A.S. Sulochana Vs. C. Dharmalingam
[1986] INSC 251 (28 November 1986)
THAKKAR, M.P. (J) THAKKAR, M.P. (J) RAY, B.C.
(J)
CITATION: 1987 AIR 242 1987 SCR (1) 379 1987
SCC (1) 180 JT 1986 1068 1986 SCALE (2)996
ACT:
Tamil Nadu Buildings (Lease and Rent Control)
Act 1960, s.10(2)(ii)(a)-Eviction on the ground of unlawful subletting--Such
sub-letting must be by the tenant sought to be evicted and not by his
predecessor.
HEADNOTE:
The appellant-landlord instituted an eviction
suit in 1970 against the respondent-tenant on the ground of unlawful
subletting. The respondent had inherited the tenancy upon the death of his
father in 1968. The subletting was created, in 1952 during the life time of
appellants father. Neither the appellant, nor the respondent had any personal
knowledge about the terms and conditions of the lease originally granted by the
father of the appellant in favour of the father of the respondent.
The High Court, while dismissing the appeal
of the appellant-landlord, held that a tenant sought to be evicted on the
ground of unlawful subletting under s.10(2)(ii)(a) of the Tamil Nadu Buildings
(Lease and Rent control) Act, 1960 must himself have been guilty of the
contravention and that the alleged contravention by his father when he was a
tenant can be of no avail for evicting the tenant.
Dismissing the Appeal of the
appellant-landlord, this Court,
HELD: 1(i) Section 10(2) of the Act opens
with the words, "a landlord who seeks to evict his tenant" and provides
that if the tenant has created a subtenancy without the written consent of the
landlord, he will he liable to be evicted. When the statute says the tenant who
is sought to he evicted must he guilty of the contravention, the Court cannot
say, "guilt of his predecessor in interest" will suffice. [382C-D]
(ii) The flouting of the law, the sin under the Rent Act, must he the sin of
the tenant sought to be evicted and not that of his father or predecessor in
interest. It being a penal provision in the sense that it visits the violator
with the punishment of eviction, it must he strictly construed, for it causes
less misery to be sheltered in a jail, than to be shelterless without. [382E]
In the instant case, there is nothing on record to show that the subletting 380
which was made in 1952,18 years before the institution of the eviction suit in
1970, was in violation of the relevant provisions of law. There is no evidence,
direct or circumstantial, on the basis of which it can be said that the lease
did not confer on the father of the respondent the right to create a
sub-tenancy, or that it was done without the written consent of the then
landlord, the father of the appellant. Under these circumstances, the appellant
cannot successfully evict the respondent on the ground of having created an unlawful
sub-tenancy within the meaning of S.10(2)(ii)(a) of the Act. [381G, 382A-B]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
1124 of 1973.
From the Judgment and Order dated 29.11.1972
of the Madras High Court in C.R.P. No. 1066 of 1972.
K. Ramkumar for the Appellant.
The Judgment of the Court was delivered by
THAKKAR, J. The view taken by the High Court that a tenant sought to be evicted
on the ground of unlawful subletting under Section 10(2)(ii)(a)1 of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 1960 must himself have been guilty
of the contravention and that the alleged contravention by his father when he
was a tenant can be of no avail for evicting him is assailed in this appeal by
special leave. The High Court has so pronounced in the backdrop of the admitted
fact that respondent had himself not created any sub-tenancy after he became
the tenant in 1968 upon the death of his father. The plea raised by the
appellant that the tenancy created in 1952 by the father of respondent rendered
him liable to be evicted in the suit instituted by the appellant in 1970 was
repelled. The unsuccessful landlord has now invoked this Court's jurisdiction
under Article 136 of the Constitution of India.
Facts not in dispute are:-
1. The father of the appellant had granted a
lease in favour of the
1. "10(2) " A landlord who seeks to
evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing
cause against the application, is satisfied(i) xxx xxxx (ii) that the tenant
has after the 23rd October, 1945 without the written consent of the landlord-(a)
transferred his right under the lease or sub-let the entire building or any
portion thereof, if the lease does not confer on him any right to do so, or X X
X X XXXXX" 381 father of respondent prior to 1952 (the exact date or year
is not on record).
2. The father of the appellant as also the
father of respondent both have died.
3. Respondent was accepted as a tenant upon
the death of his father in 1968.
4. The suit for eviction giving rise to the
present appeal was instituted for eviction on the ground of unlawful subletting
in 1970 by the appellant who had inherited the property from her father.
5. Admittedly, neither the appellant nor the
respondent have any personal knowledge about the terms and conditions of the
lease originally granted by the father of the appellant in favour of the father
of respondent no.
1.
6. So also neither the appellant nor the
respondent have any personal knowledge in what circumstance the father of the
respondent had created a sub-tenancy in favour of Kuppuswami Sah way back in
1952, eighteen years before the institution of the suit.
7. Neither the appellant nor respondent has
any personal knowledge as to whether or not the sub-tenancy was created with
the written consent of the landlord eighteen years back in 1952.
And on these facts the prayer for eviction
must be denied regardless of the question of interpretation which will be
presently tackled. The mere fact that for as many as 18 years no objection was
raised, and no action for possession was instituted against the father of the
appellant in his lifetime notwithstanding the fact that a sub-tenant was openly
in occupation of a part of the rented premises, would give rise to an inference
that it was never treated as unlawful sub-letting by the appellant or her
father. There is nothing on record to show that the subletting in question,
which was made in 1952, 18 years before the institution of the suit in 1970,
was in violation of the relevant provisions of law. The appellant cannot
succeed unless the appellant establishes that Section 10(2)(ii)(a) has been
violated and the tenant has incurred the liability to be evicted on the ground
of unlawful sub-letting notwithstanding the fact that the lease did not confer
on him any such right, and that such unlawful sub-tenancy was created without
the 382 written consent of the then landlord. There is no evidence, direct or
circumstantial, on the basis of which it can be said that the lease did not
confer on the father of the respondent the right to create a sub-tenancy. Or
that it was done without the written consent of the then landlord, that is to
say, the father of the appellant. Under the circumstances, in any view of the
matter the appellant cannot successfully evict the respondent on the ground of
having created an unlawful sub-tenancy within the meaning of Section
10(2)(ii)(a) of the Act.
Examining the profile of the view taken by
the High Court that the offending sub-letting must be by the tenant sought to
be evicted himself, and not by his predecessor, it appears to be blemishless.
Section 10(2) opens with the words "A landlord who seeks to evict his tenant"
and provides that if the tenant has created a sub-tenancy without the written
consent of the landlord, he will be liable to be evicted. Pray who is the
'tenant' whom the landlord wants to evict? That tenant is the respondent. Did
he violate Section 10(2)(ii)(a) and sub,let the rented premises? The answer is
'no'. It is of little use to give the answer, not he, but his predecessor, his
late father, had sub-let the premises.
When the statute says the tenant who is
sought to be evicted must be guilty of the contravention, the Court cannot say,
'guilt of his predecessor in interest' will suffice. The flouting of the law,
the sin under the Rent Act must be the sin of the tenant sought to be evicted,
and not that of his father or predecessor in interest. Respondent inherited the
tenancy, not the sin, if any, of his father. The law in its wisdom seeks to
punish the guilty who commits the sin, and not his son who is innocent of the
rent law offence. It being a penal provision in the sense that it visits the violator
with the punishment of eviction, it must be strictly construed, for it causes
less misery to be sheltered in a jail, than to be shelterless without. Be that
as it may the conclusion recorded by the High Court is fault-free.
We, therefore, see no reason to interfere
with the order of the High Court in exercise of our jurisdiction under Article
136 of the Constitution of India. The appeal accordingly fails and is
dismissed. There will be no order as to costs.
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