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2001 (9) TMI 1172

..... oor of premises No.42-A, Shakespeare Sarani, P.S. Park Street, Calcutta, had let out the said premises to Smt. Archana Poddar, respondent No.1 herein, for carrying on the business under the name and style of M/s. A.K. Enterprises. It is stated that the said tenant had inducted M/s. Paspur Travels Pvt. Ltd., the second respondent herein, as a sub-tenant in contravention of the provisions of the West Bengal Premises Tenancy Act, 1956 (for short the Act). On this basis, the appellant instituted Ejectment Suit No.144/93 against the first respondent which came to be decreed on 22.4.1997 by the Vth Bench of the City Civil Court, Calcutta. The allegation in the said suit was that the sub-letting of the premises to third party like the second respondent without the knowledge and consent of the appellant being contrary to the provisions of the Act, the appellant is entitled to eviction of the first respondent from the suit premises. At this stage, it is necessary to note that the second respondent herein was not made a party to the said suit for ejectment. Pursuant to the decree obtained by him, the appellant filed Ejectment Execution Case No.65/97 before the City Civil Court, Calcutta in w .....

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..... d remanded the matter to the executing court to decide the question whether there was any collusion and fraud in the matter of decreeing the suit for eviction filed by the appellant against respondent No.1. It is against this judgment and order of the High Court that the appellant is now before us in this appeal. Mr. Bhaskar P. Gupta, learned senior counsel appearing for the appellant contended before us that in a matter pertaining to sub-tenancy if the party claiming sub-tenancy fails to establish that it had complied with the statutory requirement of the Act then such person did not have the legal right of being heard in the eviction petition filed against the original tenant. Hence, it was not necessary to implead such sub-tenant in the ejectment suit filed by the landlord against the original tenant. He contended that the requirement of the provisions of the Act in regard to creating of sub-tenancy being mandatory and if the party claiming sub-tenancy has failed to fulfil the said requirement, there being no statutory need to implead or hear such party before passing the order of eviction, the question of obtaining the decree by fraud and collusion will not arise. Hence, it was .....

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..... to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely :- (a) where the tenant or any person residing in the premises let to the tenant without the previous consent in writing of the landlord transfers, assigns or sublets in whole or in part the premises held by him; x x x x x (2) The sub-tenants, if any, referred to in section 16 who have given notice of their sub-tenancies to the landlord under the provisions of that section shall be made parties to any suit or proceeding for the recovery of possession of the premises by the landlord : Based on the above provisions of the Act, Mr. Gupta submits that the requirement of obtaining previous consent of the landlord before acquiring the sub-tenancy right and intimating the landlord by notice by the tenant as well as by the sub-tenant in the prescribed manner within one month from the date of such subletting is a mandatory requirement of law and unless the said requirement is complied with, Section 14 of the Act comes into play which prohibits the creation of a sub- te .....

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..... a mandatory requirement, the creation of sub- tenancy without fulfilling these requirements becomes opposed to Section 14 of the Act. If it is a sub-tenancy created contrary to the provisions of the Act then as could be seen from Section 13(2) of the Act, it becomes unnecessary for the landlord to implead the sub-tenant when he seeks to evict the original tenant on the ground of unlawful tenancy. In the instant case, the parties before the executing court have adduced evidence and based on that evidence the trial court has come to the conclusion on facts that neither of the twin requirements, namely, the previous consent of the landlord and notice in writing by the tenants is fulfilled. Therefore, it came to the conclusion that there was no obligation on the part of the landlord to have impleaded the second respondent as a party to the original eviction petition because the said respondent did not have a legal right to be heard in view of Section 13(2) of the Act. However, Mr. Mehta questions the correctness of the findings of the executing court in regard to the previous consent of the landlord by relying upon the agreement between the first and the second respondent creating a s .....

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..... n any manner in favour of second respondent because the second respondent could not have independently relied upon the terms of the agreement between it and the first respondent to establish the previous written consent of the appellant. This being a mandatory requirement of law, in our opinion, the second respondent has failed to establish this mandatory requirement of the Act i.e. Section 14 of the Act. It is also to be noted that as per the judgment of the executing court, the second requirement of the statute, namely, issuance of a written notice of creation of sub-tenancy by the sub-tenant under Section 16 is also not complied with in the instant case. This factum of non-issuance of notice as required under Section 16 is not disputed by learned counsel for respondent No.2. But the contention in regard to this was that the requirement of issuance of notice by the sub-tenant to the landlord within the time stipulated and the manner stipulated in Section 16 was not a mandatory requirement and the same is only directory and in view of the facts and circumstances of this case, a failure of issuance of such notice to the landlord would not vitiate the tenancy created in favour of se .....

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..... creation of tenancy or had acted in any manner in furtherance of creation of tenancies like acceptance of rent or such similar acts which would establish an implied contract. We must now notice two judgments of this Court which have been cited before us, one of which was also cited before the High Court but the same came to be distinguished by the High Court. The first of the judgments is Shantilal Rampuria & Ors. v. M/s. Vega Trading Corpn. & Ors. (1989 3 SCC 552). In that case, this Court held : Therefore, previous consent in writing of the landlord with respect to each sub-letting separately is essential and a general authority to the tenant in this regard will not be sufficient in law. Since in the present case consent of the appellant-landlord had not been contained (sic) obtained specifically for each of the sub-tenancies the respondent-tenant must be held to have violated Section 14. The appellants have, thus, established the ground mentioned in Section 13(1)(a) and are entitled to succeed. This judgment delivered in the context of the West Bengal Act clearly holds that a notice under Section 16 of the Act is a must. Similarly, this Court in Silverline Forum Pvt. Lt .....

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