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HIGH COURT OF CALCUTTA
B. N. Banerjee, Amaresh Roy
NANDALAL DAS - Appellant
Versus
MONMATHA NATH GHOSE - Respondent
Civil Revn 1861 Of 1958
Decided On : AUGUST 03, 1961
PREMISES TENANCY ACT - SECTION 16 (3) - SUB-LETTING - CONSENT OF LANDLORD - HOLDING OVER - RENEWAL OF LEASE - JURISDICTION OF CONTROLLER - REVISION - SECTION 115, CIVIL PROCEDURE CODE - ARTICLE 227, CONSTITUTION OF INDIA - INTERPRETATION OF STATUTES - JURISDICTION OF COURTS - ERROR OF LAW - MATERIAL IRREGULARITY - SCOPE OF REVISION.
Fact of the Case:
The petitioner, a tenant, obtained 33 Rules against appellate orders in proceedings under Section 16 (3) of the West Bengal Premises Tenancy Act, 1956. The appellate officer had allowed the landlord's appeals and remanded the cases to the Rent Controller for trial on merits, holding that the sub-tenants were not direct tenants under the landlord as claimed by the landlord. The petitioner contended that the sub-tenancies were created with the written consent of the landlord and, therefore, the landlord's application under Section 16 (3) was not maintainable.
Finding of the Court:
The court held that the appellate officer had committed a grave error of law in holding that the written permission to sub-let contained in the documents of lease expired with the expiry of the period of the lease. The court held that by holding over, the lease was renewed with all the terms and conditions contained in the document of the lease which were not inconsistent with an annual tenancy. Therefore, the sub-tenancies created during the continuance of the lease and also during the period of holding-over were sub-tenancies created with the consent of the landlord in writing and, therefore, Section 16 (3) of the Premises Tenancy Act, 1956 did not apply.
Issues: 1. Whether the appellate officer had jurisdiction to remand the cases to the Rent Controller for trial on merits. 2. Whether the sub-tenancies were created with the written consent of the landlord. 3. Whether the landlord's application under Section 16 (3) was maintainable.
Ratio Decidendi: 1. The court held that the appellate officer had no jurisdiction to remand the cases to the Rent Controller for trial on merits because the Controller had no jurisdiction to make an order of declaration under Section 16 (3) in respect of the sub-tenancies. 2. The court held that the sub-tenancies were created with the written consent of the landlord because the consent in writing for sub-letting was contained in the documents of lease and was not inconsistent with the annual lease during the period of holding-over. 3. The court held that the landlord's application under Section 16 (3) was not maintainable because the sub-tenancies were created with the written consent of the landlord.
Final Decision: The court set aside the orders of the appellate court and restored the orders of the Controller in each of the 33 cases before it.
( 1 ) THIS Rule was obtained by a tenant against an appellate order in a proceeding under Section 16 (3) of the W. B. Premises Tenancy Act, 1956 in respect of premises No. 157 (a) Dharmatala Street. The order passed by the Appellate Officer under the Premises Tenancy Act, 1956 allowed the appeal of the landlord and remanded the case to the Rent Controller for trial on merits of the landlord's application playing that the sub-tenant in respect of the portion of the premises be declared to be a direct tenant under the landlord.
( 2 ) THIS case was heard analogously with 32 other similar Rules obtained by the same petitioner in respect of 32 other portions of the same premises which were the subject-matter of 32 other applications by the same landlord under Section 16 (3) of the Premises Tenancy Act 1956 and common questions of law have arisen in all these 33 cases. For appreciating the questions of law that require to be decided in these cases, it is necessary to advert to the history of the lease and the sub-leases in respect of this particular premises and other portions of that premises.
( 3 ) THE relevant facts shortly stated are these: Municipal premises No. 157-A, Dharmatala Street originally belonged to one Amar Nath Ghose. He died leaving his widow Indubala Dasi as his only heir. There are now pending two suits in respect of the said property in the Original Side of this Court, being suits Nos. 1271 of 1924 and 2336 of 1925 and in those suits the Official Receiver was appointed the Receiver in respect of the said property. On 1st September, 1931, the said Receiver, by a registered lease, let out the said premises to the petitioner at a monthly rent of Rs. 820/- for a period of 3 years. The lease in respect of the premises was renewed successively by successive documents of lease and the last lease was granted on 1st of January, 1947 and the period of that lease expired with 31st December, 1950. After such expiry, the petitioner is holding over as a tenant and there is no written document of lease from 1st January 1951. In the lease of 1931 the tenant was given power to sub-let and it was clearly mentioned in that document-"that the lessee shall be at liberty to underlet the whole or any part of the said demised premises to one or more tenants as the case may be". It is the common case of the parties that in each of the renewed leases the same liberty to sub-let was expressly given to the tenant and in the last lease of 1947 also that liberty was given in the same language as in the deed of lease of 1931. It is also the common case that sub-tenancy in favour of Diana Rolling Shutters Engineering Works, which is the subject-matter of Civil Revision No. 1789 of 1958, was created in January 1949 during the currency of the lease of 1947. Of the other 32 cases before us, in 25 cases the sub-leases were cheated in favour of the respective sub-tenants during the currency of one or the other deeds of lease. In one case only, which is the subject-matter of Civil Revision No. 1815 of 1958, Dharma Deo Singh was already in occupation of that part of the premises which he is now occupying from before the first lease in favour of the petitioner in 1931. The remaining 6 sub-tenancies were created in favour of the respective sub-tenants after the expiry of the period of the last lease of 1947, when the petitioner was holding over. In some of these cases the interest of the subtenants has devolved on the present occupants of the respective portions either by inheritance or by assignment. That was the state of affairs when, in 1956, the landlord, the present opposite party No. 1, made 33 applications under Section 16 (3) of the Premises Tenancy Act, 1955 giving rise to 33 cases before the Rent Controller. In each of those cases the tenant appeared and raised objections that the sub-tenancies had been created upon written consent of the landlord contained in the deeds of lease and, therefore, the landlord's application un
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