Case Note & Summary
Background: The dispute involved a building known as Abdul Rat Manzil owned by Haji Mohamad Haji Dada Wakf (Trust). The premises were originally leased to Osman Jamal and Company under a rent note dated 15 January 1947; around 1951, the appellants took over the tenancy at a monthly rent of Rs 320. The Saurashtra Rent Control Act, 1951 was in force in the area and contained an unconditional prohibition on subletting under Section 15, entitling a landlord to recover possession under Section 13(1)(e) if the tenant sublet. The landlord issued a notice on 12 February 1964 terminating the tenancy on grounds of rent default and subletting; the default ground was later given up, leaving subletting as the sole issue. By that time, the Saurashtra Act had been repealed on 31 December 1963 and the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 applied from 1 January 1964; under the Bombay Act, subletting was not prohibited unless the contract of tenancy prohibited it, and Section 13(1)(e) applied only to unlawful subletting after the Act came into force. The trial court dismissed the suit because the contract did not prohibit subletting; the District Judge reversed, holding that Section 15 of the Saurashtra Act superseded the contract and created a right that survived repeal under Section 51 proviso (2) of the Bombay Act; the Gujarat High Court Division Bench confirmed this in revision. Legal issues were whether a notice under the Transfer of Property Act was necessary before filing the suit, and whether the landlord had an accrued right to recover possession that survived repeal. The appellants argued that subletting gave only a right to terminate tenancy, but no notice was issued before repeal, so no accrued right existed; the Bombay Act could not apply because the subletting predated it and was not unlawful under the contract. The respondent argued that Section 15 unconditionally prohibited subletting and Section 13(1)(e) conferred a right to recover possession, which accrued upon subletting and survived by the saving clause. The Supreme Court reasoned that under the Transfer of Property Act, mere subletting is no ground for terminating tenancy unless the contract so provides; here the contract did not prohibit subletting, so no TPA notice was required and could not have been validly issued on that ground. Instead, the right arose under the Saurashtra Act. The Court explained that an accrued right must be a specific right arising upon the happening of statutory events, not an abstract right. Here, the tenant's subletting while the Saurashtra Act was in force triggered the landlord's right to recover possession under Section 13(1)(e); that right survived repeal under Section 51 proviso (2) of the Bombay Act. Accordingly, the appeal was dismissed, the judgments of the District Judge and High Court were affirmed, and the suit for possession was held maintainable.
Headnote
A) Rent Control - Subletting - Prohibition and Ground for Eviction - Saurashtra Rent Control Act, 1951, Sections 15 and 13(1)(e) - The tenant sublet the premises while the Saurashtra Act was in force; Section 15 unconditionally prohibited subletting notwithstanding any contract or law; Section 13(1)(e) entitled landlord to recover possession if tenant sublet. Held that a right accrued to the landlord to recover possession when the tenant sublet, and this right survived repeal under Section 51(2) of Bombay Act (Paras 726-727D). B) Repeal and Saving - Accrued Right - Section 51 proviso (2) Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - The saving clause preserved rights, privileges, obligations or liabilities acquired, accrued or incurred under repealed law; not abstract rights but specific rights upon happening of statutory events. Held that landlord's right to recover possession on the specific event of subletting was an accrued right and could be enforced after repeal as if Saurashtra Act had not been repealed (Paras 724B-725H; 726A-B). C) Transfer of Property Act - Termination of Tenancy - Subletting not ground absent contract - Transfer of Property Act - Under TPA, mere subletting by tenant is no ground for terminating tenancy unless contract so provides; here contract did not prohibit subletting, so notice under TPA was not necessary and landlord could not have validly terminated tenancy on that ground. Held that the ground for eviction arose under Saurashtra Act, not TPA, and no TPA notice was required before suit (Paras 721-724).
Issue of Consideration
Whether termination of tenancy under the Transfer of Property Act was necessary before filing a suit for eviction on the ground of subletting under the Saurashtra Rent Control Act, 1951, and whether the landlord had an accrued right to recover possession surviving the repeal of that Act under Section 51 proviso (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Final Decision
Supreme Court dismissed the appeal, upheld the High Court and District Judge, and held that the suit for recovery of possession was maintainable. The landlord had an accrued right under Saurashtra Act when tenant sublet, and this survived repeal under Section 51 proviso (2) of Bombay Act; notice under Transfer of Property Act was not necessary because contract did not prohibit subletting and Saurashtra Act provided the ground.
Law Points
- Subletting prohibited by Saurashtra Rent Control Act
- 1951 provides ground for eviction independent of contract
- right accrued to landlord upon subletting survives repeal under saving clause of Bombay Rent Act
- 1947
- notice under Transfer of Property Act not necessary when contract does not prohibit subletting and eviction is sought under special rent control law
- accrued right means specific right upon happening of statutory events
- not abstract right
- privilege and inability are correlatives
