N Criminal Appeal No 8 of 1951
Appeal from an Order of the High Court of Bombay Bavdekar and Chainani JJ dated 20th February 1950 in Criminal Appeal No 106 of 1950 arising out of an order dated 9th January 1950 of the Presidency Magistrate 19th Court Esplanade Bombay in Case No 10879P of 1949
The facts are stated in the judgment
Iswarlal C Dalai and RB Dalai for the appellant
CK Daphtary Solicitor General for India G N Joshi with him for the Republic of India respondent No 1Jindra Lal for the respondent No 2 1952
February 1
The Judgment of the Court was deliv ered by CHANDRASEKHARA AIYAR J
The facts out of which this Crimi nal Appeal has arisen are not long
The appellant WH King who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises was the tenant of a flat on the second floor of a building called Ganga Vihar Marine Drive Bombay which belongs to a lady named Durgeshwari Devi
The tenancy was a monthly one the rent being Rs 215
It is said that the appellant wanted to go to the United Kingdom for treatment of his failing eye sight and he got into touch with the complainant Mulchand Kodumal Bhatia who is the second respondent in this appeal through one Sayed for the purpose of making necessary ar rangements about the flat occupied by him in view of his intended departure
The prosecution case is that the accused demanded a sum of Rs 30000 which was later on reduced to Rs 29500 as consideration for putting the complainant in vacant possession of the flat and an additional amount of Rs 2000 for the furniture and that the complainant agreed to pay these sums
The complainant actually paid the accused two sums of 420 Rs 500 each on 7th November 1948 and 17th November 1948
He however got into touch with the police on 1 12 1948 and in conjunction with the latter a trap was laid for the appellant
It was arranged that the complainant should bring with him Rs 1000 being the balance due in respect of the furniture and that the police would give him Rs 29500 to be paid to the appellant
The complainant and a Sub Inspec tor posing as the complainant s brother went to the appel lant on 4 12 1948 and paid him the two sums of money and the keys of the flat and the motor garage were handed over to the complainant
As the appellant and his wife were leaving the flat the man who masqueraded as the complain ant s brother threw off his disguise and disclosed his identity
The police party who were down below ready for the raid held up the car of the appellant and recovered the sum of Rs 30500 from the rear seat of the car and also some papers a typed draft of a partnership agreement be tween the complainant and the appellant and an application form for permission to occupy the building as caretaker
From the complainant were recovered the bunch of keys and the documents that were handed over to him by the appellant namely the letter handing vacant possession Exhibit D
the receipt for Rs 2000 for the articles of furniture Exhibit E a letter to the Bombay Gas Company for transfer of the gas connection to the name of the complainant Exhib it F and the letter to the Bombay Electric Supply and Transport Committee for transfer of the telephone connec tions and the deposit of Rs 27 Exhibit G
The appellant was charged under section 181 of the Bombay Rents Hotel and Lodging House Rates Control Act LVII of 1947 for receiving a pugree of Rs 29500 and he was further charged under section 192 of the said Act for receiving the said sum as a condition for the relin quishment of his tenancy
His wife who was the second accused in the case was charged with aiding and abetting her husband in the commission of the two offences
421 The defence of the appellant was that he was in search of a partner to carry on his business during his intended absence who was also to act as caretaker of his flat anal that it was in this connection and with this object in view that he entered into negotiations with the complain ant
The sum of Rs 29 500 was not pugree but represented capital for 0 12 0 share in the business and as the com plainant was also to be a caretaker of the flat the sum of Rs 2000 was paid and received as a guarantee against disposal and damage of the furniture and it was agreed to be paid back on the appellant s return to India
The wife of the appellant denied any aiding and abetting
The Presidency Magistrate who tried the case disbe lieved the defence on the facts holding that what was received by the accused was by way of pugree
As section 18 1 of the Act was not applicable he convicted him under section 192 of the Act and sentenced him in view of his old age and blindness to one day s simple imprisonment and a fine of Rs 30000
The wife was acquitted the evidence being insufficient to prove any abetment
The appellant preferred an appeal to the High Court of Bombay but it was summarily dismissed on 20 2 1950
He asked for a certificate under article 1341c of the Constitution but this was rejected on 10 4 1950
Thereaf ter he applied for special leave to appeal to this Court and it was granted on 3 10 1950
A short legal argument was advanced on behalf of the appellant based on the language of section 19 1 of the Act and this is the only point which requires our consideration
The section which consists of two parts is in these terms 1 It shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration as a condi tion for the relinquishment of his tenancy of any premises 422 2 Any tenant or person who in contravention of the provisions of sub section 1 receives any sum or considera tion shall on conviction be punished with imprisonment for a term which may extend to 6 months and shall also be pun ished with fine which shall not be less than the sum or the value of the consideration received by him
 It was urged that the offence arises only on receipt of any sum or any consideration as a condition of the relin quishment by a tenant of his tenancy and that in the present case there was no such relinquishment
Exhibit D which is the most material document under which the appellant handed over vacant possession of the flat to the complainant constitutes or evidences an assignment of the tenancy and not a relinquishment
It says  I WH King hereby hand over vacant possession of my flat No 3 situated on 2nd floor and garage No 4 on the ground floor of Ganga Vihar Building on Plot No 55 situated on Marine Drive Road to Mr Mulchand Kodumal Bhatia from this day onward and that I have no claim whatsoever over this flat and Mr Mulchand Kodumal Bhatia will pay the rent directly to the landlord
 The argument raised on behalf of the appellant appears to us to be sound and has to be accepted
The learned Solic itor General urged that the word relinquishment was not a term of art and was used in the section not in any strict technical sense but in its comprehensive meaning as giving up of possession of the premises and he pointed out that if it was intended by the legislature that relinquish ment should have the limited meaning sought to be placed upon it on behalf of the appellant the word surrender used in the Transfer of Property Act would have been more appropriate
Sections 15 and 18 of the Act were referred to in this connection but in our opinion they lend no assist ance to the argument of the learned counsel
Any sublet ting assignment or transfer in any other manner of his interest by the tenant is made unlawful under 423 section 15
Section 18 deals with the grant renewal or continuance of a lease of any premises or the giving of his consent by the landlord to the transfer of a lease by sub lease or otherwise and it provides that the landlord who receives any fine premium or other like sum or deposit or any consideration for the grant renewal or continuance or the accord of consent oh would be guilty of an offence and liable to the punishment therein specified
It would thus be seen that an assignment of the lease or transfer in any other manner by a tenant is not made an offence the statute merely says that it is not a lawful transaction
It is the landlord s consent to the transfer of a lease by sub lease or otherwise on receipt of consideration that has been made an offence
Then follows section 19 which speaks of the relinquishment of his tenancy of any premises by a tenant
If by the expression an assignment such as we have in the present case was meant appropriate words could have been used such as the transfer by a tenant of his interest which we find in section 108 sub clause i of the Trans fer of Property Act
The distinction between an assignment on the one hand and relinquishment or surrender on the other is too plain to be ignored
In the case of an assignment the assignor contin ues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contrac tual while the assignee becomes liable by reason of privity of estate
The consent of the landlord to an assignment is not necessary in the absence of a contract or local usage to the contrary
But in the case of relinquishment it cannot be a unilateral transaction it can only be in favour of the lessor by mutual agreement between them
The relin quishment of possession must be to the lessor or one who holds his interest
In fact a surrender or relinquishment terminates the lessee s rights and lets in the lessor
It is no doubt true that the word relinquishment does not occur in the Transfer of Property Act but it is found in many of the Tenancy Acts in various provinces where there are Sec tions which deal with the 55 424 relinquishment of their holdings by tenants in favour of the landlord by notice given to him in writing
The section in question it should be further noted does not speak of relinquishment or giving up of possessionin general terms
The words are the relinquishment of his tenancy of any premises
The relinquishment of a tenancy is equivalent to surrender by the lessee or tenant of his rights as such
Whether abandonment of a tenancy would come within the meaning of relinquishment is a question that does not arise in this appeal because in the face of Exhibit D there is no abandonment in the sense that the tenant disappeared from the scene altogether saying nothing and making no arrange ments about his interest and possession under the lease
As the statute creates an offence and imposes a penalty of fine and imprisonment the words of the section must be strictly construed in favour of the subject
We are not concerned so much with what might possibly have been intend ed as with what has been actually said in and by the language employed
As in our view there has been no relinquishment within the meaning of section 19 sub clause 1 the conviction under sub clause 2 cannot be sustained
It is set aside and the fine of Rs 30000 will be refunded if it has al ready been paid
The other parts of the order of the learned Presidency Magistrate as regards the disposal of Rs 1000 paid by the complainant to the appellant and the sum of Rs 29500 brought in by the police will however stand
Conviction sit aside
Agent for respondent No 1 PA Mehta
Agent for respondent No 2 Ganpat Rai


Summary:
Sub section 1 of sec
19 of the Bombay Rents Hotel and Lodging House Rates Control Act LVI I of 1947 provided that it shall not be lawful for the tenant or any person acting or purporting to act on behalf of the tenant to claim or receive any sum or any consideration as a condition for the relinquishment of his tenancy of any premises and sub sec
2 provided that any tenant or person who in contravention of the provisions of sub sec
1 receives any sum or consideration shall on conviction be punished with imprisonment and also with fine
A who was a tenant of a flat handed over vacant posses sion the flat to B on receiving pugree under a document which recited that A shall have no claim whatever over the flat and that B shall pay the rent directly to the landlord
A was convicted of an offence under sec
19 2
Held that there was no relinquishment of his tenancy by A within the meaning of sec
19 1 and the conviction could not be sustained
There is a clear distinction between an assignment of a tenancy on the one hand and a relinquishment or surrender on the other
In the case of an assignment the assignor con tinues to be liable to the landlord for the performance of his obligations under the tenancy and this liability is contractual while the assignee becomes liable by reason of privity of estate
The consent of the landlord to an as signment is not necessary in the absence of a contract or local usage to the contrary
But in the case of relinquish ment it cannot be a unilateral transaction it can only be in favour of the lessor by mutual agreement between them
Relinquishment of possession must be to the lessor or one who holds his interest and surrender or relinquishment terminates the lessee s rights and lets in the lessor
As sec
19 of Bombay Act LVII of 1947 creates an offence and imposes a penalty of fine and imprisonment the words of the section must be strictly construed in favour of the subject
The Court is not concerned so much with what might possibly have been intended as with what has been actually said in and by the language employed in the statute
Judgment of the Bombay High Court reversed