Holding

Acceptance of rent does not amount to a waiver of the landlord's statutory right to evict for unauthorised sub‑letting under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956.

Summary

The appellant, Pulin Behari Pal, was a tenant of a shop premises that was purchased by the respondents in 1973. He had sub-let the premises in 1970 without the landlord's prior written consent and continued to pay rent until January 1975. The respondents served a notice to quit on the grounds of rent default and unauthorised sub‑letting and obtained a decree for eviction. The High Court was divided on whether the landlord's acceptance of rent after learning of the sub‑letting amounted to a waiver of the statutory right to evict; the majority held no waiver. The Supreme Court examined Sections 13 and 16 of the West Bengal Premises Tenancy Act, 1956 and held that acceptance of rent does not constitute a waiver unless the landlord consciously relinquishes the right, which was not proved. Consequently, the appeal was dismissed and the tenant was ordered to vacate the premises.

Issues considered

Whether acceptance of rent by the landlord after knowledge of unauthorised sub‑letting amounts to a waiver of the right to evict under Section 13(1)(a) of the West Bengal Premises Tenancy Act, 1956.
Whether sub‑letting without prior written consent of the landlord is a ground for eviction under the same Act.
Whether non‑compliance with the notice requirements of Section 16 affects the landlord's right to evict.
Whether the doctrine of waiver can be applied independently of Sections 23 and 24 of the Act.

Legislation cited

West Bengal Premises Tenancy Act, 1956s. 13, s. 16, s. 21, s. 23, s. 24

Subjects

evictionsub‑lettingwaiverWest Bengal Premises Tenancy Actlandlord‑tenantrent acceptanceSection 13Section 16

Judgment

A PULIN BEHAR! LAL
v.
MAHADEB DUITE AND ORS.

FEBRUARY 3, 1993

B [KULDIP SINGH AND N.M. KASLIWAL, JJ.]

West Bengal Premises Tenancy Act, 1956-Sections 13 and 16-Evic-
tion on the ground of sub-letting-Previous consent in writing of the landlord
for creation of sub-tendancy-Necessary.

C House ,Rent-Eviction on the ground of default in payment of rent and
sub'/~tting- Question of waiver- Whether acceptance of rent after having
knowledge of sub-letting amounts to waiving.

The appellant was the tenant with respect to shop room on a
monthly nmt or Rs. 50. On 27th September, 1973, the respondent pur-
,D chased the premises in question from the Commissioner or Partition and
Receiver in a suit for partition between the owners or the said premises.
The appellant tenant was notified about the sale and was asked to pay rent
to the respondents.

E The respondents tiled a suit for ejectment on 12th December, 1975
in the City Civil Court on the ground or derault in payment or rent and
sub-letting. The Trial Court decreed the suit on the ground or sub-letting.
The appellant filed an appeal before the High Court against the judgement
or the Trial Court.

F The Judges of the Division Brnch of the High Court took divergent
views. While one Judge held that the plainti IT having accepted the rent even
after having the knowledge of subletting plaintiff had waived or dispensed
with their right of rorfeiture and as such directed the dismissal of the
plaintlfl's suit, the other Judge took a contrary view that under the West
G Bengal Premises Tenancy Act, 1956, a tenant was under an obligation to
pay rent to the landlord and there was no question of waiving the right of
forfeiture by accepting the rent by the landlord.

In view the difference or opinion between the two judges, the matter
was referred to a third Learned Judge, wbo agreed with the latter view.
H Thus the appeal preferred by the tenant was dismissed, against which the
472
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PULIN BEHARI v. MAHADEB DUTfE 473
present appeal by special leave was filed. A

Dismissing the appeal, this Court,

HELD : 1.01. A perusal of the provisions of Section 13 and _16 of
the Act clearly shows that when there was no previous consent in writing
of the landlord for creation of sub-tenancy it shall be a ground for eviction B
in terms of Section 13(1)(a) of the Act. Even in case of creation of
~ sub-tenancy with the consent of the landlord in writing it was necessary
to follow the future procedure prescribed under section 16(1) of the Act.
Mere knowledge or acknowledgement of rent cannot defeat the landlord's
right to get a decree for ejectment on the ground of sub-letting. Ir the view C
as contended on behalf of the applicant is accepted the provisions of both
the sections 13 and 16 would become nugatory. [476E-F]

1.02. There is a clear mandate in Section 13(1)(a) that the protec·
tion against eviction to the tenant shall not be available in case the tenant D
transfers, assigns or sub-lets in whole or in part the premises held by him
without the previous consent in writing of the landlord. [476F]

1.03. Waiver is a question of fact which depends on the facts and
circumstances of each case. lo case of waiver of any provisions of the E
Statute it is necessary to prove that there was conscious relinquishment
of the statutes. [4780]

1.04. In the instant case there is no question of waiver. It was
necessary for the tenant appellant to prove that the landlord had accepted
the rent being fully conscious that by their act they were relinquishing the F
right of eviction available to them on the ground of sub'lettiog under
)>- Section 13(1)(a) of the Act. [478El

1.05. Any acceptance of rent from the appellant in January, 1975
cannot amount to any waiver in respect of rent from the appellant in G
January, 1975 cannot amount to any waiver in respect of the right of
eviction on the ground of sub-letting. [479D]

Mis Shalimar Tar Products Ltd. v. H.C. Shanna & Ors., [1988] 1 SCC
70, relied on.
H
474 SUPREME COURT REPORTS (1993) 1 S.C.R.
A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2629 of
1980.

From the Judgment and Order dated 17.3.80/25.7.80 of the Calcutta
High Court in Original Decree No. 10 of 1980..

B Dr. Shankar Ghosh, Somnath Mukherjee and P.K. Mukherjee for the
Appellant.

Rathin Das for the Respondents.

The Judgment of the Court was delivered by
c
KASLIWAL, J. This is a tenant's appeal by grant of Special Leave
in a suit for eviction decreed against him by all the Courts.

The appellant took one road side shop room in the ground floor of
D premises No. 75; Surendra Nath Banerjee Road, Calcutta on rent @ Rs.50
per month. On 27th September, 1973 the respondents herein purchased the
premises in question from the Commissioner of Partition and Receiver in
High Court Suit No. 1183 of 1961 (Amo Kumar Dhar v. Satya Narayan Dhar
& Ors.), a suit for partition etc., between the owners of the said premises.
The said Commissioner of Partition and Receiver notified the appellant
E about the said sale and asked him to attorn his tenancy and to pay rent to ---1,
the respondents. The appellant as such started paying rent to the respon-
dent purchasers till January, 1975. On 21st May, 1975 the respondent
landlords sent a notice to quit on the ground of default in the payment of
rent and subletting. The appellant sent a reply in writing on 6th June, 1975
F denying the alleged default in payment of rent as well as subletting. The
respondents fifed a suit for ejectment on 12th December, 1975 in the City
Civil Court at Calcutta (lllrd Bench). The suit was based on the ground
of default in the payment of rent and subletting. The trial court decided
the question of default in the payment of rent in favour of the appellant
G but decided the question of sublelting against him and as such decreed the
suit by Judgment dated 12th June, 1979. The appellant aggrieved against
the aforesaid Judgment filed an appeal before the High Court.

A Division Bench of the High Court consisting of N.C. Mukherji and
Surendra Mohan Guba, JJ. heard the appeal. Guba, J. held that the
H plaintiffs had knowledge of assignment or subletting in favour of Sujoy
...
PULIN BEHAR! .v. MAHADEB DUTfE [KASLIWAL, J.] 475
Kumar Dass Gupta' much earlier than the last payment of rent in January, A
1975. In this view of the matter Guba, J. held that·the rent having been
accepted after the knowledge of subletting long before the determination
tenancy, the natural inference from this conduct would be that the plaintiffs
had waived or dispensed with their right of forfeiture. Guba, J. as such
accepted the appeal and directed the dismissal of the plaintiffs suit. N.C.
B
M11kherj~ J. disagreed with the aforesaid view of Guba, J. and according
to him the tenant's liability to eviction arose under the West Bengal
Premises Tenancy Act, 1956 {hereinafter referred to as 'the Act') once the
fact of subletting was proved. According to Mukherji, J. a· tenant under the
Act was under an obligation to pay rent to the landlord and there was no
question of waiving the right of forfeiture by accepting the rent by the C
landlord. In view of the difference of opinion between the ·two Learned
Judges the matter was referred to third Learned Judge. Mr, P.K. Banerjee
J ., The third Le:uned Judge by his order dat.ed 23rd June, 1980 agreed with
the view of N.C. Mukherji, J. The majority view being in favour of the
respondent landlords, the appeal was ultimately dismissed by the High D
Court by order dated 25th July, 1980. Aggrieved against the Judgment of
the High Court, the tenant has come in appeal to this Court. We have
heard Learned counsel for the parties and have gone through the record.
The trial court as well as all the Learned Judges including Guba, J. in the
High Court have recorded a finding of fact that there was no previous
consent in writing by the landlord for the sub-tenancy created by the tenant E
appellant. This finding of fact is binding on the appellant and cannot be
assailed before this Court. The only question on which Guha, J. held in
favour of the tenant appellant was that the rent having been accepted after
the knowledge ~f sub-letting, the natural inference from this conduct would
be that the landlords had waived the right of claiming eviction against the F
tenant. In our view in the facts and circumstances of the'Present case the
aforesaid view taken by Guba, J. is not correct. A perusal of the provisions
of Section.' 13 and 16 of the Act make the position clear. The relevant
portions of the aforesaid provisions are reproduced as under:-

Section 13 - Protection of tena/11 against eviction G

(1) Notwithstanding anything to the contrary in any other law, no order
or decree for the recovery of possession of any premises shall be made by
any Couri in favour of the landlord against a tenant except on one or more
of the following groups, namely:- H
476 SUPREME COURT REPORTS [1993) 1 S.C.R.

A (a) Where the tenant or any person residing in the
premises let to the without the previous consent in writing
of the landlord transfers, assigns or sublets in whole or in
part the premises held by him;

Section 16 - Creation and termination of sub-tenancies to be notified-
B
(1) Where after the commencement of this Act, any premises are sublet
either in whole or in part by, the tenant with the previous consent in writing
of the landlord, the tenant and every sub-tenant to whom the premises are
sublet shall give n9tice to the landlord in the prescribed manner of the
C creation of sub-tenancy within one month from the date of such subletting
and shall in the prescribed manner notify the termination of such sub-
tenancy within one month of such termination.

(2) Where before the commencement of this Act, the tenant with or
without the consent of the landlord, has sublet any premises either in whole
D or .in part, the tenant and every sub-tenant to whom the premises have been
sublet shall give notice to the landlord of such subletting in the prescribed
manner (within six months) of the commencement of this Act and shall in
the prescribed manner notify the termination of such-tenancy within one
month of such termination.

E A perusal of the above provision clearly show that when there was
no previous consent in writing of the landlord for creation of sub-tenancy
it shall be a ground for eviction in terms of Section 13(1)(a) of the Act.
Even in case of creation of such sub-tenancy with the consent of the
landlord in writing it was necessary to follow the further procedure
F prescribed under Se~tion 16(1) of the Act. Mere knowledge and/or accep-
tance of rent cannot defeat the landlord's right to get a decree for eject-
ment on the ground of sub-letting. If the view as contended on behalf of
-{
the appellant is accepted the provisions of b0th the above sections 13 and
16 would become nugatory. There is a clear mandate in Section 13(1)(a)
G that tbe protection against eviction to the tenant shall not be available in
case the tenant transfers, assigns 9r sublets in whole or in part the premises
held by him without the previous consent in writing of the landlord. It was
contended by the learned counsel for the appellant that the provision as
regards consent may be treated as mandatory but so far as the writing part
of the consent is concerned the same may be treated as directory. It was
H also contended that in the present case the sub-tenancy was created in 1970
,.
PULIN BEHAR! v. MAHADEB DUTTE (KASLIWAL, J.) 477
even before the purchase of the suit premises by the present plain- A
tiff/landlords on 27th September, 1973 and in this view of the matter the
present plaintiff/landlords cannot file a suit for eviction on the ground of
sub-letting under Section 13{l){a). Reliance in support of the above con-
tention has been placed on A.S. S11/och11a v. C. Dhamialingam, [1987] 1
sec 180. B
We find no force in the above contention. The above case relied on
by the Learned counsel for the appellant is altogether distinguishable. In
that case the relevant provision for consideration was Section 10 {2){ii)(a)
of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960. The
undisputed facts in that case as observed in the Judgement were that the c
father of the appellant landlord had granted a lease in favour of the father
of the respondent tenant prior to 1952 . The father of the appellant as also
the father of the respondent both had died and respondent was accepted
as a tenant upon the death of his father in 1968. The suit for eviction on
the ground of unlawful sub-letting was filed in 1970 by the appellant who D
had inherited the property from her father. Admittedly, neither the appel-
lant nor the respondent had any personal knowledge about the terms and
conditions of the lease nor they had any personal knowledge regarding the
circumstances in which the father of the respondent tenant had created a
sub-tenancy way back in 1952, 18 years before the institution of the suit.
Neither the appellant nor respondent had any personal knowledge as to E
whether or not the sub-tenancy was created with the written consent of the
landlord 18 years back in 1952. On these facts it was held that there was
nothing on record to show that the sub-letting which was made 18 years
before the institution of the suit was in violation of the relevant provisions
of law. There was no evidence direct or circumstantial on the basis of which F
it could be said that the lease did not confer on the father of the respondent
_),.- the right to create a subptenancy, or, that it was done without written
consent of the then landlord that is to say, the father of the appellant. Thus
in the above case the plaintiff landlord had inherited the property from her
father and had brought a suit for eviction on the ground of sub-letting G
which was created 18 years prior to the suit. This Court held that the
flouting of the law, the sin under the Rent Act must be the sin of the tenant
sought to be evicted, and not that of his father or predecessor in interest.
Respondent inherited the tenancy, not the sin, if any, of his father. The law
in its wisdom seeks to pl.lnish the guilty who commits the sin and not his
son who is innocent of the rent law offence. The above case is further H
478 SUPREME COURT REPORTS (1993] 1 S.C.R.
A distinguishable because the sub-tenancy was created in 1952 long before
the Act which came into force in 1960.

So far as the facts of the case in hand before us are quite simple.
Admittedly a sub-tenancy has been created in 1970 without consent in
B writing of the previous landlord and the only question for consideration is
whether any waiver can be applied against the present landlords merely on
account of accepting rent till January, 1975. The third Learned Judge of
the High Court has relied on the provisions of sections 23 and 24 of the
Act in order to hold that the question of waiver is only restricted under
the aforesaid two sections whic.h deal with the question of accepting rent
C deposited under Section 21 in the Court or acceptance of rent in respect
of the period of default in payment of rent where there is no proceeding
pending in the Court for the recovery of possession of the premises. In our
view there is no need of restricting the question of waiver under the
provisions of sections 23 and 24 only which deal with special kind of
D situatiqn. We are considering the question of waiver independently of the
provisions of the Act and it would be clear that there is no question of
waiver in the present case. Waiver is a question of fact which depends on
the facts and circumstances of each case. In the case of waiver of any
provisions of the Statute it is ncce.sary to prove that there was conscious
relinquishment of the advantage of such provisions of the Statute. In the
E case like the present one before us, it was necessary for the tenant appel·
!ant to prove that the landlords had accepted the rent being fully conscious
that by this act they were relinquishing the right of eviction available to
them on the ground of sub-letting under Section 13(1) (a) of the Act. The
Rent Act is for the protection of the rights of the tenants but at the same
F time it does not permit the sub-letting by a tenant without the consent in
writing of the landlord and this provision has been kept in public interest
for the benefit of the landlords and the same can only be negati~d by an
act of conscious relinquishment of such right by the landlord. We find
support in the above view in a decision of this Court in MIS Shalimar Tar
Products Ltd. v. H.C. Sham1a and Other, (1988] 1 SCC ?O. In the above
G case it was held that:

"Section 14 (1) proviso (b) and 16(2) and (3) of the Deihl
Rent Cont.rol Act enjoin the tenant to obtain con1ent of
the landlord ln,writlq to the 1peclfic Sub-lettln11. Thl1
K roqulrcm.ent 1crwl 11 publlc purpo10 i.e. to avoid di1putc
PULIN BEHAR! v. MAHADEB DUTfE [KASLIWAL, J.J 479
as to whether there was consent or not. The mere permis- . A
sion or acquiescence is not enough. There is no implied
permission. Any other interpretation of the provisions will
defeat the object of the statute and is, therefore, imper-
missible".

Apart from the circumstances mentioned above it has been further B
found established that the respondent landlord had given a notice to the
appellant to quit determining the tenancy on 21st May, 1975. In reply to
the aforesaid notice the tenant appellant had not disclosed that by a deed
of assignment dated 21st June ,1974 in favour of Sujoy Kumar Das Gupta
sub-letting had been made. Thus ·this fact was not disclosed even in the C
reply to the notice as late as 6.6.1975. This fact regarding sub-letting to
Sujoy Kumar Das Gupta came to the notice of the landlord respondent for
the first time on 15th September, 1975 when Sujoy Kumar Das Gupta, the
Sub lessee himself sent a notice through his Solicitor intimating to the
respondent landlords that partnership between Shri Gupta and appellant
had been dissolved. In the said notice it had been stated that the appellant D
Pulin Behari Pal due to old age and physical infirmities had become unable
to discharge his duties in the partnership business and as $Uch had trans·
ferred, assigned all his interest, goodwill of the business and his right, title
and interest tc the said Sujoy Das Gupta absolutely and forever. Thus any
acceptance of rent from the appellant Pulin Behari Pal in January, 1975 E
cannot am'ount to any waiver in respect of the right of eviction on the
ground of sub-letting. Be that as it may, admittedly there is no compliance
of Section 16 also in the present case and this is an additional factor on
the basis of which \he tenant appellant cannot escape the liability of
eviction.
F
· In the result we find no force in the present appeal and it is
accordingly dismissed with costs. In facts and circumstances of the case we
grant time to vacate the suit premises on or before 30th April, 1993 on
furnishing an usual und~rtaking before this Court within four weeks.
B.V.B.D. Appeal dismissed .

•