T. Sathiadev, J.
1. The landlady is the petitioner. She filed the petition under Section 10(2)(i) on the ground of wilful default; under Section 10(3)(a)(1) requiring the premises, for her own use and occupation; and under Section 10(2)(ii)(b) since the tenant has converted the premises for a different use, namely for non-residential purpose, when the tenancy was only for residential purpose, and therefore liable to be evicted under Tamil Nadu Act XVIII of 1960.
2. In her petition, she stated that the premises bearing Door No. 24, North Part Street, Venkatapuram, Ambattur was let out to the tenant for a monthly rental of Rs. 200 and that the premises is required for her own use and occupation as she does not own any other house, and that it was let out only for residential purpose by the petitioner, but the tenant has now started using the premises for non-residential purpose, namely for a laundry which causes nuisance and inconvenience to the neighbours, and that he has not paid rent for the months January to March, 1970, for March, 1971 and February, 1973, in all for a period of five months aggregating to Rs. 1,000 and also a sum of Rs. 80 for the month of April, 1970. Thus in all, a sum of Rs. 1,080 remains to be paid and in spite of issue of lawyer's notice on 1st February, 1973, determining the tenancy by the end of February, 1973, he had avoided delivering possession of the property. The claim that he has spent about Rs. 20,000 in the premises is false and no such improvements have been effected. No advance to the extent of Rs. 3,000 as claimed, was ever received by her.
3. In the counter-statement filed by the tenant, who is the respondent herein, he claimed that there was no jural relationship of landlord and tenant between himself and the petitioner herein, and that it was only her husband who leased out the premises to him and the tenancy commenced in the middle of December, 1969 but later on treated as one of an English Calendar month. He has also stated that he has paid a sum of Rs. 3,000 by way of advance to the husband of the petitioner on the specific understanding that the premises is to be used for dry cleaning and laundry purpose and it was only on this understanding, a high rent of Rs. 200 was fixed for this premises, and the present claim that it was let out for residential purpose is a deliberate lie, whereas originally the premises was taken on lease only for the conduct of the business in dry cleaning and the claim that he has not paid rent is false for the months mentioned by the petitioner, as her husband had received those payments and that he has not committed any wilful default as claimed by her, and that the petitioner is not in need of the premises as she has moved to the city for education of her children, and there is no bona fides in the claim, and that he has spent nearly Rs. 20,000 for the construction of an overhead tank, cloth washing tank, cloth boiling stove and latrine and towards other improvements and it was only when he refused to pay enhanced rent, the present petition has come to be filed.
4. The petition for eviction was filed on three grounds. On the ground of wilful default pleaded, both the authorities had come to the conclusion that the alleged wilful default is not true. On the second ground that the tenant had converted the premises from residential to non-residential premises, both the authorities have concurrently held that this claim is baseless, and that the tenant has not used the building for a purpose other than the purpose for which it was let out.
5. It is only on the aspect of 'bona fide' requirement for the use and personal occupation of the landlord, that the Rent Controller held in her favour, whereas the Appellate Authority held that this claim is not entertainable on the ground that having let out premises for non-residential purpose, she is not entitled to require the premises for residential purpose and therefore rejected her petition.
6. Aggrieved against this order, this civil revision petition is filed under Section 25 of the Act.
7. Mr. Sivamani, counsel for the petitioner landlady contends that the appellate authority was in gross error in holding that the premises was let out only for non-residential purpose, when factually the building was used only for residential purposes at the time of letting out, the structural features of the building being fit only for residential purposes and when the building was a residential building at the time when the Act XVIII of 1960 had come into force. Unless an order had been secured, under Section 21 of the Act for conversion in law, for the purposes of the Act, it has to be treated only as a residential premises, and admittedly when the respondent is using it for non-residential purposes, it will not be open to treat the tenancy as one for non-residential purposes, and reject the petition on the ground that the landlady cannot ask for residential purpose because the premises by illegal conversion is being used for non-residential purposes. He would further contend that no court can encourage a violation of a statutory provision in that when in law the premises can be treated only as a residential premises, even if the landlady had entered into a transaction of lease to let out the premises for non-residential purposes, the tenant cannot take advantage of such a lease arrangement, because both of them will be liable to be prosecuted under Section 31 of the Act and the lease transaction is void, and the parties will be bound to treat the building as a residential premises, and accordingly relief has to be granted irrespective of whatever might be the consent given by the landlady for the building to be used as non-residential premises assuming that she had given such a consent. In this case, on the evidence on record, it is quite clear that the premises was let out only for residential purposes and it was only the tenant who had later on converted in to non-residential purpose and that the concurrent findings arrived at by the two authorities being erroneous and contrary to evidence on record, cannot be sustained by this Court, whose jurisdiction under Section 25 of the Act is of the widest amplitude.
8. Subsequent to the filing of the petition, her nine children have almost completed their education and there is no need for her to stay in the city, and therefore there is bona fides in her claim for demanding possession of her own premises when she is not possessed of any other property in the city. As to the other findings regarding wilful default, he would state that the claim had been rejected on flimsy grounds.
9. The main aspect to be considered is whether the conversion pleaded is true or not. Both the authorities have concurrently held that the conversion pleaded is untrue and originally the building had been let out for non-residential purposes and the tenancy started from January, 1970. Petitioner's husband P. W. 1, has spoken about a portion of the property having been let out on a monthly rent of Rs. 100 p. m. In his evidence, he would state that the premises was used for residential purpose and that it had been let out to the respondent on a rent of Rs. 200 and he was asked to remit the rents in the Bank itself. He came to know about the laundry being conducted in the premises only in 1977, and before that he had not seen the premises, as he had gone to Bombay for his work, and that his wife continued to live at Madras with the children. He admits that under Exhibit B-1, dated 16th February, 1971, he had demanded Rs. 250 as rent and the letter had been addressed in the name of the laundry. Further be would state that apart from the building portion, a vacant site of about 2 grounds belonging to him had also been fenced as one property, and it has been rented out as one unit. In Exhibit B-2 dated, 26th June, 1972, a letter written by him, he has demanded enhanced rent of Rs. 50 by stating that Sumathi Industries are asking for higher rate of rent. He was aware that the respondent was having laundry business in other places. Of the nine children, only two are studying presently in High School, and the rest of them had completed their education. Therefore the premises is immediately required for personal occupation. He never received any advance, nor the improvements claimed, have been made and the premises was let out only for residential purposes and not for any trade purposes. No written consent had been taken for any such conversion. He is the sole witness for the petitioner. The tenant had examined himself as R. W. No. 1 and he claimed that he took the premises for laundry business and for having a showroom, and at that time, he was employed in Tube Products as a worker earning a salary of Rs. 250 and at the same time, he was also having laundry shops in two other places and he wanted to open a shop at Ambattur. He took the premises along with the vacant site fenced together after negotiation held with the husband of the petitioner, and that he was asked to pay a sum of Rs. 5,000 as advance. He paid only Rs. 3,000 and settled the transaction. The premises had only a single phase electric connection and conversion was made to a three phase connection, which is required for operating laundry equipments. Though, he had not secured the written consent, in the application, petitioner's husband has signed the letter for grant of licence. It is untrue to claim that the premises was taken for residential purposes because with his meagre salary and on what he was earning from the laundry business in ether places, he was not a person who could afford to pay a sum of Rs. 2,00 p. m. by way of rent solely for residential occupation. The husband of the petitioner, having received the rents, has come forward to falsely claim that the rents have not been paid. Extensive improvements have been made and he has spent nearly Rs. 20,000 and at this stage, when the premises is a non-residential one, the laundry cannot be asked for residential purposes. He was informed that the petitioner is willing to sell the property on the plea that in Ambattur Township, she intends to build a house and the present claim in made only for renting out the premises for a higher rent, and there is no bona fide in the claim For the purpose of carrying out laundry business and for washing clothes in open yard, he has engaged sixteen persons of which 12 persons are in the premises itself and they cook ande at. From 1970 onwards licence had been issued not only for a three phase electric supply but also for carrying on the laundry business, and all these facts have been fully known to the petitioner and her husband.
10. A Commissioner was appointed for ascertaining the nature of improvements made and he has reported about the location of rooms and the extent to which improvements have been made, and that the premises was being used for non-residential purposes. He can make out two rooms used as kitchens and that the premises consist of two portions, one on the west and one on the east and has been constructed for the residence of two tenants. Six rooms were being used for laundry and three rooms are used for the residence of the respondent, and in the vacant backyard, there are concrete tables, tubes and other things which are used for laundry business and three phase electric connection had been provided.
11. On such evidence, Mr. Sivamani contends that the premises is structurally a residential one and it could have been rented out only for residential purposes and merely because the tenant had subsequently taken three phases electric connection and has made some improvements, it could not mean that at the inception the tenancy was for non-residential purpose. He contends that the concurrent findings of the two authorities that there was no conversion by the tenant, are incorrect and erroneous. There is no evidence to the effect that prior to the tenancy in favour of respondent, the premises was let out for any non-residential purpose. Hence the tenancy was only for residential purpose.
12. Mr. R.S. Venkatachari for the respondent would state that whatever be the nature of enjoyment of the property prior to the tenancy in favour of the respondent, there is clinching evidence that knowingly the premises was let out for non-residential purposes and no one would pay Rs. 200 for this premises, unless it be for non-residential purposes. R. W. 1 had stated, that the monthly rent was only Rs. 75 and if it has to be utilised for laundry purpose the rent will be Rs. 200.
13. The evidence on record goes to show that the premises though structurally a residential one, has been utilised for laundry purposes and for the said purpose, it cannot be said that such a building cannot be utilised. The open yard of nearly two grounds has been utilised for washing clothes. Hence the nature of the property can easily fit in for the purpose for which it is claimed to have been taken on lease About the existence of relationship of landlady and tenant, there is no dispute. Petitioner's husband had come forward to state that he had claimed higher rent under Exhibit B-1 stating that some other industry is asking for higher rent and hence Rs. 250 per month has to be paid. His claim that only in 1977 he knew about the laundry business being carried on, is untrue. He has written Exhibit B-l on 16th February, 1971, addressed in the name of the laundry.
14. When the notice for eviction had been issued in 1973, to plead that he had seen the premises only in 19/7 is unbelievable. The petitioner was quite conscious of the purpose for which the premises was being used. She was aware of the purpose to which it was to be used at the time of letting out of the property. This is an aspect on which, on the evidence on record, the two authorities have concurrently held against the petitioner. Immediately after taking possession of the property, the tenant had applied for three phase current and has also secured the licence for running a laundry. P. W. 1 had signed in the letter addressed for grant of licence. Therefore on the evidence adduced, the concurrent finding arrived at by the two authorities does not call for any interference
15. Apart from what can be said on consideration of evidence, Mr. R.S. Venkatachari by relying upon the decision in Sri Rajalakshmi Dyeing Works v. Rangaswamy : AIR1980SC1253 , would plead that while exercising powers under Section 25 of the Act, this Court cannot function as a second court of first appeal. In that decision dealing with the scope of Section 25 of the Act it is held that despite the wide language employed in Section 25 the High Court should not interfere with the findings of fact merely because it does not agree with the findings of the subordinate authority and the power conferred under Section 25 of the Act may not be as narrow as the revisional power of the High Court under Section 115 of the Code of Civil Procedure, but it is not wide enough to make the High Court a second Court of first appeal, and the concurrent finding based on evidence cannot be in erfered with by merely holding that the question involved is a mixed question of fact and law.
16. In this case, the concurrent finding arrived at by the authorities is based on evidence which has been adverted to above and there is no warrant for interference with such a concurrent finding in the light of what has been held by the Supreme Court. The concurrent finding being to the effect that there was no conversion by the tenant subsequent to the lease transaction and that the premises was let out for non-residential purpose, the contention raided by Mr. Sivamani on this aspect has to be rejected.
17. The matter cannot be concluded on this aspect alone, because Mr. Sivamani has further contended that when the premises was a residential one, at the time when the Act came into force and was so at the time when it was let out, the tenant cannot claim that it is a non-residential premises and therefore the landlady cannot seek to recover it for residential purposes Even if the tenancy was for non-residential purposes, when both the parties have violated the provisions of the Act by not securing the permission under Section 21 of the Act the tenant cannot rely upon such a transaction and resist the eviction proceedings.
18. In support of this contention, he relies upon the decision in D. Dakshinamoorthy v. Thulja Bai : AIR1952Mad413 . This decision was rendered in a matter that arose under Act XXIX of 1949. The 'user' of the property down to the date of the filing of the petition and of an acquiescence by the landlady is one of the tests to find out whether the lease is for residential or non-residential purposes. In a case where there is evidence of user, but no evidence of acquiescence, then the structural design and the antecedent user as known to the tenant and the surrounding circumstances can be taken into account it the building is capable of both residential and non-residential purposes. On determination of the question of fact, the main and dominant purpose of letting out, has to be made out. Where at the inception, it is only a residential building it may become a non-residential building by force of the terms of the letting and any conversion after the letting of such a building into a non-residential one, can take place only by following what the statute prescribes. Therefore Mr. Sivamani would contend that the concurrent finding which is relied upon is not based on proper or relevant factors, and the user itself is no longer conclusive one in view of the decision in Busching Schmitz v. Menghani : 3SCR312 , wherein it was held while dealing with the provisions of Delhi Rent Control Act, that the use or purpose of the letting is no conclusive test, and hence in this case, the use of the property by the tenant for laundry purposes, cannot be taken into account, and therefore there was an error in appreciation of the evidence by the two authorities.
19. D.B. Godse v. Ramachandra Iyer AIR 1955 Mysore 107, is relied upon to contend that it is not for the tenant to state that the family doss not require the premises and that they may continue to live in the same place for the education of the children, for which purpose they have originally gone to Madras. In determining bona fides, the desire of the landlady for her own purposes, cannot be rejected by pointing out that the purpose for which the landlady had moved out, has since ceased to exist.
20. Mr. R.S. Venkatachari contends that if in spite of what has been held in Rajalakshmi Dyeing works v. Rangaswami : AIR1980SC1253 , this Court is to go into the question of finding out as to whether the building is a residential one or a non-residential one, the authorities have not decided about the nature of tenancy by subsequent user, but have chosen to hold that even at the inception, the premises was let out only for non-residential purposes, and the land-lady was fully aware of the same when negotiations took place through her husband.
21. On the aspect as to whether a residential premises can he converted as a non-residential one, this is not a case where subsequent to the tenancy, the tenant has converted the user of the property, but right from inception, he had been put in possession of the property for non-residential purposes. Therefore the landlady can no longer contend that the structural aspect of the building is of a residential type or that it was being used as a residential one, and therefore even though the letting out was for non-residential purposes for the purpose of proceedings under Act XVIII of 1960, it has to be deemed to be only a residential building.
22. On this aspect, he relies upon the decision in Sri Gopal Dass Verma v. Dr. S.K. Dhardwai : 2SCR678 , wherein it was held that if the landlord has acquiesced in the tenant using the premises let out initially for residential purpose both for residential and professional or non-resident or commercial purposes, later on the landlord cannot object on the ground that the property is being put to a different use Once acquiescence is made out, the landlady cannot plead that the tenant is liable to be evicted, because the premises is no longer used exclusively for residential purposes.
23. In this case, even at the inception the premises was let out only for non-residential purposes, and all these years, to the full knowledge of the landlady a laundry was being conducted and having let out the property for non-residential purposes, it will not be open to the landlady to claim that before the premises was let out it was residential premises. As far as the landlady and tenant are concerned, it is only the jural relationship between the parties which has to be looked into and not what was the manner in which the premises was being used prior to the letting out.
24. The next point taken is, merely because the requisite permission under Section 21 of the Act has not been obtained, would it result in the lease transaction being treated as void and that the tenant cannot seek protection under the Act On this aspect, Mr. Sivamani relied upon the decision in Bapabhai Mehanbhai v. Mahila Sahakari Udyog Mandir : 1SCR411 which arose under Bombay Rents, Hotel and Lodging House Rates Control Act LVII of 1947, wherein under Section 25(1) of the Act, permission is required for converting a residential premised to a non-residential one and if such an order is not secured, the landlord is liable to be prosecuted and punished under Section 25(2) of the Act. When the landlord sought for recovery of possession, it was held that if relief is to be granted which would be resulting in a violation of Section 25(1) of the Act it would pave the way for prosecution and punishment and no Court can ever grant a relief where contravention has been committed of the Act. It is therefore contended by him that when no permission had been secured for conversion which was a residential premises at the time of coming into force of the Act it would not be open to the tenant to rely upon the terms of the tenancy, and such a lease agreement even if entered into, would not result in the character of the building being changed, and hence the tenant cannot resist by pleading that the landlady cannot ask for her own residential-purpose.
25. To counter this contention, Mr. R.S. Venkatachari, relied upon the decision reported in Murlidhar Agarwal v. State of U. P. : 1SCR575 which arose under U. P. (Temporary) Control of Rent and Eviction Act, 1947, where it was held that there was need for securing the permission of the Magistrate before a property is let out, and when there was a contravention, the tenant is protected and the interests acquired by him, would not be taken away because of the contravention committed by the landlord and that the landlord alone will be punished. He also relies upon the decision in Shankarlal v. Jagadiswar Rao : AIR1980AP181 , wherein a Full Bench of that Court held that:
An agreement of lease entered into between the landlord and tenant in contravention of Section 3(3) of the Hyderabad Rent Control Act or Section 3(5) of the Andhra Pradesh Rent Control Act, will Hot be illegal and void inter se between the parties, either on the ground that it is forbidden by law or on the ground that it is opposed to public policy in terms of Section 23 of the Contrast Act.
He also refers to the decision reported in Tikkamchand Mithalal Jain v. M.R. Narasimhachari : (1980)1MLJ522 , wherein alone Section 21 had been noted even though in Nagamma v. Medula (1952) I M.L.J. 158 : : AIR1954Mad165 : 65 LW 1185 : AIR 1954 Mad 105, this section had not been taken note of.
26. For conversion of a building which was residential on the date of the coming into force of the Act, necessary permission has to be secured in writing from the Controller under Section 21 of the Act. Without such a written consent if any building had been converted for non-residential purposes, under Section 31 of the Act any person who contravenes the provision is liable to be punished with fine which may extend to Rs. 200. In this case, there is no evidence to the effect that prior to the tenancy granted in favour of the respondent, the premises was being used as a non-residential premises, it is the land-lady who knowingly had allowed the building to be used for non-residential purposes. Though reliance is placed by Mr. Sivamani on the word 'person' used in Section 33 of the Act to include both the landlord and tenant, it does not mean that both of them are to be prosecuted in every case. For contravention of Section 21, depending upon the facts and circumstances of each case, it may be either the landlord or the tenant who may be prosecuted, and in some cases both of them also may be prosecuted. If after securing the premises for residential purposes, if the tenant is to convert the premises for non-residential purposes, in such cases, the tenant alone will be punished. If both of them being fully aware that it is a residential premises, later on have it converted as non-residential, by the landlord altering the structure of the building and the tenant using the building as a non-residential premises, then both of them would be prosecuted.
27. The evidence discloses that this is not a case where the tenant took it for residential purpose, and later on converted it. He was put into the premises by the landlady for using it for non-residential purpose. Such being the case, it is only the land-lady who will be liable for prosecution. As held in Rahim Khan v. Khurshed : 1SCR643 and Shankarlal's case (1980) 1 An. W. R. 1 : A.I.R. 1980 A. P. 11.8, the contravention, if any, would not take away the right of the tenant to claim the benefits under the Act as a tenant. Therefore the tenant has a right to resist the petition by stating that having rented out the building for non- residential purposes, it will not be open to the landlord to ask for residential purposes.
28. The next contention taken by Mr. Sivamani is that even if it is a case of ease for non-residential purposes, now- that the circumstances in which the landlady had left Ambattur and took a premises at Madras on rent are over and herself not owning any other property, she is entitled to seek for recovery of possession of the property for residential purposes for which the premises was being originally utilised. Counsel for the petitioner relied upon the decision in D.B. Godse v. Ramachandra Iyer AIR 1955 Mysore 107, wherein it was held that it is not for the tenant to dictate as to how the landlady can continue to live in the place where he was living and that there is no necessity to vacate the portion in the occupation of the tenant.
29. This Court has repeatedly held that it is not for the tenant to dictate to the landlord as to what should be the requirement of the landlord, and in this case, it is since reported that out of the 9 children, two are presently studying in High School and the landlady would like to come back and live in her own house. But the only hurdle she faces is that the premises having been let out for non-residential purposes, she cannot disturb such a tenancy till it comes to an end, and the tenant having acquired statutory rights to resist the recovery of possession of the property, unless if be for non-residential purposes. It is only if the landlord requires it for non-residential purposes, she can maintain this petition. In Thirupathi Nadar, and Sons v. Dr. S.L. Kantha Rao (1980) TLNJ 145, a Division Bench of this Court while dealing with the petition where the landlord had asked for additional accommodation, it was held that if it is a residential building, the landlord can obtain additional accommodation only for the purpose of residence, and if it is a non-residential he can obtain additional accommodation only for the purpose of the business which he was carrying on. In this case, though the claim is not for additional accommodation but a petition for eviction on the ground of wilful default, conversion and user for different purposes and for personal occupation, and there being no provision for enabling a landlord to ask for recovery of possession for residential purposes of a premises having let it out for non-residential purposes, the present petition is not maintainable. By her own conduct, the landlady had allowed a statutory right to be acquired by the tenant for use of the premises for non-residential purposes, though the landlady had violated Section 21 of the Act by not securing the written permission of the Controller for such conversion. Hence the right of the tenant to resist this petition filed for recovery of possession for residential purposes, is not taken away Rather the landlady having contravened Section 21 of the Act cannot maintain this petition.
30. Even though this petition could have been disposed of by holding that the concurrent findings arrived at, based on relevant evidence, does not call for any interference, in view of the decision in Rajalakshmi Dyeing Workers' case : AIR1980SC1253 , the other points had to be considered because of the contentions raised as above adverted to. Now that on all points it had been held against the landlady, this petition is dismissed.