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PETITIONER: SHAYAM BABU

       Vs.

RESPONDENT: DISTRICT JUDGE, MORADABAD & OTHERS

DATE OF JUDGMENT14/12/1983

BENCH: MISRA, R.B. (J) BENCH: 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

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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]

JUDGMENT:      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.

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    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

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    (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. 35