# W. H. KING v. REPUBLIC OF INDIA AND ANOTHER

- **Citation:** [1952] 1 S.C.R. 418
- **Court:** Supreme Court of India
- **Decided:** 1950-02-20
- **Case number:** Criminal Appeal No. 8 of 1951
- **Bench:** PATANJALI SASTRI c. J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/w-h-king-v-republic-of-india-and-another-28
- **Pages:** 7

## Headnote

MEHR CHAND
MAHAJAN,
MuKHERJEA,
DAs and
CHANDRASEKHARA
ArYAR JJ.]
Bombay Rents, Hotel and Lodging Rates Control Act (LVII of 1947),
s. 19-Tenant handing over possession to third person receiving
"pugrec"-W hether
constitutes
urelinquishment" -Difference
between assignment and relinquishment-Construction of penal siatutes.
Sub-section (1) of sec. 19 of the Bombay Rents, Hotel and Lodging House Rates
Control Act,
LVJI 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";
a.nd sub-sec.
(2) provided
that" any
tenant or person who in contravention of the provisions
of subsec. (1) receives any sum or consideration shall on conviction be
punished with imprisonment and also with fine.
A, who was a tenant of a fiat,
handed over vacant possession.
of the fiat 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 n1eaning of
sec. 19(1) and the conviction could not be sustained.
There is a clear distinction bet\veen 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 c~ntinues to be liable
..
to the landlord
for the performance of
his obligations under the
tenancy and this liability is contractual, \vhile 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 c<:1nnot be a unilateral transaction; it can only be
in favour of the lessor by mutual agreement between them.
Rel~
.. >
inquishment 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 LVJI 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.
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'>- _ _,
S.C.R.
SUPREME COURT REPORTS
419
CRIMINAL
APPELLATE
JURISDICTION :
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 i950 arising out
of an order dated 9th January, 1950, of the Presidency
Magistrate, 19th Court, Esplanade, Bombay,
in
Case
No. 10879/P of 1949.
The facts
are
stated m
the
judgment.
lswarlal C. Dalal and R. B. Dalal, for the appellant.
C. K. Daphtary,
Solicitor-General f<>r India (G. N.
Joshi, with him) for the Republic of India (respondent No. 1).
~
Jindra Lal for the respondent No. 2.
1952. February 1. The Judgment of the Court was
delivered by
CHANDRASEKHARA
AIYAR
J.-The
facts
our
of
which this Criminal Appeal has arisen are not long.
The appellant, W. H. King, who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises, was the tenant of a Bat on
the second Boor 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 gon 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 arrangements
about the Bat occupied by him in view of his intended
departure. T

## Text

1952
Feb. 1.
418
SUPREME COURT REPORTS
[1952]
W. H. KING
v.
REPUBLIC OF INDIA AND ANOTHER.
[PATANJALI
SASTRI c. J.,
MEHR CHAND
MAHAJAN,
MuKHERJEA,
DAs and
CHANDRASEKHARA
ArYAR JJ.]
Bombay Rents, Hotel and Lodging Rates Control Act (LVII of 1947),
s. 19-Tenant handing over possession to third person receiving
"pugrec"-W hether
constitutes
urelinquishment" -Difference
between assignment and relinquishment-Construction of penal siatutes.
Sub-section (1) of sec. 19 of the Bombay Rents, Hotel and Lodging House Rates
Control Act,
LVJI 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";
a.nd sub-sec.
(2) provided
that" any
tenant or person who in contravention of the provisions
of subsec. (1) receives any sum or consideration shall on conviction be
punished with imprisonment and also with fine.
A, who was a tenant of a fiat,
handed over vacant possession.
of the fiat 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 n1eaning of
sec. 19(1) and the conviction could not be sustained.
There is a clear distinction bet\veen 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 c~ntinues to be liable
..
to the landlord
for the performance of
his obligations under the
tenancy and this liability is contractual, \vhile 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 c<:1nnot be a unilateral transaction; it can only be
in favour of the lessor by mutual agreement between them.
Rel~
.. >
inquishment 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 LVJI 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.
-
'>- _ _,
S.C.R.
SUPREME COURT REPORTS
419
CRIMINAL
APPELLATE
JURISDICTION :
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 i950 arising out
of an order dated 9th January, 1950, of the Presidency
Magistrate, 19th Court, Esplanade, Bombay,
in
Case
No. 10879/P of 1949.
The facts
are
stated m
the
judgment.
lswarlal C. Dalal and R. B. Dalal, for the appellant.
C. K. Daphtary,
Solicitor-General f<>r India (G. N.
Joshi, with him) for the Republic of India (respondent No. 1).
~
Jindra Lal for the respondent No. 2.
1952. February 1. The Judgment of the Court was
delivered by
CHANDRASEKHARA
AIYAR
J.-The
facts
our
of
which this Criminal Appeal has arisen are not long.
The appellant, W. H. King, who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises, was the tenant of a Bat on
the second Boor 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 gon 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 arrangements
about the Bat occupied by him in view of his intended
departure. The prosecution case
is that the
accused
demanded a sum of Rs. 30,000 which
was later on
reduced to Rs. 29,500 as consideration
for putting the
complainant in vacant possession of
the Bat
and an
additional amount of Rs. 2,000 for the furniture, and
that the complainant agreed to pay these sums.
The
complainant actually
paid the
accused two
sums of
1952
W. H. King
v.
Republic of India
and Another.
1952
W. H. King
v.
Republic of India
·and Another.
Chandrasekhara
Aiyar ].
420
I I
SUPREME COURT REPORTS
}' I
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[1?521
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. 1,000, being
the balance due in res.pect of the furniture and tbat
the police would ·give him Rs. 29,500 to be paid to the
appellant.
The
·complainai'it
and· a
Sub-Inspector,
posing as the
complainant's
brother,
went
to
the
appellant 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 flar, the man, who
masqueraded as the . complainant's
brother; threw off
his disguise· and' disclosed
his identity.· The police
party, who were down below ready for tht
1 raid, held
up the car of the appellant and
recovered the sum of
Rs. 30,500
from the
rear seat
of the
car
and also
some papers,· a typed draft of ·a partnership agreement
between 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
ktter· handing
vacant
possession ·(Exhibit · D), the
·receipt for "'Rs.' 2,000
for the
articles : of furniture
(Exhibit E), a letter to the Bombay Gas Company for
transfer of the gas' connection to. the name cif the complainant (Exhibit• ·F); and
the ktter
to
the Bombay
·Electric Supply' and· Transport Committee for transfer
of · the ' telephone· connections' and the
deposit
of
·Rs. 27 (Exhibit G). ·
.
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The appellant was charged under section 18(1) of
the• Bombay Rents;· Hotel i:ind
Lodgmg House Rates
'Cbntrol Act, •LVII of 1947, for ·receiving a pugret: of
1Rs. •29,500
:ind'
he ·was · further- ·charged· under
·section· 19(2) of- the" said· Act ·for receiving' the
said
·sum ., • as a · condition for · the relinquishment of his
·tenancy. •His· wife; who was· the second accused in the
'case, ·was' char#d .. with . aiding . and ' abetting
her
·husband in the:'l:ommission ·of the ·two offencci.
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S.C.R .
SUPREME COURT REPORTS
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 and that it was in this connection and with
this object in view that he entered into negotiations
with the complainant. The sum of Rs. 29,500 was not
pugree but represented capital
for 0-12-0 share in the
business and as the complainant was
also
to be
a
·caretaker of the flat,
the
sum of Rs. 2,000 was paid
arid 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 Presidern:y Magistrate, who tried the case, disbelieved the defence on the facts,
holding that what
.,..,
was received by
the accused was
by way of pugru.
As
section 18(1)
of the
~ct was not applicable he
·convicted him
under section
19(2) 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. 30,000. 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 134(1) (c) of the
Constitution but
this
was
rejected · on
10-4-1950.
Thereafter
he
applied
for
special: leave to ·appeal to this Court and it was grant-
•ed 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 cons5deration.
The section
which consists of two
parts is in these terms :-
" (l) 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 6r any consideration ·as a condition for the relinquishment of his tenancy
of any premises;
.
'
1952
W. H. King
v.
Republic of India
and Another.
Chandrasekhara
Aiyar /.
1952
W. H. King
v.
Republic of India
and Another.
Chandrasekhara
Aiyar ].
422
SUPREME COURT REPORTS
[1952J
(2) Any tenant or person who in contravention of
the provisions of sub-section
(1) receives any sum or
consideration shall, on
conviction, be
punished with
imprisonment for
a term
which may
extend
to 6
months and shall also be
punished 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
relinquishment 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,
W. H. King, hereby ha11d 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
appeaIIS
to us to be sound and has to be accepted~
The learned
Solicitor-General
urged
that
the
word·
"relinquishment" was
not a term of art and
was
used
in
the section
not
111
any strict technicar
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
"relinquishment"
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 assistance·
to the argument of the learned counsel. Any subletting, assignment or transfer in any other manner of his
interest by
the
tenant
is made unlawful
under
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S.C.R.
SUPREME COURT REPORTS
423
section 15.
Section 18
deals with the grant, renewal
1952
or continuance of a lease of any premises or the giving
W H K'
of his consent by the landlord to the transfer of a lease
• v · mg.
by sub-lease or otherwise, and it
provides
that the . Republic~! India
landlord, who receives
any fine, premium, or other
and Another.
like sum
or deposit,
or any
consideration for the
grant, renewal or continuance or the accord of consent Chandrast:khara
would be guilty of an offence and liable to the punishAiyar ].
meI\t 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
aSJSignment 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 (j), of the
Transfer 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 c~e of an assignment,
the assignor .continues 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 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 b_etween them.
The relinquishment 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 were
there are sections
which deal with the
1952
W .. H. King
v.
!Republic of India
and Another. •
·Chandrasekhara
Aiyar /.
424
SUJ>REME COURT REPORTS
. ~-
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f • :
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[1952]
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
hot ~peak of relinquishment or giving up of 'possession,
in
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 teriant of his rights as such. Whether abandonment
of a' tenancy
would
come within the
meaning of
relinquishment i~ 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 dis:ippeafed
from the scene altogether saying 'nothing and making
no arrangements
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
st~ictly construed
in favour of the
subject.
We' are not concerned
so much with what
might possibly
have been
intended
as
with
what
has been
actually
said
m
and
by the langliage
employed.
As in our view, there has been no "relinquishment"
within the meaning
of section 19, sub-clause {l),' the
conviction under sub-clause (2) cannot
be· sustained.
It is set aside and the
fine · of .Rs. 30,000 will be
·refiinded if it has already been paid. The other parts
of the order 'of the learned Presidency
Magistrate, · as
'regards the 'disposal of
Rs. 1,000 ,Paid ·by the complainant to t;he appellant and the sum of
Rs. 29,500.
brought in by the police, will, however, stand.
~
,
. ' .
'
Conviction set aside.
'
Agent for the appellant: P. K. C hatteriee.
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Agent for respondent No .. 1: P.A. Mehta.
Agent for respondent No. 2: Ganpat Rai.
't' ·ot
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