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PETITIONER: A.S. SULOCHANA

       Vs.

RESPONDENT: C. DHARMALINGAM

DATE OF JUDGMENT28/11/1986

BENCH: THAKKAR, M.P. (J) BENCH: 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:     Tamilnadu  Buildings (Lease and Rent Control) Act  1960, s.10(2)(ii)(a)-Eviction  on the ground of  unlawful  sublet- ting--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  pro- vides  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  con- strued, 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

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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  circum- stantial,  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]

JUDGMENT: 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  sub- letting under Section 10(2)(ii)(a)1 of the Tamil Nadu Build- ings  (Lease and Rent Control) Act, 1960 must  himself  have been  guilty of the contravention and that the alleged  con- travention  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  land- lord 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  oppor- tunity  of showing cause against the application, is  satis- fied-               (i) xxx  xxxx               (ii) that the tenant has after the 23rd  Octo- ber, 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

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             nor the respondent have any personal knowledge               about  the terms and conditions of  the  lease               originally granted by the father of the appel-               lant 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  re-               spondent  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  ques- tion,  which was made in 1952, 18 years before the  institu- tion  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  notwithstand- ing  the fact that the lease did not confer on him any  such right, and that such unlawful sub-tenancy was created  with- out 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  circum- stances,  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  Sec- tion 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  pro- vides  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

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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 strict- ly 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 accord- ingly  fails and is dismissed. There will be no order as  to costs. M.L.A.                                                Appeal dismissed, 383