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HIGH COURT OF CALCUTTA
Salil Kumar Datta
BHOLANATH CHATTERJEE - Appellant
Versus
SOMENDRA CHANDRA NANDI - Respondent
A. F. A. D. 218 Of 1964
Decided On : MARCH 15, 1971
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 16(2), 13(2), 30(5), 40(1), 40(2)(B) - SUB-TENANT'S PROTECTION AGAINST EVICTION - NOTICE UNDER SECTION 16(2) - MANDATORY - NO PROTECTION WITHOUT NOTICE - KNOWLEDGE OF LANDLORD IRRELEVANT - SECTION 40(2)(B) NOT APPLICABLE TO CONTINUING SUB-TENANCIES - 'SUCH SUB-TENANT' IN SECTION 13(2) REFERS ONLY TO SUB-TENANTS GIVING NOTICE UNDER SECTION 16(2) - UNNECESSARY PARTIES IN SUIT FOR POSSESSION.
Fact of the Case:
Plaintiffs sued for possession of premises held by defendant No. 1 as a monthly tenant, alleging default in payment of rent and illegal sub-letting. Defendant No. 1's written statement was struck out for non-compliance with Section 17(1) and (2) of the Act. Defendants Nos. 3 and 4, claiming to be sub-tenants, contested the suit. They had been in the premises before the Act came into force but had not given notice under Section 16(2).
Finding of the Court:
The courts below held that the provisions of Section 16(2) are mandatory and that in the absence of compliance, defendants Nos. 3 and 4 were not entitled to protection against eviction. The suit was decreed against all defendants and affirmed on appeal.
Issues: 1. Whether the provisions of Section 16(2) of the Act are mandatory and must be complied with before the defendants could claim any relief afforded to the sub-tenants under Sub-section (2) of Section 13 thereof? 2. Whether the sub-tenants are entitled to protection if the landlord has knowledge of their sub-tenancy and no notice thereof is given by the subtenants to the landlords under Section 16(2)? 3. Whether the right of a sub-tenant under the earlier Act was preserved under the provision of Section 40(2)(b) of the 1956 Act? 4. Whether 'such sub-tenant' in Section 13(2) would mean a person who has been impleaded as such sub-tenant and accordingly the appellants should also be held to be entitled to protection?
Ratio Decidendi: 1. The provisions of Section 16(2) of the Act are mandatory and must be complied with before the defendants could claim any relief afforded to the sub-tenants under Sub-section (2) of Section 13 thereof. 2. The sub-tenants are not entitled to protection if the landlord has knowledge of their sub-tenancy and no notice thereof is given by the subtenants to the landlords under Section 16(2). 3. The right of a sub-tenant under the earlier Act was not preserved under the provision of Section 40(2)(b) of the 1956 Act, as it applies only to rights accrued before the repeal of the earlier Act, not to continuing sub-tenancies. 4. 'Such sub-tenant' in Section 13(2) refers only to sub-tenants giving notice under Section 16(2).
Final Decision: The appeal was dismissed. There will, however, be no order as to costs in this appeal.
( 1 ) THIS is an appeal against a concurrent judgment decreeing the plaintiffs' suit. The facts of the case are not in dispute and are as follows:
( 2 ) THE plaintiffs instituted a suit for recovery of khas possession of the suit premises being the entire premises comprised in Municipal Holding No. 56, Ward No. 3, Eanaghat Municipality which was held by Kumaresh, the defendant No. 1, as a monthly tenant under the plaintiffs. The tenancy was according to the Bengali calendar month the rent being Rs. 15/- per month. It was stated that the defendant No. 1 was a habitual defaulter in payment of rent and he illegally assigned, transferred or Sub-let the entire premises to the other defendants in separate portions. The tenancy was determined by a notice with the expiry of Poush. 1363 B. S. As the suit premises were not vacated, the suit was filed on May 25, 1957, on the ground of default and sub-letting.
( 3 ) THE suit was contested by defendants Nos. 1 and 2 who filed a joint written statement it was stated that defendant No. 2 had no interest in the property and he was an unnecessary party. As to the other allegations, it was denied that the defendant No. 1 was a defaulter in payment of rent. It was also denied that the properties were transferred, assigned or sub-let as alleged. Two other written statements were filed by defendants Nos. 3 and 4 respectively who stated that they had been sub-tenants in the suit properties originally under the previous tenant Suresh, father of defendants Nos. 1 and 2 and thereafter there was a fresh tenancy granted to defendant No, 1 and these tenants continued to be in possession of the respective portions of the tenanted premises as sub-tenant as before. It was further stated that the sub-letting was done with the consent and knowledge of the plaintiffs and as such they were entitled to protection against eviction.
( 4 ) IT appears that in course of the proceeding the written statement filed on behalf of defendant No. 1 was struck out in view of non-compliance with the provision of Section 17 (1) and (2) of the Act, Defendants Nos. 3 and 4 actually contested the suit,
( 5 ) IT is an admitted fact that defendants Nos. 3 and 4 had been in the suit premises even prior to the coming into force of the West Bengal Premises Tenancy
Act, 1956. There is also no dispute that the defendants who are claiming to be sub-tenants did not give any notice under Section 16 (2) as required by the Act. The only question, therefore, that came up for consideration before the courts below was whether in the absence of such a notice the defendants Nos. 3 and 4 would be entitled to protection against eviction of the head-lessee. The courts below have taken the view that the provisions of the said section are mandatory and in the absence of their compliance of the defendants Nos. 3 and 4 were not entitled to protection against eviction. The suit was accordingly decreed against all defendants and affirmed on appeal. The present appeal is by the defendants Nos. 3 and 4.
( 6 ) MR. Amarendra Mohan Mitra, the learned Advocate appearing for the appellants before me, has contended that the real purpose of the provision of Section 16 (2) of the Act was that the landlords for their future course of action should be appraised of the position in regard to the sub-letting of the premises which were in existence at the time the new Act came into force. This purpose, according to Mr. Mitra, was achieved by the fact that the landlords in this case were aware that the appellants were subtenants of the specific portions of the suit premises. Accordingly, even if no notice was served on the landlords under Section 16 (2) the sub-tenants in the said circumstances would be entitled to protection as afforded by Section 13 (2) of the Act. Mr. Amarendra Narayan Bagchi, the learned Advocate appearing for the landlords-respondents has contended that the above provisions' are mandatory and in the absence of non-compliance
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