Civil Appeal No 1425 of 1973
From the Judgment and Order dated 2191973 of the Delhi High 1025 Court in SAO No 294 of 1972
Dr Shankar Ghosh and Rathin Das for the Appellant
AB Rohtagi Soli J Sorabjee Mrs R Swami AK Verma and Ms section Sethna for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This is an appeal by special leave directed against the judgment and order of the High Court of Delhi dated the 21st September 1973 in Second Appeal No 29472
The High Court dismissed the Second Appeal of the appellant and confirmed the decision of the Rent Control Tribunal and ordered eviction
Before the High Court three contentions were urged namely 1
The petition for eviction was not maintainable in the absence of a notice to quit while determining the tenancy 2
There was no sub letting or parting of possession by the appellant tenant in favour of RC Abrol  Company Pvt Ltd and 3
If there was such sub letting it had been made with the written consent of the landlord so was not actionable
The Rent Control Tribunal confirmed the findings against the appellant in all the three contentions and the High Court also affirmed the findings of the Rent Control Tribunal
We must note that no contention was raised before us as far as point No 1 namely notice was not served
The only contention before us was that there was no sub letting or parting of the possession by the appellant tenant in favour of RC Abrol  Company Pvt Ltd and secondly it was urged that if there was sub letting that had been made with the written consent of the landlord
The Clause 14 of the lease deed in the instant case which provides inter alia the terms and conditions is as follows Clause 14 That the lessee undertakes not to sub let the premises to any other party without the written permission of the lessor and that the lessee s contractors Ms RC Abrol  Co will share the premises with the permission of the lessor
 1026 This is in consonance also with provisions of Section 141b of the Delhi Rent Control Act 1958 hereinafter called the Act and Sub Sections 2 and 3 of Section 16 of the said Act
The first question therefore is whether there was any sub letting and secondly if so was the same with the consent in writing of the landlord
All these questions are essentially questions of facts and were held against the appellant by the Rent Control Tribunal which was the final Court of facts applying the correct propositions of law
This conclusion has been affirmed by the High Court
Before us it was pointed out by Sree Shankar Ghosh learned counsel for the appellant that it was not necessary that the consent to sub letting should be in writing and what he contended was that it was necessary to have the consent and the manner of proving consent was provided in writing
In other words he contended that the provision which required that the consent should be in writing meant it was mandatory so far as it enjoined consent but it was directory so far as it said that such consent should be in writing
Apart from the statute in this case we find it difficult to accept this argument in view of the specific clause in the statute hereinbefore
In South Asia Industries Private Ltd vs section Sarup Singh and others  Justice AK Sarkar as the learned Chief Justice then was observed that the object of interpreting a statute was to ascertain the intention of the legislature in enacting it
An interpretation defeating the object of a statute is therefore not permissible
In paragraph 11 of the judgment at page 350 the learned Judge observed as follows I notice that the lease gave no express right to the lessee to assign with or without the consent of the lessor
The lessee no doubt had that right under the Transfer of Property Act
It may be that under the clause the lessee s assignee would be included in the expression lessee as used in the lease that is the entire effect of the clause
But this would be so whether the lessor had consented to the assignment or not
therefore this clause does not lead to the conclusion that the lessor had consented to the assignment
It is of no assistance in the present case
I am also inclined to the view that the consent contemplated by Section 141 proviso b is a direct consent to a contemplated assignment to a particular assignee
See Regional Properties Ltd vs Frankenschwerth Clearly the clause in the case relied upon could not be a consent of this kind 1027 It is true that Justice RS Bachawat had expressed the view that the consent could be general or special but in the case before the Court there was no conduct which showed that there was consent by the general words of the clause in the deed
We are of the opinion on reading of the different provisions that the consent enjoined by bargain between the parties in this case must be in writing and must be to the specific sub letting
That was the view of the Delhi High Court in Raja Ram Goyal vs Ashok Kumar and others In Kartar Singh vs Shri Vijay Kumar and Another 1978 All India Rent Conrol Journal 264 the High Court of Punjab  Haryana has also expressed similar view
In the case of Ms Delhi Vanaspati Syndicate Delhi vs Ms Bhagwan Dass Faqir Chand Khanna CJ as he then was of the Delhi High Court observed at page 19 of the report Section 16 of the Act of 1958 holds the key to the interpretation of provisions of Clause b of sub section 1 of Section 14 of this Act as well as of Clause b of subsection 1 of section 13 of the Act of 1952
It deals with restrictions on sub letting
Sub section 1 of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before 9th day of June 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force
Sub section 2 of section 16 reiterates the provisions of Clause b of sub section 1 of Section 13 of the Act of 1952 and lays down that the sub letting after 9th day of June 1952 without obtaining the consent in writing of the landlord shall not be deemed to the lawful
It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant
However sub section 3 of Section 16 prohibits subletting of the premises after commencement of Act of 1958 without the previous  consent in writing of the landlord
The use of word Previous  in this sub section shows that where it was the intention of the legislature that the consent in writing should be obtained before sub letting it said so specifically
The absence of the word Previous  in subsection 2 shows that it was not the intention of the legisla 1028 ture that the consent in writing could be obtained before sub letting
Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in sub letting to escape forfeiture of tenancy
Since the absence of consent in writing by a landlord for sub letting gave rise to unnecessary litigation between a landlord and a tenant the Act of 1952 required the consent of the landlord in writing after its commencement
The purpose seemed to be that the consent of the landlord evidence by a writing would cut out litigation on this ground
After all a landlord could always agree to sub letting either before or after sub letting of the premises
For that reason no condition was laid down that such consent should be obtained before sub letting the premises
 We are in agreement with this approach to the interpretation and it is in consonance with the view expressed by this Court earlier as mentioned hereinbefore
In the aforesaid view of the matter we are of the opinion that it was necessary for the tenant to obtain the consent in writing to sub letting the premises
The mere permission or acquiescence will not do
The consent must be to the specific sub letting and must be in writing
Indeed there was no implied permission also here
Our attention was drawn to the fact that the landlord had written letter to the tenant and the landlord objected to the sub letting the moment he realised the situation
In that view of the matter we are clearly of the opinion that in this case there was no consent in writing on the part of landlord to such sub letting
Dr Shankar Ghosh tried to state that in view of the fact that the key of the premises was stated to be in the custody of the tenant there was no sub letting
It was the mere user it was urged
It is difficult to accept this contention
The case of sub letting was accepted as has been found by all the Courts in this case
Our attention was drawn to the certain observations on the question of directorymandatory nature of the requirement that consent should be in writing
Reliance was placed on the observations of Craies on Statute Law 7th Edition 261 wherein in the election case requirement that ballot paper had to be kept in a particular manner was considered to be 1029 directory and similarly it was submitted in this case the requirement of the consent to be in writing should be construed to be directory
It was urged that the conduct of the parties indicated that there was no breach of the covenant
We are unable to agree
Here the situation is clearly different
Here the requirement of consent to be in writing was to serve a public purpose ie to avoid dispute as to whether there was consent or not
Reliance was also placed on the observations of Maxwell in the Interpretation of Statutes 12th Edition at page 328 on the question of waiver Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his individual capacity
We are however in this case unable to agree
Firstly in this case there was no case of waiver
Waiver is a question of fact which has to be tested by facts and evidence
There was no conscious relinquishment of the advantage of any statute
No Court has gone into this fact
It does not seem to have been urged before the High Court also
Apart from this in this requirement of the statute which is in the public interest there cannot be any question of waiver of a right dealing with the rights of the tenants or the landlord
In Chaplin vs Smith 1926 1 King s Bench Division 198 it was held that physical possession was not sufficient there must be legal possession
The question was whether there was any consent in writing in this case
We have noticed Clause 14 of the lease deed states that the lessee will not sublet the premises or any part to any party without the written permission of the lessor except that the lessee s Contractors Ms RC Abrol  Co Pvt Ltd will share the premises with the permission of the lessor
So the permission of the lessor was there but the purpose was of the sharing with Ms RC Abrol  Co Pvt Ltd was not of leasing the premises to any other entity
For the purpose of this it is suffice for us to state that Clause 14 as enjoined did give permission of leasing the premises to Ms RC  Co Pvt Ltd which was a different entity
Dealing with this contention the High Court observed in its judgment that the company had been incorporated some time in 1957 after the commencement of the tenancy
Company was a distinct legal entity
It appears in this case that the company was composed of the different persons
The High Court noted that there was never any 1030 consent in writing of the landlord to sub letting the premises to the incorporated company
The permission must have been in writing and specific in the words of Justice Sarkar in South Asia Industries Private Ltd vs Sarup Singh and others Supra
In the case of Mehta Jagjivan Vanechand vs Doshi Vanechand AIR 1972 Gujarat 6 Justice Thakkar as he then was of the Gujarat High Court observed at page 8 of the report A similar question was raised before the Madras High Court in Gundalpalli Rangamannar Chetty vs Desu Rangiah AIR 1954 Madras 182
A reference was made to Jackson vs Simons  and the distinction drawn between physical possession and legal possession in that decision was taken into account in rejecting the contention of the landlord that there was a subletting or assignment
It has been observed by the Madras High Court in paragraph 5 of the said decision as under In Jackson vs Simons  the question was whether the tenant broke a similar covenant
The defendant who was the tenant without the plaintiffs  consent or knowledge agreed for the sum of Ls 7 per week to allow the proprietor of a night club carried on in a basement beneath the shop to the front part of the shop between the hours of 1030 PM and 2 am for the sale of tickets of admission to the club Romer J held that the arrangement conferred to estate or interest in the demised premises but was a mere privilege or licence to use portion thereof the defendant retaining the legal possession of the whole and did not therefore constitute a breach of the covenants not to assign underlet or part with the demised premises or any part thereof The Madras High Court also relied on an observation made by Scrutton LJ in Chaplin vs Smith  at p 211 wherein it was observed He did not assign nor did he underlet
He was constantly on the premises himself and kept the key of them
He did business of his own as well as business of the company
In my view he allowed the company to use the premises while he himself remained in possession of them 1031 Reliance was also placed on the Treatise of Foa on Landlord and Tenant 6th Edn
at page 323 where the law on the subject has been summarized in the following words The mere act of letting other persons into possession by the tenant and permitting them to use the premises for their own purposes is not so long as he retains the legal possesion himself a breach of the covenant After considering all these decisions the High Court of Madras extracted the following principles and came to the conclusion that a mere taking in of partners did not amount to transferring of possession and did not constitute assignment or subletting
Says the Madras High Court It is clear from the aforesaid decisions that there cannot be a sub letting unless the lessee parted with legal possession
The mere fact that another is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease
Section 105 of the Transfer of Property Act defines a lease of immovable property as to transfer of right to enjoy such property
Therefore to create a lease or sub lease a right to exclusive possession and enjoyment of the property should be conferred on another
In the present case the exclusive possession of the premises was not given to the second respondent
the first respondent continued to be the lessee though in regard to the business carried on in the premises he had taken in other partners
The partners are not given any exclusive possession of the premises or a part thereof
The first respondent continues to be in possession subject to the liability to pay rent to his landlord
The partnership deed also as I have already stated does not confer any such right in the premises on the other partners
I therefore hold in the circumstances of the case the first respondent did not sublet the premises to the second respondent and therefore he is not liable to be evicted under the provisions of Act No 25 of 1949
 The view taken by me is reinforced by the opinion expressed by the Madras High Court in the aforesaid decision
A similar view has also been taken by Saurashtra High Court in Karsandas Ramji vs Karsanji Kalyanji AIR 1953 Sau 113 at pp
114  115
In my opinion it is therefore clear 1032 that there has been no assignment or subletting in favour of the partners of the firm by the tenant so as to attract the Bar of section 131e of the Rent Act
The view taken by the lower Courts is correct and no exception can be taken thereto
There is no dispute in the legal proposition that there must be parting of the legal possession
Parting of the legal possession means possession with the right to include and also right to exclude others
That is in our opinion is the matter of fact
In this case it has been found that there was a right of possession in favour of the sub lessee RC Abrol  Co Pvt Ltd and right to exclude indeed as it appears from the narration of the fact that the company has gone into liquidation and the official liquidator has taken possession of the premises on behalf of the liquidator and that must be on the basis that it was the asset belonging to the company
In that aforesaid view of the matter we are unable to accept this proposition that there was no sub letting
Dr Shankar Ghosh drew our attention to the observations of the High Court of Delhi in the following three cases Vishwa Nath and Anr
vs Chaman Lal Khanna  Others Shri Gurdial Singh vs Shri Brij Kishore  Others 1970 Delhi Law Times 592
Ms Reliable Finance Corporation P Ltd vs Ms Clearing House and Agencies Private Ltd  Ors
1984 2 Rent Control Reporter 449
Madras Bangalore Transport Co West vs Inder Singh and Others He contended that in the light of the aforesaid authorities in this case there was no parting of legal possession in favour of the sublessee
We are unable to accept this position
In the instant case exclusive possession was given to the sub lessee and the tenant had transferred the right to possess in that portion
It is clear that subletting was done without the consent in writing of the landlord
If that is so there was inevitably breach of the covenant
In that view of the matter the High Court was right in upholding 1033 the order of the Rent Control Tribunal and directing eviction of the appellant
The appeal therefore must fail and is accordingly dismissed
In view of the fact that the appellant has been in possession of the premises for quite some time and to make its arrangements for shifting we direct the decree for eviction shall not be executed before 3061988 provided the appellant files the usual undertaking in this Court within four weeks from today
Mesne profits will be payable from 1st of December 1987  Rs7000 per month until the possession is delivered
That the appellant will hand over vacant and peaceful possession of the premises to the respondents on or before 3061988 from today
That the appellant will pay to the respondent arrears of rent if any within one month from today
That the appellant will pay to respondent further compensation for use and occupation of the premises month by month before 10th of every month
That the appellant will not induct any other person in the premises
The Court further directs that in default of compliance with any one or more of these conditions or if the undertaking is not filed as required within the stipulated time the decree shall become executable forthwith
NVK Appeal dismissed


Summary:
 The State Government of Gujarat Appellant issued a Notification dated March 311976 published in the Government Gazette dated April 8 1976 under Section 41 of the Land Acquisition Act 1894 stating that the Lands of the respondents were likely to be needed for the public purpose of providing housing accommodation for the employees of the Municipal Corporation and that after making an enquiry under section 5 A of the Land Acquisition Act 1894 the State Government had issued a declaration under section 6 of the said Act declaring that the aforesaid lands along with other lands were needed for the said public purpose
In the meanwhile the Urban Land Ceiling and Regulation Act 1976 came into force with effect from 1721976
The respondents filed statements before the Competent Authority under section 6 of the 1976 Act including the lands to be acquired which were in excess of the ceiling limit which each of the respondents could retain after the coming into force of the 1976 Act
Thereafter the respondents filed writ petitions contending that the acquisition proceedings under the Land Acquisition Act 1894 should be proceeded with and the acquisition proceedings to the extent it related to the surplus land under the ceiling law should be dropped
The applicability of the provisions of the Urban Land Ceiling and Regulation Act 1976 insofar as they were applicable within the limits of the Municipal Corporation were questioned contending that i the Act was beyond the legislative competence of Parliament insofar as the State Government of Gujarat was concerned ii that the lands in question were not vacant lands  as defined in the Act and therefore the proceedings instituted in respect of them under the Act were liable to be quashed and iii that the land acquisition proceedings under the Land 998 Acquisition Act 1894 which were initiated should be completed and the Land Acquisition Officer should be directed to pass awards in favour of the respondents
These writ petitions were contested by the appellants State
The High Court though negativing the contentions of the respondents regarding the legislative competence of Parliament to pass the Urban Land Act quashed the proceedings instituted under the Act
It however declined to issue a writ in the nature of mandamus directing the Land Acquisition Officer before whom the proceedings were commenced under the Land Acquisition Act 1894 as he was not made a party to the writ proceedings but made a declaration that the land acquisition proceedings did not suffer from any infirmity
The State Government aggrieved by the judgment of the High Court filed Special Leave Petitions to this Court
On the question whether the lands of the respondents are lands to which the Urban Land Ceiling and Regulation Act 1976 would apply
Allowing the Appeals  HELD 1
The finding of the High Court that by virtue of section 291a of the Bombay Town Planning Act 1954 the lands fell outside the definition of vacant land  in the Urban Land Act 1976 is unsustainable
The High Court omitted to notice that the owners were entitled to construct buildings on the lands after the permission was accorded by the local authority
1005C 2
The object of the Urban Land Act 1976 is to provide for the imposition of a ceiling on vacant land  in urban agglomerations for the acquisition of such land in excess of the ceiling limit and to regulate the construction of buildings on such land and to bring about an equitable distribution of land in urban agglomerations to subserve the common good
1000G 3
The question whether a piece of land is a vacant land  or not does not depend upon the fact whether a prudent man would put up a building on that land or not after the issue of a notification under section 41 of the Land Acquisition Act 1894
Nor a land will cease to be a vacant land  merely because the permission of certain authorities is to be taken to put up a building thereon
1006G H 999 4
The proceedings under the land Acquisition Act 1894 cannot have any bearing on the question whether the lands in question are vacant lands  or not for the purposes of the ceiling law contained in the Urban Land Act 1976
When the lands in question or bulk of them are likely to be acquired under the ceiling law by paying a compensation as provided therein it would not be proper to compel the Government to acquire them under the Land Acquisition Act 1894
1007D 5
Sub clause i of clause q of section 2 of the Urban Land Act 1976 does not provide that a land on which the owner cannot construct a building will cease to be vacant land  for the purposes of the Act
1007F 6
As long as construction of a building can be done on a land by some person or authority the land does not get excluded from the definition of the expression vacant land  under the Act
The lands in the instant case therefore are vacant lands  1007G Smt
Shanti Devi vs The Competent Authority under UL CR Act 1976 Delhi and others AIR 1980 Delhi 106 overruled
Prabhakar Narhar Pawar vs State of Maharashtra and Another AIR 1984 Bombay 122 and The State of UP and another vs Radha Raman Agarwal and another AIR 1987 Allahabad 272 approved