UNITED BANK OF INDIA  v.  

COOKS AND KELVEY PROPERTIES (P) LTD.  

MAY 12, 1994  

[K. RAMASWAMY AND N. VENKATACHALA, JJ.]  

Tenancy Law : 771e West Be11gal Premises Tenancy Ace, 1956:  

Section 13( J) (a)-Eviction of tenant-Protection against-Tenant  Bank inducting its employees' trade unio11 i11to suit premises to cany 011 trade  union activities-Bank receivi11g no mo11etary consideration and retaining its  power to call upon unio11 to vacate premises at any time, as also maintaining  premises and paying electricity bills, thereof-Held, existence of co11sideration,  a11 i11gredient of sub-letting 1101 present-Tena11t had been retaining legal  possession of premises-771ere is 110 transfer of right to e11joy premises by trade  union exclusively, for consideration.  

Transfer of Property Ace, 1882 : Section 105-Lease-A tenant who  transfers or assigns his righ4 in te11a11cy held by him, for consideration, creates  sub-tena11cy.  

A  

B  

c  

D  

The respondent-landlord filed a suit in the High Court for ejectment E  of the appellant-Bank, inter a(ia, on the ground that the appellant, after  taking the demised premises on rent, sub-let it to the Association of Bank's  Employees, a trade Union, without landlord's consent and thereby con- travened s.13(l)(b) . of the West Bengal Premises Tenancy Act, 1956. The  Single Judge dismissed the suit; but on appeal, the Division Bench decreed  

F  the suit. The tenant-Bank filed the appeal by special leave.  

It was contended on behalf of the appellant that the legal possession  of the demised premises was with the Bank which had control over the trade  union and had reserved the right to ask the trade union at any time to  deliver the possession back to it; that the appellant had been taking care of G  the maintena nce of the premises at its own expenses, and paying the  municipal taxes in respect thereof, but had not been collecting any rent  from the trade union. It was also contended that s.13(l )(a) has no applica- tion to the non-residential buildings. ·  

On behalf of the respondent, it was contended that the trade union H  55

56 SU PREME COURT REPORTS I 19941 SU PP. 1 S.C.R.  

A admittedly being in exclusive possession of the prembes for its trade union  activities which has no connection with the bank's activities, the only in-

ference that could be drawn was that the appellant had parted with the  

possession of the demised premises in favour of the trade union and for  

consideration, and the subletting, was therefore, established.  

B AJlowing the appeal, this Court  

HELD : 1.1. It cannot be said that the appellant had sub-let the  demised premises so as to make it liable for eviction under s .l3(l)(a) of the  

West Bengal Premises Tenancy Act, 1956. [62-D]  

C 1.2. From the evidence it is clear that though the appellant had  

D  

inducted the trade union into the suit premises for carrying on the trade  

union activities, it has not received any monetary consideration from the  

trade union. Thus, the Existence of consideration, an ingredient of sub-let·  ting, has not been proved. [61-G]  

1.3. The President of the trade union, in his cross-examination, stated  that the Bank had retained its power to call upon the Union to vacate the  

premises at any time and the Union has given such an undertaking. It is  also stated that the Bank has been maintaining the premises at its own  

expenses and also paying the electricity charges. lbus, th~ appellant had  E retained its legal control of the possession of the premises and let the trade  

u,nion to occupy it for trade union activities. Though the trade union was  in possession of the premises, the possession must be deemed to be con- structive possession held by it on behalf of the Bank. The Bank retains its  control over the trade union whose membership is confined to the  

F  employees of the Bank. In the circumstances, there is no transfer of right  to enjoy the premises by the trade union exclusively for consideration.  

[61-H, 62-A-C)  

Deepak Banerjee v. Smt. Lilabati Clrakraborty, [1987) 3 SCR 680;Jagan  Nath (deceased) through Lrs. v. 0 1ander Bhan & Ors., [1988) 1 Suppl. SCR  325; Gopal Saran v.Satya11araya11a, [1989) 1SCR767 and Delhi Stationers &  

G Printers v. Rajendra Kumar, [1990] 2 SCC 331 , relied on.  

Smt. Rajbir Kaur & Anr. v. Mis Chokesiri & Co. , [1989] 1 SCC 19 and  BJ:airab Chandra Nandan v. Ranadhir Chandra, [1988] 1 SCC 383, referred  to.  

H 2. The provision of s.13 (1)(a) of the West Bengal Premises Tenancy  

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UNITED BAN K OF INDIA v. COOKS AND KELVEY PROPERTI ES 57  

Act, 1956 applies to the residential as well as non-residential premises A  governed by the provisions of the Act. (59-D]  

3. The meaning or transfer of a right to enjoy the property for  

consideration envisaged under s.105 of the Transfer of Property Act, which  postulates that a tenant who transfers or assigns his right in the tenancy  

or any part thereof in whole or in part held by him is a sub-tenancy without B  the previous consent in writing. [61-E]  

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2972 of  

1992.  

From the Judgment and decree dated the 4th October, 1991 of the C  High Court of Calcutta in Appeal No. 309 of 1984 arising out of Suit No.  840 of 1979.  

Altaf Ahmad, A.S.G., Dr. S. Bhardwaj, Ms. Mridula Bhardwaj, Ms.  Rakhi Verma and S. Roy for the Appellant.  

Dr. Shankar Ghosh, L.K. Poddar and Vivek Gambhir for the  Respondent.  

The following order of the Court was delivered :  

D  

The respondent filed a suit. O.S. No. 840n9 on the original side of E  Calcutta High Court for ejectment of the appellant from 4th floor of  premises No. 20. Old Court House Street, Calcutta on diverse grounds  under the West Bengal Premises Tenancy Act. 1956, for short ' the Tenancy  Act'. That suit was dismissed by a learned single Judge but on appeal,  Appeal No. 309 of 1984 filed by the respondent before the Division Bench,  

F was allowed, judgment and decree of learned single Judge set aside, and  the suit was decreed on the ground of subletting under section 13(1)(a) of  the Tenancy Act. Thus, this appeal by special leave from appellate judg- ment and decree dated October 4, 1991.  

The respondent's case is, that the appellant after taking demised  premises on rent of Rs.2,250 per mensum, has inducted the United Bank G  of India Employees' Association Central Committee, a registered trade  union into the demised premises and allowed it .to have its exclusive  possession and use of the same for its trade union activities without its  (landlord's) written consent and that thereby it has contravened section  13(l)(a) of the Tenancy Act. The Division Bench upheld that case finding H

58 SU PREME COURT REPORTS [ 1994) SUPP. l S.C.R.  

A that the landlord had succeeded in proving that the bank had parted with  the possession of the demised premises in favour of the union which was  in complete and exclusive possession of the 4th floor of the premises No.  20. Old Court House Street, Calcutta, and hence there was subletting  and/or transfer of tenancy interest in favour of the third person without the  

B  consent of the landlord and as such the tenant was not entitled to any  protection under the Tenancy Act. The contention of the appellant is that  though the trade union was in possession of the demised premises, it is a  part of the appellant's trading activity and the appellant had control over  the trade union. The trade union is bound to vacate the demised premises  when appellant needs and it is the appellant which has been taking care of  

C the maintenance of the premjses at its own expenses. It has been paying  the municipal t~es, in charge of management and also has reserved ils  right to ask the trade union at any time to deliver possession back to it. It  has not been collecting any rent from the trade union. Under those  circumstances, the legal position remained with the bank and thereby it  

D had not sublet the premises to the trade union in terms of section 13(l)(a)  of the Act.  

E  

F  

On the other hand, the contention of the respondent was that in view  of the admitted fact that the working hours between the bank and the  Trade Union activities are different and the trade union is having been in  exclusive possession of the premises for its trade unjon activities which has  no connection with the bank's activities of the appellant, the only inference  that could be drawn is that the appellant had parted with the possession  of the demised premises in favour of the trade union and for consideration.  The subletting, was therefore, established by the respondent. Accordingly,  the Division Bench had considered the problem, and granted the decree.  Hence, there is no illegality in the decree granted by the Division Bench.  

The crucial question that requires our consideration is , whether the  appellant had sub-let the premises within the meaning of section 13(l )(a)  of the Tenancy Act, which postulates that notwithstanding anything to the  

G contrary in any other law, no order or decree for the recovery of possession  of any prerpises shall be made by any Court in favour of the landlord  against a tenant except on one or more of the faJlowing grounds namely :  

(a) Where the tenant or any person residing in the premises let to  H the tenant without the previous consent in writing of the landlord  

t-

I  

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UNITED BANK OF INDIA v. COOKS AND KELVEY PROPERTIES 59  

transfers, assigns or sub-lets in whole or in part the premises held A  by him :  

The contention that the above provis}on has no application to the  non-residential building, although appears to be plausible ex f acie on a  closer scrutiny, it becomes clear that ·the provision makes no difference  between the residential and non-residential, in its application. It would  appear that the provision is intended to apply to any premises defined  under the Tenancy Act, and enable a landlord to get back possession of  

the premises from the tenant on the· ground envisaged thereunder. That  ground says, that if the tenant, without the previous consent in writing of  

B  

the landlord, transfers, assigns or sub-lets in whole or in part the premises C  held by him, would give a cause of action to the landlord to seek eviction  of the tenant from the demised premises. The position becomes clear when  we read clauses b, c, d, e and other related provisions vis-a-vis section14  of the Tenancy Act. Thus, it is clear that the provision applies to the  residential as well as non-residential premises governed by the provisions D  of the Tenancy Act.  

The next question is whether subletting has been established. This  Court on a consideration of the entire case law on the topic of proof of  passing of the consideration held in Smt. Rajbir Kaur & Anr. v. Mis.  Chokesiri & Co., (1989) 1SCC19 at page 43 in paragraph 59 thus: E  

"If exclusive possession is established, and the version of the  respondent as to the particulars and the incidents of the transac- tion is found acceptable in the particular facts and circumstances  of the case, it may not be impermissible for the court to draw an F  inference that the transaction was entered into with monetary  consideration in mind. lt is open to the respondent to rebut this.  Such transactions of subletting in the guise of licences are in their  very nature, clandestine arrangements between the tenant and the  subtenant and there cannot be direct evidence got. It is not, un  often, a matter for legitimate inference. The burden of making G  good a case of subletting is, of course, on the appellants. The  burden of establishing facts and contentions which supp'!rt the  party's case is on the party who takes the risk of non-persuasion.  If at the conclusion of the trial, a part-y has failed to establish these  to the appropriate standard, he will lose. Though the burden of H

A  

B  

c  

60 SU PREME COURT REPORTS I l994l SUPP. 1 S.C.R.  

proof as a m<1 ller of law remains constant throughout a trial, the  evidential burden which rests initially upon a party bearing the  legal burden. shifts according as the weight of the evidence ad- duced by the party during the trial. In the circumstance of the case,  we think, that, appellants having been forced by the courts below  to have established exclusive possession of the ice-cream vendor  of a part of the demised premises and the explanation of the  transaction offered by the respondent having been found by the  courts below to be unsatisfactory and unacceptable. It was not  impermissiblr. for the courts to draw an inference, having regard  to the ordinary course of human conduct, that the transaction must  have been entered into for monetary considerations. There is no  explanation forthcoming from the respondent appropriate to the  situation as found."  

In Dipak Banerjee v. Smt. Lilabati Chakraborty, [19871 3 SCR 680 at page  D 684, this Court held that the question whether the alleged sub-tenant was  

in exclusive possession of the part of the premises .................. the essential  ingredient necessary for a finding, is that the sub-tenancy must be m  exclusive possession and for consideration.  

This was reiterated in Jagan Nath (deceased) through L.R's. v.  E Chander Bhan & Ors., (1988) 1 Suppl. SCR 325.  

F  

G  

In Gopal Saran v. Satyanarayana, (1989) 1 SCR 767 at page 789, this  Court held that :  

"Having regard to the quality, nature and degree of the occupation  of the transferee and the facts found, it cannot be said that either  there was any assignment or sub-letting or parting with possession  to such a degree by permitting the boarding that the tenant had  lost interest. He was using this premises for his benefit. Unless the  tenant has infracted the Prohibition Act, he is not liable to be  evicted. The case rests on the express provisions of the Act and  there is no scope to explore the latent purpose of the Act".  

Considering all these cases in Delhi Stationers & Printers v. Rajendra  Kumar, (1990J 2 SCC 331 at page 333, in paragraph 5, this Court reiterated  

H that.

U ITED BANK OF INDIA 1·. COOKS ANO KELVEY PROPERTIE 61  

"Parting of the legal possession means possession with the right to A  include and also a right lo exclude others. Mere occupation is not  sufficient to inf er either sub-tenancy or parting with possession".  

In Bhairab Chandra Nandan v. Ranadhir Chandra, 119 8] l SCC 3 3  al page 387 relied upon by Dr. Shankar G~ose, the question was, whether B  one brother who had taken the premises on lease but admiuedly residing  in another premises, parted with possession in favo ur of his other brother  Manadhir who was in occupation of the premises, was a sub-tenant or not.  This Court on consideration of the said facts, held that the lease and  licence pleaded by the tenant was not right. It was a case of sublelling  without the consent of the landlord and that, therefore, the decree of C  eviction was upheld. The question, as stated earlier, is \".'hether the appel- lant had sublet the premises? It is seen that under section 105 of the  Transfer of Property Act, the lease has been ' defined as the transfer of a  right lo enjoy such property, made for a certain time, express or implied,  or in perpetuity, in consideration of a price paid or promised, or of money, D  a share of crops, service or any other thing of value, to be rendered  periodically or on specified occasions to the transferor by the transferee,  who accepts the transfer on such terms. Section 13(1)(a) does not define  the word 'transfer', Section 14 of the Tenancy Act provides for penalty for  subletting. The meaning of transfer of a right to ei:ijoy the property for  consideration envisaged under section 105 of the Transfer of Property Act, E  which postulates that a terant who transfers or assigns his right in the  tenancy or any part thereof in whole or in part held by him is a sub-tenancy  without the previous consent in writing. When the sub-tenancy was created,  the sub-tenant is liable for prosecution under Section 14 read with section  13(3) of the Tenancy Act. When it is a penalty as provided under section F  14 for transfer or assignment of the right in the tenancy in whole or in part  of the premises held By the tenant in favour of the sub-tenant, the sub-lease  envisaged under section 105 of the Transfer of Property Act would equally  apply.  

From the .evidence, it is clear that though the appellant had inducted G  the trade union into the premises for carrying on the trade union activities,  the bank has not received any monetary consideration from the trade  union, which was permitted to use and enjoy it for its trade union activities.  It is elicited in the cross-examination of the President of the -trade unicm  that the bank had retained its power to a call upon the union f') vacate the H

62 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R:  

A premises at any time and they had undertaken to vacate the premises. It is  also elicited in the cross-examination that the bank bas been maintaining  the premises at its own expenses and also paying the electricity charges  consumed by the trade union for using the demised premises. Under these  

circumstances, the inference that could be drawn is that the appellant had  

B  retained its legal control of the possession and let the trade union to occupy  the premises for its trade union activities. Therefore, the only conclusion  

that could be reached is that though exclusive possession of the demised  premises was given to the trade union, the possession must be deemed to  be constructive possession held by it on behalf of the bank for using the  

premises for trade union activities so-long as the union used the premises  C for trade union activities. The Bank retains its control over the trade union  

whose membership is only confined to the employees of the bank. Under  these circumstances, the inevitable conclusion is, that there is no transfer  of right to enjoy the premises by the trade union exclusively, for considera- tion. Thereby, the existence of consideration an ingredient of the subletting  

D bas not been present to hold that the respondent had sublet as would make  it liable for eviction under section 13(1)(a) of the Tenancy Act. The appeal  is accordingly allowed. The judgment and decree of the Appellate Court  is set aside, trial court judgment is confirmed, but in the circumstances, the  parties are directed to bear their own costs throughout.  

R.P. Appeal allowed.