policy does not remain static in any given community. The Judges have, inter alia, to consider the welfare of the community at any given time applying this standard, we may say that the West Bengal premises Tenancy Act which is a social legislation primarily for the welfare of the tenants do not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him. Similarly in case it is held that such a subletting is totally null and void, the person inducting him would be unable to recover rent or to recover possession even when grounds for eviction exist. Therefore, the Court should avoid an interpretation of Section 14 which would result in such undesirable consequences." (paragraph)
The West Bengal Premises Tenancy Act has provided that a subletting by a tenant after the commencement of the said Act without the consent of his landlord will not be binding and shall be void so far as the landlord is concerned. The landlord will be also entitled to eject his tenant who after the commencement of the 1956 Act had sublet without his prior consent in writing. But the West Bengal Premises Tenancy Act has nowhere provided that the Contract between the tenant and his sub-tenant would be null and void and not binding even upon the tenant who has sublet. The Full Bench of the Andhra Pradesh High Court in Shankarlal Gupta's case (supra) had considered the Supreme Court decision in Waman Shriniwas Kini's case (supra) under Section 15 of the Bombay Rents Act, 1948 but rightly pointed out that the Supreme Court in the said case did not address itself to the question as to what would be the effect of the contract inter se between the parties. The Full Bench of the Andhra Pradesh High Court in the aforesaid case had really applied the law laid down by the Supreme Court in Murlidhar Agarwal v. Ram Agyan Singh, , under Sections 3 and 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. Mathew, J. in Murlidhar Agarwal's case (supra) pointed out that the expression 'public policy' has entirely a different meaning from the policy of the law and the public policy does not remain static in any given community. The Judges have, inter alia, to consider the welfare of the community at any given time applying the standard, we may say that the West Bengal Premises Tenancy Act which is a social legislation primarily for the welfare of the tenants do not express any intention that a sub-tenant who is inducted without the consent of the superior landlord shall have no right as against the person who had inducted him. Similarly, in case it is held that such a subletting is totally null and void, the person inducted him would be unable to recover rent or to recover possession even when grounds for eviction exist. Therefore, the Court should avoid an interpretation of Section 14 which would result in such undesirable consequences." (para 23)