UNITED BANK OF INDIA vs. COOKS AND KELVEY PROPERTIES (P)LTD.

A U NIT ED BANK OF IN DI A v. CO OK S AND KELVEY PROPERTIES (P) LTD . MAY 1 2, 1 99 4 B [K. RAMAS WAMY AND N. VE N KAT AC HALA, JJ.] Te nan cy Law : 771 e W es t Be 11 gal Pr emi ses Te nan cy Ace, 195 6: S ec ti on 13 ( J) ( a)-Evi c ti on of tenant-Prot ec ti on ag ain s t-T e nant Bank indu c ting it s empl oyee s' tra de un io 11 i11t o suit pr emi ses to cany 0 11 trad e union activities-Bank rece ivi11g no mo11 e tary co nside rati on and re taining i ts p owe r to c all upon unio 11 to vac at e pr e mi se s at an y tim e, as also maintaining pr emises and pa y ing el ec tri ci ty bill s, th ere of-H e ld , e xi sten ce of co 11 s id e ration, c a11 i11gredi ent of s ub -le ttin g 11 01 pr ese nt-T e na11t ha d bee n re tainin g l eg al p oss es sion of pre mis es-771ere is 110 tran sfer of ri g ht to e 11j oy pr emi ses by trad e D uni on exclu s ivel y, for c on side rati on . Transfe r of Pr ope rty Ace , 188 2 : Se ct io n 105-Lea se- A te nant wh o tran sfers or as s igns his righ4 in te 11a11 cy held by him , fo r cons ide ra tion, cr ea t es s ub-tena11c y. Th e respondent-landlord filed a s uit in the Hi gh Co urt for ej ec tme nt E of the appellant-Bank, inte r a(ia, on the ground th at the appellant, af ter taking the demised premises on rent, sub-let it to the Association of Bank's Employees, a trade Union, without landlord's consent a nd thereby con- travened s.13(l)(b). of the West Bengal Premises Tenancy Act, 1956. The Single Jud ge dismissed the suit; but on appeal, the Division Bench decreed F the suit. The tenant-Bank filed the appeal by special leave. It wa s contended on behalf of the appellant that th e legal possession of the demised premises was with the Ba nk which had control over the trade union and had reserved the right to as k the tr ade union at any time to deli ve r th e possession back to it; that th e appellant had been taking care of G the maintenance of th e pr emises at its own expenses, and paying the municipal taxes in respect th ereof, but h ad not been collecting any rent from th e tr ade union. It was also contended t hat s.13(l )( a) h as no app lica- tion to the non-residential buildings. · On behalf of the respondent, it was contended that the trade union H 55 56 SU PR EME COU RT REPO RT S 1 99 41 SU PP . 1 S.C.R. I admittedly being in exclus iv e po ss e ss ion of the pre mb es for its trad e union A activities which h as no connection with the bank 's activities, the only in- ference that could be drawn was that the appellant had parted with the po ss e ss ion of th e demis ed premises in favo ur of th e trade union and for consideration, and the subletting, was therefore, established. AJlowing the appeal, this Court B HELD : 1.1. cannot be s aid that the appella nt had sub-let the It demised premi ses so as to make it liable for eviction under s. l3(l )( a) of the West Bengal Premises Tenanc y Act, 1956. [62-D] C 1.2. From the evidence it is clear that though the appellant had inducted the trade union into the s uit premi ses fo r carrying on the trade union activities, it has not received any monetary consideration from the trade union. Thu s, the Existence of consideration, an ingredient of sub-let· ting, ha s not been proved. [61-G] D 1.3. The Pre sid ent of the trade union , in his cros s-examination, stated that the Bank h ad retained its power to call upon the Union to vacate the premises at any time and the Union ha s given such an undertaking. It is also stated that the Bank ha s been maintaining th e premi ses at its own th~ expenses and al so paying the electricity charges. lbus, appellant had E retained its legal control of the possession of the premi ses a nd let the trade u,nion to occupy it for trade union activities. Th ough the trade union was in posses sion of the pr emises, the possession must be deemed to be con- structive po ss ession held by it on behalf of the Bank. The Bank retains its control over th e trade union whose member s hip is confined to the ,_ employees of the Bank. the circumstanc es, there is no tran sfer of right In to enjoy the premi ses by the trade union exclusively for consideration. [61-H, 62-A-C) F D ee pak B ane rj ee v. S mt. Lil abati Clrakraborty , [1987) 3 SCR 680;J agan v. [1988) 1 Suppl. SCR Nath (dece a se d) th roug h Lrs. 0 1 an d er Bh an & Ors., 325; Gop al Sa r an v.S atya 11ar aya 11a, [1989) 1SCR76 7 and De lh i S tat ioners & G Print ers v. R aje ndra Kumar, [1990] 2 SC C 331 , relied on . Smt. Rajbir Kaur & An r. v. Mis Chokes iri & Co. , [1989] 1 SC C 19 and BJ: ai rab Chandra Nand an v. Ranadhir C handra, [1988] 1 SCC 383, referred to. H 2. The provision of s.13(1 )(a ) of th e West Bengal Pr emises Te nancy UNIT ED B AN K OF IN DI A v. COOKS AND K ELVEY PR OPERTI 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 Tran sfer of Property Act, which postulates that a tenant who transfer s 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 conse nt in writing. [61-E] CIV IL APPELLATE J UR ISDICTI ON : Civil Appeal No. 2972 of 199 2. From the Jud gment and d ec ree dated the 4th October, 1991 of the C High Court of Calcutta in Appeal No. 309 of 19 84 a ri s in g out of Suit No. 8 40 of 1 97 9. Altaf Ahmad , A.S.G., Dr. S. Bhardwaj, Ms. Mridula Bhardwaj, M s. Rakhi Verma and S. Roy for the App e ll ant. D Dr. Shankar Ghosh, L.K. Poddar and Vivek Gambhir for the Respondent. Th e following orde r of the Court wa s delive red : The respo nd e nt fil ed a suit. O .S. No. 840 n9 on the original s ide of E Calcutta High Court for ejectme nt of th e appellant from 4th floor of premises No. 20 . Old Cou rt House Street, Calcutta on di ve r se grounds under the West Bengal Premises Tenancy Ac t. 1956, for short ' th e Tenancy Act'. That suit was dismissed by a learned single Jud ge but on a ppeal , Appeal No. 309 of 1984 filed by th e respondent before the Divi sion Bench, F wa s allowed, judgment and d ec ree of learned single Judge set aside, and the suit was d ec r ee d on the ground of s ubl etting under section 13(1)(a) of th e Tenan cy Act. Thu s, this appeal by special leave from app ellate jud g- me nt and d ec r ee dated October 4, 1991. The r es ponde nt 's case is, that the appe llant after taking demi se d pr e mi ses on rent of Rs.2,250 per mens um , has inducted the Unit ed Bank G of India Employees' Association Central Committee, a re gi s ter ed trade union into th e demi se d premises and allowed it .to have its exclusive po ssession and use of the same for its trade union activities without its (landlord' s) written con se nt and that thereby it has contra ve ned section 13(l)(a) of the Ten ancy Act. Th e Di vis ion Bench upheld that case finding H 58 SU PREME C OU RT REPOR TS [ 1 99 4) SU PP . l S.C.R. that the landlord had succeeded in pr ov in g that th e ba nk had pa rted with A th e possess io n of the de mi sed pre mi ses in fa vo ur of th e union whi ch was in co mp le te a nd ex clusi ve p os se ss ion of th e 4th fl oor of the pre mi ses No. 20. Old Court House Street, Calcutt a, and hence there wa s s ubl etting a nd /or transfer of tenancy in terest in favo ur of the third person with o ut the co nsent of the landlord a nd as such the tenant wa s not entitled to any protec ti on under the Tenancy Ac t. The conte nti on of th e appellant is that tho ugh th e trade uni on wa s in possess ion of th e de mi sed premi se s, it is a part of the appellant's trading acti vi ty and the appe ll ant had control ov er the trade unio n. The trade uni on is bound to vacate th e de mi sed pre mi ses when appe ll a nt needs a nd it is the appe ll ant whi ch h as been ta kin g care of C the maintenance of th e premjses at it s o wn e xp ense s. It has been p ay in g B t ~e s , th e muni c ip al in charge of manageme nt and also h as reser ve d i ls ri ght to ask the trade union at any tim e to de li ver po ss ession back to it. It has not been co ll ecting any rent fr om the trade uni on. Under those circ um stan ce s, the legal position rema in ed with the ba nk and thereby it D had not s ubl et the pre mi ses to th e trade union in te rm s of section 13(l)(a) of the Ac t. On the other hand, the contention of the respondent wa s that in vi ew of th e admitted fa ct that the working ho ur s between th e bank and the Trade U ni on activ iti es are different an d the trade uni on is hav in g been in ex clusi ve possession of th e premises fo r it s trade unjon activities whi ch has no co nn ec ti on with the bank's activities of the appellant, th e o nl y inference that could be drawn is that th e appe ll ant had parted with the possession of th e de mi sed pre mi ses in fa vour of the trade uni on and for consideration. The s ubl ettin g, w as therefore, es tab li shed by th e respondent. Accordingl y, the Di vi sion Bench had considered th e pro bl em, and granted th e decree. E F Hence, th ere is no ill egality in the decree granted by the Divi sion Bench. t- The crucial ques ti on that requires our cons id eration is , wh ether the appe ll ant had sub -l et the pre mi ses within the meaning of sec ti on 13(l )( a) of th e Tenancy Ac t, w hi ch postulates that notwithstanding anything to the G contrary in any other law , no order or decree for the rec ov ery of possession of any pre rpi ses sha ll be made by any Court in favour of the landlord aga in st a tenant exc ept on one or more of the faJlowing grounds namely : (a) Wh ere th e tenant or any person residing in the pre mi ses let to H the tenant without the pr evi ou s consent in writing of the landlord I ~ - v. UNITED BANK OF I NDIA COOKS AND KELVEY PROPERTIES 59 transfers, assigns or sub-lets in whole or in part the premises held A by him : Th e contention that the above pr ovis}o n has no application to th e non-residential building, although appears to be plausible ex acie on a f closer scrutin y, it becomes clear that ·the provision makes no difference be tw ee n the residential a nd non-residential, in its application. It would appear th at the pr ovis i on is intended to apply to any premises defined under the Tenan cy Act, a nd enable a landlord to get back po ssession of the premises from the tenant on th e· ground e nvi saged thereunder. That ground says, that if the tenant, without the previous consent in writing of B the landlord, tran sfer s, assigns or sub-lets in whole or in part the premises C held by him, would give a cau se of action to the landlord to seek eviction of the tenant from the demi se d premises. Th e position becomes clear when we re ad clauses b, c, d, e and other related provisions vis-a-vis section14 of the Tenancy Ac t. Thus, it is clear that the provision applies to the residential as we ll as non-resid ent ial pre mi ses governed by the provisions D of the Tenancy Act. The next question is whether subletting has been established. This Court on a cons id eration of the entire case law on the topic of proof of passing of the consideration held in Smt. Ra jbir Kaur & Anr. v. Mi s. Chokesiri & Co., (19 89 ) 1SCC1 9 at page 43 in paragraph 59 thu s: E "If exclusive possession is established, and the ve rsion of the responde nt as to th e particulars and the incide nt s of the transac- tion is fo und acceptable in the partic ul ar facts and circumstances of the case, it may not be impermissible for the court to draw an F in fe rence that the tran sa ction was e nt ered into with monetary consideration in mind. lt is open to the respondent to reb ut this. Such transactions of subletting in the gui se of licences are in their very nature, clandestine arrangements between the tenant and th e subtenant and there cannot be direct evidence got. It is not, un o ft en, a matter for legitimate inference. The burden of making G good a case of subletting is, of course, on th e appe ll ants. The burden of estab li shing facts and co ntentions w hi ch supp'!rt the party's case is on the party who takes the ri sk of non-persuasion. If at th e conclusion of the trial, a part -y has fail ed to establish these to th e appropriate standard, he w ill lose. Though the burden of H 60 SU PR EME COU RT REP O RT S l 99 4l SUPP. 1 S.C. R. I A proof as a m<1 ll er of l aw re main s co nsta nt th ro ugho ut a tri al , the ev iden tial b urd en w hi ch rests initially u po n a party bea rin g the l ega l burden. s hift s according as th e weig ht of the evi de nce ad- du ce d by the party during th e tri al. In th e c ircum stan ce of the case, we think, that, appellants h av in g been forced by the cou rts bel ow to h ave es tabli sh ed excl us ive po ssession of the i ce -cream ven dor of a part of the de mi se d pr e mi ses and th e exp lan a ti on of the tr an sac ti on offered by the r es ponde nt ha vi ng b ee n found by the co urts be low to be un satisfactory and un acceptabl e. It wa s n ot imp e rmi ss iblr. for the co urts to draw an infe re nc e, h aving regard to the ordinary course of hum an co ndu ct, th at th e transaction mu st h ave be en entered into for monetary con sideration s. There is no exp lanation forthcoming fr om the r es ponde nt appropriate to th e situation as found ." B c In Dipak Banerjee v. Smt. Lilabati Chakraborty, [1 987 1 3 SC R 680 at page D 684 , this Court held that the question whether the a ll ege d sub-tenant wa s in ex clu si ve po ssess ion of the part of the prem ises .................. th e essential ingredient necessary for a finding , is that th e s ub -tenan cy must be m ex clu s iv e possession and for consideration. Ja ga n Nath ( de cease d) through L.R' s. This was reiterated in v. E Chander Bh an & Ors ., (19 88 ) 1 Suppl. SCR 325. In Gop al S aran v. Satyanarayana, (19 89 ) 1 SCR 767 at pa ge 789, thi s Co urt held that : "Having r ega rd to the quality, nature and degree of the occupation of the transferee and the fa cts found, it ca nn ot be said that either there wa s a ny a ss ignment or s ub -letting or parting with po ssession to s uch a degree by permitting the boarding that the tenant had los t interest. He was using thi s pre mi ses fo r hi s benefit. Unl ess the tenant has infracted the Prohibition Act, he is not li ab le to be evic ted. Th e ca se rests on the express provi s ions of the Act and th ere is no scope to explore the latent purpose of the Act". F G Co nsidering all these cases in Delhi S tati one rs & Printers v. Raj en dra Kumar, (1 990 J 2 SCC 33 1 at page 333, in para gr a ph 5, this Court reiterated tha t. H 1·. U ITED BANK OF INDIA COOKS ANO K ELVEY PR OPERTIE 61 "Parting of th e leg al possession me an s po sse ssion with th e ri g ht to A in clude and al so a ri ght lo excl ud e o th er s. Mere occ up a ti on is not s uffi cie nt to inf er either s ub -tenan cy or parting with possession ". In Bhairab Chandra Na ndan v. Ranadhir Chandra, 8] l SCC 3 3 11 9 al pa ge 3 87 re li ed upon by Dr. Shankar G~o se, th e ques ti on wa s, whether B on e brother who h ad taken th e pre mi ses on lease b ut admiue dl y residing in another premises, parted with possession in favo ur of hi s other br other Man adhir who w as in occupation of the pre mi s es, was a s ub -tenant or not. This Court on co ns id era ti on of the sa id fa ct s, he ld th at the lease and li cence pleaded by the tenant wa s not ri g ht. It was a case of sublelling with o ut th e consent of the landlord and th at, therefore, th e decree of C ev iction wa s uphe ld . The ques ti on, as stated earlier, is \".' he th er the appe l- lant had sublet the pre mi ses? It is seen that under section 105 of th e Transfer of Proper ty Act, the lease h as been ' de fin ed as th e transfer of a ri g ht lo enjoy such propert y, made for a certain tim e, express or implied, or in perpetuity, in cons id eration of a pri ce p ai d or pr o mi sed, or of mon ey, D a share of crop s, service or any o th er thing of va lu e, to be rendered perio di ca ll y or on spec ifi ed occasions to th e transferor by th e trans fe ree, wh o accepts th e transfer on such te rm s. Sec ti on 13(1 )(a) does not de fin e the word 'tran sfe r', Sec ti on 14 of the Tenan cy Act provides fo r pena lt y for sublettin g. The meaning of transfer of a ri ght to e i:ijoy the property fo r cons id eration e nvi saged u nd er section 105 of th e Transf er of Property Act, E whi ch p os tulates th at a te rant who transfers or ass ign s hi s ri ght in the tenan cy or any part th ereof in wh ole or in part he ld by him is a sub-tenancy with out the pr ev iou s consent in wr iting. Wh en th e su b- te na n cy was created, the sub-tenant is li ab le fo r prosecution un der Sec ti on 14 read wi th sec ti on 13(3) of th e Tenan cy Act. Wh en it is a pena lt y as pr ovi ded under sec ti on F 14 fo r transfer or assig nm ent of the ri g ht in th e tenan cy in whole or in part of the pre mi ses held By th e tena nt in favour of the s ub -tenant, the sub-lease en visage d under section 10 5 of the Transfer of Property Act woul d equa ll y appl y. From the. evi den ce , it is clear that though the appe ll ant had inducted G the trade uni on into th e pr e mi ses fo r carr ying on th e trade union act iviti es, the bank h as not received any mone ta ry co nsidera ti on fr om th e trade uni o n, w hi ch wa s permitted to use and e nj oy it fo r it s trade uni on acti viti es. It is e li cited in the cross-e xa min ation of th e Pres id e nt of th e -trade unicm f') that th e bank had retained its power to a c all upon th e uni on vacate th e H 62 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R: premises at any time and they had undertaken to vacate the premises. It A 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 retained its legal control ^of the possession and let the trade union to occupy B 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 for trade union activities. The Bank retains its control over the trade union C 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 bas not been present to hold that the respondent had sublet as would make D 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.