judgement:
Appeal No. 168 of 1963.
Appeal by special Leave from the judgment and decree dated May 1, 1962, of the Gujarat High Court in Appeal from Order No. 46 of 1962.
I.M. Nanavati, 1.
B. Dadachanji 0.
C. Mathur and Ravinder Narain, for the appellant.
S.T. Desai, M. M. Shah and I. N. Shroff, for the res pondents.
September 5, 1963.
A. K. Sarkar, J. delivered a dissenting opinion.
The judgment of M. Hidayatullah and J. C. Shah, jj. was delivered by Shah, J. SARKAR J.
In my opinion this appeal should succeed.
The respondent landlords demised certain premises to 895 Maneklal Mafatlal for a term of five years from March 5, 1950.
The tenant continued in possession after the expiry of the term under the protection from eviction given by the Bombay Rents and Lodging House Rates (Control) Act, 1947 which came into force on February 2, 1948.
On April 27, 1956, the landlords filed a suit against him for eviction for non payment of rent and obtaineda decree on June 22, 1960.
While this suit was pending the tenant sub let a part of the demised premises to the appellant.
In execution of the decree the landlords got possession of a small part 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 section 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 section
(1) of section 12 of the Act which provides that a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays rent and observes and performs the conditions of the tenancy as provided in the section.
The tenant contemplated in sub section
(1) of section 12 is plainly a tenant whose had come to an end.
The Act at various places uses the word "tenant" as including such a person and also defines the word "tenant" in section 5(11) (b) as including "any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person .
" ' 896 Such a person has been called a statutory tenant and I shall also use that description for economy of expression.
The landlords contend that though by virtue of section 12(1) of the Act the tenant could not be evicted after the expiry of his lease, yet he had then lost all interest in the demised premises and could not, therefore, sub let the same.
How it may be that under the general law of landlord and tenant, a tenant has no right to sub let after the expiry of the lease but we have here a statute which has altered that law in many ways.
The power of tenant to sub let cannot therefore be decided by reference to the general law of landlord and tenant but the Act must be examined to see how it affects that power.
In my opinion such a power in a statutory tenant is contemplated by the Act and in particular by cl.
(e) of sub section
(1) of section 13.
That section lays down the circumstances in which a landlord notwithstanding the bar in section 12(1), can get a decree in ejectment against the tenant and the part of it to which I wish to refer is in these terms : section 13.
(1) "Notwithstanding 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 sub let the whole or part of the premises or assigned or transferred in any other manner his interest therein;" This clause plainly contemplates a tenant sub letting and this is not in dispute.
But it is said that the tenant here referred to is one whose lease has not expired whom I will for short call a contractual tenant as to whose power to sub let there is no question.
The reason given in support of this view is that a statutory 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 section 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 897 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 section 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 section 13(1) the word "tenant" clearly includes both a statutory and a contractual tenant and, therefore, the section contemplates the word "tenant" being used in ,more than one sense.
The fact that the clause talks of ,a contractual tenant alone assigning does not provide a context preventing the word "tenant" when it talks of the tenant sub letting, as being understood in the sense of a statutory tenant.
Another contention advanced draws its force from the word "sub let".
It proceeds on the basis that the word " sub let" can only mean transfer of an estate.
It is said that cl.
(e) by using the word "sub let" indicated that it did not contemplate a statutory tenant as he could not sub let for he had no interest in the demised premises.
No authority has been brought to our attention in support of the contention that letting or sub letting necessarily means transfer of estate or property and I do not think that it is well founded.
Decisions of Courts in England to which I will later refer, have held that a statutory tenant who has no estate or property in the demised premises, can sub let.
When the clause talks of a statutory tenant sub letting, it may not be contemplating transfer ,of property.
The Act undoubtedly creates rights in the tenant in respect of the property.
He can maintain an ,action for trespass against any one including the landlord, illegally depriving him of the possession of property.
He ,has at least this interest in the property that he can require possession of, it to be delivered to him.
It is not as if his 898 right is one only of a personal action in damages.
The sub letting contemplated in cl.
(e) of section 13(1) may be of ' this statutory right in the property.
It would be no answer to this to say that the right impersonal, for the right would not be personal in the strict sense if it can be sublet.
In Baker vs Turner(1) Lord Porter approved of the observation of Scrutton L. J. in Keeves vs Dean(2) about a statutory tenant that "Parliament has certainly called him a tenant, and he appears to me to have something more than a personal right against his landlord".
Then it was said that under the clause unlawful subletting as also unlawful assignment and transfer were grounds for eviction and if the clause implied a power in the statutory tenant to lawfully sub let 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 sections 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 against eviction under section 12(1) would have been lost by non observance of a condition of the tenancy.
Therefore, it seems to me that the present contention of the landlords wholly lacks foundation.
But assume I am wrong; that cl.
(e) contemplates unlawful assignment or transfer of a tenant 's interest in the 1 , 416. 2 , 644. 899 demised premises.
A statute can well authorise a statutory tenant to assign or transfer his interest in the demised premises.
Indeed section 17 of the English Rent Act of 1957 provides for the transfer of a statutory tenancy.
It cannot be said that assignments or transfers of statutory tenancies are inconceivable.
It has to be remembered that there is no authority for the proposition that a statutory tenant has no interest in the demised premises and this is at the basis of the theory, which I think is misconceived, that a statutory tenant cannot transfer his tenancy.
It is true that he has no estate or property in the demised premises, but that is a different matter.
He has none the less an interest, a right in the premises occupied by him, which he may be empowered to transfer.
Lastly, I am unable to agree that because a statutory tenant cannot transfer, assuming that to be so, that would show that the word "tenant" in cl.
(e) must be understood as referring to a contractual tenant only.
I think the word must have the meanings given in the definition including the meaning of a statutory tenant unless the context otherwise indicates.
No such indication can be said to be present merely because the word in one part of the clause refers to a contractual tenant only.
In Roe vs Russel, (1) the Court of appeal in England held that section 4(1)(h) of the Rent and Mortgage Interest (Restrictions) Act, 1923 which provided that no order for ejectment of a tenant from a dwelling house shall be made unless "(h) the tenant without the consent of the landlord has. . assigned or sub let the whole of the dwelling house or sub let part of the dwelling house, the remainder being already sub let", indicated that a statutory tenant had the power to sub let a part of the premises.
In this case it had been held that the statutory tenant had no estate or property as a tenant at all but had a purely personal right to possess, but that did not create any difficulty in the way of the Court holding that he had power to sub let.
All subsequent cases in England have accepted that Roe vs Russel(1) has laid down the law correctly.
I entirely agree with that view.
In Campbell vs Lill,(2), which is an earlier case and which took the same view as Roe vs, Russel,(1) the argument that section 1 (2) 900 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.
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 section 13(1)(e) of the Bombay Act and section 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 no reason for saying that section 13(1) (e) of the Bombay Act did not imply a power in a statutory tenant to sub let lawfully for what was penalised was only an unlawful subletting.
There is, therefore, some support for the view that I have taken.
The learned judge in the High Court did not question the correctness of the decision in Roe vs Russel(1) but sought to distinguish it from the present case on grounds which I have earlier discussed.
I find that case indistinguishable for the purpose of interpreting section 13(1)(e) of the Bombay Act.
Indeed if cl.
(e) of section 13(1) did not contemplate subletting by a statutory tenant as the landlords contend, the result would be most anomalous.
Therefore, in my view, the Act provides a context which indicates that the word " tenant" in that clause had been used as including a statutory tenant.
Suppose a statutory tenant does actually sublet and he and his sub tenant are content to carry out their bargain, as happened in the present case, then the landlord would not be able to take advantage of section 13 (1) (e) and evict the tenant if the contention of the landlords in this case is correct, for, ex hypothesi, the sub letting by the tenant was ineffective and, therefore, as good as not made at all.
The result would be that a contractual ten,ant sub letting would forfeit the protection under section 12(1) 1[1928] 2 K. B. 117. 901 while a statutory tenant in fact doing so would still be entitled to the protection of the Act.
This would put a statutory tenant in a better position than the contractual tenant.
An interpretation of the Act which leads to such a result would be most unnatural and it is one that I am unable to accept.
It is not contended that such an anomalous result was intended but it is said that even if the word "tenant" in cl.
(e) of section 13(1) is understood as referring to a con tractual tenant only, there is no anomaly, for the statutory tenant would by sub letting render himself liable to eviction under other provisions of the Act though not under section 13(1)(e).
It was contended that a statutory tenant is entitled to protection only so long as he remains in possession and by sub letting the statutory tenant would be forfeiting his right to protection under section 12(1) of the Act.
Therefore it was said that a statutory tenant sub letting would not be in a better position than a contractual tenant doing so.
I am unable 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 section 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 vs Russel(1) 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 vs Lill(2) 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 premises or sub lets part of them, the remainder being already sub let.
In the present case (1) 2 902 the tenant sub let a portion only and remained in pos session of the remainder.
In these circumstances, I think the tenant is protected.
" Both these cases show that under the English Act, a statutory tenant cannot be said to have parted with pos session by sub letting part of the demised premises.
It would appear that under the Bombay Act there is even less reason for saying that a statutory tenant sub letting a part of the demised premises has gone out of possession of them, for I find nothing in that Act which justifies the view that in order to be entitled to protection the statutory tenant must himself be in possession of the entire premises.
On the other hand, the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 by sub section
(1) of section 15 provided that "a tenant who by virtue of the provisions of this Act retains possession of any dwelling house. . shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy".
Notwithstanding this the view in England has been that parting with possession of a portion of the demised premises by way of sub letting does not deprive a tenant his protection under the Act.
I do not find any such express provision in our Act regarding a statutory tenant 's possession of the premises.
If the Act contemplated a statutory tenant sub letting and that is the basis on which I am examining the effect of sub letting under section 12(1) it cannot by providing that by doing so, he would be so far out of possession as to cease to be entitled to the protection of the Act.
Such an interpretation of the Act would result in one part of the Act contradicting another and would be wholly unacceptable.
I find no justification in any case for the view that subletting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act.
I think that section 13(1)(e) clearly indicates that a statutory tenant has the power to sub let.
I now set out section 14 of the Act on which the claim of the appellant is based.
"Where the interest of a tenant of any premises is determined for any reason, any sub tenant 903 to whom the premises or any part thereof 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 section 14 and the interest of the tenant who sub let to it had been determined.
The appellant has however still to prove that "the premises had been lawfully sub let to it.
The only provision in the Act which declares a sub letting to be unlawful is section 15.
That section is in these terms : S.15.
(1) Notwithstanding, anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification.
(2)Notwithstanding anything contained in any judgment, decree or order of a Court or any contract, 904 the bar against sub letting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees, assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amend ment) Ordinance, 1959 and as continue in possession at such commencement, have no effect and be deemed never to have had any effect.
It is said that the section is confined only to contractual tenancies.
The argument is that sub section
(1) makes subletting by contractual tenants after the date mentioned unlawful excepting where the contract otherwise provides and that sub section
(2) saves from this illegality certain varieties of sub lettings by the tenants.
It is however not in dispute that if the section applies to sub lettings by statutory tenants, then the present sub letting to the appellant would be saved by sub section
It is said that the words "but subject to any contract to the contrary" in sub section
(1) of section 15 show that that section was intended to refer to sub lettings by contractual tenants only.
It seems to me that even if those words are applicable only when a contractual tenant sub lets, as to which I have some doubts, that would not lead to the conclusion that the tenant there referred to is only a con tractual tenant.
Those words would only be applicable where a covenant permitting sub letting is contained in the lease.
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 section 15 deals only with a contractual tenant.
But what happens if section 15 does not apply to a statutory tenant? It was said that that would then show that 905 a statutory tenant cannot at all sub let.
If apart from section 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 section 15 applies to a contractual tenant alone, would be that a sub letting by a tenant would not have been made unlawful by the section.
If that is so, then also the appellant 's claim under section 14 would become unchallengable.
Whatever view is taken of section 15, it is impossible to say that the section makes the sub letting to the appellant in the present case unlawful.
It is unnecessary to go into any question of the Act contemplating a sub letting which was unlawful for rea sons other than those mentioned in it, for it has not been contended that the sub letting in the present case was for any such reason unlawful.
The result is that the sub let ting to the appellant must be held to have been lawful.
One other matter remains to be dealt with.
It was said, and this is not in dispute, that the sub letting to the appellant took place after the landlords had filed their suit against the tenant which resulted in a decree for ejectment to which I have earlier referred.
It was con tended that the appellant was, therefore, bound by the decree in view of section 52 of the Transfer of Property Act.
On behalf of the appellant it was said that that section was amended so far as Bombay was concerned by Bombay Act 14 of 1939 and the amended section required certain notice to be given before the sub letting could be affected by the principle of lis pendens stated in the section.
I do not think it necessary to deal with this contention for in my view, even section 52 as it stands in the Transfer of Property Act without any amendment does not affect the sub letting in this case.
The first thing that I wish to point out is that, that section does not make any transfer of property illegal.
Therefore, the section does not justify the view that the subletting to the, appellant, assuming it was a transfer of property, as to which doubts may legitimately arise, was.
in any way unlawful or invalid.
If any authority is needed for this proposition, reference may be made to Veyin 58 2 S C India/64 906 dramuthu Pillai vs Maya Nandan.(1) All that section 52 does is to provide that pending a litigation concerning property, the property cannot be transferred so as to affect the rights of any party thereto under the decree that may be passed in the suit.
The only effect then of the section is that the rights of the decree holder under the decree are not to be affected by the transfer.
Now the rights of a landlord who gets a decree for possession of property against his tenant are those men tionEd 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 vs lyotish Chandra Banerji(2).
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 section 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 section 14.
Section 52 could not be resorted to by the landlords in the present case to evict the appellant.
I would for these reasons allow the appeal.
SHAH, J. A lease of the ground and the first floors of a building named 'Anand Bhavan ' in the town of Ahmedabad was granted by the trustees of the trust named "Anandji Kalyanji Pedhi" to one Maneklal, for five years commencing from March 5, 1950 at a monthly rental of Rs. 2,000/. A suit instituted by the trustees in the Court of Small Causes (which is the Court competent under (1) Mad. 696.
(2) Cal.
907 s.28 of the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947 hereinafter called 'the Act ' to entertain the suit) against Maneklal after the expiration of the period of the lease for a decree in ejectment and for arrears of rent was decreed on June 22, 1960.
In execution of the decree the trustees obtained possession of the first floor but were obstructed as to the rest by a private limited company called "Anand Nivas Private Ltd.
" and two others who claimed to be sub Iessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon the determination of the tenancy of Maneklal.
Anand Nivas Private Ltd which will hereinafter be called 'the Company ' filed Suit No. 2814 in the Court of Small Causes at Ahmedabad for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree in the suit filed by the trustees against Maneklal and for an induction restraining the trustees from enforcing the decree.
The Company 's application for an injuction restraining the trustees from obtaining possession in enforcement of the decree obtained by them against the tenant was dismissed by the Court of First Instance.
In appeal against that order the District Judge, Ahmedabad refused an interim injuction restraining the trustees from executing the decree pending the hearing and disposal of the appeal.
The High Court of Gujarat was then moved against that order by a petition invoking its revisional jurisdiction.
At the hearing, die petition was, by order of the Court, converted into an appeal from order refusing to grant an injuction.
The High Court dismissed the appeal holding that a "statutory tenant" remaining in possession after determination of his contractual tenancy was in law not competent to sublet the 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 section 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 908 tenant by virtue of section 14 of the Act.
This plea is supported on two grounds : (i)that the contract of tenancy in favour of the tenant expressly authorised 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 Goveronr of Bombay, retrospectively amending section 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 section 108(j) of the Transfer of Property Act", and cannot be interpreted as conferring any right on the tenant to sub let, because it "postulates the existence of a right to sublet, and provides for restrictions on the exercise of such right".
Whether the covenant in the lease authorised or recognised the power of subletting in the tenant before the period of the lease expired, need not be decided in this appeal.
It is common ground that after the expiration of the period of the lease, no extension of or fresh lease was granted to the tenant, and he could set up only such rights as the Act granted or recognised.
Sub section (1) of section 12 of the Act provides "A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.
" For the protection of tenants the clause imposes a pro hibition against the landlord against recovery of possession of the premises demised to a tenant so long as he pays or is ready and willing to pay the standard rent and permitted increases and also observes and performs the other conditions of the tenancy consistent with the provisions of the Act.
A person remaining in occupation of the premises let to him after the determination of or ex 909 piry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant.
Such a person is not a tenant at all: he has no estate or interest in the premises occupied by him.
He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy.
His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on Ms death only in the manner provided by the statute.
The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him.
But with the determination of the lease, unless the tenant acquires the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord, the terms 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 recognises 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 section 12(1) the decisions of the King 's Bench Division of the High Court in England, viz. Roe vs Russel(1) and Lewis vs Reeves(2), 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 section 15(1).
In Roe vs Russel(1) 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 premises provided the remainder was not already sublet could be claimed by a (1) (2) 910 statutory tenant relying upon the "terms and conditions" of the original contract of tenancy.
A similar view was also taken in Lewis vs Reeves(1).
In that case the widow of a statutory tenant remaining in possession, sublet a part of the premises in her occupation.
It was held that on the death of the widow the sub tenant became the direct tenant of the landlord, because subletting of a part of the premises by the widow of a statutory tenant who acquired all the rights under section 12(1)(g) of the Rent Act (10 & 11 Geo.
5 Ch.17) was lawful.
But these cases were decided on the interpretation of section 15(1) of the Act of 1920, which insofar as it is relevant, provided : "A tenant who by virtue of the provisions of this Act retains possession of any dwelling house to which this Act applies shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Act, and * * * " The terms of section 15(1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, differ materially from sub section
(1) of section 12 of Bombay Act 57 of 1947.
Whereas a tenant who retains possession, and is protected by virtue of the provisions of the English Rent Act is entitled, so long ashe retains possession, to the benefit of all the terms andconditions of the original contract of tenancy so far asthey are consistent with the provisions of the Act, the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy.
This difference in the phraseology of the two enactments is vital to the matter under discussion, and we are unable to hold assuming that the tenant was entitled to sublet the premises under the terms of the Iease that he could, relying upon section 12(1), exercise the right to sublet granted under the lease after he became a statutory tenant.
The first ground on which the claim was founded by the Company must therefore fail.
(1) 911 The second ground on which the Company claimed to be a lawful tenant of the trustees cannot also be sustained.
In the High Court it was common ground between the parties that the tenant 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 vs Sm.
Sarajubala Dassi(1) 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, recognises 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 decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired.
By the proviso it is enacted that nothing in the sub section shall apply to any suit for a decree for such recovery of possession against a tenant who has sublet the whole or a major portion of the premises for more than seven consecutive months provided that if a tenant who has sublet the major portion of the premises agrees to possess as a tenant the portion of the premises not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sublet and fix proportionately fair rent for the portion kept in possession of such tenant.
By sub section
(2) of section 13 it is provided, in so far as it is material, that where any premises or any part thereof have been or has been sublet by a tenant of the first degree, if the tenancy of such tenant (1) A.I.R. 1961 Cal.
912 is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the ground specified in clause (h) of the proviso to sub section (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord for the tenant whose tenancy has been determined.
In Krishna prosad Bose 's case(1) Sinha, J., set out certain principles governing the position of a statutory tenant of which the seventh set out below is material : "Although a statutory tenant has no estate, and although his right is a personal right, he can sublet, provided the right of subletting can be spelt out from the Rent Act in operation, either from its express terms or by necessary implication.
The sub tenant will get only such rights as are conferred by the statute" and observed that the right of the statutory tenant to sublet was clearly recognized by section 13(2), and the right of a sub tenant to become a direct tenant under the owner in certain circumstances was expressly provided for.
We are not concerned in this case to decide whether the provisions of the Act were correctly interpreted by the Court: 'it may be sufficient to observe in this case that the Court in Krishna Prosad 's case (1) held that the right of a statutory tenant to sublet was recognised by 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 : (1) A.I.R. 1961 Cal.
913 "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 without the assent of the landlord, of the premises leased to such person or Ms predecessor who has derived title before the commencement of the Bombay Rents, Hotel Lodging House Rates Control (Amendment) Ordinance, 1959; (c) any member of the tenant 's family residing with him at the time of his death as may be decided in default of agreement by the Court.
" The expression "tenant" in the different clauses is defined to mean a contractual tenant or a statutory tenant or both.
In the principal definition the expression "tenant" means only a person who is a contractual tenant because rent is payable by a contractual tenant and not by a statutory tenant.
By cl.
(a) sub tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants.
These would be sublessees, transferees or assignees of contractual tenants.
Similarly by cl.
(a) persons to whom interest in premises has been transferred in virtue of a notification issued by the State Government permitting in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification, would be transferees of contractual tenants.
Clause (b) contemplates a tenant holding over and a statutory tenant alike; it takes in a person remaining in occupation with or without the assent of the landlord, when the premises were let to him or to Ms predecessor before the commencement of the Ordinance.
Clause (c) includes in the definition the members of the family of a tenant statutory or contractual residing with him at the time of his death, as may 914 be decided in default by agreement by the Court.
Having regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act; the language of the provision and the object intended to be served thereby.
In sub section
(1) of section 12 which imposes a prohibition against a landlord recovering possession of premises, the expression "tenant" must of necessity mean a statutory tenant and not a contractual tenant, for unless the contractual tenancy is determined, the landlord has no right to recover possession.
Section 13(1)(e), in so far as it is material, provides that : "Notwithstanding 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 authorises a landlord to recover possession of premises if the tenant has unlawfully assign ed, transferred his interest in the premises or has unlaw fully sublet the premises.
A statutory tenant has no inte rest 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 con tractual 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 section 13(1).
By cl.
(e) the Legislature has recognised the right of a landlord to re cover possession if the tenant has without being so autho rised by contract, sublet in whole or in part the premises, or assigned or transferred in any other manner his interest therein.
The adverb "unlawfully" qualifies all the three verbs sublet, assigned and transferred.
That is clear from 915 the terms of section 15(1) which prohibits "subject to any con tract to the contrary" subletting of premises or assignment or transfer of interest therein.
Section 15(1) provides : "Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein : Provided that the State Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification." By cl.
(1) of section 15 all transfers and assignments of interest in the premises, and subletting of premises, by tenants are, subject to any contract to the contrary, made unlawful.
The clause however saves contracts to the contrary and to be effective can operate only in favour of contractual tenants.
A statutory tenant having no interest in the property, it was plainly unnecessary to prohibit transfer of what was ineffective.
Nor can there be letting of the premises by a statutory tenant, for letting postulates a transfer of the right to enjoy property made for a certain time, express or implied, in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction.
Section 15(1) therefore applies only to contractual tenants.
The proviso to the clause also furnishes an indication to that effect for the exemption which the Provincial Government may grant can only be in respect of leases or a class of lease.
Sub section(2) is in terms an exception to sub s.(1).
It provides that : "Notwithstanding anything contained in any judgment, decree or order of a Court or any contract.
the bar against subletting, assignment or transfer of premises contained in subsection (1) or in any contract shall, in respect of such sub lessees , assignees or transferees as have entered into possession despite the bar before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordi nance, 1959 and as continue in possession at such 916 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 section
(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 section
(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 section 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 section 13(1) entitles a landlord to obtain possession, where a contractual tenant has during the subsistence of the tenancy sublet the premises or assigned or transferred his interest therein.
Where a statutory tenant has purported to sublet the premises, or has purported to assign or transfer his interest therein, and in pursuance of such a transaction parted with possession, he would forthwith forfeit the protection which the statute accords to him by section 12(1).
In the light of this legal position the claim of the Company founded on section 14 may be considered.
The section enacts : "Where the interest of a tenant of any premises is determined for any reason, any sub tenant to whom the premises or any part thereof have been lawfully sublet 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.
" There is abundant indication in the section that it applies to contractual tenancies alone.
In the first instance it speaks of the interest of the tenant and determination of 917 that interest.
It then invests a sub tenant to whom the premises have been lawfully sublet before the date of the Ordinance with the rights of a tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued.
The subletting to be lawful must be permitted by contract, or validated by sub section
(2) of section 15.
The object of section 14 is to protect sub tenants.
By that section forfeiture of the rights of the tenant in any of the contingencies set out in section 13 does not in all cases destroy the protection to the sub tenants.
The protection which a sub tenant is entitled to claim against his own landlord (that is the head tenant) becomes on determination of the head tenancy available to him against the head landlord, but the condition on which such a claim may be sustained is that there is a lawful subletting.
A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases.
His personal right of occupation is incapable 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 section 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 section 15(2), he would still be entitled to claim the rights of a tenant under section 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.
918 Even under the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, protection was accorded to the sub tenant of a part of the premises occupied by a statutory tenant : when the statutory tenant parted with possession of the entirety of the premises occupied by him either by one subletting or more or by subletting of part and surrendered of the rest of the premises, the persons claiming a right of occupation derivatively from the statutory tenant had no protection : Solomon vs Orwell(1).
In that case a statutory tenant of a dwelling house bad sublet a part of the house, vacated the premises in her occupation by removing herself therefrom.
The landlord then filed a suit against the sub tenant who had remained in possession of a part sublet to her.
The subtenant submitted that after the surrender of the statutory tenancy, she was entitled to the same rights against the landlord as the statutory tenant had and therefore her tenancy could not be terminated by merely giving a notice to quit.
This contention was rejected by the Court holding that "a statutory tenant had no interest capable of existing in law as an estate, but merely a statutory right of occupation which could not be the subject of surrender at common law, and, therefore, when the tenant vacated the premises the sub tenant 's right of occupation automatically came to an end.
" We therefore hold that before the date of the institution of the suit, Manekal as a statutory tenant had no right to sublet the premises and the Company acquired no right of a tenant on the determination of the tenant 's right by virtue of section 14 of the Act.
One more argument remains to be considered.
It was urged on the assumption that a statutory tenant has an interest in the property occupied by him, and that by purporting to sublet he transferred that interest that the doctrine of 'ut lite pendente nihil innovetur ' enunciated in section 52 of the Transfer of Property Act did not operate against the Company and the Company was not bound by the decree obtained against the tenant.
Reliance in support of that plea was placed upon the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, XIV of 1939.
By this Act the rule of 'Lis Pendens ' applies only when a notice of the pendency 919 of the suit in which any right to immoveable property is directly and specifically in question, is registered under section 18 of the Registration Act.
The Act is some what clum sily 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 cir cumstances, 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 section 17 Code of Civil Proce dure) 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 the suit.
But this Act did not apply to the suit filed by the trustees.
The Act by section 2 applies only to notices in res pect of suits or proceedings which relate to immoveable property situate wholly or partly in Greater Bombay.
By the proviso to section 2 it may be extended by the Provincial Government by notification to notices relating to immoveable properties situate wholly or partly in such other areas as may be specified.
The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay.
Whereas the rule of 'Lis Pendens ' under the Transfer of Property Act aplies to all suits and proceedings which are not collusive in which the right to immoveable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immoveable property in the areas notified, only if a notice of suit is registered, and from the date of regis 920 tration.
The section in terms applies only to notices in respect of suits or proceedings which relate to immoveable property in the Greater Bombay Area it does not apply to any suits in which property in Greater Bombay is not the subject matter in dispute.
The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company.
By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the , was sought to be achieved.
Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act.
Enactment of this Act was necessitated because of section 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation.
It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the condi tions of the applicability of the rule of 'Lis Pendens ' was that notice of a suit or proceeding in which any right to immoveable property within the area notified under section 2 of Act XIV of 1939, is directly and specifically in question, is registered under section 18 of the Registration Act.
The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the Company.
The appeal fails and is dismissed with costs.
ORDER BY COURT The appeal is dismissed with costs.
On the Appellant 's undertaking to vacate and deliver possession of the property within one month from today, execution of the decree obtained by the Respondent in Suit No. 707 of 1956 against Maneklal Mafatlal, is stayed for one month.
September 5, 1963.

summary/full:
The respondents granted to one Maneklat for five years a lease of the ground and the first floor of a building named Anand Bhawan in the town of Ahmedabad.
After the expiration of the period of the lease, a suit was instituted by the respondents against Maneklal for a decree in ejectment and the realisation of arrears of rent.
The suit was decreed.
However, Maneklal sublet a part of the premises in his occupation to the appellant after the institution of the suit against him but before the promulgation of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959.
In execution of the decree, the respondents obtained possession of the first floor but were obstructed as to the rest by the appellant and two others who claimed to be sub lessees from Maneklal and thereby to have acquired rights of tenancy of the ground floor upon determination of the tenancy of Maneklal.
The appellant filed a suit for a declaration that it was not bound to deliver possession of the premises in its occupation in execution of the decree passed against Maneklal and for an injunction restraining the respondents form enforcing the decree.
The trial Court refused to grant the interim injunction against the respondents.
The lower appellate court also refused to issue the interim injunction.
The High Court dismissed the appeal of the appellant on the ground that a statutory tenant re 893 maining in possession after determination of its contractual tenancy was in law not competent to sublet the 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 section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended by the Ordinance of 1959.
The appellant came to this Court by Special Leave.
Held (per Hidayatullah and Shah, JJ.
Sarkar, J. dissenting) (i) Maneklal was a statutory tenant and as such had no right to sublet the premises and the appellant acquired no right of a tenant on the determination of the right of Maneklal by virtue of section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as amended in 1959.
(ii)The appellant was bound by the decree obtained by the respondents against Maneklal and it could not take advantage of the Transfer of Property Act and the Indian Registration (Bombay Amendment) Act, 1939.
By section 15(1), all transfers and assignments of interests in the premises and sub letting of premises by tenants are, subject to any contract to the contrary, made unlawful.
This provision applies only to contractual tenants and not to statutory tenants who have no interest in the property.
A statutory tenant cannot sublet the premises because subletting involves a transfer of the right to enjoy property for a certain period in consideration of price paid or promised and a statutory tenant has merely a personal right to resist eviction.
Section 15(2) is in the nature of an exception to section 15(1).
It applies to contractual tenancies.
It protects subtenants of contractual tenants and removes the bar against subletting imposed by section 15(1) as well as by contract, provided the transferee is in possession of the premises at the commencement of the Ordinance.
A statutory tenant is a person who remains in occupation of the premises let to him after the determination of or the expiration of the period of the tenancy.
He has no estate or interest in the premises occupied by him.
He merely enjoys the protection of the law in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy.
His right to remain in possession after the determination of the contractual tenancy is personal.
It is not capable of being transferred or assigned and devolves on his death only in the manner provided in the Act.
On the other hand, the right of a contractual tenant is an estate or interest in the premises and in the absence of a contract to the contrary, is transferable and the premises may be sub let by him.
Roe vs Russel, , Lewis vs Reeves, , Krishna Prasad Bose vs Sm.
Sarajubala Dassi, A.I.R. 1961 cal.
505 and Solomon vs Orwell, [1954] 1 All E. R. 874, referred to.
894 Per Sarkar, J. (1) The word 'tenant ' in section 13(1)(c) of the Bombay, Rents, Hotel and Lodging House Rates Conrtol Act, 1947 includes not only contractual tenants but also statutory tenants and a statutory tenant has the power to sublet.
There is no justification for the view that sub letting by a statutory tenant of a part of the demised premises results in a parting with possession of the premises or that such parting deprives him of the protection of the Act.
Section 13(1)(e) of the Bombay Act implies that a statutory tenant can sublet a part of the premises lawfully.
Section 15 of the Bombay Act deals not only with contractual tenants but also with statutory tenants.
The result is that the sub letting by Maneklal of the premises must be held to have been lawful.
(ii)The appellant was not bound by the decree obtained by the respondent against Maneklal.
It is true that a sub tenant under the general law of landlord and tenant is bound by the decree obtained by the landlord against the tenant for possession, though he was not made a party to the suit, but where a statue like the Bombay Act gives sub tenant a right to continue in possession even after determination of the tenancy of the statutory tenant, the sub tenant is not bound by the decree and his tenancy does not come to an end with the tenancy of the superior tenant.
A decree obtained by a landlord against his tenant does not give him a right to evict a subtenant like the appellant who is entitled to the benefits of section 14 of the Act.
Section 52 of the Transfer of Property Act cannot be resorted to by the respondents in the present case to evict the appellant.
Baker vs Turner, , Keeves vs Dean, , Roe vs Russel, , Campbell vs Lill, , Vevindramuthu Pillai vs Maya Nandan, (1920) 1.
L.R.43 Mad. 696 and Yusuf vs joytish Chandra Banerji, (1932) 1.
L. R. Cal.
739, referred to.


judgement:
ivil Appeal No. 528 of 1963.
Appeal from the 'judgment and order dated March 28, 1962 of the Rajasthan High Court in D.B. Civil Writ Petition No. 164 of 1961.
G.S. Pathak, K. Jinder, B. Dutta, d.
B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellant.
G.S. Kasliwal, Advocate General for the State of Rajasthan, S.K. Kapur and B.R.G.K. Achar, for the respondents.
October 3, 1963.
The Judgment of the Court vas delivered by SHAH J.
By order of the President of India, H.H. the Maharana Sahib Shri Bhagwat Singh Bahadur hereinafter called 'the appellant ' was recognised 3 as the Ruler of Udaipur with effect from July 4, 1955 in succession to his father the late Maharana Bhupal Singh.
A, dispute arose between the appellant and his employees in the "Motor Garage Department" about the conditions of employment and representations were made by the latter to the Government of Rajasthan through the Motor Workers Mazdoor Union, Udaipur.
The Government of the State of Rajasthan, on December 18, 1957 referred under section 10 of the (14 of 1947), the following dispute to the Industrial Tribunal, Rajasthan: "Whether the Maharana Sahib Bahadur of Udaipur is liable to pay to the staff working with him in the Palace Power House and Motor Garage, consequent to their retrenchment, the arrears of claims or the due salary, leave wages, overtime wages and weekly holidays as per schedule appended here to and if so, to what extent.
If not.
to what relief the staff is entitled to under the provisions of the , as the question of payment of the claims has arisen with the termination of their services due to retrenchment effected by the employers.
" Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That the reference to the Industrial Tribunal for adjudication of the dispute was not maintainable without the previous sanction of the Central Government to the making of the reference.
(2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the , as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent.
The Tribunal rejected both the objections and a writ petition filed by the appellant challenging the 4 validity of the order of the Tribunal was dismissed by the High Court of Rajasthan.
The appellant has appealed to this Court, with certificate granted by the High Court of Rajasthan.
The appellant contends in the first instance that without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent.
But the dispute between the parties relates to the claim made by the employees for retrenchment and other compensation and leave facilities: the dispute is raised before the Industrial Tribunal in a reference under the , and not before a civil court in a suit.
The appellant is therefore not "sued" in a court.
Section 86 Code of Civil Procedure on which reliance is placed by the first sub section provides that: "No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified 111 writing by a Secretary to that Government :" and by section 87B the provisions of section 86 apply in relation to the Ruler of any former Indian State as they apply in relation to the Ruler of a foreign State.
The appellant is recognised under article 366(22) of the Constitution as a Ruler of an Indian State, but section 86 in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit.
A proceeding which does not commence with a plaint or petition in the nature of a plaint or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure.
The proceeding for adjudication under the is rounded in a reference made by the local Government under section 10 and the allied sections under the and is not commenced by a plaint or petition.
An Industrial Tribunal is again not a court within the meaning of section 86: it is a Tribunal consti 5 tuted for adjudicating industrial disputes.
Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed.
It does not debar the commencement of proceedings for adjudication of an industrial dispute for two reasons: neither party to the proceeding is sued by the initiation of the proceeding, and the Tribunal is not a court.
It was urged however that by article 362 of the Constitution the personal rights, privileges and dignities of the Ruler of an Indian State guaranteed or assured under any agreement or covenant made prior to the Constitution are preserved, and a fetter is placed upon the exercise of power, legislative and executive, of the Union and the States, against infringement of the guarantee or assurance given under the covenant or agreements entered into by a Ruler of an Indian State.
Consequently, it is submitted, as a Ruler of an Indian State the appellant is entitled to the same privileges which a sovereign enjoy,, under rules of International Law against foreign jurisdiction, and the same immunity from being proceeded against either in the ordinary or extraordinary civil or criminal tribunals, and from payment of all taxes, and being subjected to police or other administrative regulations.
The position of the former Rulers of Indian States has, since the year 1947, been fundamentally altered.
Prior to 1947 the Indian princes were, notwithstanding the varying degree of suzerainty exercised over them by the British Crown, recognised as having a. degree of sovereignty and were in an international sense regarded qua British India as foreign sovereigns, and entitled to certain rights, privileges and immumties.
On the enactment of the Indian Independence Act, the suzerainty which the British Crown had over the Indian States lapsed and with it all the treaties and agreements in force at the date of the passing of the Act between His Majesty and the Rulers of the Indian States, all functions exercisable by His Majesty at that date with respect to Indian States, all obligations of His Majesty exist 6 ing at that date towards Indian States or the Rulers thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in or in relation to Indian States by treaty, grant, usage, sufferance or otherwise also came to an end.
Like other States the State of Udaipur executed an agreement of accession and thereby in matters of defence, external affairs and communications concerning the State, the Government of India assumed sole responsibility.
This accession was followed by a process of integration of the Indian States in Rajasthan which culminated in the formation of the United State of Rajasthan.
The Rulers of the Indian States in the Rajasthan area including the Ruler of Udaipur formed the United State of Rajasthan, under a covenant the provisions whereof were guaranteed by the Government of India.
This covenant was modified by an agreement which became effective from May 15, 1949.
On the enactment of the Constitution on January 26, 1950 the Union of Rajasthan became one of the Part 'B States, and by the Constitution (Seventh Amendment) Act, 1956, the Part 'B ' State of Rajasthan was recognised as one of the States in India.
As a result of the constitutional developments leading to the promulgation of the Constitution the father of the appellant who was at one time recognised as a sovereign of an independent State acquired the status of a citizen of India.
The appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position.
The covenant of the United State of Rajasthan to which the appellant 's father as the Ruler of Udaipur was a party consists of 20 articles.
It would be fruitless for the purpose of this appeal to catalogue all the articles dealing with the rights, privileges and dignities of the Ruler of Udaipur.
A few only need be set out.
By article XI as Ruler of a covenanting State he was entitled to receive annually from the revenues of the United State of Rajasthan for his 7 privy purse the amounts specified against his State in Sch.
1 thereof.
By article XII he remained entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties), belong ing to him on his making over the administration of that State to the Raj Pramukh.
By article XIII the Ruler of each covenanting State, as also the members of his family, were entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before August 15, 1947, and by article XIV the succession, according to law and customs, to the gaddi of each covenanting State, and the personal rights, privileges, dignities and titles of the Ruler were guaranteed.
By article XV guarantee was given against any action or proceeding in any court whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by him or under his authority during the period of his administration of that covenanting State.
The covenant is in general terms, and does not purport to make a comprehensive list of the personal rights, privileges and dignities except those which have been specifically referred to.
The agreement which came into force on May 15, 1949 makes no departure from the articles of the covenant.
The covenant which was entered into by the Rulers of the Indian States in Rajasthan and the agreement of May 15, 1949, had the concurrence of the Government of India and the provisions thereof were guaranteed by the Government of India.
In order to give constitutional recognition to the guarantees and assurances under the covenants and agreements articles 362, 363, 131 proviso and 291 were incorporated in the Constitution.
Article 362 with which we are directly concerned provides: "In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in article 8 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State." The Article declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.
It must be emphasized, that these rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them.
It is in that view unnecessary to enter upon a discussion as to.
what immunities and privileges, a foreign sovereign would be entitled to in the Republic of India.
The question on which attention must be concentrated is: does the reference of the industrial dispute by the Government of the State of Rajasthan which attracts the application of the , trench upon the guarantee or assurance under the covenant executed by the appellant 's father, with respect to the personal rights privileges and dignities of the Ruler of the State of Udaipur, and if it does so trench, are the courts competent to grant relief ? The , as originally enacted applied to British India.
But by the amendment made by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), section 34 and the Schedule thereto, the Act was extended to the whole of India except the State of Jammu and Kashmir, and since then by the enactment of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 36 of 1956, the Act extends to the whole of India.
The , therefore, applied at the material time to the territory of Rajasthan.
The appellant is a citizen of India, the Act extends to the territory of Rajasthan and prima facie he is governed by the provisions of the Act.
The plea raised by the appellant is that by virtue of article 362 of the Constitution reference of an 9 industrial dispute under the machinery provided under the Act for settlement of industrial disputes infringes the guarantee or assurance in respect of his personal rights, privileges and dignities assured to him by the covenant which formed the Union of Rajasthan.
But the plea of immunity from the jurisdiction of the Industrial Tribunal, in the matter of adjudication of an industrial dispute, because it was a personal right or privilege, was never raised in the High Court, and no evidence has been led in that behalf.
As observed in the White Paper on Indian States, para 240 at p. 125, the rights enjoyed by the Rulers varied from State to State and were exercisable both within and without the States.
They covered a variety of matters ranging from the use of red plates on cars to immunity from civil and criminal jurisdiction, and exemption from customs duties etc.
In truth no reliance at all was placed on article 362 of the Constitution in the High Court.
In the absence of evidence directed to the question whether the appellant as "Ruler of the Indian State of Udaipur" was entitled by virtue of the covenant or agreement relied upon by him to the privilege of not being proceeded against in the Industrial Tribunal, we would not be justified in entertaining his plea.
It may also be mentioned that if exemption from the jurisdiction of the Industrial Tribunal be claimed relying on the guarantee or assurance under the covenant being disputed, the questions whether the courts have jurisdiction to deal with the dispute if the covenant or the agreement was one of the nature referred tO in article 363, or the dispute relates to any right accruing under or liability or obligation arising out of any provisions of the Constitution relating to such treaty, agreement etc., may fail to be determined.
This Court in Sudhansu Shekhar Singh Deo vs State of Orissa(1) observed at p. 786: "If, despite the recommendation that due regard shall be had to the guarantee or assurance given under the covenant or agreement, the Parliament or the Legislature of a State makes laws inconsis (1) [1961] 1 S.C.R.779,786. 10 tent with the personal rights, privileges and dignities of the Ruler of an Indian State, the exercise of the legislative authority cannot, relying upon the agreement or covenant, be questioned in any court, and that is so expressly provided by article 363 of the Constitution." But whether the bar to the jurisdiction of a court arising out of article 363 can be effectively pleaded has, it must be observed, not been investigated before the High Court.
It was also not raised before us: it has fallen to be mentioned by us because it arises out of the plea raised for the first time before this Court in which reliance is placed on article 362 by the appellant.
We therefore decline to express any opinion on the questions whether by article 362 the appellant is privileged against a reference under the and also whether the courts have jurisdiction to adjudicate upon the plea set up by the appellant.
The second contention was, in our judgment, rightly negatived by the High Court.
The was applied to the territory of Rajasthan by the Industrial Disputes (Appellate Tribunal) Act (48 of 1950), and an Industrial Tribunal was thereafter constituted by notification dated June 2, 1953, under section 7 of that Act.
The was, however, amended by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act (36 of 1956), and section 7 as originally enacted was deleted and in lieu thereof sections 7, 7A. 7B and 7C were enacted.
The power to appoint an Industrial Tribunal was, under the amended act, conferred upon the appropriate Government by section 7A.
But it appears that no fresh notification appointing the Tribunal was issued under section 7A, and the Tribunal originally constituted under section 7 'functioned.
To that Tribunal reference of the present dispute was made by order dated December 18, 1957.
The High Court of Rajasthan in Writ Petition No. 107 of 1958 Mundra Metal Works Private Ltd. vs The State of Rajasthan and two others held that the reference made to the Tribunal which was constituted under section 7 of the Industrial 11 Disputes Act before it was amended by Act 36 of 1956 was incompetent.
The State Government then reconstituted the Tribunal under section 7A of the Act by notification dated April 16, 1959, but no fresh 3 reference of the dispute in the present case was made by the State Government to the reconstituted Tribunal.
Relying upon this development the appellant urged that the Tribunal reconstituted by notification dated April 16, 1959 had no jurisdiction to entertain the reference originally made, and in the absence of a fresh reference to the reconstituted Tribunal the proceeding was incompetent.
He also urged that the constitution and the appointment of the Tribunal made after March 30, 1959 were invalid.
It is unnecessary however to consider the merits of these contentions because the Legislature has remedied the defects, if any, in the constitution of the Tribunal, by enacting the Rajasthan Industrial Tribunal (Constitution and Proceedings) Validating Act, 1959, which was reserved for the consideration of the President of India and has received his assent.
By section 2(1) of ' that Act, notwithstanding any judgment, decision or order of any court and notwithstanding any defect or want of form or jurisdiction, the Industrial Tribunal for Rajasthan, constituted under section 7 of the , by Government notification dated the 2nd June, 1953, as amended by order dated the 9th March, 1956, shall, as respects the period commencing on the 10th day of March 1957 and ending with the 15th day of April, 1959, be deemed to have been duly constituted under section 7A of the said Act.
By sub section
(2) it is provided that notwithstanding any judgment, decision or order of any court all references made to and all proceedings taken and orders passed by the Industrial Tribunal constituted in sub section
(1) between the period 10th March., 1957 and 15th April, 1959, shall be deemed respectively to have been made, taken and passed as if the said Tribunal were constituted under section 7A of the Act.
It is clear from the validating provisions that the Tribunal originally constituted under section 7 of the , before it was amended by Act 36 Of 1956 is to be deemed to 12 have been duly constituted under s.7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act.
The Validating Act is, because of Item 22, List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature, and it was reserved for the consideration of the President and has received his assent.
It must by virtue of article 254(2) prevail in the State of Rajasthan.
The contentions raised in this appeal must therefore fail.
The appeal is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
A dispute arose between the appellant and his employees in the "Motor Garage department" in respect of the claim made by the employees for retrenchment and other compensation and leave facilities.
The Government of the State of Rajasthan, 'on December 18, 1957, referred under section 10 of the , the above mentioned dispute to the Industrial Tribunal, Rajasthan.
Two preliminary objections were raised before the Industrial Tribunal by the appellant against the maintainability of the reference: (1) That without the sanction of the Union Government under section 87B of the Code of Civil Procedure, the reference to the Industrial Tribunal was incompetent.
(2) That on the date when the reference was made no Industrial Tribunal was constituted under section 7A of the as amended by Act 36 of 1956, and on reconstitution of the Tribunal, the reference became incompetent.
The Tribunal rejected both the objections.
The High Court also dismissed the writ petition filed by the appellant challenging the validity of the order of the Tribunal.
Hence this appeal.
Held, (i) Section 86 read with section 87 of the Code of Civil Procedure in terms protects a Ruler from being "sued" and not against the institution of any other proceeding which is not in the nature of a suit.
A proceeding which does not commence with a plaint or petition in the nature of a plaint, or where the claim is not in respect of a dispute ordinarily triable in a civil court, would prima facie not be regarded as falling within section 86 Code of Civil Procedure.
Section 86 of the Code excludes the jurisdiction of the civil courts and must be strictly construed.
It does not debar the commencement of proceedings for adjudication of an 1/SCI New Delhi/64 1 2 industrial dispute for two reasons:neither party to the proceeding is saed by the initiation of the proceeding and the Tribunal is not a court.
(ii) Article 362 of the Constitution declares that in the exercise of legislative and executive power by the Union and the State due regard shall be had to the guarantee or assurance given under any covenant or agreement with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.
These rights, privileges and dignities which are, for historical reasons, recommended to be respected, avail the Rulers of Indian States in their status as Indian citizens and not in recognition of any sovereign authority continuing to remain vested in them.
In the present case, the appellant has also, since the Constitution, been a citizen of India, and his recognition as Ruler under article 366(22) of the Constitution has not altered that status, but as a citizen he is assured a privileged position.
(iii) By sub section
(2) of the Rajasthan Industrial Trjbunal (Constitution and Proceedings) Validating Act, 1959, the Tribunal originally constituted under section 7 of the , before the Act was amended by Act 36 of 1956, is to be deemed to have been duly constituted under section 7A, and the reference made on December 18, 1957 is to be deemed to have been made as if the Tribunal were constituted under section 7A of the amended Act.
The Validating Act is, because of Item 22 List III of the Seventh Schedule to the Constitution, within the competence of the State Legislature.
As the Act was reserved for the consideration of the President and has received his assent, by virtue of article 254(2) it must prevail in the State of Rajasthan.
Mundra Metal Works Private Ltd. vs State of Rajasthan, W.P.No. 107/58, referred to.