Prafulla Chandra Mukherjee vs Akshoy Kumar Bose

N.K. Sen, J.—This Rule was issued on an application made at the instance of the landlord under Article 227 of the Constitution of India against the order, dated April 12, 1957, passed by Shri B. Basak, Second Additional Rent Controller, Calcutta, in case No. 1346A of 195G S.R. The aforesaid case was started by Akshoy Kumar Bose, opposite party No. 1 in this Rule, claiming to be a sub-tenant in respect of premises No. 17, Bindu Palit Lane in the town of Calcutta which had been let out to Paritosh Kumar Dey, opposite party No. 2, at a monthly rent standardised at Rs. 26 per month. One of the terms of the said tenancy which had been in existence sometimes from before December, 1949, when the said standardisation of rent was made, was to the effect that the said tenancy in favour of the said Paritosh Kumar Dey, opposite party No. 2, was prohibited to be sublet by him and upon those terms of the contract the tenancy in respect of the said Paritosh Kumar Hey, the tenant opposite party No. 2, had been subsisting.

It is stated that even in the face of such restrictive terms of the tenancy providing for positive prohibition against sub-letting the opposite party No. 2 sub-let the tenancy to the opposite party No. 1 sometimes in April, 1955, i.e., before the West Bengal Premises Tenancy Act, 1956, came into existence. The opposite party No. 1, the sub-tenant, made an application under Sub-section (3) of Section 16 of the West Bengal Premises Tenancy Act, 1956, and therein prayed for a declaration that the tenancy interest in respect of the premises that had been sub-let ceased and that the applicant-sub-tenant had become a tenant directly under the landlord from the date of the order passed and further prayed for fixation of the rent payable to the landlord from the date of such order. This application by the opposite party No. 1 Akshoy Kumar Bose was the subject-matter of case No. 1346A o.f 1956 S.R. as stated above before the Rent Controller.

It appears that the Rent Controller took evidence on behalf of the parties and by his order, dated April 12, 1956, did not finally dispose of the said application but made the declaration as prayed for in favour of the opposite party No. 1. Against this order the landlord Petitioner moved this Court under Article 227 of the Constitution of India and obtained the present Rule.

Mr. Satish Chandra Roy appearing on behalf of the opposite party No. 1 submitted at the outset that this is not a fit case for interference by this Court under Article 227 of the Constitution of India. He relied on the well-known decision of the Supreme Court in the case of D.N. Banerjee v. P.R. Mukherjee AIR [1953] S.C. 58 for the proposition that unless there is grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 227 of the Constitution to interfere. This principle of law cannot be disputed but at the same time it cannot be denied, and Mr. Roy himself has not denied, that it is for the High Court to decide whether there has been grave miscarriage of justice or flagrant violation of law in individual cases pending before the Court.

As I have already stated in this particular case the findings of the Rent Controller himself have been that there was a prohibition against sub-letting by the opposite party No. 2, viz., the tenant, but at the same time, the Rent Controller held that this prohibition only proved that sub-letting was done without the consent of the superior landlord and it had no other force and no other meaning. If the interpretation of the word "Prohibition against sub-letting" means absence of consent of the superior landlord only and nothing more than that, as has been held by the Rent Controller, it is not in my view the proper and reasonable interpretation and therefore has to be held erroneous in law. In that view of the matter it cannot be disputed that this has led to a grave injustice and flagrant violation of law and the power of superintendence of the High Court under Article 227 of the Constitution can properly be invoked in this case.

It may be pointed out here that Section 29 of the West Bengal Premises Tenancy Act of 1956 provides for an appeal to the Chief Judge from the final order of the Rent Controller. It appears from the order, dated April 12, 1957, of the Rent Controller against which this Court has been moved that his findings were not sufficient for the disposal of the petition finally. Mr. Hari Prasanna Mukherjee appearing for the Petitioner has submitted that in view of the above findings of the Rent Controller no appeal being provided for in the statute against such an order, the only remedy that lay open to him was by moving against the said order under Article 227 of the Constitution invoking the power of superintendence of this Court. Mr. Roy on the other hand has argued that as there was an alternative remedy open to the Petitioner by way of taking an appeal against the order complained of before the learned Chief Judges u/s 29 of the West Bengal Premises Tenancy Act, 1956, this application under Article 227 of the Constitution is misconceived and cannot be entertained. In para. 3 of the counter-affidavit sworn to by opposite party No. 1 Akshoy Kumar Bose, it has been stated that "I have been advised and I submit-that the present application is not maintainable as the order passed by the Rent Controller is a final order against which an appeal lies and an appeal has been preferred". The grounds taken in the said petition, Mr. Roy argues, do not disclose any grave miscarriage of justice and flagrant violation of law which call for an interference by an application under Article 227 of the Constitution of India.

At this stage, I think, I should deal with another objection of Mr. Roy that u/s 108(j) of the Transfer of Property Act, in the absence of a contract or local usage to the contrary, the lessor of any immoveable property possesses the right to sub-lease the whole or any part of his interest in the property. Mr. Roy urged that the sub-tenancy of the opposite party No. 1 is a sub-lease so created. Mr. Roy in advancing this argument has lost sight of the fact that such a right of the lessees to create a sub-lease is subject to the absence of a contract to the contrary. In this case, as I have already pointed out, that the Rent Controller has found that there was a prohibition against sub-letting of the tenant and this had been in consequence of a contract between him and bis landlord. Consequently, there is no force whatsoever in the point taken by Mr. Roy.

Mr. Hari Prasanna Mukherjee appearing on behalf of the Petitioner has strenuously argued that it haying been held that there was a prohibition against sub-letting by the tenant opposite party No. 2, the Rent Controller ought to have held that the sublease, if any, in favour of the Petitioner opposite party No. 1 was unlawful and he had no locus standi to make and/or maintain the present application u/s 16, Sub-section (3) of the West Bengal Premises Tenancy Act, 1956. Mr. Mukherjee argues that inasmuch as there has been an effective and binding contract between the landlord and his tenant incorporating the terms of the tenancy making sub-letting by the tenant prohibited, present application made under Sub-section (3) of Section 16 is not maintainable.

Mr. Roy has read before me Section 13, Sub-section (2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, to show that the tenant was a tenant of the first degree. In my view, Section 13 has no application in the present case.

In order to decide the question raised in this Rule provisions of Section 14 and Section 16 of the West Bengal Premises Tenancy Act, 1956, have to be considered. Section 14, Sub-section (1) of the Act provides for restrictions on sub-letting after the commencement of this Act without the previous consent in writing of the landlord. Section 16, Sub-section (1) contemplates the case where after the commencement of the Tenancy Act of 1956 any premises have been sub-let by the tenant with the previous consent in writing of the landlord, provisions for serving notice on the landlord have been made for creation or termination of such sub-tenancy. In this particular case we are not concerned with this Sub-section.

Sub-section (2) of Section 16 provides for a case where a sub-tenancy is created before the commencement of the Act of 1956 with or without the consent of the landlord. The tenant and every subtenant must give notice to the landlord of such sub-letting in the prescribed manner within six months of the commencement of the Act of 1956 and in case of termination of such sub-tenancy to notify within one month of such termination. Sub-section (3) of the said Section 16 provides for the contingency where there was no consent in writing of the landlord or the landlord denies that he gave oral consent. The Controller on an application made to Mm within two months of the date of the receipt of the notice of subletting by the landlord will pass the necessary order declaring that the tenant''s interest ceased in the premises and the sub-tenant becomes a direct tenant under the landlord. So these two subsections, namely Sub-section (2) and Sub-section (3) of Section 16 of the West-Bengal Premises Tenancy Act, 1956, make provision where there was absence of consent or denial to give consent by the landlord. Section 16 nowhere says that when an effective and still enforceable contract between the landlord and tenant prohibiting the latter from sub-letting the tenancy subsists, the sub-tenant will get the benefit of the Section 16 of the Act of 1956 and will get the declaration in his favour. The term prohibiting sub-tenancy incorporated into the terms of the tenancy, further, amounts to more than mere denial of consent on the part of the landlord as provided for in Sub-section (3) of Section 16. Such a definite contract of prohibiting sub tenancy has not been negatived in any manner whatsoever in any. of the sections of this Act.

The Rent Controller has found as a fact that there was a prohibition against sub-letting by the tenant in this case but he has interpreted that such a prohibition clause only proved that "the sub-letting was done without the consent of the superior landlord. This prohibition has no other force and no other meaning".

I do not agree with the said interpretation given to the terms of prohibition clause made into the terms of the tenancy. Such, a term of prohibition is a bilateral contract still effectively binding upon the parties, viz., the landlord and his tenant, whereas denial of consent on behalf of the landlord is an unilateral act made on behalf of the landlord only.

In these circumstances I make the Rule absolute and set aside the order of the Rent Controller and dismiss the application, viz., the case No. 1346A of 1956 S.R. started at the instance of opposite party No. 1.

The opposite party No. 1 alone will pay costs of this Rule to the Petitioner.