A sub-tenancy created without the consent of the landlord in contravention of Section 14 of the West Bengal Premises Tenancy Act, 1956, is void and cannot be protected under Section 115 of the Transfer of Property Act, 1882.

( 1 ) THE main point that arises for determination in this appeal is as to the position of a sub-lessee whose lease was created after the West Bengal Premises Tenancy Act, 1956 had come into operation but without the consent in writing of the landlord as required by Section 14 of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Tenancy Act ). Admittedly one S. C. Shaw is the owner of the suit property and one B. B. Sen was a tenant under him. In respect of the premises. B. B. Sen inducted the appellant as a sub-tenant under him sometime in December 1960 and no consent, not to speak of in writing, was obtained from S. C. Shaw. Thereafter Sen surrendered his tenancy and Shaw granted a lease to the respondent. The respondent filed a suit against the appellant treating him as a trespasser. Admittedly, the premises in suit are a premises to which the Tenancy Act applies. Both the courts below have held that the sub-tenancy of the appellant was void because it was granted in contravention of Section 14. The trial court dismissed the suit holding that the surrender was invalid inasmuch as Shaw did not get delivery of possession. The lower appellate court appears to have held otherwise and decreed the suit. Hence this appeal by the defendant.

( 2 ) SECTION 14 of the Tenancy Act Breads as follows:"14. (1) After the commencement of this Act, no tenant shall, without the previous consent in writing of the landlord- (a) sub-let the whole or any part of the premises held by him as a tenant; or (b) transfer or assign his rights in the tenancy or in any part thereof. "clear and unambiguous in language, categorical in character and imperative in nature. Section 14 admits of no exceptions. If Section 14 applies, there can be no escape from the position that the sub-tenancy in the instant suit would be void. Reference may be had also in this connection to Section 23 of the Indian Contract Act under which an agreement which is forbidden by law is void. Ex facie, therefore, this subtenancy would be void. It is no doubt a fact that the Tenancy Act was enacted to enlarge the scope of the protection of the tenants which they had under the general law, namely, the Transfer of Property Act, 1882. But the Tenancy Act of 1956 clearly shows that so far as the creation of a sub-tenancy without the consent in writing of the landlord is concerned, it is not only totally forbidden but entails also penal consequences. Under Clause (a) of Section 13 (1), it gives a right to the landlord to sue the tenant in ejectment Under Sub-section (3) of Section 30, such a tenant is further liable to a fine which may on the first occasion extend to Rs. 100/-and on a second or subsequent occasion extend to Rs. 200/ -.

( 3 ) MR. Lala Hemanta Kumar relies on Section 115 of the Transfer of Property Act to show that the surrender by Sen would not affect the rights of the appellant. If Section 115 applies, Mr. Lala's contention has to be given effect to. There is thus a repugnancy between Section 14 of the Tenancy Act and Section 115 of the Transfer of Property Act.

( 4 ) MR. Lala wants to resolve this conflict by urging that a sub-tenant, whose sub-tenancy has been created without the consent in writing of the landlord, will continue still to be governed by the Transfer of Property Act but will not be entitled to the protection given to the tenants under the Tenancy Act. In effect, this proposition would mean that the Tenancy Act would not apply to a sub-tenancy. But the term 'tenant', as has been defined in the Act, would also include a sub-tenant and we cannot say that a sub-tenancy would be outside the pale of the Tenancy Act. The problem actually is not one of harmony but of authority. The question is as to which of these two provisions would prevail. The Tenancy Act received the assent of the President. Under Clause (2) of Article 254 of the Constitution, the Tenancy Act must prevail over the Transfer of Property Act with