PETITIONER: PULIN BEHARI LAL Vs. RESPONDENT: MAHADEB DUTTE AND ORS. DATE OF JUDGMENT03/02/1993 BENCH: KASLIWAL, N.M. (J) BENCH: KASLIWAL, N.M. (J) KULDIP SINGH (J) CITATION: 1993 SCR (1) 472 1993 SCC (1) 629 JT 1993 (1) 341 1993 SCALE (1)255 ACT: West Bengal Premises Tenancy Act 1956--Sections 13 and 16-- Eviction on the ground of sub-letting- Previous consent in writing of the landlord for creation of sub-tendancy- Necessary. House Rent Eviction on the ground of default in payment of rent and sub-letting- Question of waiver- nether acceptance of rent after having knowledge of sub-letting amounts to waiving. HEADNOTE: The appellant was the tenant with respect to shop room on a monthly rent of Rs. 50. On 27th September, 1973, the respondent purchased the premises in question from the Commissioner of Partition and Receiver in a suit for partition between the owners of the said premises. The appellant tenant was notified about the sale and was asked to pay rent to the respondents. The respondents filed a suit for ejectment on 12th December, 1975 in the City Civil Court on the ground of default In payment of rent and sub-letting. The Trial Court decreed the suit on the ground of sub-letting. The appellant flied an appeal before the High Court against the judgement of the Trial Court. The Judges of the Division Bench of the High Court took divergent views. While one Judge held that the plaintiff having accepted the rent even after having the knowledge of subletting plaintiff had waived or dispensed with their right of forfeiture and as such directed the dismissal of the plaintiffs suit, the other Judge took a contrary view that under the West Bengal Premises Tenancy Act, 1956, a tenant was under an obligation to pay rent to the landlord and there was no question of waiving the right of forfeiture by accepting the rent by the landlord. In view the difference of opinion between the two judges, the matter was referred to a third teamed Judge, who agreed with the latter view. Thus the appeal preferred by the tenant was dismissed, against which the 472 473 present appeal by special leave was filed. Dismissing the appeal, this Court, HELD : 1.01. A perusal of the provisions of Section 13 and 16 of the Act clearly shows that when there was no previous consent in writing of the landlord for creation of sub- tenancy It shall be a ground for eviction in terms of Section 13(1)(a) of the Ad. Even in case of creation of sub-tenancy with the consent of the landlord in writing it was necessary to follow the future procedure prescribed under section 16(1) of the Act. Mere knowledge or acknowledgement of rent cannot defeat the landlord's right to get a decree for ejectment on the ground of sub-letting. If the view as contended on behalf of the applicant is accepted the provisions of both the sections 13 and 16 would become nuptory. [476E-F] 1.02.There Is a clear mandate in Section 13(1)(a) that the protection against eviction to the tenant shall not be available in case the tenant transfers, assigns or sub-lets in whole or in part the premises held by him without the previous consent in writing of the landlord. [476F] 1.03. Waiver is a question of fact which depends on the facts and circumstances of each case. In case of waiver of any provisions of the Statute it Is necessary to prove that there was conscious relinquishment of the statutes. [478D] 1.04. In the instant case there is no question of waiver. It was necessary for the tenant appellant to prove that the landlord had accepted the rent being fully conscious that by their act they were relinquishing the right of eviction available to them on the ground of sub- letting under Section 13(1)(a) of the Act. [478E] 1.05. Any acceptance of rent from the appellant in January, 1975 cannot amount to any waiver in respect of rent from the appellant in January, 1975 cannot amount to any waiver in respect of the right of eviction on the ground of sub-letting. [479D] M/s Shalimar Tar Products Ltd. v. H.C Sharma & Ors., [1988] 1 SCC 70, relied on. 474 JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2629 of
1980.
From the Judgment and Order dated 17.3.80/25.7.80 of the
Calcutta High Court in Original Decree No. 10 of 1980.
Dr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee for
the Appellant.
Rathin Das for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. This is a tenant’s appeal by grant of Special
Leave in a suit for eviction decreed against him by all the
Courts.
The appellant took one road side shop room in the ground
floor of premises No. 75, Surendra Nath Banerjee Road,
Calcutta on rent @ Rs.50 per month. On 27th September, 1973
the respondents herein purchased the premises in question
from the Commissioner of Partition and Receiver in High
Court Suit No. 1183 of 1961 (Anuo Kumar Dhar v. Satya
Narayan Dhar & Ors.), a suit for partition etc., between the
owners of the said premises. The said Commissioner of
Partition and Receiver notified the appellant about the said
sale and asked him to attorney his tenancy and to pay rent
to the respondents. The appellant as such started paying
rent to the respondent purchasers till January, 1975. On
21st May, 1975 the respondent landlords sent a notice to
quit on the ground of default in the payment of rent and
subletting. The appellant sent a reply in writing on 6th
June, 1975 denying the alleged default in payment of rent as
well as subletting. The respondents filed a suit for
ejectment on 12th December, 1975 in the City Civil Court at
Calcutta (IIIrd Bench). The suit was based on the ground of
default in the payment of rent and subletting. The trial
court decided the question of default in the payment of rent
in favour of the appellant but decided the question of
subletting against him and as such decreed the suit by
Judgment dated 12th June, 1979. The appellant aggrieved
against the aforesaid Judgment filed an appeal before the
High Court.
A Division Bench of the High Court consisting of N.C.
Mukherji and Surendra Mohan Guha, JJ. heard the appeal.
Guha, J. held that the plaintiffs had knowledge of
assignment or subletting in favour of Sujoy
475
Kumar Dass Gupta much earlier than the last payment of rent
in January, 1975. In this view of the matter Guha, J. held
that the rent having been accepted after the knowledge of
subletting long before the determination tenancy, the
natural inference from this conduct would be that the
plaintiffs had waived or dispensed with their right of
forfeiture. Guha, J. as such accepted the appeal and
directed the dismissal of the plaintiff’s suit. N.C.
Mukherji, J. disagreed with the aforesaid view of Guha, J.
and according to him the tenant’s liability to eviction
arose under the West Bengal Premises Tenancy Act, 1956
(hereinafter referred to as ‘the Act’) once the fact of
subletting was proved. According to Mukherji, J. a tenant
under the Act was under an obligation to pay rent to the
landlord and there was no question of waiving the right of
forfeiture by accepting the rent by the landlord. In view
of the difference of opinion between the-two Learned Judges
the matter was referred to third Learned Judge. Mr. P.K.
Banerjee J., The.. third Learned Judge by his order dated
23rd June, 1980 agreed with the view of N.C. Mukherji, J.
The majority view being in favour of the respondent
landlords, the appeal was ultimately dismissed by the High
Court by order dated 25th July, 1980. Aggrieved against the
Judgment of the High Court, the tenant has come in appeal to
this Court. We have heard Learned counsel for the parties
and have gone through the record. The trial court as well
as all the Learned Judges including Guha, J. in the High
Court have recorded a finding of fact that there was no
previous consent in writing by the landlord for the sub-
tenancy created by the tenant appellant. This finding of
fact is binding on the appellant and cannot be assailed
before this Court. The only question on which Guha, J. held
in favour of the tenant appellant was that the rent having
been accepted after the knowledge of sub-letting, the
natural inference from this conduct would be that the
landlords had waived the right of claiming eviction against
the tenant. In our view in the facts and circumstances of
the present case the aforesaid view taken by Guha, J. is not
correct. A perusal of the provisions of Sections 13 and 16
of the Act make the position clear. The relevant portions
of the aforesaid provisions are reproduced as under:-
Section 13 Protection of tenant against eviction
(1) Notwithstanding anything to the contrary in any other
law, no order or decree for the recovery of possession of
any premises shall be made by any Court in favour of the
landlord against a tenant except on one or more of the
following groups, namely:-
476
(a) Where the tenant or any person residing in
the
premises let to the without the previous
consent in writing of the landlord transfers,
assigns or sublets in whole or in part the
premises held by him;
Section 16 Creation and termination of sub-
tenancies to be notified-
(1) Where after the commencement of this Act, any premises
are sublet either in whole or in part by, the tenant with
the previous consent in writing of the landlord, the tenant
and every sub-tenant to whom the premises are sublet shall
give notice to the landlord in the prescribed manner of the
creation of sub-tenancy within one month from the date of
such subletting and shall in the prescribed manner notify
the termination of such subtenancy within one month of such
termination.
(2) Where before the commencement of this Act, the tenant
with or without the consent of the landlord, has sublet any
premises either in whole or in part, the tenant and every
sub-tenant to whom the premises have been sublet shall give
notice to the landlord of such subletting in the prescribed
manner (within six months) of the commencement of this Act
and shall in the prescribed manner notify the termination of
such-tenancy within one month of such termination.
A perusal of the above provision clearly show that when
there was no previous consent in writing of the landlord for
creation of sub-tenancy it shall be a ground for eviction in
terms of Section 13(1)(a) of the Act. Even in case of
creation of such sub-tenancy with the consent of the
landlord in writing it was necessary to follow the further
procedure prescribed under Section 16(1) of the Act. Mere
knowledge and/or acceptance of rent cannot defeat the
landlord’s right to get a decree for ejectment on the ground
of sub-letting. If the view as contended on behalf of the
appellant is accepted the provisions of both the above
sections 13 and 16 would become nugatory. There is a clear
mandate in Section 13(1)(a) that the protection against
eviction to the tenant shall not be available in case the
tenant transfers, assigns or sublets in whole or in part the
premises held by him without the previous consent in writing
of the landlord. It was contended by the learned counsel
for the appellant that the provision as regards consent may
be treated as mandatory but so far as the writing part of
the consent is concerned the same may be treated as
directory. It was also contended that in the present case
the sub-tenancy was created in 1970
477
even before the purchase of the suit premises by the present
plaintiff/landlords on 27th September, 1973 and in this view
of the matter the present plaintiff/landlords cannot file a
suit for eviction on the ground of sub-letting under Section
13(1)(a). Reliance in support of the above contention has
been placed on A.S. Sulochna v. C Dharmalingam, [1981] 1 SCC
180.
We find no force in the above contention. The above case
relied on by the Learned counsel for the appellant is
altogether distinguishable. In that case the relevant
provision for consideration was Section 10 (2)(ii)(a) of the
Tamilnadu Buildings (Lease and Rent Control) Act, 1960. The
undisputed facts in that case as observed in the Judgement
were that the father of the appellant landlord had granted a
lease in favour of the father of the respondent tenant prior
to 1952. The father of the appellant as also the father of
the respondent both had died and respondent was accepted as
a tenant upon the death of his father in 1968. The suit for
eviction on the ground of unlawful sub-letting was filed in
1970 by the appellant who had inherited the property from
her father. Admittedly, neither the appellant nor the
respondent had any personal knowledge about the terms and
conditions of the lease nor they had any personal knowledge
regarding the circumstances in which the father of the
respondent tenant had created a sub-tenancy way back in
1952, 18 years before the institution of the suit. Neither
the appellant nor respondent had any personal knowledge as
to whether or not the sub-tenancy was created with the
written consent of the landlord 18 years back in 1952. On
these facts it was held that there was nothing on record to
show that the sub-letting which was made 18 years before the
institution of the suit was in violation of the relevant
provisions of law. There was no evidence direct or
circumstantial on the basis of which it could be said that
the lease did not confer on the father of the respondent the
right to create a sub-tenancy, or, that it was done without
written consent of the then landlord that is to say, the
father of the appellant. Thus in the above case the
plaintiff landlord had inherited the property from her
father and had brought a suit for eviction on the ground of
sub-letting which was created 18 years prior to the suit.
This Court held that the flouting of the law, the sin under
the Rent Act must be the sin of the tenant sought to be
evicted, and not that of his father or predecessor in
interest. Respondent inherited the tenancy, not the sin, if
any, of his father. The law in its wisdom seeks to punish
the guilty who commits the sin and not his son who is
innocent of the rent law offence. The above case is further
478
distinguishable because the sub-tenancy was created in 1952
long before the Act which came into force in 1960.
So far as the facts of the case in hand before us are quite
simple. Admittedly a sub-tenancy has been created in 1970
without consent in writing of the previous landlord and the
only question for consideration is whether any waiver can be
applied against the present landlords merely on account of
accepting rent till January, 1975. The third Learned Judge
of the High Court has relied on the provisions of sections
23 and 24 of the Act in order to hold that the question of
waiver is only restricted under the aforesaid two sections
which deal with the question of accepting rent deposited
under Section 21 in the Court or acceptance of rent in
respect of the period of default in payment of rent where
there is no proceeding pending in the Court for the recovery
of possession of the premises. In our view there is no need
of restricting the question of waiver under the provisions
of sections 23 and 24 only which deal with special kind of
situation. We are considering the question of waiver
independently of the provisions of the Act and it would be
clear that there is no question of waiver in the present
case. Waiver is a question of fact which depends on the
facts and circumstances of each case. In the case of waiver
of any provisions of the Statute it is necessary to prove
that there was conscious relinquishment of the advantage of
such provisions of the Statute. In the case like the
present one before us, it was necessary for the tenant
appellant to prove that the landlords had accepted the rent
being fully conscious that by this act they were
relinquishing the right of eviction available to them on the
ground of sub-letting under Section 13(1) (a) of the Act.
The Rent Act is for the protection of the rights of the
tenants but at the same time it does not permit the sub-
letting by a tenant without the consent in writing of the
landlord and this provision has been kept in public interest
for the benefit of the landlords and the same can only be
negatived by an act of conscious relinquishment of such
right by the landlord. We find support in the above view in
a decision of this Court in M/S Shalimar Tar Products Ltd.
v. H. C. Sharma and Other, [1988] 1 SCC 70. In the above
case it was held that:,
“Section 14 (1) proviso (b) and 16(2) and (3)
of the Delhi Rent Control Act enjoin the
tenant to obtain consent of the landlord
in–writing to the specific Sub-letting. This
requirement seraves a public purpose i.e. to
avoid dispute
479
as to whether there was consent or not. The
mere permission or acquiescence is not enough.
There is no implied permission. Any other
interpretation of the provisions will defeat
the object of the statute and is, therefore,
impermissible”.
Apart from the circumstances mentioned above it has been
further found established that the respondent landlord had
given a notice to the appellant to quit determining the
tenancy on 21st May, 1975. In reply to the aforesaid notice
the tenant appellant had not disclosed that by a deed of
assignment dated 21st June 1974 in favour of Sujoy Kumar Das
Gupta sub-letting had been made. Thus this fact was not
disclosed even in the reply to the notice as late as
6.6.1975. This fact regarding sub-letting to Sujoy Kumar Das
Gupta came to the notice of the landlord respondent for the
first time on 15th September, 1975 when Sujoy Kumar Das
Gupta, the Sub lessee himself sent a notice through his
Solicitor intimating to the respondent landlords that
partnership between Shri Gupta and appellant had been
dissolved. In the said notice it had been stated that the
appellant Pulin Behari Pal due to old age and physical
infirmities had become unable to discharge his duties in the
partnership business and as such had transferred, assigned
all his interest, goodwill of the business and his right,
title and interest to the said Sujoy Das Gupta absolutely
and forever. Thus any acceptance of rent from the appellant
Pulin Behari Pal in January, 1975 cannot amount to any
waiver in respect of the right of eviction on the ground of
sub-letting. Be that as it may, admittedly there is no
compliance of Section 16 also in the present case and this
is an additional factor on the basis of which the tenant
appellant cannot escape the liability of eviction.
In the result we find no force in the present appeal and it
is accordingly dismissed with costs. In facts and
circumstances of the case we grant time to vacate the suit
premises on or before 30th April, 1993 on furnishing an
usual undertaking. before this Court within four weeks.
B.V.B.D.
Appeal dismissed.
480