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 JP Goyal Rajesh and SK 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 s21 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 UP 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 s21 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 s21 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 s21 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 s21 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 Clausej of s3 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 s21 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 s21 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 vs Babu Ram based on cl
g of s2 of the UP Temporary Control of Rent and Eviction Act 1947
The High Court took the view that the term tenant  as defined in cl
g of s2 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 s21 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 s21 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 s21 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
HSK Appeal allowed


Summary:
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 section 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 s21 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 s21 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 s21 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 vs Babu Ram referred to
In the instant case the appellant was entitled to the protection of the fourth proviso to section 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 s21 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