_.,.

60'1

MAHA!UR ll, JlASAb VilRMA

DR. SURINDER KAUR

April 7, I 982

[R.S. PATHAI: AND AMARENDRA NATH SEN, JJ.)

Landlord and tenant-East Pun/ab Urban Land Restriction Act, 1949-Section 13(2} (ii) (a)-Scop• of-Sub-tenant-inducttd In a portion oftheprtmJses with the permission of landlord-Whether such subletting became unlawful on dlt1rminatlon of tenancy-Tenant, if liable to be evicted.

Evid111a-Tape rorded nidence oly corroborative in nature . •

Section 13(2) (ii);(a) of the East Punjab Urban Land Restriction Act 1949 provides that.if a tenant has, aft•r the coauncnccmcnt of the Act, without .the written consent of the landlord sub-Jot tho entiro build inc or any portion the roof

tlio tenant shall be liable to be evicted on the ground of such sub-letting.

The Act ·- ma4e applicable to tbe Union Territory of Chandiprb from

November 1972.

/The respondent landlady fild a petition beforo the Rent Controller alleging that the 'tenaJ:J.t bad sublet.a portion of the premises under his occution in breach of section 13(2) (ii) (a) of the Act and. that therofore he was liable to be evicted. The Rent Controller ordered bis eviction. The tenant's appeal to tho Appellate Authority and later revision petition to the High Court were dismissed.

In the tenant's special leave petilion, this Court directed the Rent Controller to record a finding whether the tenant had sub-Jet any porlion .of the .prc- 111ises after April 1974. The Rent Controller found that a portion of the premises was sub-let by the tenant in May 1974.

On I.he question (1) whether the exi<tence of the sub-tenant in the premises after the expiry of the contractual tenancy necessarily rendered the sub-Jetting illegal and furnished a ground for <0viction within the meaning of section 13(2) (ii)

(a) ol the Act (2) whethenhe sub, letting by the tenant with the written consent of the land-lady during the currency of the tenancy became unlawful and illegal on.the determination of the 'tonancy and furnished a ground for evictionwithin the meanins of the section.

608 (I 98iJ 3 s.c.ft..

Allowing the petition,

HELD: 1. There is no evidence on record to justify the finding of the Rent Controller that the tenant had sub-let a portion of the premises in May

1974. [623 E]

2. The tenant has not sub-let any portiQn of premises without the con .. sent of the land-lady after the commencement of the Act and therefore the landlady had no ground for Cviction of the tenant on the ground of sub-letting within the meaning of the section. In the instant case the written consent to sub-let a portion of the premises as required by the statute had been given by the landlady to the tenant and, it was in terms of that authority that the tenant had inducted a sub-tenant' in April 1974 when the contractual tenancy was subsisting.

Therefore the sub-letting did not afford any ground for eviction of the tenant on the ground of sub-letting. [626 F-H]

3. The crux of the matter is that if after the commencement of the Act, the tenant bas lawfully .sub-let a portion of the premises with the .written.consent of the landlord, the sub-tenant becomes a lawful su~-tenant and becomes a "tenant" within the meaning of the Act with the tenant as his landlord and continues to enjoy all the protection available to a tenant under the Act. The tenant who inducts such sub-tenant is not entitled to evict him as landlord of the subtenant except in accordance with the provisions of the Act. [624 B-G]

4. The argument of the land-lady that on the expiry of the month of April her 'consent bad stood withdrawn is of no consequence because in the ins .. tant case the tenant has sub-let a portion of the premises in April 1974 when ad~ mittedly .the wrihen consent of the land-lady was in existence. The continuance,, in. possession of such sub-tenant in a portion lawfully iet out to him on the expiry of the month of April did not amount to or have the effect of any fresh sub-letting by the tenant at the end of April. A lawful sub-letting on the basis of the provisions of the Act does not become unlawful merely because the contractual tenancy of the tenant comes to an end. [625 F-H]

5 (a). Tape-recorded conversation between the husband of the-landlady and the tenant on which the Rent Controller had relied could only be corroborative evidence of conversation deposed to by any of the parties. In the absence of any such evidence the tape-recorded conversation cannot be proper evidence and cannot be relied upon. [623 E-F]

(b) That apart, the tape-recorded evidence indicated that on the expiry

of the term of the tenancy, the land-lady had not merely accepted tile ent but had manifested her intention of continuing the tenancy notwithstanding the expiry, of the term. The evh:lence also showed that the husband of the land-lady asked the tenant to induct suitable persons as sub-tenants under him. [623 G-H]

CIVIL APPBLLATB JURISDICTION: Civil Appeal No. 1830 of 1978.

.-~~· •

MAHABIR PRASAD v. SURINDER KAUR (A.N. Sen, 1.) 609

From the Judgment and Order dated the 19th September, A 1978 of the High Court of Punjab & Haryana at Chandigarh in Civil Revision No. 1398 of 1978.

V.M. Tarkunde an<I H.K. Puri for the appellant.

T:U. Mehta, N.D. Garg, Rajiv Garg and S.K. Bislf'lia for the respondent.

T.he Judgment of the Court was delivered by

AMARENDRA NATH SEN, J. Whether on a proper construction of the terms of tenancy and th.e provisions of the East Punjab Rent Restriction Act, 1949, the appellant is liable to be evicted from the premises in his occupation as tenant, on the ground of wrongful sub-letting of the premises, is the question which falls for consideration , in this appeal by special leave granted by this Court. .

The appellant came into occupation of the shop-cum-flat No. 48, Sector 3-C, Chandigarh on and from 1st of April, 1974 as a tenant under the respondent who happens to be the owner of the said premises on terms anq conditions contained in the rent-note dated 2 4.1974. For the sake of convenience we shall describe the appellant as the' tenant and the respondent as the landlady of the premises.

, The landlady filed her present petition (R.A. No. 163 of 1977) in the Court of Rent Controller Chandigarh, under S. 13 ol the Easi Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Aet) for the eviction of-the tenant on two grounds, namely, non-payment of rent and sub-letting of the flat portion and Barsati portion of the premises.

On the said petition of the landlady the Rent Controller, Chandigarh passe.d an order of eviction of the tenant on 17.IL1977. only on the ground of sub-letting. The other ground, namely noh,-payment of rent by the tenant, did not succeed.

Against the order of the Rent Controller, the tenant filed an appeal under S. 15 of the Act before the Appellate Authority, The Appellate Authority by its judgment dated 9.8.1978 dismissed the appeal of the tenant and upheld the order of eviction passed by the Rent Controller.

.610 stJi>ilEMil cotJkt llU!l>okts tl<>Al 1 s.t.l.

Against the judgment and order of the appellate authority, the tenant filed a revision petition under S. rs of the Act before the High Court of Punjab and Haryana at Chandigarh. The High Courv by its judgment dated 19.9. 78 dismissed the said petition.

Aggrieved by the judgment and order of the High Court, the tenant has filed this appeal with special leave granted by this Court, challenging the correctness of the decision ordering the eviction of the tenant from the said premises on the. ground -0f

.,_. sub-letting.

Before we proceed to consider the arguments advanced from the Bar, it will be convenient to set out the terms of tenancy contained in the rent note da; ed 2.4.1974 and also the relevant provisions of the Act.

The relevant terms contained in the rent note read as follows:-

"I That the period of tenancy shall be one month commencing from the 1.4.1974 to 30.4.1974.

That rent hereby fixed shall be Rs.· 450/- pm.

x x x x

x x x x

That the possession of the said premises bas already been received by the tenant from •the owner.

x x x x

x x x x

x x x x

That the tenant has a right' to sub-let the flat portion G and Barsati portion of this said SCP above mentioned, ,

x x x x

x x x x

14. At the expiry of the tenancy the tenant shall redeliver the vacant possession of the said premises to the

MAtiA11.i

0 PRASAb v. SURINDER KAUR (A.tv. Sen, J;) 611

owner in the original condition failing which he shall be liable to pay the mesne profits."

The relevant provisions of the Act are contained in S. 13 of the Act, the material provisions of which may be noted :

"13. (1) A tenant in possession of bnilding or rented land shall not be evicted therefrom in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this section, or in pursuance of an order mad~

under section 13 of the Punjab Urban Rent Restriction

Act, 1'947, as subsequently amended.

(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 opportunity of showing cause against the applicant, is satisfied-

(i) that the tenant has not paid or tendered the rent due by him in respect of the building or rooted land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable;

Provided that if the tenant on the first hearing of the application for jectment after due service pays or tenders the arrears o( rent and interest at six per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent

withfo the time aforeaid. ·

(ii) that the tenant has after the commencement of tllis

Act without the written consent of the landlord-

(a) transferred bis right under the lease or sub-let the

SUPREME COURT REPORTS / 1982] 3 s.c.ll.

entire building or rented land or any portion thereof; or

x x x x

x x x x

In the instant case, there is no dispute that the tenant had sub-Jet the Flat portion and Barsati portion of said premises to sub-tenants.

There is, however, a dispute as to when the sub-tenants were inducted by the tenant. As no clear finding had been recorded in the judgment of the Rent Controller or of the Appellate Authority or the High Court as to when the subtenants were inducted, and as there is no finding as to whether the tenant had sub-let any portion after the month of April, 1974, this Oourt passed an order on the 24th of November, 198 I remitting the following issue to the Rent Controller, Chandigarh for a

finding:~

"Whether any one or more of the sub-tenancies alleged by the Landlady-respondent were created_by the tenant appellant during the month of April, 1974 or it was only thereafter that the sub-letting took place?"

This. Court while passing the said order, further directed that the Rent ControHer would permit the parties to lead evidence on the point and would render his findings after taking into consideration the evidence 11lready on record and any additional evidence that might be led.

Pursuant to the said order passed by this Court, the Rent Controller after taking further evidence had recorded his finding on this issue. The finding of the Rent Controller is that there was sub-Jetting of a small bed-room in the flat portion and also of the Barsati portion by the tenant also in the month of May. This finding of the Rent Controller has been disputed before us by the

tet. . .

Mr. Tarkunde, learned counsel appearing on behalf of the tenant, has submitted that in view of the express authority given to the tenant as contained in cl. 8 of the rent note to sub-let the flat portion and the Barsati portion which portions had, in fact, been

- •

......

• MAHAJUR PRASAQ v. SURINDER KAUR (A.N. Sen, J.) 613

sub-Jet by the tenant, there can be no question of wrongful and illegal sub.Jetting by the tenant of the said portions, as the sub-Jetting is with the written consent of the land-lady; and the provisions contained in S. 13 (2) (ii) (a) can have no application and there can be no ground or cause of action for eviction of the tenant on the ground of sub-letting within the meaning of the said prov1s1on.

Mr. Tarkunde has argued that the Act was made applicable_ to Chandigarh from

4. l l.1972 and the tenancy was created in April, 1974 long after the Act bad come into operation in Chandigarh and had become applicable to the premjses in question.

It is Mr. Tarkuride's argument that in view of the prohibition on sub-lettig without the consent of the landlord in tvriting contained in the Act, the landlady in the instant case has in writing expressly authorised the tenant to sub-let the flat portion and the Barsati portion of the said premises, so that the tenant does not come within the mischief of the said provision. Mr.

Tarkunde contends that it is not in dispute that the tenant had sub-Jet the flat portion and the Barsati portion of the premises in termlr of the authority given to. the tenan( in writing an<l as the sub-letting has been done by. the tenant with the written consent of the landlady after the commencement of the Act and of the portions the tenant ws authorised to sub-let, there can be no violation of the provisions of S. 13 (2) (ii) (a) of the Act. It is the contention of Mr. Tarkunde that as the subletting was done by the tenant in terms. of the _written authority given by the la.nlady to te tenant.' te sublettmg can consttttite no ground for ev1ct1on of the tenant w1thm the meaning of the said section of the Act and there can be no order of eviction of the tenant on the ground of subletting by the tenant.

Mr. Tarkunde has submitted that the High Court has proceeded on the basis that the sub-tenants had continued in occupation after the month of April, 1974, and as the terms of contrac'.

tual tenancy ended on the expiry of the month of April, 1974, the continuance of sub-tenants inducted with the written consent of the landlady after th~ month of. April, became unauthorised and illegal and resulted in subletting without the written consent of the landlady and as such the provision contained in S. 13 (2) (ii) (a) became applicable and the tenant became liable to eviction on the ground of wrongful sµbletting within the meaning of the said provision.

Mr: Tarkunde, in this connection, has commented that the view taken by the Punjab and Haryana High Court is that if the

sub-tnants, though lawfully inducted, continue to b~ in possssioq

SUPRBAIE COURT RBPORTS. ( 1982] 3 s.c.ll.

after the expiry of the lease of the tenants, such sub-letting becomes unlawful and furnishes a ground for eviction of the tenant. In this connection, Mr. Tarkunde has referred to the following observations of the learned Judge in this case :

"In Kartar Singh & Others v. Tarlok Singh & Others('} Pandit, J. held that the permission given by the landlord to the tenant to have sub-tenants during the currency of the lease is of no avail after the termination of the tenancy and if the sub-tenants continue on the property even after the expiry of the lease, the tenant was guilty of sub-letting without the written permission of the landlord".

Mr. Tarkunde has submitted that this view of the High Court on the basis of which the order for eviction has been upheld is clearly erroneous. Drawing onr attention to the relevant provisions contained in S. 13 (2) (ii} (a) of the Act, Mr. Tarkunde has submitted that the statute only forbids sub-lettiog without the written consent of the landlord after the commencement of the Act and by necessary implication the statute ilermits sub-letting by the tenant with the written consent of the landlord.

Mr. Tarkunde contends that if the sub-tenants are inducted by the tenant with the written consent of the landlord, the sub-letting is authorised and legal and the continuance of the sub-tenant thereafter cannot. be considered to be unlawful or illegal on the ground that the tenancy of the tenant had come to end, as the sub-tenants continue to enjoy possession in their own right as sub-tenant and the tenant who has inducted the subtenants cannot and does not enjoy any power or authority of evicting the sub-tenant except in due process of law. In this connection Mr. Tarkunde has drawn our attention to the definition of 'landlord' and also of 'tenant' as given in S. 2 (c) and (i) of the Act.

• The definition of the landlord as given in S. 2 (c) is as G follows:

" 'landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the H benefit, of any other person, or administrator for any other

(1) !1973) Punj. L.R,. 824 (P.<;:, l

MAHABIR PRASAD v. SURINDBR KAUR (A..N. Sen, J.) 615

person, and includes a tenant who sub-lets any building or rented land .in the manner .hereinafter authorised, and, every person from time to time deriving title under a landlord" .

The definition of tenant as mentioned in S. 2 (i) reads :

" 'tenant' means any person by whom. or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a . person placed in occupation of a buildioi; or rented land by its tenant, unless .with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, car-stand or slaughter-house or of rents for shops has been farmed. out or leased by a municipal town or notified area committee".

Mr. Tarkunde argues that the definition of landlord clearly indicated that a 'landlord' wihio the meaning of the Act includes a tenant who sub-lets with lawful authority and the definition of 'tenant' within th.e meaning of the Act also ioludes a sub-tenant who has been lawfully inducted. Referring to these definitions Mr. Tarkuode has submitted that as soon as the tenant has lawfully sub-let the portions. to the sub-tenants the tenant in the instant case becomes a 'landlord' 'within the meaning of the Act and the sub-tenant lawfully inducted becomes a tenant under him within the meaning of this Act and the provisions of the Act are applicable to them. Mr.

Tarkunde argues that by virtue of the aforesaid definitions, a tenant continues to be in possession after the termination of the tenancy in bis favour, remains a tenant within the meaning of the • Act and con.tinues to enjoy all the benefits of the Act.

It is the argument of Mr. Tarkund.e that the sub-tenants lawfully inducted must, therefore, be considered to be in lawful possession under the tenant as the landlord and the sub-tenant must also be lleld to be entitled to remain in possession after the expiry of the term and the termination of the tenancy, whether of the tenant or of the subtenant, by virtue of the provisions of the Act.

. Mr. Tarkunde has next contended that though in the instant case the tenancy was granted for the month of April, the tenant on the expiry of the id period i1 entitled to Q011ti11~ to rmtin in

II'

SUPREME COURT REPORTS (1982] 3 s.c.ll.

possession and enjoyment of the premises by virtue of the provisions contained in the Act. It is the contention of Mr. Tarkunde, that even on.the expiry of the contractual period of tenancy, the tenancy continues under the provisions of the Act and the tenancy continues on the same terms and conditions. In support of this contention Mr. Tarkunde has relied on the decision of this Court in the case of V. Dhanapa/ Chettiar .v. Yesodai Amma/(1) and has placed particular reliance on the fllowing observations at p. 351-352: '

"This is exactly the reason why we have thought it fit to review all the decisions and lay down a uniform Ia w for all the States. Section I 0 (I) of the Andhra Pradesh Act provided that "A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or ections I 2 and 13. "A special provision in the Andhra Act was contained in section JO (7) which says :

'Where an ..application under sub-section (2) or subsection (3) for evicting a tenant has been rejected by the Controller, the tenancy shall, subject to the provi sions of this Act' be deemed to continue OD the same terms and conditions as before and shall not be terminable by the landlord except on one or more of the grounds mentioned in sub-section (2) or sub-section

(3) ."

, This special provision is.provided by way of abundant precaution only.

Even without this a tenant continuing in possession after the termination of the contractual tenancy and until an eviction order is passed against him continues OD the same terms and conditions as before and he cannot be evicted unless a ground is made out for the evic!ion according to be the State Rent Act."

Relying on the aforesaid observations, Mr. Tarkunde has argued , that even on the expiry of the contractual tenancy in the month of April, the tenant continues to be a tenant under the statute on the same terrns and conditions as a statutory tenant

(l) ~1980) I SCR 334.

- •

'•'

...

' -

' .

MAHABIR PRASAD v. SURIND)lR KAUR (A, N. Sfn, J.) 617 ·

and be continues to enjoy the authority of subletting of the fiat portion and the barsati portion of the said premises in terms of the agreement originally entered into by and between the tenant and the landlady.

It is the argument of Mr. Tarkunde that contractual tenancy in the instant case is determined by efilux of, time but, the tenant is protected against bis eviction by statute and as a statutory tenant, the tenant continues to enjoy the same right of sub-letting which he had as contractual tenant and the said right of the tenant is not lost on the determin!ltion of the contractual tenancy. In this connection, Mr. Tarkunde has referred to the decision of this Court in the case of Damadilal and others v. Parashram and Others,(') and he has relied on the following observations at pp. 653-654 :-

"We find it difficult to appreciate how in this country

Yie can proceed on the basis that a tenant whose contractual . tenancy bas determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory . tenant having no estate or property in the premises which he occupies is derived from the provisions of• the English. Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the r, elevant statute. Tenancy has its origin in contract. There is no dispute th.at a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy bis status of irremovability and not the estate be bad in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot pe touched by legislation. It is, therefore, . necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the r6spondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.

(I) (1976J Suppt ~·~·~· 64~,

I - F

SUPREME COURT REPORTS [1982] 3 s.c.R.

Section "2 (i) of the Madhya Pradesh Accommodation Control. Act, 1961 defines 'tenant' to !llean, unless the context otherwise requires :

'a pcyson by whom or .on .':'hose account or behalf the rent of any accommodation' 1s, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include

any person against whom any order or decree for eviction has been made·. ·

The definition makes a person continuing in possession after the determination of his tenancy a tenant unless after a decree or order for eviction bas been made against him, thus putting him on par with a person whose contractual tenancy still subsists.

The incidents of such tenancy and a contractual tenancy must therefore be the' same unless any provision of the ct conveyed a contrary intention. i:hat under the Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant's powe; of sub-letting. Section 14 is in these terms :

' 'Sec. 14. Restrictions on sub-letting:-(!) No tenant shall, wit.bout the previous consent in wrfting cir the landlord-

(a) sub-let the wholC or 8JlY part of the accCi>mmodation

held by him as a tenant; or

(b) transfer or assign his rights in the tenancy or in any part thereof.

(2) No landlord shall claim or receive the payment of any sum as premium or pugrce or claim or. receive any consideraion wbatsoeyer in cash or in kind for giving his consent to the sub-letiing of the whole or any part of the accommodation held by the tem1nt,'

MAHAhlk PRASAD v. !iuRINDll KAUR (A.N. Sen, J.) M~

There is nothing to suggest that this .section does not. apply to all teants as defined in section 2(i). A contractual tenant has an estate or interest in premises from which be carves out what be gives to the sub-tanant. Section 14 ·read with section 2 (i) makes it clear that .the so-called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him."

i\ Mr. Tarkunde has further submitteo that in the instant case the question of any sub-letting• by the tenant on the expiry of the term of tenancy does not really arise, as the tenant had sub-let the fiat portion and also the barsati portion in the month or April in terms of the written consent of the landlady, while the contractual tenancy was subsisting and in force. It is his submisssion that the finding of the Rent Controller that the tenant bad sub-let one • bed room in the fiat portion and also the barsati portion in -the month of May, in aswering the issue remitted to him by this Court, is clearly erroneous and not borne out by the evidence on record.

Mr. Tarkunde has argued that the Rent Controller in arriving at this finding has mainly relied on the tape.recorded conversation between the tenant arid landlady's husband who also happens to hold the power of attorney of the landlady. He bas argued . - . that rendering of the tape-recorded conversation can be legal evidence bY way Of corroborating the statement of a person who deposes that the other speaker and he carried on that conversation or even of the statement of a person who deposs that he over-heard the conversation between the two persons and what they actuaJly stated, had been tape-recorded. It is his argument that tape-recorded conversation may be useq only as a corrobora.tive evidence of such conversation deposed to by any of the ·

parties to the conversation and in the instant case in the absence of any such evidence the tape-recorded conversation is indeed no evidence and cannot be relied upon.

Mr. Tarkunde, in support of this argument has relied on the decision of this Court in the.case of S. Pratap

Singh v. The Srate of Punjab.(') Mr. Tarkunde bas further argued that even if relianee is to be placed on the tape-recorded. conversation, it must then be held on the basis of the evidence recorded therein that the contractual tenancy had continued beyond tb'e period of the

(I) [1964) 4 SCR 733.

SUPREME coullt f!.EPOUS fl982l 3 s.c.~

month of April. According to Mr. Tarkunde, in the present case the landlady had not merely accepted the rent which the landlady had . in fact done; on the expiry of the contractual period of tenancy, but the tape-recorded conversation clearly indicates that the tenancy was treated as continuing between the parties, notwithstanding the expiry of the pericd and the tenant was recognised as tenant with lawful authority to sub-let even after •the expiry of the month of April, 1974.

Mr. Tarkunde on the basis of the aforesaid contention has submitted. that the order of eviction against the tenant on the ground of subletting in the instant case is erroneous and should be set aside.

Mr. Mehta, learned counsel appearing on behalf of the landlady, has submitted that the tenancy, in the instant case was created

only for the month of April, 1974.

He submits that on the expiry of April, 1974, the tenancy by efflux of time stands determined and the agreement between the pariies comes to an end.

He has argued tjiat though under the terms Of tenancy, the tenant had been given the necessary permission and authority to sub-let, such consent or authority would remain valid only for the month of April and there could lawfully be any sub-tenants only for the 'month of April.

He contends t!Jat on the expiry of the month of April when the co.ntractual tenancy comes to an end, the possession of any sub-tenant of any portion of the said premises would be ,.uniiuthorised and illegal. It is his contention that it is not open to the tenant to creat by way of sub-tenancy or otherwise any interest in any other person larger than the interest which the tenant himself enjoys.

According to Mr. Mwta, the tenant on the terms and conditions of the tenancy enjoyed the right of a tenant only for the month of April and the tenant could only, the1efore, induct any subtenant on the basis of the terms and conditions of the tenancy only for the month of April; and the enjoyment or possession of any portion of the said premises by any suhtenant after the month of April would necessanly be a case of wrongful and illegal subletting without any written consent as the consent must necessarily be con; sidered to have stood revoked on the expiry of the month of April.

Mr. Mehta has drawn our attention to clauses 1 and 14 of the rent note and has argued that the said clauses clearly indicate that the contract of tenancy was valid only for the month of April and the

•, --

MAllAlllR PRASAb v. st!RINbEll KAUR (A.N. Sen, J.) 611

\, dthority of subletting was also only valid for the said month and on expiry of the said month the tenant Wll, S to make over vacant possession to the owner of the premises in the original, condition, It is his argument that the contract of tenancy clearly contemplates that' !here will be no sub-tenants in the premises on the expiry of the monfh of April. Mr. Mehta submits that existence of any subtenants in the premises after the month of, April, whether subtenants were inducted in the month of April or thereafter, brings the case within the mischief of S.13 (2) (ii) (a) and renders the tenant liable to eviction on the ground of illegal sub-letting; It is his , submission that if there be any sub-tenants in occupation or possession of any, portion of the said premises after the co11tractual tenancy had come to an end the subletting must be held to be without the written consent of the landlord and as such wr:>ngful and illegal to enable the landlord to evict the tenant on the ground of such subletting.

Mr. Mehta has submitted that this view which has been consistently held by the High Court of P¥njab and Haryana, bas also been followed by the Hi_gh Court in the instant case. In support of this submission Mr. Mehta has referred to the decision in the case of' Kartar Singh and Others v. Tarlok Singh and Others(') which has_ •been referred by the/learned Judge in the judgment under appeal.

Mr. Mehta has also relied on the decisions of the Punjab and Haryana High Court in the case of Shri Kidar Nath v. Smt. Kartar Kumar,(') and also in the case of Gurdas Ram v. Hans. Raj.(') According fo Mr. Mehta, this view has held the field in Punjab and Haryana all thee years and this is the settied law in the State.

Mr. Mehta further submits that as sub-tenants have continued to remain in possession after the month of April, the subletting must be held to be without any written consent and illegal to furnish a valid ground for the eviction of the tenant and all the cour.ts including the High Court have properly ordered the eviction of the tenant.

Mr. Mehta has next contended that in the instant case subletting of a bed room in the fiat portion and also of the barsati portion had been done by the tenant in the month of May, 1974 as found by the Rent Controller after the remand of the issue by this Court to the Rent Controller. Mr. Mehta submits that the Rent

(I) [1973) P.L.R. 424.

(2) [1969] 71 P.L.R. 186.

(3) [1974) Rent Control Journal, Short Notes of cases p, 1.'

~U!>ltl!Mll cotJkt REl>oktS tl98~J 3 s.c.k

Controller had correctly come to the conclusion on the evidence on record after allowing the parties opporfunity of adducing further evidence.' Mr. Mehta has argued that as the tenant had sub-let in the month of May after the expiry of the period of tenancy, the subletting must be held to be illegal . and wrongful as the consent in writing by the landlady contained in the renl note was only for the month of April. '

Mr. Mehta argues that on the expiry of the month of April when the contractual tenan_cy .comes \o an end and the tenant continues to remain in possession by virtue of the provisions of the Act, the tenant does not enjoy any power or authority to sub'let, even if such authority had been granted to the tenant to sublet during the period of contractual tenancy. It is the argument of Mr. Mehta that on the expiry of the contractual tenancy, the terms and condi tions on the basis of which the tenancy had been created, come to an end and the statutory tenant who may enjoy protection against eviction by virtue of the statute does not have any authority to induct ay sub-tenant. In support of this contention Mr. Mehta has , referred to the decision of this Court in the case of Anand Nivas (P) Ltd. v. Anandji Ka/yanji f:edhi & Ors.(') and he has relied on the following observations at pp. 917 : ..

"A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned and he having no interest in the property there is no estate on which subletting may operate."

Mr. Mehta has commented that this decision of this Court was not . considered by this Court in the case of Damadi Lill and Ors. v.

Parasram-and Ors.(supra). . . M~. Mehta bas_ further argued tbat it is well settled that mere acceptance of rent on the determination of the contractual tenancy by effiux of time or otherwise does not in the absence of some\hing more have the effect of creating a fresh tenancy or continuing the

(I) [1964] 4 S.C.R. 892 ..

 .. I

MAHABIR PRASAD v. SURINDER KAUR (A.N. Sen, J.) 623

' contractual 'tenancy afready dete.rmined; and it is his argument that

ii cannot be said tbat a fresh tenancy was created or the tenancy was allowed to .continue on the expiry of the month of April merely . because the lan.dlady had accepted the rent from the tenant on . the expiry of the period_ of the tenancy after the month of April. ,.

Mr. Mehta, therefore, submits that in the imtant case the order for eviction has been rightly passed and this appeal should be dismissed.

Before we proceed to consider the main q'uestion involved in this appeal, namely, whether tlie existence of sub, tenants in tbe premi-" ses after the expiry of the term of contractual tenancy, necessarily ren~

ders the subletting illegal and furnishes a ground for eviction within the meaning of S. 13(2) (ii) (a) of the Act, we propose to dispose of the other questi11n as to whether there was any subletting by tbe tenant in the month of May. On a careful consideration of the report of the Rent Controller on the issue remitted to him by this Court, we are of the opinion that the finding of the Rent Con- .troller that the tenant had sub-let one 'bed room in the flat portion : and the .barsati portion in the month of May, 1974 js. not justified, as there.was no proper evidenceor material before the Rent Controller to come to the said !hiding. This findingof the Rent controller is bas"d essentially on the tape-recorded conversation between the tenant the husband of the landlapy. Tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon. In the instant case, there was no evidece of any" such conversation between the tenant and the husband of the landlady; and in the absence of any such conversation, the tape-recorded conversation could be no proper evidence.

We may further add that the tape-recorded conversation, even if the same could be relied upon, would b~ of no particular heip to the landlady, as the tape-recorded conversation clearly indicates that the landlady on the expiry of the term of tenancy had not merely accepted the rent but had manifested

the intention of continuing the tenancy, notwithstading the expiry of the terms; and the tape recorded conversation goes to show that the husband of the landlaoy as asking the tenant to induct suitable persons as sub-tenants under him.

B .1

624 SUPREME COlTRT REPORTS (1982] 3 s.c.tt.

As there is no proper evidence to show that any sub-tenant was inducted after tbe expiry of the contractual period of tenancy, it does not become becessary for us to consider whether the tenant who; on the detemination of the contractual tenancy, continues to remain in possession by virtue of the provisions of the statute as statutory tenant, is entitled to sub-Jet and he continues to remain in possession on the same terms and conditions on which he became a tenant.

The CruJ( of the question, therefore, is whether the subletting by the tenant with the written consent of landlord during the

currency of the tenancy becomes unlawful andillegal on the deter- .-~ mination of the tenancy and furnishes a ground for eviction within the meaning of S. 13(2) (ii) (a) of the Act. ·

S. 13(2) (ii) (a) which we have earlier set out lays down that if a tenant after the commencement of the Act has without written consent of the landlord transferred his right under the lease or sublet the entire building or any portion thereof, the tenant shall be liable to be evicted on the ground of such subletting.

The requirement of the section, therefore, is that after the commencement of the Act there has to be subletting by the tenant without the written consent of the landlord to enable the landlord to recover possession . of the premises on the ground of subletting. It, therefore, necessarily follows that if after the commencement of the Act, the tenant has sublet with the written consent of the landlord, such subletting will not furnish any ground or cause of action for the eviction of the tenant by the landlord.

It is to be noted that after the tenant has lawfully sublet with the written consent of the landlord, the sub-ten• ant becomes a lawful sub-tenant; and as su.ch' he becomes a 'tenant' within the meaning of the Act under the tenant as his landlord and contil)ues to enjoy all the protection available to a 'tenant' under the Act and the tenant who inducts such sub-tenant is not entitled to evict him as landlord of the sub-tenant except in accordance with provisions of . the Act. As the tenant enjoys protection against eviction in terms of the provisions of the Act and is not liable to be evicted except in accordance with the provisions of the Act notwithstanding determination of his tenancy by the landlord, the sub-tenant lawfully inducted equai!y enjoys the same protection a8ainst eviction afforded to a tenant by the Act; and the sub-tenant

l_

MAHABIR PRASRi> v. SURINDER ltAUR (A.N. Sen, J.) 625

can only be evicted in accordance with the provisions of the Act in th'e same way as a tenant can be evicted. In spite of the sub tenancy being determined by the tenant as his landlord, the subtenant by virtue of the protection against eviction afforded to him by the Act is entitled to continue in possession of the portion let out to him by the tenant as his landlord; and it is just not possible for the tenant as landlord to get rid of any sub-tenant at his will.

In the instant case, the tenant had the authority to sublet and the written consent, as required by the statute, had been given by the landlady. In terms of the authority granted to the tenant and with the consent in writing of the landlady, the tenant had inducted sub-tenants in the month of April, when the contractual tenancy admittedly subsisting. The subletting by the tenant in the instant case could, therefore, afford no tground to the landlady or furnish any cause of action for her to evict the tenant on the ground of subletting on the basis of the provisions contained in S. 13 (2) (ii)

(a) of the Act. The sub-tenants lawfully inducted came to be in lawful possession of the portions let out to them by the tenant with the authority and consent in writing of the landlady and such sub letting afforded a complete safeguard to the tenant against eviction and would not con:ie within the mischief of sec. 13 (2) (ii) (a) of the Act.

We have already held that the creation of any sub-tenancy in the month of May is not borne out by any proper evidence on

recoi\I. The case of the landlady that there was any sub-letting on the expiry of the month of April without the written consent or the landlady has not been established. In the instant case, the tenant has sublet with the written consent of the landlady in the month of April and has not sublet any portion on the expiry of the month of April. The argument of the learned counsel for the land lady that on the expiry of the month of April, the consent of the landlady in writing stands withdrawn is of no consequences. In the instant case, the tenant has sublet in the month of April, 1974, when admittedly the written consent of the landlady was'there. The continuance in possession of such subtenants in the portions lawfully let out to them on the expiry of the month of April does not amount to or have th.e effect of any fresh sub letting by the tenant on the expiry of the month of April; and, it cannot be said that the tenant "has sublet" afresh on the expiry of the month of April. The right 'of possession that the sub-tenao\$ Qajoy on the basi$ of lawful iqduc

.626 SUPREME cou1n R!lPOllTS

(1982) 3 s.c.R.

tion as s.ub-tenants is assured to the sub-tenants 11s a "tenant" within .the meaning of the Act.

As a tenant in spite of the determination of his tenancy con.tinues the right to remain in possession as a statutory tenant and enjoys the protection against eviction by . ' . virtue of the provisions contained in the statute, a sub-tenant who is lawfully inducted, is also recognised by the st!l(ute to be a "tenant' within the meaning of the Act and he must necessarily enjoy the protection ligainst e.viction afforded to a tenant bY. the Act. A lawful sub-letting on the basis of the provisions of the Act does not become unlawful merely because the contractual tenancy of the tenant comes to an end.

A. tenant incurs the liability to be evicted,

- if the tenant after the commencement of the Act sub-lets without the written consent of the landlord; and the tenant who baslafully sublet with the written consent of the landlord must necessarily enjoy immunity from the process of eviction on that ground. Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy bas come to an end. Sub-letting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when. the tenant rnb-let_s any portion to the subtenant.

E .

A sub-letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub-letting by the ten3nt without the written consen~ of the landlord. Mere continuance in possession of a sub-tenant lawfully inducted does not amount to any fresh or further sub:letting. We are, therefore, satisfied that F in the instant case the terlant has not sub-let any portion without the written corlsent of the landlady after the commencement of the Act.

As the tenant has not sub-let any portion after the commencement of the Act without the written consent of the landlady, th.e landlady does not have any proper ground for the eviction of the tenant on the ground of sub-letting within the meaning of S. 13 (2) (ii) (a).

G Mere continuance of possession bY, the sub-tenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub-letting, as the tenant bas not sub-let after che commencement of the Act any portion without the consent

·, II in writing of the landlady.

' ..

"""' '

MAHABIR PRASAI> V. SURINDBR KAUR (A.N. Sen, J.) 627

The appeal, therefore, succeeds. The Judgment or the High Court affirming the decision of the lower courts and the order of eviction, are hereb¥ set aside. The appeal is, therefore, allowed with costs.

P.B.R .

Appeal allowed.

' ' '

SURINDER KAUR

April 7, I 982

AMARENDRA NATH SEN, JJ.

Urban Land Restriction Act, 1949

Section 13(2} (ii)

Section 13(2)

section 13(2)

section 13(2)

CIVIL APPBLLATB JURISDICTION

V.M. Tarkunde

T:U. Mehta

N.D. Garg

Rajiv Garg

S.K. Bislf'lia

East Punjab Rent Restriction Act, 1949

Chandigarh

1st of April, 1974

S. 13

S. 15

S. 13

section 13

24th of November, 198

Tarkunde

cl. 8

S. 13

Tarkuride

S. 13

S. 13

Punjab and Haryana High Court

Pandit

S. 13

S. 2

S. 2

N. Sen

S. 2

Tarkuode

Tarkund.e

section 14

Section 14

Sec. 14

section 2(i)

Section 14

section 2

[1964) 4 SCR 733

Mehta

Mwta

Mehta

High Court of P¥njab and Haryana

Mr. Mehta has submitted that this view which has been consistently held by the High Court of P¥njab and Haryana, bas also been followed by the High Court in the instant case.

Punjab

[1964] 4 S.C.R. 892

S. 13(2)

S. 13(2)

S. 13(2)

A.N. Sen

S. 13

sec. 13

S. 13


CHAMPALAt P00NJA1I SHAH

STATE OF MAHARASHTRA

January 27, 1982

[0. CHINNAPPA REDDY, A.P. SBN AND BAHARUL ISLAM, JJ.)

Code of Criminal Procedure 1973, S. 428-Person-Preventively detained for different periods under MISA, COFEPOSA-Later prosecuted, convicted and sentenced to imprisonment-Period spent under preventive detention- Whether can be 'setoff' agaiiist sentence of imprisonment.

The Presidency Magistrate convicted the [!petitioner for offences under sec. lion 120B of the Indian Penal Code read with section 135 of and Customs Act and Rule 126P(2) (ii) and (iv) of the Deience of India Rules 1962 and sentenced him to suffer imprisonment for various periods ranging from two years to four years and t6 payment of fine.

The conviction and sentence was set aside by the High Court, but this Court in appeal by the State set aside the judgment of acquittal by the High Court and restored that of the Presidency Magistrate. The petitioner was alBo preventively detained for various periods first under the Maintenance of Internal Security Act and afterwards under the Conservation of Foreign Bi:chaoge and Prevention of Smuggling Activities Act 1974.

Io the review petition and writ petition to this Court it was contended on behalf of the petitioner that : (1) though ii was argued in the appeal to this Court that the periods during which the petitioner had been preventively detained should be 'set off' against the sentence of imprisonment imposed upon him this

cout had not touched upon the point; and (2) this court's decision in Goyernment of Andhra Pradesh and another v. Venkateswara Rao, AIR 1977 SC 1096,

enabled the petitioner io claim the total of the three periods of detention to be 'set off' against the sentence of imprisonment.

Dismissing the review and writ petition.

HELD: 1. It was not argued that the petitioner was entitled to a 'set off' but that the period of his detention might be taken into account in considering the question of the appropriate sentence be imposed on him. [62 H, 63 A]

2(i) In Government of Andhra Pradesh v. Venkateswara Rao, this Court negatived the contention that the expression period of detention in Section 428, G Code of Criminal P'rocedure 1973 included the detention under the Preventive

Detention Act or the Maintenance of Internal Security Act. [63 F-G]

(ii) Section 428, Code of Criminal Procedure 1973 makes it clear that the period of detention which it allows to be 'set -off' against the tenp of imprison .. ment imposed on the accused on conviction must be during the investigatio_n, enquiry, or trial in connection with the 'same case' in which he has been convicted. (64 A-Bl

SUPREME COURT. REPORTS [19821 3 s.c.i

(iii) Ooly in circumstances where the petitioner would have unquestionably been in detention in connection with a criminal case if he had not been preven tively detained. his preventive detention might be reckoned as detCntion as an undertriitl prisoner or detention pursuant to conviction, for the puqoses of Section 428, Code of Criminal Procedure 1973. [64 G]

In the instant case the petitioner had been acquitted by the High Court J:>efore any of the orders of detention were m.ade against him. There can, there~ fore, be no question of the detention being considered as detention pursuant to conviction nor can the detention be treated as that of an undertriaJ. [64 F]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7207 of 1981.

(Under Article 32 of tlie Constitution of India)

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner. ' . .

The Judgment of the Court was delivered by

D CHINNAPPA REDDY, J. This petition for review and the petition

for the issue of Writ under Article 32 were argued by Sbri Jethmafani with; what appeared to us to be more than his customary vehemence and emotion. Nonetheless, we confess, we are not impressed.

By our judgment dated August 12, 1981 (1), we bad set aside the judgment of acquittal passed by the High Court of Bombay and restored that of the learned Additional Chief Presidency Magistrate, 8th Court, Esplanade, Bombay, convicting the petitioner under different beads of charges and sentencing him to suffer imprison ment for various terms ranging from two years to four years and to the payment of fine of Rs. I 0,000/· on each of different counts.

Shri Jethmalani contended that though he ha.d argued that the period during which the petitioner had been preventively detained under the Maintenance 'of Security Act and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act should be 'set off' against the sentence of imprisonment imposed upon him, we had not touched upon the point. He also drew our attention to a reference tci set off' in the written submissions given to us after the bearing of the case. We may mention that what was argued before us was not that the petitioner was entitled to a 'set off' but that the period of bis detention might be taken into

(1) (1982] l SCR 299.

-+ .•

tl!AMPALAL v. MAfilRAslrtkA (Chinnappa Reddy, J.) 63

account in considetlng the question of the appropriate sentence to A be imposed on the petitioner, which question was considered by us.

But, we will 1et that pass, accept Mr. Jethmalani's word for it and proceed to consider the question straightaway.

It appears that the petitioner was detained first under the provisions of the MISA and later under the provisions of the COFEPOSA. The periods of detention were Septeµiber

17, 1974 to April 18, 1975, July I, 1975 to November 21, 1975 and Ma.y 20, 1976 to March 22, 1977.

We are told that the orders of detention, which have not been produced before us, were based on facts which were the vary subject-matter of the criminal case. The learned Additional Chief Presidency Magistrate had convicted the petitioner by bis judgment dated December 13, 1971 but that was set aside by the High Court by their judgment dated April 20, 1974. The State of Maharashtra filed an application for special leave under Art. 136 of the Constitution on November 30,

1974 and special leave was granted by this Court on April 15, 1975.

It was noticed by this Court at the time of granting special leave that the petitioner was then in preventive detention and it was directed that in case he was released from detention but rearrested in connection with the.case he should be released on bail on the same terms as those on which bail had been previously granted by the High Court. The submission of Shri Jethmalani was that the total of the three periods of detention should be "set off' against the sentence of imprisonment imposed upon him.

He r:lied upon the decision of this Court in Govt. of Antlhra Pradesh & Anr. v. Anne

Venkateswara Rao etc. etc.(1)

We are . unable to agree with the submission of Sbri Jethmalani. Jn the very case cited by the learned counsel, the Court negatived the contention that the expression 'period of detention' in Section 428 Code of Criminal Procedure included the detention under the Preventive Detention Act or the Maintenance of Internal Security Act. It was observed :

"It .is true that the section speaks of the period of detention undergone by an accused person, but it expressly says that the detention mentioned refers to the detention during the investigation, enquiry or trial of the

(I) AIR 1977 SC to96-[1977] 3 SCR 7.

SUPREM• COURT REPORTS [1982] 3 s.c.tt.

case in which the accused person has been convicted. The section makes it clear that the period of detention which it allows to be set off against the term of imprisonment imposed on.the accused on conviction must be during the investigation, enquiry or trial in connection with the 'same case' in which he has been convicted.

We, therefore, agree with the High Court that the period during which the Writ Petitioners were in preventive detention cannot be set off under section 428 against the term of imprisonment imposed on them".

After holding that the period during which the petitioners therein were in preventive detention could not 'set off' under Section 428 Code of Criminal Procedure against the term of imprisonment imposed on them, the Court went on to consider whether the period during which the petitioners were in preventive detention could for any reason be considered as period during which the petitioners were in detention as undertrial prisoners or prisoners serving out a sentence on conviction.

In the case of the prisoner A. V. Rao the Court held that the period commencing from the date when be. would have normally been arrested pursuant to the First Information Report registered against him should be reckoned as period of detention as an undertrial prisoner. In the case of another prisoner Krishnaiab it was held that the period during which be was in preventive detention subsequent to the conviction and sentence imposed upon him should be treated as detention pursuant to conviction and sentence. The case before us is altogether different.

The petitioner bad been acquitted by the High Court before any of the orders of detention were made against him. There can be no question of the detention being considered as detention pursuant to conviction; nor can the detention be .treated as that of an undertrial.

It is only in the circumstances where the prisoner would have unquestionably been in detention in connection with a criminal case if be bad not been preventively detained, his preventive detention might be reckoned as detention as an undertrial prisoner or detention pursuant to conviction, for the purposes of Section 428 Code of Criminal Procedure.

Shri Jethmalani next contended that the petitioner had not been give!' an opportunity to argue on the question of sentence.

That is hardly fair to us.

A substantial part of the argument of Shri Jethmalani on tilat occasion was on the question of sentence

dEIAMPALAL v. MAHARA~HTRA (Chinnappa keddy, J.) 65

and, in the judgment pronounced by us, we did consider the argu- ment advanced by the learned counsel on the question of sentence.

It was also contended before us that the Court was not justified in holding that the petitioner was responsible for the long delay that had been caused in the disposal of the case and that the Court was wrong in holding that it was for the accused to show that be had been prejudiced by the delay.

We see no merit in these contentions.

The application for review is therefore dismissed. No separate arguments were advanced in the Writ Petition which is also dismissed.

N.V.K.

Petitions dismissed.

STATE OF MAHARASHTRA

January 27, 1982

0. CHINNAPPA REDDY

BAHARUL ISLAM, JJ.

Code of Criminal Procedure 1973

S. 428

Indian Penal Code

section 135

Customs Act

Deience of India Rules 1962

AIR 1977 SC 1096

Section 428

Section 428

Code of Criminal Procedure 1973

Section 428

Code of Criminal Procedure 1973

Article 32

Constitution of India

Ram Jethmalani

Rani Jethmalani

D CHINNAPPA REDDY

Article 32

Sbri Jethmafani

Jethmalani

December 13, 1971

State of Maharashtra

Art. 136

November 30,

1974

April 15, 1975

Sbri Jethmalani

Section 428

Code of Criminal Procedure

[1977] 3 SCR 7

section 428

Section 428

Code of Criminal Procedure

A. V. Rao

Krishnaiab

Section 428

Code of Criminal Procedure