Balakrishnan vs Somasundaran Nair and others

E.K. Moidu, J.—This is a revision petition filed u/s 20 of the Kerala Buildings (Lease and Rent Control) Act, 2 of 1965. The facts leading to this revision petition can be stated as follows: The 1st respondent-landlord filed Rent Control petition No. 226 of 1961 in the Munsiff''s Court, Kozhikode for eviction of the petitioner and respondents 2nd 3 mainly on the ground specified in sub-section (4) (i) of Section 11 of the Kerala Buildings (Lease and Rent Control) Act, Act 16 of 1959 which came into force on 3-4-1959. The petitioner held the two shop rooms in question under Ex. A1 koolichit dated 16-11-1956 as a tenant of the 1st respondent. The allegation was that the petitioner sub-leased these rooms to the respondents 2 and 3 without the consent of the 1st respondent and that, therefore, he was entitled to eviction against them. The petitioner contended that he sub-leased both the rooms to the 3rd respondent while the 2nd respondent contended that he got a sub-lease of one of the rooms from the petitioner only on 10-12-1960 and 3rd respondent contended in his turn that he got a sub-lease of the two rooms on 1-12-1958 from the petitioner and that one of those rooms had been sub-leased by him to the 2nd respondent who was said to be in possession of the said room under the sub-lease.

The Munsiff found that the sub-lease in favour of 3rd respondent by the petitioner was on 1-12-1958 which was prior to the Act 16 of 1959 and therefore the 1st respondent was not entitled to eviction. Accordingly the petition for eviction was dismissed. In appeal the Subordinate Judge found on evidence that though the sub-lease by the petitioner to the 3rd respondent was prior to Act 16 of 1959 still the 1st respondent would be entitled to eviction as the later sub-lease by the 3rd respondent to the 2nd respondent was after the Act 16 of 1959. Therefore the Subordinate Judge passed an order of eviction against the petitioner and the respondents 2 and 3. Against that order the petitioner filed a revision before the District Judge u/s 20 of the Act. The District Judge confirmed the order passed for eviction in appeal and dismissed the revision petition. Hence the present revision before this Court.

The two lower authorities found on a question of fact that the petitioner sub leased the premises to the 3rd respondent on 1-12-1958 and that the 3rd respondent in his turn sub-leased part of the premises to the 2nd respondent on 22-7-1960. This finding is not disputed before me either by the petitioner or by the 1st respondent. Respondents 2 and 3 however were not present in person or through an Advocate. So, it was clear that the sub-lease by the petitioner to the 3rd respondent was before Act 16 of 1959.

Section 11 (4) (i) of Act of 1959 was amended by Act 29 of 1961 with effect from 3-4-1959 and the amended section reads as follows:

11 (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building--

(i) if the tenant after the commencement of this Act without the consent of the landlord, transfers his right under the lease or sublets the entire building or any portion thereof if the lease does not confer on him any right to do so.

The words, "after the commencement of this Act," in the above sub section came to be introduced in it by the amending Act 29/1961 with retrospective effect from 3-4-1959. Evidently, the first sub lease by the petitioner to the 3rd respondent being on 1-12-1958 was prior to the Act 6 of 1959. The sub-lease by the petitioner to the 3rd respondent therefore may not be ground for eviction against the petitioner. When the Act as amended came into force on 3-4-1959 the 3rd respondent had already been a sub-tenant of the petitioner. So, the 1st respondent could not set up any cause of action for eviction against the petitioner.

The next important question is whether the 1st respondent could rely upon the sub-lease by the 3rd respondent as a ground for eviction against the petitioner and respondents 2 and 3 in the circumstance of the case.

Lord Denning considered the position of a sub-tenant of a statutory tenant in Solomon v. Orwell (1154) 1. All. E.R. 874. Lord Denning said, "when a statutory tenant sublets a part of the premises he does not thereby confer any estate or interest in the sub tenant. A statutory tenant has no estate or interest in himself and he cannot carve something out of nothing. The sub-tenant, like the statutory tenant has only a personal right or privilege. The question is what is the position of the subtenant when the statutory tenancy comes to an end. When the statutory tenancy comes to an end, the sub-tenant''s right automatically comes to an end unless there is some statutory protection afforded to him."

It is not contended that a sub-tenant is afforded any protection under the Act without the consent of the landlord. However, in Explanation to sub-section (3) of Section 2 of the Act it is stated that "A tenant who sublets shall be deemed to be a landlord within the meaning of this Act in relation to the sub tenant." But the sub tenancy referred to in the above Explanation shall be one created in accordance with the provisions of the Act and unless that is done it cannot be contended that the sub tenancy created by a tenant would be binding on the landlord of the statutory tenant. In the instant case, there is a prohibition against subletting in Ex. A1 without the consent of the landlord. Anyway, the Act did not afford or provide any protection to the sub-tenants.

The fact that the impugned sub-lease was after the Act 16 of 1959 came into force admitted of no doubt. If there was such a sub lease the 1st respondent would be entitled to get an order of eviction against the petitioner and respondents 2 and 3. But it is contended on behalf of the petitioner that the sub-lease was created by his sub-tenant and that therefore the 1st respondent could not rely upon it as a ground for eviction. In this regard my attention is invited by the learned counsel of the petitioner that in sub-section 4 (i) of Section 11 of the Act the word "the tenant" is used and that the intention of the Legislature in using that word in the appropriate section was that the sub-lease if questioned should have been granted by the statutory tenant himself to bring It within the mischief of Section 11 (4) (i) of the Act. He has also invited my attention to the "tenant" in Section 2 (6) of Act 16 of 1959. It reads, "tenant" means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter, of a deceased tenant who had been living with the tenant in the building as a member of the tenant''s family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include......"

In Shamrao Vishnu Parulekar Vs. The District Magistrate, Thana, the question regarding the interpretation of Sections 3(3) and 7 of the Preventive Detention Act (1950) came up for consideration. It was contended in that case that the expression "ground on which the order has been made", occurring in Section 3 (3) is word for word the same as in Section 7, that the same expression occurring in the same Statute must receive the same construction, that what Section 3 requires is that on the making of an order for detention, the authority is to formulate the grounds for that order, and send the same to the State Government u/s 3 (3) and to the detenu u/s 7, and that there fore it was not sufficient merely to send to the State Government a report of the materials on which the order was made. This argument was repelled by Venkatarama Iyer, J. in the following words in para 5 of the above judgment.

It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of the Act. This rule of construction is only one element in deciding what the true import of the enactment is to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the Statute. The presumption that the same words are used in the same meaning is however very slight, and it is proper if sufficient reason can be assigned, to construe a word in one part of an Act in different sense from that what it bears in another part of an Act.

Again on this aspect the following opinion was expressed by the Supreme Court in Workmen of Dimakuchi Tea Estate v. Management, AIR 1958 SC, 356. It reads:

It is well settled that the words of a Statute, when there is doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. Their meaning is found not so much in a strict grammatical or etymological proprietary of language, nor even in its popular use, as in the subject on in the occasion on which they are used an the object to be attained.

Madhavan Nair, J. in K.L.R.K. Narayana Pillai v. Raman Pillai and others 1969 K.L.R. 194 stated,

words in language do not like symbols in mathematics, carry the same precise meaning in every context........Even in an Act, the same expression may have different meanings according to the context in which is occurs.

The word "the tenant", in Section 11 (4) (i) of Act 16 of 1959, may not therefore be used with reference to the statutory tenant. The use of the word "the tenant" in that section may apply to any tenant of the premises provided there is a sub-lease created after coming into force of the Act.

Any other interpretation of the word "the tenant" in the section will lead to absurdity in the application of the Act. Section 11 (4) (ii) mentions yet another ground of eviction of a tenant from his premises. It reads, "if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently". If the object of this provision is intended only to apply when the statutory tenant commits damages to the building it would not be open to a landlord to recover possession of the building if the damage is committed by the sub-tenants. It is clear that the intention of the legislature is not to restrict the right of the landlord to recover possession of his premises only if the damage is proved to have been caused by the statutory tenant and not the sub-tenants. Such an interpretation is not consistent with the object of the Act and therefore it has to be discarded. It is established beyond dispute that a sub-lease had been created after the Act 16/59 came into force. It follows that the sub-lease by the 3rd respondent in favour of the 2nd respondent comes within the mischief of Section 11 (4) (i) of Act 16 of 1959. In the light of the above finding there is no justification for interfering with the order passed by the lower appellate and revisional authorities. The order is, therefore, confirmed, the revision petition is dismissed. I make no order as to costs.