SHAYAM BABU versus DISTRICT JUDGE, MORADABAD & OTHERS

MISRA, J. The present appeal by special leave is directed against the judgment dated 19th_ of January, 1978 of the Allahabad- High Court. The sh'Ort question for <;onsideration in this appeal i's whe~ ther a sub-tenant is entitled to the protection of the fourth proviso ·to s.21 oft\ie Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 19.72.

p. 31, margin B

Th~ material fact' to. bring·out the point for consideration lie in a narrow·c~mpass. One' Murari Lal was the owner of the dis-· puted ~hop .. During his lifetime a partition took place betwee;1 him and the other ·members of his family iri 1937. The shop in dispute fell to the share.of Murar.i Lal and Narendr.a Mohan, his eldest son. ,;\fter the d~ath of Murari Lal in 1960 his interest devolved upon his sons·Rajendra KumH.and'Brijendra Kumar along with their brother Narendra Mohan .

p. 31, margin C

It appears thar the shop in suit had been let ~ut to one Krishan Klllnar. He in his turn inducted Shyam Babu, the 'present appellant, as his sub-tenant 1962. Rajendra Kumar and Brijendra K'1m:tr liled a suit No. 181 of 1968 in the Court of Munsif for the evi~tion of the original tenant as wel I as the sub-tenant, on the grourrd of i \legal subletting as also for the recovery of arrears· of rent. That suit \vas co11tested by the ten.ant its well as the sub-tenant on the ground ihat.the sub-tenancy had been created with the consent of the then landlord and therefore subletting \vas legal.

p. 31, margin D

The leatn~d Mu.nsif dismissed the·suit by his order dated. 24th April, 1973 holding that the sub;tenancy created by Krishan Kumar · in fov0ur of theappellant Sh yam Babu was with the consent of the landlord-and as such ne.ither Krisha·n Ku1nar nor Shyam Bahu· 1 iable to eviction on that ground.

p. 31, margin F

· '[t appears that during the pendency of the suit 'the U.J'. Utban Building (Regulation of Letting, .~ent and Eviction) Ac\, 1972 .. (hereinafter referred to as the new Act) cam·e into force on 15th July, 1972. Rajendia Kumar .and Brijendra Kumar,, the landlords, moved an applfoation under s.21 of 1he new Act for the release of the premises in occupation of the appellant and Krjshan ;Kumar on the ground that the same is bonafidc required for their personal .use. The application' w1.s resisted by the tcnan.t as well as the sub-tenant: They denied that the need of the landlords was genuine. Tbey aho set µp their own needs.and contended.that they would suffer greater 'hardship if the application for release was allowed.

pp. 31–32, margin G

The prescribed authority allowed the application with respect to the portion in occupation of the appdlant Shyam Babu but dismissed 'the same ·as aga.inst the odginal tenant Krishat• Kumar. Feeling aggrieved the landlords.as well as tlie sub-tenant filed two ·separate appeals before 'tho District Judge to the extent the order went against them. The landlords· were aggrieved by the order insofar as their application was rejected again1t Klishan :Kumar, the original tenant·, while the appellant challenged the release. of the premises granted to the landlords against him. Both the app~als were disposed of by.a common judgment of: the District Judge on 24th ·March, 1977 confirming the. order passed by the prescribed authority. The ·landlords submitted to the order passed by the District Judge . . The appellant, howeve~, sought to challenge ~he order of the District Judge by filing a writ petition in the High Court.

p. 32, margin B

. .

p. 32, margin D

The contention raised by the appellant was that the pre.cribcd authority as well as the Appellate Court committed it manifest error of law in allowing the application for release of the premises in favour of the·Jandlords without considering the comparative hardship likely to be caused to the appellant or ;o the respondent land lords by the order of release or refusal to release the premises within the meaning of fourth proviso to s. 21.ofthe new Act. In the opinion of the High Court the proviso contemplated the consideration of the likely hardship of. the, tenant or.the l~ndlord and as the appellant was Ol)ly a sub-tenant the proviso did ·not obligate the authority fo consider his hardship.

p. 32, margin E

It will be appropriate at this, stage to read the relevant proviso to s.21 as the decision of the case hinges on the construction of the proviso

p. 32, margin G

"Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship' to the landlord from the refusal of the application and for that purpose shall have 'regard to such factors as may be prescribed."

pp. 32–33, margin H

It may be recalled that in the earlier suit No. 181 of 1968 filed, lty the landlords it was found as a fact that the appellant' Sh yam Babu wa• inducted.as a sub-tenant by the tenant-in-chief with the consent

p. 33

the landlords. It was qn this ground that the landlords' suit wa1 dismi1sed against the tenant-in-chief as wdl as the sub-tenant.· A feeble attempt was made before the Bigh Court 09 behalf of ihc landlords to challenge that finding but that was rejected and we think rightly. Even an erroneous finding of. fact between the parties will be binding on them. The landlords, ·ihercfcrc, cannot poS>ibly urge that the sub-letting was not with the consent of the laicdlord• . ..

p. 33

If once it is accepted that the sub-tenancy created by th.e .tenantiQ-:hief in favour of the appellant was with the consent of the le.ndlords his possession cannot be said to be illegal. ·Jn this view of the matt.er we see no reason why he should be deprived of the protection of the fo~rth proviso .to s.21 of the new Act. It is true that the new Act was intended to give relief to the tenant. 'Landlord' and 'tenane are defined terms in the Act. ·clause (j) of s.3 defines.'landlord' thus :

p. 33

"(j) "landlord", in relation io a buildi"g, means a person. to whom its rent is or if the building were let woul.d be, P.ayable, and includes; except in clause (g), t.he agent or attorney, or such person;" Section (a) defines tenant as ;

p. 33

"(a) "Tenant' in relation to b_µilding, me3ns a pc~ son by whom its rent is payable, .......... .

p. 33, margin F

The appellant who is a sub-tenant pays rent to the tenant-in: chi.cf and the tenant-in-chief in his iurn pays rent to the landlord .. Between the appellant and the tenant-in-chief the. tenant,in-chief would be the landlord and the appclbnt, the sub-tenant, would te the tenant. All tb'at the relevant proviso to s.21 requires is thalthc comparative hardship of'the tenant as also that' of the landlord sba be taken int'o account before passing any order of release or refusal to release. If the sub-tenancy had been created without the consent of the landlord the posHion might have been different. The subtenant' for the purposes of the fourth proviso to ·s.21 would virtually be a tenant inasmuch as rent is payable by him to tl1e tenant-in-chief, who to all intents and purposes will be a landlord qua the sub-tenant. To interpret the section i.n the way as the High Court has interpreted would be' defeating the very salutary. purpose of the new Act.

pp. 33–34, margin F

A similar question came up for consideration before a· Division Bedch of the Allahabad High Court in Bhullan Singh v. Babu Raml based on cl. ·(g) of s.2 of the l.l.P. (Temporary Control of ·Rent and Eviction Act, 1947. The High Court took.the view that .the term 'tenant' as defined in cl. (g) of s.2 of the Act includes a S\lbtenant.

p. 34, margin B

Having considered th~ argument of the counsel for the parties we ar• of the firm view that the appellant was entitled to the prot~c­ tion of the fourth proviso to s.2.1 and the comparative hardship of the appellant as well as that of the landlords should have been taken. into account'before disposing of an application undtr s.21 of the new Act. The Court below in our opinion have failed to exercise jurisdictton vested in thorn in not considering the likely hardship of the appellant. '" For the reasons given above the appeal must succeed. It is accordingly allowed a~d the impugned judgment of the High Court and those of the District Judge as well as of the p,re~cril:ed authority on the question of comparative hardship are set aside. The case is remai]ded to the-Di£trict Judge who will send it to the prescribed a1ithority under the new Rent Act to dispose of the application under s.2l in the light of the observations made above after considering the likely hardship of the appellant and that of the landlord-respondents. In the circumstances of the case, we direct the parties to bear their costs. H.S.K . Appeal all•wed.

p. 34, margin C

(!)' (1965) A.L.J. 544 .

p. 34, margin F