Appeal No 1124 of 1973
From the Judgment and Order dated 29111972 of the Madras High Court in CRP 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 102iia1 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
102  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
The father of the appellant as also the father of respondent both have died
Respondent was accepted as a tenant upon the death of his father in 1968
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
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 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
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 102iia 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 102iia 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 102 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 102iia and sublet 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 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


Summary:
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 s102iia 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 1i Section 102 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 380 which was made in 195218 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 S102iia of the Act
381G 382A B