SHAYAM BABU v. DISTRICT JUDGE, MORADABAD & OTHERS

Citation: [1984] 2 S.C.R. 30

Court: Supreme Court of India

Bench: D.A. DESAI, R.B. MISRA, RANGANATH MISRA

Case summary

The appellant, howeve~, sought to challenge ~he order of the District Judge by filing a writ petition in the High Court. 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...

Judgment text

• SHAYAM BABU 1'. DISTRICT JUDGE, MORADABAD. & OTHERS • December 14, J983 ) [D. A. DESAI°,, R. B. MISRA AND RANGANATH. MISRA, JJ. ) . Uttar Pradesh Urban Buihli11gs (R~gulation oj Letting-, Rent a. nd EviCtion) Act 1972-. s. 21 fourth proviso-:-! nterpreiaiion Of-1¥hether protects suh-te11a1Jt. The respondeht-landlords had Jet out a shop to a' tenant who had, with · the consent of the landlords, sub-let the sa1ne to t! ie appellant. The landlords •• n1oved an applfoation~under. s. 21 of the Uttar Prade;h _Urban Building') (R~gula tion of LettiOg, P... ent nnd, Eviction) Act, 1972 against the tenant and·the sub·tenant fo1' telease of the pren1ises on. the ground of bo. natidC· require1nent. The Presc_ribed ·authority allowed the application against the appellant'. and disn1issed agμinst the tenant. In appeal the District ... udge. con-finned the order Of the pre. " scribed . authority. In ~·writ "petition tlic app~llant ci}'allenged the·order of the District Judge.

The High Court dis1nisScd the writ petition observing that the fourth proviso to s. 21 conteJr. plated. the consid. efation of the likely hards~ip of the . tenant or the landlord only rind not of the sub-tenant. Hence this appeal. Allowi11g. the ap'Peal, HELO: All that the relevant proviso t~~ s. 21 requires is ti1at the con1parative hardship of the tenant_as. al rdship of t[1P: appellant .. [34 C-DJ CIVIL ArPELLATE)lcRISDICTION : Civi. 1 Ajopeal N. o. 230 of 1978. ·From the Judgment and Order. dated 19th January, 1978 of the SHYAM BABU ": lllSTT. JUDGE (Misra, J. ) 31 High Court of Jadicature at Allahabad in _Civil Misc. Writ No. 355 of 1977". • Yoge;hwar basad and Mrs. Rani Chabbra, for the App~llant J. P. Goyal, Ra. f. esh and S. K. Jain for the Resp011dents. . , 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 sh'Ort question for f 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 fr be binding on them. The landlords, ·ihercfcrc, cannot poS>ibly urge that the sub-letting was not with the consent of the laicdlord•. .. .. ;. -\, 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 : "(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 3. (a) defines tenant as ; F 1 "(a) "Tenant' in relation to ab_μilding, me3ns a pc~ son by whom its rent is payable, .......... . 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 sba11 be taken int'o account before passing any order of release or refusal B to release. If the sub-tenancy had been created without the consent • 34 $UPREME COURT REPORTS (1984] 2 S. c. R.

• 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. A similar question came up for consideration before a· Divi- t sion 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\lb- I, tenant. rr· 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 l 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 '1· costs. H. S. K. Appeal all•wed. • (! )' (1965) A. L. J.

544. •