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G.N. Rajaram Vs. Mukunthu N. Venkatarama Iyer - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1985)2MLJ173
AppellantG.N. Rajaram
RespondentMukunthu N. Venkatarama Iyer
Cases ReferredMd. Shafi v. Additional District and Sessions Judge
Excerpt:
.....requirement of the premises in the occupation of the petitioner by the respondent as and by way of additional accommodation is bona fide, as the sister-in-law of the respondent, who had been living with him, was suffering from congestive failure disabling her from climbing the upstairs. one is the expression 'additional accommodation' and the other is the expression 'as the case may be'.the word 'additional' is in common use and its meaning is very well understood by people generally as being something that is added to or put into a thing already in existence. later, the bench pointed out that for invoking section 10(3)(c) of the act, the following conditions must be satisfied: the other features revealed by the report of the commissioner clearly make out that the building in question is..........10(3)(c) of the act, the following conditions must be satisfied:in the case of a residential building additional accommodation can be obtained only for residential purpose. in the case of a non-residential building additional accommodation can be obtained only for purposes of business which the landlord is carrying on.finally, it was pointed out that section 10(3)(c) of the act did not have any application in that case because the landlord did not require additional accommodation for purposes of residence, but wanted it for running his dispensary. it is significant that even according to the decision of the division bench, the user to which the premises is put by the tenant is not a determining or decisive factor in the consideration of a request for additional accommodation under.....
Judgment:
ORDER

V. Ratnam, J.

1. The tenant has preferred this Civil Revision Petition against the orders of the authorities below directing his eviction from the premises in his occupation, on an application taken out by the respondent herein under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, as amended by Act 23 of 1973 (hereinafter referred to as 'the Act'). The petitioner is in occupation of a room in the ground-floor measuring about 10 feet by 8 feet in door No. 52, Krishnapuram 2nd street, Madurai City, belonging to the respondent herein. There is no dispute that the respondent is living with seven members of his family in the first floor portion of this building. According to the respondent, the two rooms and a kitchen available in the first-floor are inconvenient and insufficient to accommodate the members of his family and that water facilities are not available in the first floor. Besides, the respondent also stated that his widowed sister-in-law, who has been staying with him, has heart trouble and could not get up the staircase to reach the first-floor. With a view to secure the ground-floor for residential purposes as and by way of additional accommodation, the respondent intimated two other tenants who were in occupation of portions in the ground-floor and they had . vacated. Subsequently, the respondent issued a notice on 22.11.1977 to the petiitoner, but the petitioner sent a reply stating that the respondent was only desirous of securing increased rent and that the need was not bona fide. Alleging that the premises in the occupation of the petitioner was bona fide required by the respondent by way of additional accommodation for residential purposes and that no prejudice would be caused to the petitioner as he owned two other buildings, the respondent filed R.C.O.P. No. 37 of 1978 before the Rent Controller (District Munsif) Madurai Town, praying for an order of eviction against the petitioner.

2. In the statement of objections filed by the petitioner, besides stating that the requirement of the respondent was not bona fide, the petitioner pleaded that the premises had been leased out for a non-residential purpose and, therefore, the respondent cannot seek an order for eviction on the ground of his requirement by way of additional accommodation for residential purposes. It was also the further plea of the petitioner that the members of the family of the respondent were all conveniently residing in the first-floor portion and that accommodation would be sufficient and that the portion in the occupation of the petitioner is not required by the respondent. The heart ailment from which the sister-in-law of the respondent was stated to be suffering was denied , by the petitioner. Referring to the availability of toilet and water facilities in both the floors, the petitioner stated that three rooms besides the non-residential portion were used by the respondent and there was no necessary to change it. The petitioner urged that he will be subjected to great hardship in the event of an order for eviction being passed and denied that the building owned by him can be put to non-residential user. Reiterating that the portion in the occupation of the respondent was convenient and would suffice and characterising the requirement of the respondent as lacking in bona fides, the petitioner prayed for the dismissal of the application for eviction.

3. Before the Rent Controller, on behalf of the respondent, Exhibits A-1 to A-7 were marked and the respondent was examined as P.W.1, while, on behalf of the petitioner, he examined himself as R.W.1. A Commissioner was deputed to make an inspection of the premises and he submitted a report and a plan and they were marked as Exhibits C-1 and C-2. On a consideration of the oral as well as the documentary evidence, the learned Rent Controller found that the requirement of the premises in the occupation of the petitioner by the respondent as and by way of additional accommodation is bona fide, as the sister-in-law of the respondent, who had been living with him, was suffering from congestive failure disabling her from climbing the upstairs. Rejecting the plea of the petitioner that a building occupied for non-residential purposes cannot be asked for as and by way of additional accommodation for residential purposes, the learned Rent Controller found that such a requirement could be countenanced under Section 10(3)(c) of the Act and that the consideration of relative hardship would not require the dismissal of the application for eviction as the hardship caused to the respondent by refusing to grant an order for eviction will be more than that caused to the petitioner by granting it. On these conclusions, an order for eviction was passed against the petitioner. Aggrieved by this, the petitioner preferred an appeal in C.M.A.No. 47 of 1980 before the appellate authority (Additional Subordinate Judge), Madurai. On a consideration of the evidence, the appellate authority concurred with the conclusions of the learned Rent Controller and found that the requirement of the respondent for additional accommodation was bona fide and that there was no legal impediment in granting an order of eviction in his favour. In that view, the appeal was dismissed. It is the correctness of this order that is challenged in this Civil Revision Petition.

4. The principal contention of the learned Counsel for the petitioner is that the premises in the occupation of the petitioner had been let out for non-residential purposes and, therefore, the respondent cannot secure an order for eviction with reference to such a premises under Section 10(3)(c) of the Act on the ground that it is required for residential purposes by way of additional accommodation. In addition, the learned Counsel submitted that the concept of a unit of accommodation made up of the portion in the occupation of the landlord and the tenant should be applied, and if so done, no order for eviction can be passed against the petitioner. Reliance in this connection was placed by the learned Counsel upon the decision of the Supreme Court in Md. Shafi v. Additional District and Sessions Judge, Allahabad : [1977]2SCR464 . On the other hand, the learned Counsel for the respondent submitted, relying upon the features disclosed by the report of the Commissioner, that the application under Section 10(3)(c) of the Act and the granting of relief thereunder were quite in order and in accordance with the decision of the Division Bench of this Court in M. Thirupathi Nadar and Sons v. Dr. S.L. Kantha Rao I.L.R. (1981) Mad. 128 and, therefore no exception could be taken to the eviction order passed against the petitioner. It was also the further submission of the learned Counsel for the respondent that though the idea of a unit of accommodation is alien under the provisions of the Act, which contains a definition of the word 'building', yet, even adopting that, either considering the entire premises or even the ground-floor alone as a unit, the claim of the respondent for additional accommodation of the premises in the occupation of the petitioner for residential purposes is fully justified.

5. Thus, the main question which arises for consideration is. whether the order of eviction passed against the petitioner under Section 10(3)(c) of the Act could not have been so passed on the ground that the tenancy of the p(sic)ises in favour of the petitioner is for non-residential purposes, while the requirement of the respondent by way of additional accommodation is for residential purposes. Though earlier there have been some decisions of this Court having a bearing upon that question, all those decisions came to be considered in the context of the maintainability of an application for eviction with reference to Sections 10(3)(a)(iii) and 10(3)(c) of the Act in M. Thirupathi Nadar and Sons v. Dr. S.L. Kantha Rao I.L.R. (1981) 1 Mad. 128. In that decision, the landlord was residing in the first-floor of a building, while the tenant was in occupation of the ground-floor carrying on business. The application for eviction was filed both under Sections 10(3)(a)(iii) and 10(3)(c) of the Act as the landlord required the ground-floor portion for the purpose of running a dispensary. The authorities below, ordered eviction. In the Civil Revision Petition before this Court, the objection raised by the tenant was that Section 10(3)(c) of the Act alone would be applicable, in which case consideration of relative hardship would also be relevants and since there was neither plea nor evidence in support thereof, the application for eviction should be dismissed. In the context of considering this objection, the scope and requirements of Section 19(3)(c) of the Act was elaborately considered. It was pointed out that in the earlier decisions attention had not been paid to the qualifying words, 'residential and non-residential' occurring in the beginning of Section 10(3)(c) of the Act and that even if the word 'building' occurring in Section 10(3)(c) of the Act is to be understood differently from its definition contained in Section 2(2) of the Act, there is no test for ascertaining whether a building is a residential one or a non-residential one and that before Section 10(3)(c) of the Act is invoked, it is imperative to make it clear whether a building is a residential one or a non-residential one, as the purpose for which additional accommodation is required is inextricably bound up with the. nature of the building. Emphasising the aforesaid aspects, it was laid down that Section 10(3)(c) of the Act has to be read distributively, one dealing with residential building and the other with non-residential building. The Division Bench further proceeded to state that if so read, it will read as under with regard to residential building:

A landlord who is occupying only a part of 3 residential building, may, notwithstanding anything contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes.

and as follows in so far as non-residential buildings are concerned:

A landlord who is occupying only a part of a non-residential building, may, notwithstanding anything contained in Clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for purposes of a business which he is carrying on.

Further, the scope of Section 10(3)(c) of the Act has been stated to be as follows:

Whatever meaning we attribute to the word 'Building' occurring in Section 10(3)(c), before Section 10(3)(c) can be invoked, the first thing that has to be ascertained is whether the building is a residential building or a non-residential building. If it is a residential building, the landlord can , obtain additional accommodation only for the purpose of his residence. If it is a non-residential building, the landlord can obtain additional accommodation only for the purpose of the business which he is carrying on. This conclusion flows from the use of the two expressions occurring in the section. One is the expression 'additional accommodation' and the other is the expression 'as the case may be'. The word 'additional' is in common use and its meaning is very well understood by people generally as being something that is added to or put into a thing already in existence.... Having regard to the dichotomy between the residential building and the non-residential building expressly provided for in the Sub-section itself, eviction can be sought only for the purpose of residence if. the building is a residential building and only for the purpose of carrying on a business if the building is a non-residential one.

Later, the Bench pointed out that for invoking Section 10(3)(c) of the Act, the following conditions must be satisfied:

In the case of a residential building additional accommodation can be obtained only for residential purpose. In the case of a non-residential building additional accommodation can be obtained only for purposes of business which the landlord is carrying on.

Finally, it was pointed out that Section 10(3)(c) of the Act did not have any application in that case because the landlord did not require additional accommodation for purposes of residence, but wanted it for running his dispensary. It is significant that even according to the decision of the Division Bench, the user to which the premises is put by the tenant is not a determining or decisive factor in the consideration of a request for additional accommodation under Section 10(3)(c) of the Act, but it is the occupation of a part of a residential or non-residential building by the landlord that would be relevant.

6. It is in the light of the aforesaid principles laid down by the Division Bench that the propriety of the order of eviction passed in this case has to be viewed. There is no dispute that the entire first-floor is under the occupation of the respondent for residential purposes. The requirement by the respondent of the premises in the occupation of the petitioner as and by way of additional accommodation is also for residential purposes. Exhibit C-1, the report of the Commissioner, shows that even in the ground-floor, immediately west of} the premises in the occupation of the petitioner, the portion delineated EF CM in the plan is used for purposes of residence. In paragraph 5 of Exhibit C-1, the Commissioner has stated that a Godrej and wooden bureau, a sofa-cum-bed and a sewing machine were all found and an old woman was also found sitting inside the room. The other features revealed by the report of the Commissioner clearly make out that the building in question is a residential building. With, reference to such a building, the respondent is in occupation of the entire first-floor and also the other areas in the ground floor. Applying the considerations laid down in the decision of the Division Bench referred to earlier, it is at once obvious that the building being a residential one, which in part is also in the occupation of the respondent for residential purposes, there cannot be any objection whatever to the passing of an order for eviction against the petitioner under Section 10(3)(c) of the Act.

7. That leaves for consideration the argument based upon the concept of a unit of accommodation referred to in the decision of the Supreme Court in Md. Shafi v. Additional District and Sessions Judge, Allahabad : [1977]2SCR464 . In that case, the Supreme Court considered Explanation (IV) to Section 21(1) of the U.P.Urban Building (Regulation of Letting, Rent and Eviction) Act, 13 of 1972. Under Section 3(i) of that Act, the word 'building' had been defined in a manner which is very different from the definition contained in Section 2(2) of the Act. Further, under that Act, there is no provision similar to Section 10(3)(c) of the Act. The Explanation which came up for interpretation before the Supreme Court related to one instance of conclusive proof that the building is required bona fide by the landlord and that was in a case where the building under tenancy was a part of a building, the remaining part whereof was in the occupation of the landlord; for residential purposes. Under Section 10(3)(c) of the Act, though the words, 'building under tenancy' have not been used, yet, it is provided that the order for eviction should direct the tenant to put the landlord in possession b? the whole or any portion of the remaining part of the building. In Section 10(3)(c) of the Act, the word, 'building' has been, used twice and it was with reference to the use of this Word 'building' in Section 10(3)(c) of the Act, for the first time the Division Bench pointed out that the definition under Section 2(2) of the Act would not be applicable, for, a part of the building under the occupation of the landlord would not fall under the definition of 'building' under the Act and, therefore, it has to be ascertained whether that part of the building in the occupation of the landlord is residential or non-residential. The word 'building' occurring in the expression, 'any portion of the remaining part of the building' in Section 10(3)(c) of the Act may have reference to the accommodation under tenancy. However, Section 10(3)(c) of the Act does not indicate a rule of conclusive presumption as was the case under Explanation (IV) to Section 21(1) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 13 of 1972. Even on the assumption that the considerations laid down in the decision of the Supreme Court would apply to Section 10(3)(c) of the Act, that also appears to be satisfied in this case, for, it is pointed out by the Supreme Court that the question which should be asked is whether the accommodation under the tenancy and the accommodation in the occupation of the landlord together constitute one unit of accommodation. In this case, as pointed out earlier, there is no dispute that the entire first-floor as well as part of the ground-floor is under the occupation of the landlord. Indeed, the petitioner, in the course of cross-examination as R.W.1, candidly admitted that the portion marked EF GH in the Commissioner's plan in the ground-floor had been occupied by the sister-in-law of the respondent, who had lost her husband and had been staying with the respondent for 15 years. Taking into account the accommodation available with the tenant and the other accommodation with the landlord together they will constitute the entirety of the house, which, undoubtedly, is one unit of accommodation, for, there is no dispute that apart from the petitioner, there are no other tenants in the ground-floor. Even excluding the first-floor and taking into account only the, ground-floor as a unit of accommodation, the accommodation in the occupation of the landlord and the tenant would together amount to one unit, namely, the ground-floor as a whole. Therefore,. even on the assumption that the considerations which were applied by the Supreme Court in the case arising under the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 13 of 1972, are applicable, here, that is satisfied. Therefore, the objection of the petitioner that the order for eviction as passed by the authorities below could not have been so passed according to Section 10(3)(c) of the Act is without substance.

8. There is overwhelming evidence to show that the sister-in-law of the respondent is a heart patient suffering from congestive failure and that it is difficult for her to move upstairs, which necessitates her staying downstairs. Having regard to the size of the family of the respondent, the existing accommodation available in the first-floor of the premises appears to be inadequate and insufficient. There is, therefore, no doubt that the authorities below were right in concluding that the requirement of the respondent was bona fide. No argument was addressed before this Court touching upon the question, of relative hardship. In any event, it has been found by the authorities below that the petitioner owns buildings of his own and that it would not be difficult for him to find alternative accommodation. It is not the case of the petitioner that it is impossible to secure accommodation similar to the one now under his occupation. The authorities below, therefore, rightly concluded that the hardship on the petitioner will not outweigh the advantages to the landlord by granting an order of eviction in his favour. There is thus absolutely no illegality or irregularity in the order passed by the authorities below meriting interference in the exercise of the revisional jurisdiction under Section 25 of the Act. Consequently, the order of eviction passed against the petitioner by the authorities below is upheld and the Civil Revision Petition is dismissed with costs.

9. The learned, Counsel for the petitioner prays that the petitioner may be granted sometime to vacate and hand over vacant possession of the premises in his occupation to the respondent and the learned Counsel for the respondent has no objection to grant three months' time to the petitioner' for doing so. Accordingly, the petitioner is granted three months time from this day to vacate and hand over vacant possession of the premises in his occupation to the respondent, but this will be subject to the condition that the petitioner should file an unconditional affidavit of undertaking to that effect before this Court within a week from this day, failing which the order of eviction can be put into execution forthwith.


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