M/S. A. C. Estates Vs. M/S. Serajuddin
& Co. & ANR [1965] INSC 134 (7 May 1965)
07/05/1965 WANCHOO, K.N.
WANCHOO, K.N.
SHAH, J.C.
MUDHOLKAR, J.R.
CITATION: 1966 AIR 935 1966 SCR (1) 235
ACT:
West Bengal Premises Tenancy Act (12 of
1956), s. 16(3)Scope of.
HEADNOTE:
The appellant, the owner of certain premises
in Calcutta, leased them out and the respondent was inducted as a subtenant by
the tenant in June 1954. In July. 1954, the appellant issued notice to the
tenant determining the tenancy from the end of August 1954. In September 1954,
the appellant filed a suit for ejectment of the tenant. While the suit was
pending, the West Bengal Premises Tenancy Act, 1956, came into force on 31st
March 1956. The respondent filed a petition under s. 16(3) of the Act, praying
that the Controller may declare that the interest of the tenant had ceased,
that the respondent had become a direct tenant under the appellant and for
fixation of the rent. On 9th August 1956, the Controller made an order
declaring the respondent as a direct tenant and adjourned the proceedings for
evidence regarding the rent payable. On 22nd August 1956, the ejectment suit
was decreed and so, the appellant applied to the Controller praying that the
respondent's petition under s. 16(3) may be dismissed. The Controller dismissed
the respondent's application on the day fixed for determining the rent. The
respondent's appeal to the Court of Small Causes was allowed. The appellant
then filed a petition under Art. 227 of the Constitution to the High Court, and
it was dismissed except as to fixation of rent.
In his appeal to this Court, the appellant
contended that :
(i) the order of 9th August 1956 was not a
final order and therefore the Controller could rescind it, and (ii) the
respondent was no, entitled to invoke s. 16(3), because the tenant had been
ejected on 22nd August 1956.
HELD : (i) The High Court was right in
holding that the Controller had no power to set aside the order that had been
made on 9th August 1956, for it was right when it was made.
[242 C-D] The word "tenant" is
defined in s. 2(h) of the Act to include any person continuing in possession
after the termination of his tenancy, but shall not include any person against
whom any decree or order for eviction had been made by a court of competent
jurisdiction. There is nothing repugnant in the subject or context of s. 16(3)
to take the view that the definition of "tenant" in s. 2(h) would not
apply to a case under s. 16(3). Therefore, the tenant continued to be a tenant
up to 22nd August 1956, and the respondent, who became a sub-tenant in June
1954, continued :to be sub-tenant after the coming into force of the Act.
[240 E-G] Under the first part of s. 16(3),
the Controller has to declare by order that the tenant's interest in the
premises sub-let has ceased and that the sub-tenant has become a direct tenant
under the landlord; and under the second part, the Controller has to fix the
rents payable to the landlord, by the tenant and the sub-tenant. [240 1-1-241
B] In the instant case after having made such a declaration under the first
part of the section, in favour of the respondent, it was not open sup./65-16
236 to the Controller (while proceeding to fix rent under the second part) to
rescind the order which had become final so far as the Controller was
concerned, on some ground which supervened after the date of the order nor can
the Controller's latter order be justified under s. 29(5) of the Act, which
gives the Controller the powers under ss. 151 and 152 and the power of review
under O. 47, of the Civil Procedure Code. [241 G-H; 242 B-C] (ii)There is
nothing in the contention of the appellant that s. 16(3) would not apply to the
respondent. [242 E] In the present case, the benefit of the section was given
to the respondent not after 22nd August 1956, when the tenant was evicted, but
before that date, that is, on 9th August 1956. That order so far as it went was
final and was not open to review or cancellation by the Controller who had
thereafter only to fix the rent under the second part of the section. [242 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 258 of 1963.
Appeal by special leave from the judgment and
order dated May 6, 1960 of the Calcutta High Court in Civil Rule No. 3579 of
1959.
S. C. Mazumdar, for the appellant.
D. N. Mukherjee, for the respondent No. 1.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the judgment of the High
Court of Calcutta. The appellant is the owner of premises bearing No. P-16, Bentinck
Street, Calcutta. It had let out a suite on the second floor of the premises on
a monthly rental of Rs. 66 to Gee Sting Po. The exact date when the suite was
let to Po is not on the record but it was sometime before June 1954. In June
1954, Po sublet the entire suite to respondent No. 1, Messrs.
Serajuddin and Company, which will hereafter
be referred to as the respondent. In July 1954, the appellant gave notice to Po
terminating his tenancy with the expiry of August 1954. In September 1954 the appellant
filed a suit against Po praying for his ejectment on certain grounds under the
West Bengal Premises Rent Control (Temporary Provisions) Act, No. XVII of 1950,
which was then in force. That suit was still pending when the West Bengal
Premises Tenancy Act, No. XII of 1956 (hereinafter referred to as the Act) came
into force from March 31, 1956. Section 16 (3) of the Act gave certain rights
to sub-tenants. As the appeal turns on the interpretation of that provision, it
is necessary to set it out here:"16(1) 237 .lm15 (2)Where before the
commencement of this Act, the tenant, with or without the consent of the
landlord, has sublet any premises either in whole or in part, the tenant and
every sub-tenant to whom the premises have been sublet shall give notice to the
landlord of such subletting in the prescribed manner within six months of the
commencement of the Act and shall in the prescribed manner notify the
termination of such sub-tenancy within one month of such termination.
(3) Where in any case mentioned in
sub-section (2) there is no consent in writing of the landlord and the landlord
denies that he gave oral consent, the Controller shall, on an application made
to him in this behalf either by the landlord or the sub-tenant within two
months of the date of the receipt of the notice of sub-letting by the landlord
or the issue of the notice by the sub-tenant, as the case may be, by order
declare that the tenant's interest in so much of the premises as has been
sub-let shall cease and that the subtenant shall become a tenant directly under
the landlord from the date of the order. "The Controller shall also fix
the rents payable by the tenant and such sub-tenant to the landlord from date
of the order. Rents so fixed shall be deemed to be fair rent for purposes of
this Act." The respondent took action under s. 16(3) as apparently the
sub-letting to him by Po was not with the consent of the landlord, and made an
application thereunder to the Controller on June 4, 1956 and prayed that the
Controller should declare that the interest of the tenant had ceased and the
respondent had become the tenant directly under the landlord in respect of the
suite in question. It was also prayed that fair rent of the premises should be
fixed at Rs. 66 per mensem.
The application was opposed on behalf of the
appellant and two main points were urged in that connection, namely,-(i) The
tenancy of Po had been lawfully terminated at the end of August 1954 and the
suit for his ejectment was pending in the Small Cause Court and therefore the
respondent could not take advantage of the Act in 1956, for it never became a
sub-tenant in law before the Act was passed; and (ii) the respondent was not in
fact the tenant of Po from before March 31, 1956.
The matter came up before the Controller on
August 9, 1956.
The Controller accepted the respondent's case
that it had become 238 the sub-tenant of Po in fact from June 9, 1954. The
Controller further held that in view of this fact, the respondent became a
sub-tenant under the appellant in law, for in any case, the tenancy of Po had
not been determined till August 1954 even on the case put forward by the
appellant. He therefore made the following order :"The applicant (i.e.
Serrajuddin & Co.) is therefore entitled to be declared to be a direct
tenant under the O.P. No. 1. But this will not be sufficient to dispose of the
present proceeding inasmuch as under section 16(3) of the Act of 1956 I am to
fix the fair rent payable by the tenant and that of the sub-tenant." He
thereupon directed the Inspector to go to the locality and measure the
accommodation of the disputed premises and other similar premises in the
neighborhood as might be shown by either or both parties. The Inspector was
also directed to make note of advantages and amenities of all the premises
measured by him and thereafter submit his report as to the fixation of fair
rent. A date was fixed for the submission of the Inspector's report and
thereafter the fair rent was to be fixed.
Before however the Inspector's report was
received, the suit for ejectment of Po pending in the Court of Small Causes was
decreed on August 22, 1956 and time was given to him to vacate the same by the
end of October 1956. Therefore on September 11, 1956, the appellant filed what
it called an additional written objection. in that the appellant informed the
Controller that a decree for ejectment against Po had been passed. It was urged
that in view of that decree, Po was no longer a tenant of the appellant and
therefore the respondent could not be a sub-tenant. The appellant prayed that
the application of the respondent was not maintainable, in the circumstances
and the Controller had no jurisdiction to entertain the application and so the
application should be dismissed. The matter then came up before the Controller
on January 29, 1957. on. which date the appellant's additional objection as
well as the Inspector's report was taken up for consideration. The Controller
took some evidence on the question of fair rent and heard arguments on that
day.
On February 11, 1957, the Controller passed
final orders in which he said that there was no tenant of the first degree on
that date, namely, 11th February 1957. As the ejectment decree had been passed
in accordance with the provisions of the 1950-Act, the sub-tenant had by
operation of that law become a direct tenant.
239 So according to the Controller there was
no subsisting tenancy on February 11, 1957 and no order could be passed under
s. 16 (3) of the Act. He consequently dismissed the application under s. 16(3),
but passed no order as to costs.
The respondent then went in appeal to the
Court of Small Causes, Calcutta, as provided in the Act. The Appeal Court held
that the order of August 9, 1956 made by the Controller was final and further
as the entire premises had been sublet there was no necessity for any further
determination of rent as the sub-tenant would be liable to pay the rent payable
by the tenant. The Appeal Court therefore set aside the order of the Controller
dismissing the application of the respondent and declared the respondent as
tenant at a rental of Rs. 66 per month.
The appellant then applied under Art. 227 of
the Constitution to the High Court and two main points were urged on its behalf
before the High Court, namely(i) The order of August 9, 1956 was not a final
order for the purpose of s. 16(3) and therefore it was open to the Controller
to rescind that order when the further fact of the ejectment decree of August
22, 1956 was brought to his notice;
(ii)Section 16(3) applies only when the
original tenancy also subsists up to the date of the final order which the
Controller was proposing to make on January 29, 1957 and which he eventually
refused to make because by that date the tenancy of Po had come to an end by
the ejectment decree of August 22, 1956.
The High Court held that s. 16(3) was in two
parts : first relating to the declaration of the sub-tenant as a tenant in
place of the tenant of the first degree, and second relating to the fixation of
fair rent for the part or whole of the premises in respect of which the
declaration was made. It further held that the declaration of August 9, 1956
under the first part of s. 16(3) was final and the Controller had no
jurisdiction after August 9, 1956 to rescind it. The High Court pointed out
that as on August 9, 1956, when the order under the first part of s. 16(3) was
passed, the tenancy of the tenant of the first degree was subsisting, action
could be taken under s. 16(3) in favour of the respondent. In this view of the
matter, the revision application of the appellant 240 was dismissed except as
to the fixation of rent. It is this order of the High Court which is being
impugned before us by special leave.
We are of opinion that the appeal must fail.
There is a clear finding of the Controller that the respondent was inducted as
a sub-tenant by Po in June 1954. At that time, the appellant had not even given
notice to Po determining his tenancy. It was only in July 1954 that notice was
given to Po determining the tenancy as from the end of August 1954. Therefore,
the respondent became a sub-tenant of the tenancy which Po held under the
appellant.
The next question is whether the respondent
was entitled to the benefit of the Act which came into force on March 31, 1956.
On that date a suit was pending against Po based on the notice given to him in
July 1954 determining his tenancy. The argument on behalf of the appellant is
that as Po's tenancy had been determined by the end of August 1954 by virtue of
the notice referred to above, the respondent was no longer sub-tenant on March
31, 1956 as the tenancy of the tenant of the first degree had itself come to an
end.
This in our opinion is not correct. The word
"tenant" is defined in S. 2(h) of the Act to include any person
continuing in possession after the termination of his tenancy but shall not
include any person against whom any decree or order for eviction had been made
by a court of competent jurisdiction. In view of this inclusive definition of
the word "tenant' in the Act Po would continue to be a tenant under the
Act though his tenancy had been determined by notice and he ceased to be a
tenant only on August 22, 1956 when the decree for ejectment was passed against
him. It is true that the definitions in s. 2 are subject to anything being
repugnant in the subject or context. But we see nothing repugnant in the
subject or context of s. 16(3) to persuade us to hold that the definition of
tenant in S. 2(h) would not apply to a case under S. 16(3). The Act is a
measure for the protection of tenants and sub-tenants and should not be so
interpreted as to take away the protection which it intends to give to them. We
are therefore of opinion that Po continued to be a tenant up to August 22, 1956
and therefore the respondent continued to be a sub-tenant after the coming into
force of the Act.
This takes us to the order of August 9, 1956.
We have already set out s. 16(3) and there is no doubt that it consists of two
parts. Under the first part, the Controller has to declare by order that the
tenant's interest in so much of the premises as has 241 been sublet has ceased
and the sub-tenant has become a tenant directly under the landlord from the
date of the order. The second part gives power to the Controller to fix rents
payable by the tenant and such sub-tenant to the landlord from the date of the
order. It may be that both orders under the two parts may be passed on the same
date;
but it appears what usually happens is that
the Controller first declares that the tenant's interest has ceased and the
sub-tenant has become a tenant directly under the landlord, and thereafter
proceeds to fix rent under the second part after taking such further evidence
as he considers necessary. Even so, the order under the first part declaring
that the tenant's interest has ceased and the subtenant has become a tenant
directly under the landlord must be treated as final so far as the Controller
is concerned and it cannot be a mere interlocutory order, which could be
rescinded by the Controller while he is taking steps to fix the rent as
provided in the second part of s. 16(3). In this connection our attention is
drawn to the decision of the Calcutta High Court in Anil Kumar Mukherjee v.
Malin Kumar Mazumdar(1), where it was held with reference to S. 29 of the Act
that the words "final order" there mean the order making the
declaration and fixing the rent under s. 16(3) or the order dismissing the
application under s. 16(3). We do not propose to consider whether Mukherjee's
case is correctly decided. Assuming it to be correct, what it lays down inter
alia is that an order under the first part of s. 16(3) merely making a
declaration without the further order fixing rent under the second part thereof
is not appealable as a final order under S. 29. But what we are concerned with
here is whether it was open to the Controller after he had made the order
declaring the sub-tenant a direct tenant under the landlord to set aside that
order subsequently while proceeding to fix rent on the basis of something which
transpired after that order had been passed. We are of opinion that an order
like that passed on August 9, 1956, must be taken to be final insofar as it
declares the tenancy of the tenant of the first degree to have ceased and
declares the sub-tenant to be the direct tenant of the landlord, so far as the
Controller is concerned. After having made such a declaration it is not open to
the Controller (while proceeding to fix rent under the second part of that
section) on some ground which supervenes after the date of the order to rescind
it. Our attention in this connection is drawn to S. 29(5) of the Act which
gives power to the Controller to review his orders on the conditions laid down
under Order XLVII of the Code of Civil Procedure.
But this cannot be a case of review on the
(1) (1959-60) 64 C.W.N. 938.
242 ground of discovery of new and important
matter, for such matter has to be something which existed at the date of the
order and there can be no review of an order which was right when made on the
ground of the happening of some subsequent event (see Rajah Kotagiri Venkata
Subbamma Rao v. Raja Vallanki Venkatrama Rao(1). Section 29 (5) further gives
power to the Controller to act under s. 151 or S. 152 of the Code of Civil
Procedure. Section 152 has no application in the present case for there is no
clerical or arithmetical mistake here. Nor can the Controller in our opinion
set aside an order which was right when it was made, under s. 151 of the Code
of Civil Procedure as there is no question in such circumstances of sub serving
the ends of justice or preventing the abuse of the process of the court. We are
therefore of opinion that the Controller had no power to set aside the order
that had been made on August 9, 1956 for it was right when it was made. The
view taken by the High Court in this connection is correct.
It is equally clear that when the Controller
passed the order on February 11, 1957 dismissing the application under S. 16(3)
that order was appealable under S. 29(1), for it was undoubtedly a final order
within the meaning of s. 29(1) and the respondent would be entitled to appeal
there from.
Finally there is nothing in the contention of
the appellant that s. 16(3) would not apply because the tenant had been ejected
on August 22, 1956 and thereafter the sub-tenant could not claim the benefit of
S. 16(3). In the present case the benefit of s. 16(3) was given to the
sub-tenant not after August 22, 1956 but before that date i.e. on August 9, 1956. That order so far as it went was final and was not open to review or cancellation
by the Controller who had thereafter only to fix the rent under the second part
of s. 16(3). While going on with the proceeding for fixation of rent, the
Controller could not set aside the order already made under the first part of
S. 16(3) on August 9, 1956 and insofar as he did so, he acted without
jurisdiction. The Appeal Court was therefore right in setting aside the order
of the Controller and the High Court was equally right in dismissing the
application by the appellant except as to fixation of rent.
The appeal therefore fails and is hereby
dismissed with costs.
Appeal dismissed.
(1) L.R. (1899-1900) 27 I.A. 197.
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