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TMI Blog1963 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... of the premises which was in the actual occupation of the tenant. As to the rest, the sub-tenants in possession including the appellant resisted eviction. The appellant in fact filed a suit against the landlords claiming that under s. 14 of the Act it had upon the determination of the interest of the tenant in the premises by the decree against him become their direct tenant of the portion sub-let to it and asking for a permanent injunction restraining the landlords from evicting it. In that suit the appellant made an application for an interim injunction but the application was rejected by the trial Court and an appeal therefrom, by the appellate Court. The appellant then moved the High Court of Gujarat in revision and the High Court confirmed the orders of the Courts below holding that after the expiry of the term the tenant had no power of sub-letting and the appellant, therefore, was not a sub- tenant and it was not entitled to any injunction. The correctness of this judgment of the High Court is challenged in this appeal. The protection under which the tenant in this case stayed on after the expiry of his lease was given by sub-s. (1) of s. 12 of the Act which provides that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory tenant having no interest in the premises cannot certainly assign or transfer his interest in the demised premises and, therefore, the word "tenant" in cl. (e) of s. 13(1) must in relation to assignment and transfer by a tenant be understood as a contractual tenant. That being so, and as it is unlikely that the word had been used in different meanings in the same clause, it must mean only a contractual tenant in relation to sub-letting also. I am unable to accept this contention. The word "tenant" has been given various meanings by the definition clause in the Act. All those meanings must be given to that word wherever it occurs in the Act unless the context otherwise requires. If a statutory tenant cannot transfer or assign his interest-as to which I express no opinion-cl. (e) of s. 13(1) cannot, of course, be contemplating him as doing so. That, however, would not show that definition of "tenant" as a statutory tenant would not be available for deciding what kind of tenants were contemplated by cl. (e) when it said that a tenant unlawfully sub-letting would be liable to eviction. In all other, clauses in s. 13(1) the word "tenant" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it also must equally imply in him a power to, lawfully assign or transfer his interest in the tenancy. It was contended that since it was impossible for a statutory tenant to assign or transfer any interest in the premises as he had none, it would follow that he could not lawfully sub-let either. In the first place, I do not think that the word "unlawfully" in the clause applies to "assigned or transferred"; I think as the clause stands it applies only to sub-letting. The Act furthermore nowhere states what is an unlawful assignment or transfer of a tenant's interest. It would undoubtedly have done so if it contemplated unlawful assignment or transfer. It is significant that it specifically talks of lawful and unlawful sub-letting in ss. 14 and 15. Nor can it be said that the unlawful assignment or transfer contemplated by cl. (e) is one which is against the terms of the contract of tenancy, for it would be unnecessary to provide that an unlawful assignment or transfer by a contractual tenant, that is, an assignment or transfer which is contrary to the terms of the contract of tenancy, would justify an order for possession as in such a case the protection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have accepted that Roe v. Russel [1928] 2 K. B. 117 has laid down the law correctly. I entirely agree with that view. In Campbell v. Lill, (1926) 135 L. T. 26, which is an earlier case and which took the same view as Roe v., Russel, [1928] 2 K. B. 117 the argument that s. 4(1)(h) of the English Act of 1923 dealt only with con- tractual tenants was expressly rejected on the ground that the word meant both contractual and statutory tenants throughout the section and it would be contrary to all canons of interpretation to give it a restricted meaning only in cl. (h). I wish also to observe that the English provision made an assignment by a tenant a ground for eviction but none the less the word "tenant" was mentioned as referring to a statutory tenant. It was not said that since the tenant contemplated was one who could assign, it must have been that a contractual tenant only was contemplated. These arguments, it will be remembered, were also advanced in this case. Now the similarity between s. 13(1)(e) of the Bombay Act and s. 4(1)(h) of the English Act is obvious. If the English provision implied that a statutory tenant could sub-let part of the premises, there would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to accede to the proposition that a statutory tenant sub-letting a part of the premises has so parted with the possession thereof as to forfeit his claim to protection under s. 12(1). It has to be remembered that in the present case the tenant had not parted with the entirety of the premises bar sub-letting. In Roe v. Russel [1928] 2 K.B. 117 it was said at p. 134, "when an individual is placed, as the statutory tenant undoubtedly was, in the position of having an exclusive personal possession of his premises, he is necessarily in a position in which he can place a third person in actual possession of a part of the premises, while retaining possession of the remainder, and that totally irrespective of whether his own right to exclusive undisturbed possession is purely personal or amounts to something of the nature of an estate or interest in the premises. In Campbell v. Lill [1926] 135 L. T. 26 it was said, "The policy of the statute is to give protection only to persons in occupation within the meaning of the statute and it aimed at persons who had parted with possession and such parting is deemed to have taken place if the tenant assigns or sub-lets the whole of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued." It is not in dispute that the sub-letting took place before the date mentioned in this section. It was contended that the word "interest" in the section showed that it contemplated only sub-letting by a contractual tenant. I am unable to agree for reasons earlier set out. As I have already said, a statutory tenant has an interest in the premises and when the section talks of the interest of a tenant being determined, it obviously means in the case of a statutory tenant, determined by a decree or by such a tenant giving up the protection of the Act. In this case the interest of the tenant was determined by the decree that was passed against him. I may here state that the Ordinance mentioned in the section came into force on May 21, 1959. I, therefore, find that the appellant became a subtenant before the date mentioned in s. 14 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Take a case of a contractual tenant where the lease contains no covenant permitting him to sub-let. In such a case those words would have no application even though the tenant is a contractual tenant. Therefore where there is no contract about granting of sub-leases, the section may still be applicable and in such a case there would be no reason to support the view that it is concerned with a contractual tenant only. The section would have to be interpreted in such a case without reference to the words in question. It would then surely apply to a statutory tenant who, as I have said, can sub-let. It cannot therefore be said that s. 15 deals only with a contractual tenant. But what happens if s. 15 does not apply to a statutory tenant? It was said that that would then show that a statutory tenant cannot at all sub-let. If apart from s. 15, the proper reading of the Act is, as I have earlier said, that a statutory tenant has the power to sub-let, I do not see that this section would provide a ground sufficiently strong to outweigh all the considerations which have led me to that view. The only result then, if s. 15 applies to a contractual tenant alone, would be that a sub- letti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty against his tenant are those mention Ed in 0. 21, r. 35 of the Code, namely, to obtain de- livery of it "if necessary, by removing any person bound by the decree who refuses to vacate the property". It is true that a sub-tenant under the general law of landlord and tenant is a person bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit. The reason for this is that the sub-tenant's right to remain in possession came to an end with the determination of the tenancy of the tenant see Yusuf v. lyotish Chandra Banerji (1932) I.L.R. 59 Cal. Where however a statute like the Act in the present case gives the sub- tenant a right to continue in possession even after the determination of the tenancy of the superior tenant, he would not be a person bound by the decree for his tenancy has not come to an end with the tenancy of the superior tenant. A sub-tenant to whom the premises were lawfully sub-let, would under s. 14 of the Act be such a person. That being so, a decree obtained by a landlord against his tenant does not give him a right to evict a sub-tenant who is entitled to the benefit of s. 14. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he premises in whole or in part and a person claiming to be a sub-tenant from a statutory tenant could not effectively plead the protection of s. 14 of the Act as amended by Ordinance III of 1959 or Bombay Act 49 of 1959. With special leave, the Company has appealed to this Court. The Company sets up its claim to protect its possession on the, plea that it had acquired die, rights of a tenant by virtue of s. 14 of the Act. This plea is supported on two grounds : (i)that the contract of tenancy in favour of the tenant expressly authorized him to sublet, and the tenant having lawfully sublet the premises the Company acquired on the determination of the interest of the tenant the rights of a tenant under the landlord; and (ii)in any event, on the -determination of the statutory tenancy of the tenant by virtue of Ordinance III of 1959 issued by the Governor of Bombay, retrospectively amending s. 15 of the Act the Company acquired the rights of a tenant under the landlord. In the view of the High Court clause (i) of the lease restricted "the ordinary rights of the tenant to sublet under s. 108(j) of the Transfer of Property Act", and cannot be interpreted as conferring a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and conditions of the lease are extinguished, and the rights of such a person remaining in possession are governed by the statute alone. Section 12(1) of the Act merely recognizes his right to remain in possession so long as he pays or is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy, but not the right to enforce the terms and conditions of the original tenancy after it is determined. On a matter of interpretation of s. 12(1) the decisions of the King's Bench Division of the High Court in England, viz. Roe v. Russel [1928] 2 K.B. 117 and Lewis v. Reeves [1951] 2 All E.R. 855, on which reliance was placed by the appellant are of little assistance. Those cases were decided on the interpretation of the relevant provisions of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920 (10 & 11, Geo. 5 Ch. 17), and particularly of s. 15(1). In Roe v. Russel [1928] 2 K.B. 117 the question whether a statutory tenant of a dwelling-house holding upon terms which do not prohibit subletting, may sublet part of the dwelling house, fell to be determined, and the Court held that a right to sublet a part of the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant continued to remain in possession after March 5, 1955 of the premises leased to him not because of any renewal or grant of a fresh tenancy, but in virtue of the protection afforded to him by, the Act as a 'statutory tenant'. As a statutory tenant he had no estate or interest capable of being assigned or transferred, and his statutory right to occupy could not in law be sublet, because a lawful subletting postulates a right: to enjoy the property and a right to transfer the same to another. There can be no subletting when there is no right in the premises especially when the statutory tenancy ceases when the tenant parts with possession. The decision of the Calcutta High Court in Krishna Prosad Bose v. Sm. Sarajubala Dassi A.I.R. 1961 Cal. 505 on which reliance was placed by the Company in support of its plea that a statutory tenant is entitled to sublet the premises in his occupation does riot assist the argument. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, recognizes the right of a statutory tenant to sublet. Section 12(1) of the West Bengal Act provides that notwithstanding anything to the contrary in any other Act or law, no order or decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the statute which afforded him protection. But it was urged that by Ordinance III of 1959 a right to sublet premises in the occupation of a statutory tenant was invested retrospectively since the commencement of the parent Act. It is common ground that the tenant purported to sublet a part of the premises in his occupation after the trustees instituted a suit in ejectment against him, and before Ordinance III of 1959 was promulgated. The Company has claimed the right of a subtenant on the second ground relying upon the Ordinance,, and it would be necessary to consider the material statutory provisions as amended by the Ordinance. Section 5(11) as amended defines a "tenant" as meaning : "any person by whom or on whose account rent is payable for any premises and includes- (a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959; (a) any person to whom interest in premises has been transferred under the proviso to sub- section (1) of section 15; (b) any person remaining, after the determination of the lease, in possession, with or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding anything contained in this Act, but subject to the provisions of section 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied- (e) that the tenant has, since the coming into operation of this Act, unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein;" In this clause the expression "tenant" apparently-means a contractual tenant, for it authorizes a landlord to recover possession of premises if the tenant has unlawfully assigned, transferred his interest in the premises or has unlawfully sublet the premises. A statutory tenant has no interest in the premises occupied by him, and he has no estate to assign or transfer. To read the clause as meaning that an assignment or transfer of any premises which attracts liability to eviction would be only in respect of a contractual tenancy whereas subletting which invites that penalty may be in respect of tenancies-contractual and statutory alike, would be to attribute to the Legislature an intention to impute two different meanings to the expression " tenant" in cl. (e) of s. 13(1). By cl. (e) the Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 and as continue in possession at such commencement, have no effect and be deemed never to have had any effect." The exception clause could manifestly not apply to statutory tenancies when the principal clause applied only to- contractual tenancies. The effect of the clause is to vali- date assignments, transfers and sub-tenancies granted by contractual tenants, despite the prohibition contained in sub-s. (1) or even in the contract of tenancy, and this validation is effective, notwithstanding any judgment, decree or order of a Court. The sub-section is plainly retrospective, and protects sub-tenants of contractual tenants and removes the bar against sub-letting by sub-s. (1) as well as by contract, provided that the transferee is in possession at the commencement of the Ordinance. The argument that by restricting the operation of s. 13(1)(e) to contractual tenants subletting by statutory tenants would be protected, is without force, Sections 12 and 13(1) have to be read together. Clause (e) of s. 13(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate. If it be assumed that a statutory tenant has the right of subletting, some very surprising consequences may ensue. A statutory tenant by parting with possession of the premises would forfeit all rights in the premises occupied by him, but he would still, if s. 14 is construed as suggested by the Company, be able to create an interest in the person inducted in the premises not derivatively but independently, for the statutory tenant had no interest in the premises and the protection granted by the statute is by the very act of transfer of possession extinguished. Again even though the sub-tenant of a statutory tenant may not be protected, because the bar against such subletting is not effectively removed by s. 15(2), he would still be entitled to claim the rights of a tenant under s. 14 on determination of the tenancy of the head tenant. Having regard to these considerations there can be little doubt that a sublessee from a statutory tenant under the Act acquires no right of a tenant in the premises occupied by him. Even under the Increase of Rent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered under s. 18 of the Registration Act. The Act is somewhat clumsily worded : it applies not to proceedings in Court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended. A suit relating to immoveable property may, in certain circumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e.g. under cl. 12 of the Letters Patent and s. 17 Code of Civil Procedure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immoveables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939, it intended to apply to the situs of immoveable property and not the Court proceeding, application of the rule of 'Lis Pendens' is, in respect of proceedings relating to immoveable properties situate in certain areas, made conditional upon the registration of the notice of the pendency of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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