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B. Balaiah Vs. Chandoor Lachaiah - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1561 of 1963
Judge
Reported inAIR1965AP435
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 10(3)
AppellantB. Balaiah
RespondentChandoor Lachaiah
Appellant AdvocateK. Madhava Reddy, Adv.
Respondent AdvocateM. Suryanarayana Murthi, Adv. for ;A.S. Prakasam, Adv.
Excerpt:
.....(lease, rent and eviction) control act, 1960 - whether 'karta' of joint family possessing non-residential building liable to seek eviction from other non-residential building of family for his undivided son to conduct business - possession of another residential building by joint family does not invalidates claim of undivided son for suit property - requirement if established bona fide tenant liable to vacate. - - we have, therefore no hesitation in holding that when major sons a coparcener in a joint hindu family, intends to start a business, the third requirements of the said provision would be deemed to have been satisfied, as this requirements of the landlord. these things must be satisfied before he is deprived of the right to get the tenant evicted. (12) the object of the..........therefore, that the non-residential building which the petitioner is occupying is a joint family building in which along with the petitioner, the son also would be considered in occupation, it does not necessarily mean that the son can claim the building as his own or for that matter even the father can claim the entire building as his own. it must be realised that it belongs to all the coparceners for the time being. the son may be notionally in occupation of the non-residential building belonging to the joint family but that cannot be a ground for rejecting the application . when it is held that he wants to start a business, it may be the same business which the petitioner is carrying on, but the son's requirement must be held to be the requirements of the father or of the.....
Judgment:

Ekbote, J.

(1) The problem which this revision petition poses is :

'Whether a father-cum-manager of a joint Hindu family, who is in possession of a non residential building, cannot ask for eviction under S. 10 (3) (a) (iii) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 , of a tenant from another non residential building belonging to the family, on the ground that his undivided major son requires it for carrying on his business ?'

(2) The respondent-landlord filed a petition under S. 10 (3) (a) (iii) of the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960 (hereinafter called the Act) against the petitioner-tenant on two grounds firstly that this son who had attained majority intends to start a new business and secondly, that the building requires re construction. That petitioner was resisted by the tenant.

(3) The rent controller, after the enquiry, directed the eviction of the tenant holding that the requirement of the undivided son would be deemed to be the personal requirements of the landlord and that the building requires directed only on the first ground.

(4) the Appellate authority on appeal by the tenant, agreed with the view of the rent controller and held that the landlord requires the building for his own use and thought in that view that it is unnecessary to take any undertaking from the landlord to offer the building after its re-construction to the tenant.

(5) The tenant preferred a revision petition to this court. When it came before our learned brother, Venkatesam, J. in view of the importance of the above question, the learned judge refereed the case to a Bench and that is how the matter is before us.

(6) In order to find out an effective answer to the problem thus posed it is necessary to read S. 10 (3) (a) (iii) of the Act, which is in the following terms :

'10 (1) . A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Ss. 12 and 13.

3 (a) A landlord may, subject to the provisions of cl. (d), apply to the controller for an order directing the tenant to put the landlord in possession of the building :

(iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential building, of the landlord is not occupying a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether this Act or otherwise

(a) for the purpose of a business which he is carrying on, on the date of the application, or

(b) for the purpose of a business which in the opinion of the controller, the landlord bona fide proposes to commence;'

(7) On a closer examination of this provision it would appeal that in order to attract the same the following four things must exist :

(1) It must be any other non-residential building,

(2) the landlord is not occupying a nonresidential building (in the city, town or village) which is his own or to the possession of which he is entitled,

(3) He requires it for the purpose of a business which he is carrying on or which he bona fide proposes to commence and

(4) his claim is bona fide (Sub - cl. 3 (e) ).

(8) In the instant case there is no dispute that the building in question comes within the meaning of 'any other non-residential building' and that the claim of the landlord has been found to be bona fide by both the Courts below. Thus the first and the last requirements are not in controversy.

(9) Now in regard to the third requirement what is necessary to find out is whether the landlord requires the building for the purpose of a business which he is carrying on or which the landlord bona fide proposes to commence.' It seems now to be beyond any doubt that these expressions need not necessarily be confined to the physical requirement of the landlord himself. These and similar other expressions ought to be liberally construed and not in a narrow way. They are susceptible of a wide meaning.. They include the landlords family and dependents and such persons. or persons who may be essential and necessary for occupation'. In order to find out who are such persons.

'It is not only permissible but it is proper and desirable for the Court to bear in mind the context of the social order the habits and ideas of living and the social and religious customs of the community to which the individual concerned belongs.'

Whether the need of a particular person is the need of the landlord will naturally have to be decided in view of the circumstances of each case.

Broadly stated, however, these phrases not only include the members of the landlord's family but also all those persons who are socially or economically dependent on him and whose responsibilities he has accepted. This is based on the necessity of realising that the family in India whether joint or separate is the social unit of Indian civilisation and it is greater public importance to keep it together. That is why we find that

(a) wife, a medical practitioner, who wanted to establish a maternity home - V. M. Deshmukh v. K. M. Kothari, AIR 1951 Nag 51 ;

(b) a partner who carried - Firm Rajniklal and Co. v. Vithal Pandurang, AIR 1952 Nag 312 ;

(c) A widowed daughter and her children - Balabhadra v. Premchand, AIR 1953 Nag 144 ;

(d) a co-parcener of a joint Hind family - Seshasayana Rao v. Venkatesa Rao, : AIR1954Mad531 ;

(e) a married son, member of the family, who intended to live separately- Kolandaivelu Chettiar v. Koolayana Chettiar, (1961) 1 Mad LJ 184 ;

(f) a son-in-law - Kangu v. Ahmed Unnissa Begum, (1963) I mad LJ 97 ;

(g) a sisters son - Bidhubhusan v. Commr., Patna Division, : AIR1955Pat496 ;

(h) children and the landlord's friend and his wife to look after the children - Smith v. Penny, (1946) 2 All ER 672 ; and

(i) a niece of the tenant's wife who had nursed the tenant and his wife - Jones v. White hill, (1950) 1 All ER 71 ;

are held to come within the meaning of these expressions. It is thus quite plain that the expression . It is thus quite plain that the expressions landlord, or his must include all normal emanation of the land lord, for instance, if the landlord is a married man, he must be entitled with to include with himself his wife and children. It is clear, therefore, that one cannot construe the said expression strictly as applying physical only to the landlord himself must as we have said, include any normal emanations of the landlord. We have, therefore no hesitation in holding that when major sons a coparcener in a joint Hindu family, intends to start a business, the third requirements of the said provision would be deemed to have been satisfied, as this requirements of the landlord. Such a case, therefore, plainly falls with in S. 10 (3) 9a) (iii).

(10) The real difficulty arises in regard to the construction of S. 10 (3) (a) (iii) in so far as the second requirement, viz., if the landlord is not occupying a non-residential building in the city, town, or village concerned which he is entitled under this Act or otherwise is concerned. stripped of all irrelevant parts, the relevant provisions would read as follows:-

'3 (a) A landlord may . . . apply to the controller for an order directing the tenant to put the landlord in possession of the building . . . . . .

(iii) In case it is any other non-residential building, if the landlord is not occupying a non-residential building which is his own for the purpose of the business which he is carrying on or which the landlord bona fide proposes to commence.'

What is argued by Mr. K. Madhava Reddy, is that if the landlord is occupying a non-residential building in the city, then he cannot claim another non-residential building. His requirements may be for shifting his business to the non-residential building claimed or it may be for expansion of his business or it may be even for commencing altogether a new business. His submission is that if the landlord is occupying a non-residential building in the city, it disentitles him from applying under S. 10 (3) (a) (iii). his contention is that he can do so only in a case where he claims a non-residential building in a different city, town or village than the one which he is occupying, and not otherwise.

The argument analysed would mean that the landlord should not be in occupation of any non-residential building in the city whether it is his own or to the possession of which he is entitled, if he wants to claim a non-residential building for the purpose of his business which he is carrying on or which he proposes to commence. It would mean that if he is carrying on a business in the same city whether it is in his own premises or premises taken on rent, he cannot claim another non-residential building of his for the purpose of expansion of the same business, or for commencing a new one. At the first flush the argument seems undoubtedly attractive, but on a closer examination of S. 10 we have no doubt that the argument cannot be allowed to prevail.

(11) If S. 10 is read stripped of all irrelevant provisions as stated earlier, it will be manifest that what it requires is that the landlord should not have in his occupation in the city a non-residential building for the purpose of the business which he is carrying on or which he proposes to commence, and in case he is in occupation of a non-residential building, he can take advantage of S. 10 only in a case where the said non-residential building is not his own or he is not entitled to its possession. These things must be satisfied before he is deprived of the right to get the tenant evicted. It the construction placed by the learned Advocate on S. 10 is accepted, it would, in our opinion, create absurd results which the Court must try to avoid. For example, if the first limb of the provision is taken literally and understood to mean that 'if he is not in occupation of a nonresidential building for the purposes of the business which he is carrying on', it will have no meaning.

When he is already carrying on a business unless it is in another city, he must have already got some non-residential building in the city. Then in no case will the landlord be able to claim any non-residential building unless, of course, the non-residential building which he is occupying is not his own or to the possession of which he is not entitled. It is difficult to visualise a situation where such a landlord can be said to be in occupation of a non-residential building in the city where he is carrying on a business, which building is not his own or to which he is not entitled, unless of course he is a trespasser. it is impossible to think that the Legislature wanted to provide only for such a situation . If this contention is accepted, then the business which the landlord is carrying on, either must have been carried on at a place in the city, which is not his own or to the possession of which he is not entitled, or it must have been carried on in another city.

Consequently a landlord who is carrying on the business in the city in a non-residential building whether of his own or which he has taken on rent, will in no case be entitled to claim another non-residential building of his for the purpose of expansion of his business or for the purpose of commencing a new business. We do not think that that is the situation which the Legislature wanted to clear form the object with which S. 10 appears to have been enacted.

(12) The object of the Act, we think, is well known. it is to protect the tenants who at the time when accommodation was and is exceedingly difficult to obtain, were and exposed to the risk of being charged exorbitant rents. and also to prevent unreasonable eviction of tenants, but it is an Act designed for the protection of the tenants and not for the penalisation of the landlords. Its predecessor Act was passed at a time when the housing position was such that there was often no freedom of contract between the landlord and the tenant and the latter was to pay what was demanded or vacate whenever asked to do so, subject, of course, to the law transfer of Property Act. No doubt it was for these reasons that the Legislature did not confine the Act only to one aspect of tenancy. At the same time it does not follow that all landlords are rapacious or they can in no case get the tenants evicted. it is true that the Acts puts a little more emphasis on the protection given to the tenant.

But it is also clear that the Act does not disregard the legitimate and valid requirements of the landlord. That is why we find in several provisions that the tenants' and the landlords' right and liabilities are attempted to be balanced. it is evident from S. 20 (3) 9c) that a landlord can claim a portion of the same building given on rent whatever may be the nature of his requirements, viz., residential or nonresidential subject of course to the satisfaction of other requirements of that provisions. when a landlord can thus get a tenant evicted under s. 10 (3) (c) in this manner, we fail to see why the landlord in an earlier clause would have been given altogether a different and diametrically opposite treatment. It is, therefore, impossible to construe S. 10 (3) (a) (iii) to mean that the landlord cannot in any case evict a tenant from another of his non-residential building if he is in occupation of a non-residential building if he is in occupation of a non-residential building in the same city neither for his business which he carrying on or for a new business.

We would, therefore, naturally prefer to so construe this provision which would be consistent with the legislative intent apparent from the subsequent clause, viz., 10(3) (c). That is another reason why we do not find any substance in the interpretation tried to be placed by the learned Advocate for the Petitioner.

(13) We are, therefore, of the clear opinion that what the said provision means is this : that what the said provision means is this when a landlord, who is in occupation of a non residential building in a city, town or village requires another non-residential building of his own in the same city, town, or village as the case may be from his tenant, for the purpose of the business which he is carrying on - which can mean shifting or expansion of the business which he is carrying on or for commencing a new business - can successfully claim eviction of his tenant if he is able to satisfy the Rent controller that the non-residential building which he is occupying is not sufficient or suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence, or that the shifting of his business has, in the circumstances of the case, become inevitable. It would be open to him to prove that the non-residential building which he is occupying is not exclusively his own or that the is not entitled to its exclusive possession. any one of the above mentioned cases falls in our view within the ambit of section 10 (3) (a) (iii)).

(14) the interpretation which we have placed on this provision is supported by the following decided case

(15) In : AIR1954Mad531 Venkatarama Ayyar, J ., thought that the question for determination were whether the house is required for the first applicant for his own use and whether he is in actual occupation. The learned Judge answering these questions held that

'when a coparcener, therefore, apples for possession under 7 (3) (a) (i) he will be entitled to an Order, if he established entitled to an order, if he establishes that the requires the house for his own occupation; and he is not disentitled to that relief by reason of the fact that the firmly own another house and members of the family are residing therein, if he is himself not it occupation of it, The contention that he must be deemed to be in constructive possession of that house because other members of the family are in occupation there of must fail, when notice it is held that the joint family as a justice person is not the land lord for purposes of S. 7 (3) (a) (i)'

(16) In Nagamanickam Chettiar v. Nallakannu Servai, 1957-1 Mad LJ 182, the facts were that the landlord was carrying on business in camphor in a rented building but he was not threatened with eviction therefrom. Yet the wanted to instal power - driven machinery for the said business. The rented building was suitable for that purposes In those circumstances it was held by Rajamannar, C. J. that it was, C. J. that

'he is not in occupation of a building for the purposes of carrying on the business of manufacturing comphor with the help of power driven machinery. he would, therefore be prima facie entitled to the benefit of section & (3) (a) (iii)

Panchapakesa Ayyar, J., Held in Nataraja Achari v. Balasubramaniam (1957) 2 Mad LJ 492 that

'he can have an eviction order for carrying on a different business he is carrying on a different business form the business he is carrying on in other premises. So the fact that the respondent had got, across the road, premises where he carries on a maligai trade will not prevent his applying for the eviction of the petitioner from these premises for carrying on his grain-trade, a different trade.'

(17) (1961) 1 Mad LJ 184 provides a close parallel to the present case. In that case the second son of the landlord was recently married. the landlord wanted to set up for the said married son an independent family of his own for which he claimed the residential building although the joint family members were living in a house of their own in the same city. It was held that the expression 'of his own' means that there should be a building independently of his own. He should have full ownership. The building should belong to a single individual. It is only in those circumstances it can be called a residential building of his own'.

(18) R. Mathrubutham and R. Srinivasan in their commentary on the Madras and the Andhra Pradesh Buildings (Lease and Rent Control) Act, 1960 made a reference at P. 244 to a case reported in Giriraj Kishore v. Ramchandra, 1961 jab LJ 311. The said High Court seems to have decided that

'there is no law which lays down that if the landlord is in possession of premises in which a partnership business is carried on, the must, if he wants to start an independent business of his own, carry on that business in the same premises in which the partnership business is carried on. The fact of his being in possession of the premises qua partner can be no ground for holding that he did not need the premises occupied by a tenant for starting there in his own business.'

(19) In the instant case what is found by the courts below is that the non-residential building in question belongs to the joint family, where the petitioner as father and naturally the manager of the joint Hindu family is carrying on the business. It is also found that the son who has become major and who is a member of the joint Hindu family, intends to start a business in the same city. it is not in doubt that the son intends to bona fide commence the business. Whether the business is the same which his father is carrying on, or altogether a different business, makes little difference. It can in any case come either under sub-cl. (a) or sub-cl (b) It cannot be in doubt in the circumstances of the present case that the existing non residential building occupied by the father as the manager of the joint Hindu family where he is carrying on the business, is unsuitable and insufficient for the purpose of starting the business by the son.

Assuming therefore, that the non-residential building which the petitioner is occupying is a joint family building in which along with the petitioner, the son also would be considered in occupation, it does not necessarily mean that the son can claim the building as his own or for that matter even the father can claim the entire building as his own. It must be realised that it belongs to all the coparceners for the time being. The son may be notionally in occupation of the non-residential building belonging to the joint family but that cannot be a ground for rejecting the application . when it is held that he wants to start a business, it may be the same business which the petitioner is carrying on, but the son's requirement must be held to be the requirements of the father or of the joint family. It cannot be said in such case that the son is in possession of another non-residential building which is his own or to the possession of which he entitled. Admittedly he is not the exclusive owner of the non residential building occupied by the petitioner . but it belongs to the joint family.

It is immaterial in such a case whether the petition under section 10 of the Act is filed by the father as a manager of the joint Hindu family or by the coparcener who bona fide intends to start a new business or intends to expand the business in the locality where the non-residential building claimed is situated as in the instant case. As long as such requirements is bona fide, the petitioner can certainly claim for a direction for the eviction of the tenant. This interpretation of ours does not in any way go contrary to the interpretation which we have put on the second limb of that provision while considering, the third requirement. We are, therefore, of opinion that a father-cum-manager of a joint Hindu family, who is in occupation of a non-residential building, can validly ask for eviction under S. 10 (3) (a) (iii) of the Act, of a tenant from another non residential building in the same city belonging to the family on the ground that his business.

(20) As on other argument was advanced the result is that this revision petition fails and is dismissed. There will be however no order as to costs. The tenant may vacate the premises within two months from this day, failing which the order can be put in execution.

CI / VRB / D. V. C.

(21) Petition dismissed.


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