D.N.Sinha, J. - (1.) The facts of this application are briefly as follows: One Prafulla Kumar Mitra is tenant of premises No. 2, Chowringhee Road, Calcutta, wherein he runs a Hotel called the 'Bristol Hotel'. In October 1953, he sub-let the ground floor of the said premises to the Respondent No. 2 Haripada Bhowmick as a monthly tenant. The said Haripada Bhowmick was carrying on the business of an eating house therein, known as the 'Kalpataru Cafeteria.' The running of such an eating house requires the grant of a license by the Commissioner of Police, Calcutta under Section 39 of the Calcutta Police Act 1866 read with Section 6(2) of Bengal Act V of 1909 and Section 3 of Act VII of 1912. Bhowmick had taken out such a license. Section 39 of the Calcutta Police Act 1866 (hereinafter referred to as the 'Act') runs as follows: "The Commissioner of Police may at his discretion, from time to time, grant licenses to the keepers of such houses or places of public resort and entertainment us aforesaid for which no license as is specified in the Bengal Excise Act 1909 is required, upon such conditions, to be inserted in every such license as he, with the sanction of the said State Government from time to time shall order, for securing the good behaviour of the keepers of the said houses or places of public resort, or entertainment, and the prevention of drunkenness and disorder among the persons frequenting or using the same; and the said licenses may be granted by the Commissioner for any time not exceeding one year." Under Section 35 of the said Act whoever, in the town of Calcutta keeps any eating house where provisions or refreshments are sold or consumed, without a license, is liable on summary conviction before a Magistrate to a fine not exceeding fifty rupees for every day that the eating house is kept open without such a license. As I have stated above, Bhowmick took out a license in respect of the Cafeteria, which license was being renewed from year to year. The license was granted, subject to certain terms and conditions. Condition No. 5 of the license, runs as follows: "That the licensee shall not at any time during the currency of the license sublet, hire out or transfer his business to any other person or persons without the written sanction of the Commissioner of Police." On 11-8-1954 Bhowmick entered into an agreement with the petitioner, a copy whereof is annexed to the petition and marked 'A'. In the agreement, Bhowmick is described as the 'principal' and the petitioner is described as the 'Contractor.' It was agreed that the principal was to employ the contractor to manage and conduct his business known as 'Kalpataru Cafetaria,' Although, this is how the agreement is framed, the result is as follows: (a) The business, with its goodwill and visible assets is taken over, by the contractor and run by him. (b) From the date of taking over, the principal has no further hand in the running of the business except paying the rent of Rs. 1,000/- per month to the landlord and renewing his license. (c) The contractor was to pay Rs. 110/- per day to the principal irrespective of whether the business earned any profit or not. (d) The contractor was to deposit a sum of Rs. 30,000/- as security for discharging his liability under the agreement. (e) The agreement was to subsist for a period of 5 years with a right of renewal for a like period. (f) The contractor had the right to terminate the contract upon six months notice and payment of all outstanding dues of the principal. (g) The principal had the right to terminate the contract upon 15 days notice, if the contractor failed to make the payment agreed upon or committed a breach of contract. On the same day, a tripartite agreement was entered into between the petitioner, Bhowmick and Prafulla Kumar Mitra whereby the sum of Rupees 30,000/- was to be deposited by the petitioner with Mitra, who was to guarantee the performance of the contract by Bhowmick. Mitra further agreed that if the tenancy of the principal was terminated then the contractor would become the tenant.
(2.) The last license taken out on behalf of Bhowmick expired on 31-3-1955. After the expiry thereof, no application was made for renewal for several months, but the petitioner went on carrying on the business of the Cafeteria as if no license was required. He says that he did so by an 'oversight,' an excuse which I am unable to accept as true. On 30-8-1955 an application was lodged for a license. It was signed by Bhowmick but forwarded to the Commissioner by the petitioner. In September 1955 a prosecution was launched against Bhomick for carrying on the Cafeteria without a license and he was fined Rs. 5/- on 12-12-1955. In June 1956, a letter was received by the Deputy Commissioner Head Quarters, from the Health Officer District III of the Corporation of Calcutta, to the effect that no health license had been granted to either Kissenchand Arora or Jagadish Lall in respect of the Kalpataru Cafeteria. It is not clear who Lall is. The agreement enables the petitioner to associate other people to work with him and this is perhaps how he came into the picture. The license of Bhowmick was not renewed, but this did not deter the petitioner from carrying on the Cafeteria without a license. Indeed, he is doing so even now. On 7-9-1956, a notice was issued upon Bhowmick by the Deputy Commissioner, Head Quarters, asking him to show cause why license in respect of the Kalpataru Cafeteria should not be refused to him inasmuch as he had violated Clause 5 of the license by having leased out' the same to Kisanchand Arora. This notice appears to have been served by affixation upon the Cafeteria and brought matters to a head. On 21-9-1956 the petitioner wrote to the Deputy Commissioner of Police praying for a license to be issued in his own name, saying that he was a subtenant in respect of portion of 2 Chowringhee Road occupied by the Cafeteria under Prafulla Kumar Mitra. Referring to the agreement dated 11-8-1954, he said: "The said Indenture was entered into between myself and the said Mr. Prafulla Kumar Mitra in the benami of and/or in collusion with Mr. Haripada Bhowmick. I have however filed a petition on 21-8-1956 before the Rent Controller, Calcutta for declaring me a tenant direct under Shri Deba Prosad Gooptu."
(3.) What does this confession really mean? Deba Prosad Gooptu is the owner of Premises No. 2 Chowringhee Road; Prafulla Kumar Mitra is his tenant. In respect of the ground floor Prafulla Kumar Mitra sub-let it to Bhowmick and now the petitioner says that Prafulla Kumar Mitra sub-let it to the petitioner and the document of 11-8-1954 was a benami and collusive document. This surprising stand is further elucidated by the Petitioner's letter dated 21-5-1957 to the Deputy Commissioner which inter alia states as follows: "The said agreement dated 11-8-1954 is really one of the tenancy between myself and one Prafulla Kumar Mitra in the benami name of Haripada Bhowmick. The said agreement was entered into in its present form only with a view to evade, if possible, the provisions of the West Bengal Premises Rent Control (Temporary Provisions) Act 1950." On 13-9-1956 Bhowmick caused a solicitor's letter to be served upon the petitioner, stating that he had failed to make the payments stipulated, under the agreement, dated 11-8-1954 and had committed breaches of contract and had been running the Cafeteria without a police license unlawfully. Unless therefore these were remedied within 15 days, the agreement stood cancelled. In October 1956 Bhowmick filed a suit against the petitioner in this court, being Suit No. 2793 of 1956, for possession of the Cafeteria damages and other reliefs. That suit is still pending.;