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Pokuru Varadarajam Vs. the State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1372 of 1973
Judge
Reported inAIR1976AP90
ActsAndhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Sections 10(3), 12 and 18; Evidence Act, 1872 - Sections 115
AppellantPokuru Varadarajam
RespondentThe State of Andhra Pradesh
Appellant AdvocateJ. Eswaraprasad and J. Chamanthi and ;N. Narasimharao, Adv.
Respondent AdvocateGovt. Pleader for G.A.D.
Excerpt:
.....seek to recover possession on ground of his own residential purpose as lease converted into non-residential premises - revision petition filed by appellant - fact and circumstances showed that it has always been residential building though for some time it was put to non-residential use - no written permission from controller - the building has not lost its character as residential building - decision of lower court reversed. - - matters went like this and in the year 1970 he filed this present petition. since its reconstruction, the legislature thought it fit to confer power on the controller to permit such conversion if he is satisfied about it. thulja bai air1952mad413 (fb) (supra). we are, however, not satisfied that this full bench decision has expressed any opinion on this..........it for his residential purposes since by virtue of the lease, it became converted into a non-residential premises. in that view, he dismissed the petition of the landlord who has brought the revision petition. 2. sri eswara prasad, the learned counsel for the petitioner, does not canvass the findings on the first two points on the third one, he contends that simply because the building had been let out in the year 1950 to the government for locating an office in it, it has not lost the character of a residential building. there is no order under section 18 of the act permitting such conversion. in the absence of such an order, mere user of the building for a number of years as a non-residential building for an office does not make it a non-residential premises. consequently so the.....
Judgment:

A. Sambasiva Rao, Actg. C.J.

1. This revision p has been referred to a Division Bench by our learned brother Madhava Rao, J. It arises out of proceedings for eviction and possession launched by the appellant against the respondent under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (15 of 1960) (hereinafter referred to ass the 'Act') The relief was sought to the landlord on three grounds of wilful default, causing damage to the building and lastly that he wanted the premises for is own occupation as his residence. The respondent-tenant is the Government of Andhra Pradesh. The Rent Controller did not accept the first two grounds, in fact the first of them was not pressed before him. It was on the third ground that possession was directed to be given to the landlord holding that he bona fide required it for his own occupation as his residence. The appellate court agreed with the findings of the Rent Controller on the first two aspects but came to a different conclusion on the third ground. It held that though the said building was a residential one, when once it was let out to the Government in the year 1950 for locating the District Panchayat Office, the landlord cannot seek to recover possession of the same on the ground that he wanted it for his residential purposes since by virtue of the lease, it became converted into a non-residential premises. In that view, he dismissed the petition of the landlord who has brought the Revision Petition.

2. Sri Eswara Prasad, the learned counsel for the petitioner, does not canvass the findings on the first two points on the third one, he contends that simply because the building had been let out in the year 1950 to the Government for locating an office in it, it has not lost the character of a residential building. There is no order under Section 18 of the Act permitting such conversion. In the absence of such an order, mere user of the building for a number of years as a non-residential building for an office does not make it a non-residential premises. Consequently so the learned counsel argues the landlord can certainly seek recovery of possession under Section 10 (3) of the Act as he bona fide requires it for his own residence. Since the appellate court purported to have relied upon the Full Bench decision of the Madras High Court in Dakshniamoorthy v. Thulja Bai : AIR1952Mad413 (FB) our learned brother thought that this question need be considered by a Division Bench.

3. Before we actually come to the consideration of the points raised, we may have note the circumstances of the case. We may also record that they are not in dispute. The building had been constructed as a residential one long time ago. In the year 1950 it was let out to the Government and it located its District Panchayat Office in it. Evidently it is a very old building because portions of it have fallen down. On 19-9-1968 the present landlord purchased the building from the original owner, who had let out the premises to the Government, though earlier he had acquired portions thereof. The sale transaction was completed on 19-9-1968. Immediately thereafter, he began to press upon the Government to vacate the premises saying that he had retired from service and that he had come to Nellore to settle down there. He had no other building to live in and was obliged to live with his sister for want of another accommodation. So, he pressed the Government to vacate it. The Government was saying that they were willing to vacate it very soon on securing other premises. Matters went like this and in the year 1970 he filed this present petition.

4. The points for consideration that arise out of the contentions of Sri Eswara Prasad, the learned counsel for the petitioner and the learned Government Pleader for the Government are (1) though it was a residential building, as the building had lost that character and become a non-residential building by virtue of the fact that the Government located one of its offices there, does the building lose its character as residential premises without an order under section 18 of the Act? (2) Whether the present landlord who is a purchaser from the original owner, is bound by the original landlord's conduct in letting it out for non-residential purposes?

5. Now, the building was in the occupation of the Government and has been used by it for certain purposes. Indisputably, it was deemed and intended as a residential building and was used for that purpose till it was let out in the year 1950. From 1950 till the date of the filing of the petition, the tenant was using it for its District Panchayat Office. Could it be said that on account of this user of the residential building by the tenant for about two decades to locate an office in it, the premises has ceased to be a residential one? There is no definition of the expressions 'residential building and non-residential building' in the Act. Without expressing any opinion on the distinction for the purposes of the present argument, it would be sufficient to proceed on the broad assumption that all these premises which are used for residential purposes are residential buildings and those which are used for other purposes are non-residential buildings. Admittedly there was no order passed by the Controller, much less in writing permitting the conversion of this admittedly residential building into non-residential building. It may be noticed, and it is also significant in our view, that there is no corresponding requirement for conversion of non-residential buildings into residential buildings. That is obviously for the reason that as far as possible, residential buildings should be allowed to retain their nature and character. Otherwise, there could have been a converse requirement for conversion of non-residential buildings into residential buildings and the emphasis that the permission should be in writing strengthens this understanding of the intendment of the legislature. It shows that the intendment was to avoid conversion of residential buildings into non-residential buildings, unless the circumstances required it and the Controller gave his permission in writing.

6. It is in this background that the question must be approached, appreciated and considered. Prima facie, looking at Section 18 and other provisions it can be said that residential buildings are not converted and cannot be converted into non-residential buildings, excepting with the permission in writing of the Controller and when such permission is absent, there is no conversion. Since there is no permission in this case, it may be concluded that the building continued to be a residential one, despite the fact that the Government used it for some time for locating its office in it. In this context we may usefully refer to another provision of the Act namely Section 12 which deals with the recovery of possession by landlord for repairs, alterations or additions or for reconstruction . while providing for recovery of possession for repairs etc., that section provides in sub-section (4) that :

'Nothing in this section shall entitle the landlord, who has recovered possession of the building for repairs, alterations or additions or for reconstruction to convert a residential building into a non residential building, or a non-residential building into a residential building unless such conversion is permitted by the Controller at the time of passing an order under sub-section (1)'

7. So, only in the case of directing possession for repairs, alterations or additions or for reconstruction, the Controller is empowered to convert a residential building into a non-residential one and non-residential one into a residential building. Since its reconstruction, the legislature thought it fit to confer power on the Controller to permit such conversion if he is satisfied about it. At the same time Section 12 (4) also emphasises the need for a permission from the Controller to convert a residential building into a non-residential one. Thus, Sec. 12 also reinforces our conclusion based on Section 18.

8. This obvious conclusion from a reading of the provisions of the Act was got over by a lower appellate court relying on the Full Bench decision of the Madras High Court in Dakshinamoorlthy v. Thulja Bai : AIR1952Mad413 (FB) (supra). We are, however, not satisfied that this Full Bench decision has expressed any opinion on this question or thrown any light on it. The Full Bench in a general way held that :

'What is at the inception a residential building may well become a non-residential one by force of the terms of a letting and that any conversion, after the letting of a residential building into a non-residential one may well take place within and only within the limits which the statute prescribes. That if prior to a letting, building happens to have been of one character it must for ever keep that character irrespective of what the effect of the letting or of the acts of parties subsequent to the letting may be, seems to our minds to be a difficult, if not impossible position having regard to the considerations above set forth.'

Though in his order of reference Rajamannar C.J. speaking for the Division Bench observed :

'Reliance was placed on Section 11 (1) of the Act, but we were inclined to hold that what was contemplated by that section was structural alteration which converted a residential building into a non-residential building.'

But in the actual Full Bench opinion which was rendered by Raghava Rao j., there was no consideration of this aspect at all. In our opinion, the learned Judge merely noticed Section 11 (1) of the then Act which corresponds to Section 18 of the present Act. Excepting noticing that section, no opinion has been expressed nor any consideration of its amplitude is seen from the judgment. There is one significant observation in the judgment of the Full Bench which is as follows :---

'It seems to us that if a landlord has let out a building for a residential or non-residential purpose as the case may be, it is only fair that when he seek an order directing the tenant to put him in possession of the property, he has to show that he fulfils the requirements of sub-clause (i) or (ii) of clause (a) of sub-section (3) of Section 7. Having let out the building as for a non-residential purpose it would be unfair if he were allowed to urge the requirement of the building for his own occupation, which is really a condition of his seeking to recover a residential building let out by him.'

This observation is very meaningful and significant in our opinion. The Full Bench was really putting it on grounds of fair-play saying that a person who has let a residential building for non-residential purposes, cannot seek to recover its possession for his own occupation. We understand the above passage that the Full Bench has tried to put it roughly on the ground of estoppel though that expression has not been actually used. Therefore, in the light of this, the aforesaid observations of the Full Bench cannot be thrust on the present landlord on the ground that the building had been converted into a non-residential one.

9. The fact yet remains that the then owner of the building let it out to Government for locating an office though there was no order under Section 18 of the Act permitting the conversion. So, only that landlord is estopped form seeking its possession during his lifetime or so long as he was the owner. That bar of estoppel cannot be fastened to his successor in title. That estoppel, if any, survives during his ownership or during his lifetime whichever is earlier. Now that the building has been sold to the present landlord in September, 1968, the estoppel which may be said as barring the then owner from recovering the possession of the building for his residential purposes, does not bar the present owner who is only his successor in title.

10. The above discussion yields the two following conclusions (1) In the absence of permission in writing by the Rent Controller, a residential building cannot be converted into a non-residential one and even if it is used for some time for non-residential purposes, it does not lose its original character of a residential one. (2) Even if the original owner had let out the premises for locating an officer in other words for non-residential purposes, he alone is estopped from recovering the possession for his own use as residence. To put it in the language of the Full Bench, it is not fair to permit him to recover the possession for his own use as residence but that does not apply to his successor in title.

11. We are supported in the above conclusion by two decisions of this Court both of which have been rendered by learned single Judges. The first one is Amatul Kubra v. Authorised Officer (1970-1 Andh LT 15) Ekbote, J., (as he then was) answering a similar question and examining the import of section 18 observed at page 17 :--

'The fact that before the present allotment was made, this very building was allotted to establish a Government Office which is a non-residential purpose without obtaining permission of the Controller, doe not, in my opinion alter the character of the building. It continues to be a residential building as in fact it is, previous unauthorised allotment of building does not entitle the authorised officer to again allot a residential building for non-residential purpose without obtaining requisite permission of the Controller.'

The second decision is that of Parthasarathi, J., in K.Kamaladevi v. K. Venkata Raju, (1971) Andh Pra HC Notes 323). The following passage in the judgment is relevant :--

The question the Controller has to ask himself is : Is there a written consent of the landlords which irrevocably affords a sanction for the new user. If the answer is in the affirmative it follows that the tenant has obtained a right in derogation of which no plea of eviction can be made either by the landlord that has given a written consent or a successor-in-interest. If there is no written consent which alone can make a changed user legitimate the landlord who is not subject to rule of the estoppel suffers from no disability.'

It may be noticed here that there is nothing in the sale deed executed in favour of the present landlord binding him to the tenancy or user of the building for non-residential purposes. So, it cannot be said that the present landlord is in any way bound by the lease agreement entered into by the then lord. The learned Judge proceeded to say that :

'Even in the absence of a conversion in the manner ordained by law it may be that the landlord by his conduct has forfeited his right to recover the premises for use as residence. This disability is personal stems out of the rule of estoppel. It is the conduct of the landlord that results in the erection of a barrier although three is neither a change in the character of the building nor a written consent sanctioning the use of the premises in a manner at variance with the initial understanding. This disability arising out of estoppel does not impair the rights of a successor-in-interest. It is manifest that in any event the estoppel does not survive beyond the lifetime of the person estopped.'

Though reference is made to the decision of Satyanarayna Raju J., (as he then was) in Appalaraju v. Sambhuratnamurthy (1961 Andh LT 675) we do not see that the learned Judge has expressed any opinion different.

12. The facts and circumstances clearly show that it has always been a residential building though for some time it has been put to non-residential use. Since there is no written permission from the Controller, the building has not lost its character as a residential building. Even if there is an estoppel against the original owner, that does not bind the present landlord. It is not disputed that there is no other premises for him to live in. Since it is a residential building , his seeking to recover the building under Section 10 (3) (a) (i) has to be accepted and upheld. In the result the decision of the lower appellate court is reversed and that of the Rent Controller is upheld.

13. The revision is allowed and the petition for eviction is granted. In the circumstances of the case, there will be no order as to costs. Time for eviction two months from today.

14. Revision allowed.


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