Shayam Babu Vs. District Judge,
Moradabad & Ors [1983] INSC 200 (14 December 1983)
MISRA, R.B. (J) MISRA, R.B. (J) DESAI, D.A. MISRA
RANGNATH
CITATION: 1984 AIR 1399 1984 SCR (2) 30 1984
SCC (1) 411 1983 SCALE (2)1051
ACT:
Uttar Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act 1972-s. 21 fourth proviso- Interpretation
of-Whether protects sub-tenant.
HEADNOTE:
The respondent-landlords had let out a shop
to a tenant who had, with the consent of the landlords, sub-let the same to the
appellant. The landlords moved an application under s. 21 of the Uttar Pradesh
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against
the tenant and the sub-tenant for release of the premises on the ground of
bonafide requirement. The prescribed authority allowed the application against
the appellant and dismissed against the tenant. In appeal the District judge
confirmed the order of the prescribed authority. In a writ petition the
appellant challenged the order of the District Judge. The High Court dismissed
the writ petition observing that the fourth proviso to s.21 contemplated the
consideration of the likely hardship of the tenant or the landlord only and not
of the sub-tenant. Hence this appeal.
Allowing the appeal,
HELD: All that the relevant proviso to s.21
requires is that the comparative hardship of the tenant as also that of the
landlord shall be taken into 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 position might have been different. The sub-tenant for the
purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as
rent is payable by him to the tenant-in- chief, who to all intents and purposes
will be a landlord qua the sub-tenant: To interpret the section in the way as
the High Court has interpreted would be defeating the very salutary purpose of
the Act. [33 H; 34 A-B] Bhullan Singh v. Babu Ram (1965) A.L.J. 544 referred
to.
In the instant case, the appellant was
entitled to the protection of the fourth proviso to s. 21 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 under s.21 of the Act.
The Courts below have failed to exercise jurisdiction vested in them in not
considering the likely hardship of the appellant. [34 C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 230 of 1978.
From the Judgment and Order dated 19th
January, 1978 of the 31 High Court of Judicature at Allahabad in Civil Misc.
Writ No. 355 of 1977.
Yogeshwar Prasad and Mrs. Rani Chabbra, for
the Appellant J.P. Goyal, Rajesh and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by
MISRA, J. The present appeal by special leave is directed against the judgment
dated 19th of January, 1978 of the Allahabad High Court. The short question for
consideration in this appeal is whether a sub-tenant is entitled to the
protection of the fourth proviso to s.21 of the Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972.
The material facts to bring out the point for
consideration lie in a narrow compass. One Murari Lal was the owner of the
disputed shop. During his lifetime a partition took place between him and the
other members of his family in 1937. The shop in dispute fell to the share of
Murari Lal and Narendra Mohan, his eldest son. After the death of Murari Lal in
1960 his interest devolved upon his sons Rajendra Kumar and Brijendra Kumar along
with their brother Narendra Mohan.
It appears that the shop in suit had been let
out to one Krishan Kumar. He in his turn inducted Shyam Babu, the present
appellant, as his sub-tenant in 1962. Rajendra Kumar and Brijendra Kumar filed
a suit No. 181 of 1968 in the Court of Munsif for the eviction of the original
tenant as well as the sub-tenant, on the ground of illegal subletting as also
for the recovery of arrears of rent. That suit was contested by the tenant as
well as the sub-tenant on the ground that the sub-tenancy had been created with
the consent of the then landlord and therefore subletting was legal.
The learned Munsif dismissed the suit by his
order dated 24th April, 1973 holding that the sub-tenancy created by Krishan
Kumar in favour of the appellant Shyam Babu was with the consent of the
landlord and as such neither Krishan Kumar nor Shyam Babu was liable to
eviction on that ground.
It appears that during the pendency of the
suit the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act,
1972 32 (hereinafter referred to as the new Act) came into force on 15th July,
1972. Rajendra Kumar and Brijendra Kumar, the landlords, moved an application
under s.21 of the new Act for the release of the premises in occupation of the
appellant and Krishan Kumar on the ground that the same is bonafide required
for their personal use. The application was resisted by the tenant as well as
the sub-tenant. They denied that the need of the landlords was genuine. They
also set up their own needs and contended that they would suffer greater
hardship if the application for release was allowed.
The prescribed authority allowed the
application with respect to the portion in occupation of the appellant Shyam
Babu but dismissed the same as against the original tenant Krishan Kumar.
Feeling aggrieved the landlords as well as the sub-tenant filed two separate
appeals before the District Judge to the extent the order went against them.
The landlords were aggrieved by the order
insofar as their application was rejected against Krishan Kumar, the original
tenant, while the appellant challenged the release of the premises granted to
the landlords against him. Both the appeals 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, however, sought to challenge the order of the
District Judge by filing a writ petition in the High Court.
The contention raised by the appellant was
that the prescribed authority as well as the Appellate Court committed a
manifest error of law in allowing the application for release of the premises
in favour of the landlords without considering the comparative hardship likely
to be caused to the appellant or to the respondent land lords by the order of
release or refusal to release the premises within the meaning of fourth proviso
to s.21 of the new Act. In the opinion of the High Court the proviso
contemplated the consideration of the likely hardship of the tenant or the
landlord and as the appellant was only a sub- tenant the proviso did not
obligate the authority to consider his hardship.
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:
"Provided also that the prescribed
authority shall, except in cases provided for in the Explanation, take into 33
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." It may be recalled that in the earlier suit No. 181 of 1968
filed by the landlords it was found as a fact that the appellant Shyam Babu was
inducted as a sub-tenant by the tenant-in-chief with the consent of the
landlords. It was on this ground that the landlords' suit was dismissed against
the tenant-in-chief as well as the sub-tenant. A feeble attempt was made before
the High Court on behalf of the 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, therefore, cannot possibly
urge that the sub-letting was not with the consent of the landlords.
If once it is accepted that the sub-tenancy
created by the tenant-in-chief in favour of the appellant was with the consent
of the landlords his possession cannot be said to be illegal. In this view of
the matter we see no reason why he should be deprived of the protection of the
fourth 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 'tenant' are defined terms in the
Act. Clause (j) of s.3 defines 'landlord' thus:
"(j) "landlord", in relation
to a building, means a person to whom its rent is or if the building were let
would be, payable, and includes, except in clause (g), the agent or attorney,
or such person:" Section 3 (a) defines tenant as;
"(a) "Tenant" in relation to a
building, means a person by whom its rent is payable,........" The
appellant who is a sub-tenant pays rent to the tenant-in-chief and the
tenant-in-chief in his turn pays rent to the landlord. Between the appellant
and the tenant- in-chief the tenant-in-chief would be the landlord and the
appellant, the sub-tenant, would be the tenant. All that the relevant proviso
to s.21 requires is that the comparative hardship of the tenant as also that of
the landlord shall be taken into account before passing any order of release or
refusal to release. If the sub-tenancy had been created without the consent 34
of the landlord the position might have been different. The sub-tenant for the
purposes of the fourth proviso to s.21 would virtually be a tenant inasmuch as
rent is payable by him to the tenant-in-chief, who to all intents and purposes
will be a landlord qua the sub-tenant. To interpret the section in the way as
the High Court has interpreted would be defeating the very salutary purpose of
the new Act.
A similar question came up for consideration
before a Division Bench of the Allahabad High Court in Bhullan Singh v. Babu
Ram based on cl. (g) of s.2 of the U.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 sub-tenant.
Having considered the argument of the counsel
for the parties we are of the firm view that the appellant was entitled to the
protection of the fourth proviso to s.21 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 under s.21 of the new Act. The Court below
in our opinion have failed to exercise jurisdiction vested in them in not
considering the likely hardship of the appellant.
For the reasons given above the appeal must
succeed. It is accordingly allowed and the impugned judgment of the High Court
and those of the District Judge as well as of the prescribed authority on the
question of comparative hardship are set aside. The case is remanded to the
District Judge who will send it to the prescribed authority under the new Rent
Act to dispose of the application under s.21 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 allowed.
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