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High Court Of Madhya Pradesh
S. P. Bhargava and R. J. Bhave, JJ.
SMT.THAKURAIN DULAIYA - Appellant
Versus
SHIVNATH PUNJABI - Respondents
Second Appeal 292 Of 1965
Decided On : 01/08/1968
LANDLORD AND TENANT - ACCOMMODATION CONTROL - SUBLETTING - VALIDITY - WRITTEN CONSENT OF LANDLORD - PROHIBITION UNDER RENT CONTROL ORDER - EFFECT OF REPEAL OF ORDER - VALIDITY OF SUBLETTING UNDER SUBSEQUENT ACT - WAIVER OF BENEFIT BY LANDLORD - PUBLIC POLICY.
Fact of the Case:
The plaintiff-appellant, the owner of a house, filed a suit for ejectment of the defendants, tenants, on the ground that the defendant No. 1 had sublet part of the premises to the defendants 2 and 3 without her written consent, which was prohibited under Clause 12-A of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 (Rent Control Order). The trial court held the subletting unlawful and granted a decree for ejectment, but the lower appellate court set aside the decree, holding that Clause 12-A was ultra vires and unconstitutional.
Finding of the Court:
The High Court held that Clause 12-A of the Rent Control Order was validly promulgated and not ultra vires or unconstitutional, as it was enacted under the powers conferred by the C. P. and Berar Regulation of Letting of Accommodation Act, 1946 (1946 Act), which received the assent of the Governor-General. The court also held that the subletting was unlawful as it was created without the written consent of the landlord, as required by Clause 12-A of the Rent Control Order.
Issues: 1. Whether Clause 12-A of the Rent Control Order was ultra vires and unconstitutional? 2. Whether the subletting was unlawful due to the absence of written consent from the landlord?
Ratio Decidendi: 1. The court held that Clause 12-A of the Rent Control Order was validly promulgated and not ultra vires or unconstitutional because: a) The 1946 Act, under which the order was issued, received the assent of the Governor-General, which immunized it from any attack that it was in conflict with any provisions of the Central Act. b) Section 6 of the 1946 Act provided that any order made under Section 2 of the Act (which included the Rent Control Order) would have effect notwithstanding anything inconsistent therewith contained in any enactment other than the Act. c) The Full Bench decision in Balkishan v. Total-das held that the provisions of the Rent Control Order, including Clause 12-A, were valid and not repugnant to the Transfer of Property Act. 2. The court held that the subletting was unlawful because: a) Clause 12-A of the Rent Control Order prohibited subletting without the written consent of the landlord. b) The alleged tripartite contract between the landlord, the tenant, and the subtenant did not create a direct relationship between the landlord and the subtenant, and the subtenant remained responsible to the tenant. c) The landlord's oral consent to the subletting did not waive the prohibition under Clause 12-A, as such a waiver would be void on grounds of public policy.
Final Decision: The High Court allowed the appeal, set aside the decree of the lower appellate court, and restored the decree of the trial court, granting a decree for ejectment against the defendants 1 and 2.
( 1 ) SMT. Thakurain Dulaiya, the plaintiff-appellant, is the owner of House No. 828, lordganj, Jabalpur, and the respondent No. 1 (defendant No. 1) is the tenant thereof at the monthly rent of Rs. 120/ -. The plaintiff filed the suit, out of which this second appeal arises, for ejectment on various grounds including the ground that the defendant No. 1 had sub-let part of the premises to the defendants 2 and 3 and that the subletting being unlawful she was entitled to eject the defendants under Section 12 (1) (b) of the Madhya Pradesh Accommodation Control Act, 1961. The defendant No. 3 vacated the premises during the pendency of the suit. The defence of the defendants 1 and 2 was that the part of the premises was sublet to the defendant No. 2 at a tripartite contract between the plaintiff, the defendant No. 1 and the defendant No. 2, arrived at between the parties at mauranipur in April 1955. It was not disputed that the contract was oral; but the submission was that it being a tripartite contract, it was not unlawful.
( 2 ) THE trial Court negatived other grounds urged by the plaintiff but held that under Clause 12-A of the C. P. and Berar Letting of Houses and Rent Control Order. 1949 (hereinafter referred to as the 'rent Control Order'), which was in force in 1955, a tenant was prohibited from sub-letting any portion of the accommodation except in pursuance of a condition in the lease-deed executed in favour of the tenant or with the written consent of the landlord; and as no written consent of the landlady was obtained in this particular case, the sub-letting was unlawful and that the plaintiff was entitled to a decree for ejectment.
( 3 ) THE lower appellate Court, however, felt bound by the decision of Shiv Dayal, J. in Ramkishan v. Jamuna Prasad, SA No. 357 of 1962 D/- 27-11-1962 (MP), wherein it was held that Clause 12-A of the Rent Control Order was ultra vires and unconstitutional. In this view of the matter, it was held that the subtenancy in favour of the defendant No. 2 was not unlawful and that the plaintiff was not entitled to a decree for ejectment. The plaintiff has now come up in second appeal.
( 4 ) THE decision of Shiv Dayal, J. is based on the decision of Mudholkar, J. (as he then was) in Tilokchand v. Ganpatdas, 1958 Nag LJ 392: (AIR 1959 Bom 98 ). The full Bench decision of the Nagpur High Court in Balkishan v. Total-das, AIR 1955 nag 246 (FB) was unfortunately not brought to the notice of Shiv Dayal, J. The full Bench decision takes a contrary view of the matter. Hence, it appears that this appeal was placed before this Division Bench for disposal.
( 5 ) BEFORE we proceed further, it may be noted that the Rent Control Order was promulgated by the State Government in exercise of powers conferred under section 2 of the C. P. and Berar Regulation of Letting of Accommodation Act, 1946 (hereinafter referred to as the 1946 Act' ). The Act was enacted after obtaining assent of the Governor-General as contemplated under Section 107 (2) of the government of India Act, 1935 and, as such any provisions of the 1946 Act or any orders passed by the State Government in exercise of powers under Section 2 of the Act must be held to be immune from any attack that they are in conflict with any provisions of the Central Act. In 1958 Nag LJ 392: (AIR 1959 Bom 98) (supra), Mudholkar, J. however, held that Clause 12-A of the Rent Control Order was repugnant to the provisions of Section 108 (j) of the Transfer of Property Act. His Lordship was of the view that the subject "transfer of Property" falls in the Concurrent List, i. e. , List III of Seventh Schedule of the Government of India Act, 1935; the State Legislature, therefore, could not make any law repugnant to the provisions of the Transfer of Property Act, unless the procedure prescribed under section 107 (2) of the Government of India Act, 1935, was followed. His Lordship observed that though assent of the Governor-General was obtained while enacting the 194
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