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V. Balakrishna Menon Vs. M.A.K. Govindan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1979)1MLJ237
AppellantV. Balakrishna Menon
RespondentM.A.K. Govindan
Cases ReferredIn Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj
Excerpt:
- orderm.m. ismail, j.1. this is a petition filed by a tenant to revise the order of the appellate authority functioning under the tamil nadu buildings (lease and rent control) act, 1960 (tamil nadu act xviii of 1960 thereinafter referred to as the act) directing the eviction of the petitioner herein from the premises in question. most of the facts are not in controversy. the respondent filed a petition under the provisions of the act for eviction of the petitioner herein on three different grounds. one was that he bona fide required the premises for his own occupation, the second was that the petitioner has committed wilful default in the payment of the rent and the third was that the petitioner had put the property to a use different from the one for which it was leased out. the.....
Judgment:
ORDER

M.M. Ismail, J.

1. This is a petition filed by a tenant to revise the order of the Appellate Authority functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960 thereinafter referred to as the Act) directing the eviction of the petitioner herein from the premises in question. Most of the facts are not in controversy. The respondent filed a petition under the provisions of the Act for eviction of the petitioner herein on three different grounds. One was that he bona fide required the premises for his own occupation, the second was that the petitioner has committed wilful default in the payment of the rent and the third was that the petitioner had put the property to a use different from the one for which it was leased out. The petitioner denied all the three grounds. The Rent Controller rejected all the three grounds and dismissed the petition for eviction filed by the respondent herein. Thereupon, the respondent preferred an appeal to the Appellate Authority prescribed under the Act. Before the Appellate Authority, the finding of the Rent Controller on the second and the third grounds was not challenged. The only ground on which the appeal was prosecuted was that the respondent herein bona fide required the premises for his own occupation, that he was living in a rented premises and that he had no other building in the place in question. The Appellate Authority accepted this contention of the respondent herein and ordered the eviction of the petitioner from the premises in question, it is this order of the Appellate Authority, that is sought to be revised in the present civil revision petition filed under Section 25 of the Act.

2. Before proceeding with the question of law that was sought to be raised before this Court, I must refer to the nature of the defence put forward by the petitioner herein in respect of this particular ground for eviction, namely, the respondent herein bona fide required the building for his own occupation. The contention that was advanced was that the building was let out for residential as well as for non-residential purposes and therefore the respondent herein cannot obtain possession of the premises for his own residential purpose. This contention was rejected by the Appellate Authority following the decision of a Full Bench of this Court in Dakshinamurthy v. Thulja Bai : AIR1952Mad413 . That judgment held that for the purpose of finding out whether the purpose for which a building was let out was residential or non-residential the dominant purpose has to be determined and if the dominant purpose was residential, the fact that a part of the premises was put to nonresidential use will not change the character of the original purpose and vice versa. The learned Counsel for the petitioner challenges this conclusion. Mr. M.R. Narayanaswami, learned Counsel for the petitioner did not contend that the decision of the Appellate Authority is not in accordance with the Full Bench decision of this Court referred to already. On the other hand, the learned Counsel had to concede that the law laid down by the Full Bench of this Court is to that effect only and the Appellate Authority, simply followed the Full Bench decision. However what he contends is that in view of the subsequent decisions of the Supreme Court the Full Bench decision is no longer good law, since according to the learned Counsel for the petitioner the Supreme Court has held that in such cases, where a building has been let out for residential as well as non-residential purpose the Rent Controller has no jurisdiction at all under the Act to order eviction of the tenant. Therefore, I have to consider in the present civil revision petition the soundness or otherwise of this contention.

3. In this particular case the Appellate Authority as far as the purpose of the tenancy is concerned has recorded the following finding:

It is clear that the building was taken by him (petitioner-tenant) for residential and non-residential purpose and the evidence would also go to show that the tenant has been residing with his family in a major portion of the building and only a minor portion of it has been used for nonresidential purpose that is for the purpose of using it as an office for the yarn broker business conducted by the tenant and it is therefore absolutely clear that the building in question was let out to the tenant mainly and substantially for residential purpose and incidentally for non-residential purpose and that being so, the building has got to be construed only as a 'residential building.' This is the finding of fact against the background of which the eviction was ordered by the Appellate Authority and it is the correctness of this conclusion that has now to be examined.

4. As far as the Act is concerned, Section 2(2) of the Act defines the term 'building' and the same is as follows:

'Building' means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes and includes....

Section 10 of the Act deals with the evictio11 of tenants. Section 10(1) is in general terms and it states that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Section 14 to 16. Sub-section (2) of Section 10 deals with the eviction of a tenant on these grounds, the grounds being (i) default in the payment of rent; (ii) subleasing or subletting the property; (iii) using the building for a purpose other than that for which it was leased; (iv) causing act of waste; (v) the tenant being convicted under any law for the time being in force of an offence of u ding the building or allowing the building to be used for immoral or illegal purposes; (vi) that the tenant has been guilty of such acts and conduct which are a nuisance to the occupiers of other portions in the same building or of buildings in the neighbourhood; (vii) that where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause; and (viii) that the tenant was denying the title of the landlord or claiming a right of a permanent tenancy and that such denial or claim was not bona fide. It is Sub-section (3) of Section 10 with which we are immediately concerned. Section 10(3)(a) along with Clauses (i), (ii) and (iii) reads as follows:

10(3)(a) : A landlord may subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building. (i) in case it is a residential building if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned;

(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own;

(iii) in case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on a non-residential building in the city, town or village concerned which is his own.

Thus, it will be seen that Section 10(3)(a)(i) uses the expression 'residential building'. Section 10(3)(a)(ii) uses the expression a 'non-residential' building which is used for the purpose of keeping a vehicle or adapted for such use and Section 10(3)(a)(iii) uses the expression 'any other non-residential building. It is pertinent to point out that in the Act, there is no definition of the expression 'residential building' or 'non-residential building' and all that we have in Section 2(2) of the Act in relation to the definition of a building is a building let out for residential or non-residential purposes. It is in this context only the Full Bench had to consider as to what is meant! by a residential building and a non-residential building as use d in Section 7 of the Act then in force. The Act that was in force when the Full Bench rendered its decision was the Tamil Nadu Buildings (Lease and Rent Control) Act, 1949 (XXV of 1949). That the corresponding provisions of that Act were similar to what we are considering is not in dispute. The section dealing with the eviction of a tenant was Section 7 and the sub-section relevant was Sub-section (3). There also the Full Bench had to consider the question as to what exactly is the meaning of the expression residential building or non-residential building. Rajamannar, C.J. sitting with Panchapakesa Ayyar, J. who referred the matter to a Full Bench pointed out as follows:

If the definition of 'building' gives a clue,, then, a residential building is a building let or to be let for residential purposes. That furnishes no doubt a simple test which has also the merit of reasonable certainty. But I have found it difficult to adopt that test in the case of a building which for instance might be the family house of the owner in which he and his predecessors had been, residing for years and therefore was at one time a residential building which however has been let for business purposes at the material period. The question will then, arise whether there has been a conversion of a residential building into a non-residential building.

The opinion of the Full Bench was given by Raghava Rao, J. who in substance accepted this view of Rajatnannar, G J. The Full Bench observed as follows:

For the purpose of determining whether a building is residential or non-residential according to the view expressed above what a 'residential building' means we have to bear in mind a few a salient considerations, which we propose to indicate.

(1) where there is an instrument of tenancy specifically and explicitly declaring the purpose of the letting as residential or nonresidential, no difficulty generally arises.

(2) Where there is no such instrument of tenancy, the question will have to be considered on the basis of direct evidence aliunde concerning the purpose of the letting which may be adduced in a case.

(3) If no such evidence too is forthcoming, the Court can only look at the evidence concerning the user of the premises by the tenant down to the date of the application for eviction as acquiesced in by the landlord. For such user and such acquiescense afford a safe basis for an inference of agreement between the parties as to the purpose of the letting.

(4) Where there is evidence of such user, but there is no evidence of such acquiescence the structural design, the antecedent user of the building by the landlord as known to the tenant and other surrounding circumstances if any, will also have to enter into the determination of the question whether the building is or is not residential.

(5) Difficulty may sometimes still remain i.e., even after applying the tests above indicated, if the building is found let for both kinds of purposes, residential and nonresidential, no distinction being made between one part as let for one purpose and the other for the other purpose. In such a case, it seems to us that what has to be determined as a question of fact, is what was the real main and substantial purpose of the letting.

After setting out the above general considerations, the Full Bench proceeded to consider certain decisions of Courts in England rendered with reference to Rent Restrictions Acts prevailing there and after such consideration, the Full Bench proceeded to observe:

Here in our statute as we, have already observed, we do not have any provision such as came to be enacted in the English Act of 1920 by way of giving effect to the Epsom decision, and if the juristic criticism applied to the Epsom decision by McCardie J. is to be accepted as sound there is no reason why the test of dominant purpose and principal user propounded by the learned Judge should not be regarded as applicable to cases arising under our statute.

It is true that the test of dominant purpose and principal user is not always easy of application, applied certainly it can be speaking generally though with some difficulty in some cases. Such difficulty in the actual application of the test in such cases will only mean that a margin of Judicial discretion in the matter of the determination of the question of the character of the building as question of fact has necessarily to be allowed for. Instances of transactions inspired by mixed motives and intents in which the question of the main, real and dominant motive and intent has to be canvassed for validating or invalidating them are not uncommon in other branches of law. There can, in our judgment, be no reason of principle why a canvas of the main, real and dominant purpose should be regarded as not legitimate in this branch of law in cases where the letting is actuated by mixed purposes.

Even after making the above observation, the Full Bench proceeded to refer to a marginal case by stating:

It only remains to add that where the Court finds the letting to be equally for residential and non-residential purposes and not mainly or substantially for the one or the other kind of purpose the application by the landlord may well stand whether filed under Section 7(3)(a)(i) or Section 7(3)(a)(ii) of the Act.

Judging the case before us on the facts found and in the light of the legal principles indicated in the foregoing we are of opinion that the purpose of the letting being nonresidential the mere structural fitness of the building for residence at the time of the letting does not avail the respondent to contend that because he is not in occupation of a residential building of his own in the city and requires this building for his own occupation, he can evict the petitioner from the premises.

Thus it will be seen that as far as our present Act is concerned, there is no definition of the terms 'residential building' and 'non-residential building' which terms are used in Section 10. Yet whether a particular building is a residential or non-residential building has to be decided with reference to the purpose for which it was let out because Section 2(2) of the Act defining the word 'building' referred to only two purposes, residential and nonresidential. If it was let out for residential purpose, it was a residential building and if it was let out for non-residential purpose it was a non-residential building. As the Full Bench has pointed out a question will arise where a building has been let out for both the purposes, partly residential and partly non-residential. Then in-which category of the purpose the case would fall, whether residential or non-residential? It is only in that context the Full Bench pointed out that the test was to find out the real main and substantial purpose of the letting. In other words, the dominant purpose of the letting will determine the character of the building whether it residential or nonresidential. If it is residential the building will be residential and if it is non-residential the building will be non-residential. With reference to this observation of the Full Bench, the finding of the Appellate Authority to which I have drawn attention, becomes relevant, and on the basis of that finding namely, the building was let out mainly and substantially for residential purpose and incidentally for nonresidential purpose, the building will fall within the scope of the expression 'residential building' and would therefore come within the ambit of Section 10(3)(a)(i). I may indicate that even with reference to a nonresidential building, the Act makes a distinction between two sets of non-residential buildings, one is under Section 10 (3)(a)(it) and the other under Section 10(3)(a)(iii). The only type of nonresidential building expressly dealt with under Section 10(3)(a)(ii) is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use. All other non-residential buildings are dealt with under Section 10(3)(a)(iii). If only we remember that the Section 10(3)(a) uses the expression 'for purposes of a business' we can easily equate the non-residential building contemplated under Section 10(3)(a)(iii) with a building let out for commercial purposes. As I pointed out already, the conclusion of the Appellate Authority is fully in accordance with the decision of the Full Bench of this Court referred to above and therefore unless the learned Counsel for the petitioner succeeds in showing that the decision of the Full Bench is no longer good law in view of the decision of the Supreme Court on which he relied, the civil revision petition has to be dismissed. Consequently the question for consideration is whether the decision of the Supreme Court has the effect of voiding the decision of the Full Bench of this Court.

5. The decision of the Supreme Court relied on is that in Miss. S. Sanyal v. Gian Chand : [1968]1SCR536 . In that case the appellant before the Supreme Court had been a tenant of a house, a part of which was used for a Girls' school and the rest for residential purpose. The respondent in that appeal who had purchased the building from the previous owner commenced as action against the appellant for a decree in ejectment in respect of the house. The ground with which the Supreme Court was concerned was that the landlord required the premises bona fide for his own occupation. The trial Court dismissed the suit and the Senior Subordinate Judge, Delhi dismissed an appeal from the order holding that the house being let for purposes non-residential as well as residential, a decree in ejectment could not be granted under Section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952. However, the High Court of Punjab (Delhi Bench) in a revision petition filed by the respondent held that on the finding recorded by the First Appellate Court, a decree in ejectment limited to that portion of the house which was used for residential purposes by the tenant could be granted, and remanded the case to the Rent Controller for demarcating those portions which were being used for residence and to pass a decree in ejectment from those specific portions of the house. It was against that order of the High Court of Punjab the appeal was preferred to the Supreme Court and the Supreme Court extracted Section 13(1)(e) of the Delhi and Ajmer Rent Control Act, 1952 which was as follows:

Section 13(1) : Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):

Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied....

(e) that the premises let for residential purposes are required bona fide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation.

Explanation : For the purposes of this clause, 'residential premises' include any premises which having been let for use as a residence are without the consent of the landlord used incidentally for commercial or other purposes.

The Supreme Court proceeded to observe as follows:

It is clear that Section 13(1) imposes a ban upon the exercise of the power of the Court to decree ejectment from premises occupied by a tenant. The ban is removed in certain specific cases, and one such case is where the premises having been let for residential purposes, the landlord requires the premises bona fide for occupation as a residence for himself or the members of his family and he has no other suitable accommodation. It is plain that if the premises are not let for residential purposes Clause (e) has no application, nor on the express terms of the statute does the clause apply where the letting is for purposes residential and nonresidential.

The Supreme Court proceeded to observe:

If in respect of premises originally let for residential purposes a decree in ejectment cannot be passed on the grounds mentioned in Section 13(1)(e), if subsequent to the letting with the consent of the landlord the premises are used both for residential and non-residential purposes, the bar against the jurisdiction of the Court would be more effective when the original letting was for purposes non-residential as well as residential. It may be recalled that the condition of the applicability of Section 13(1)(e) of the Act is letting of the premises for residential purposes.

6. Relying on this decision of the Supreme Court, the learned Counsel for the petitioner contends that in the present case, the letting was for both residential and non-residential purposes and as the Supreme Court held with reference to the Delhi and Ajmer Rent Control Act, 1952, it must be held in the present case that Section 10(3)(a)(i) does not apply. I am afraid that this argument has no substance because the provisions of the Delhi and Ajmer Rent Control Act, 1952, are not in pari materia with the provisions of the statute with which we are concerned. I shall immediately mention the basic difference with reference to the provisions which we are considering.

7. Section 2(g) of the Delhi and Ajmer Rent Control Act, 1952 defines the expression 'premises' and the same is as follows:

'Premises' means any building or part of a building which is or is intended to be let separately for use as a residence or for commercial use or for any other purpose and includes....

Thus it will be seen that as far as the Delhi and Ajmer Rent Control Act, 1952,' is concerned there is a threefold classification of the purpose for which a building could be let, the three purposes being (i) for the purpose of residence (ii) for commercial use and (tit) for any other purpose. The Supreme Court in Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj and Anr. : [1962]2SCR678 had occasion to consider the threefold classification of the purposes contained in the Delhi and Ajmer Rent Control Act, 1952. The Supreme Court after referring to Section 2(g) of the Act observed as follows:

The three kinds of user to which the definition refers are residence, commerce and any other purpose which necessarily must include residence and commerce combined. It may also include other purposes as suggested by the learned Soliciter-General. As soon as it is shown that the premises have been let both far the use of residence and for commercial purposes it does not follow that the premises ceases to be premises, under Section 2(g); they continue to be premises under the last clause of Section 2(g). This position is wholly consistent with the division of the premises made with reference to their user in paragraphs 3, 4 and 5 of part A in the Second Schedule to the Act.

Thus, it will be seen that the Delhi and Ajmer Rent Control Act, 1952 basically differs from the provisions of our Act in respect of the definition of the term 'building' and the purposes for which it could be let out. While our statute contemplates only two purposes 'residential' and 'non-residential' the Dalhi and Ajmer Rent Control Act, 1952 contemplates three purposes, residential, commercial and any other purpose, and according to the Supreme Court 'any other purpose' will include the letting of a premises for both residential and commercial purposes. In our statute, the third category of the purpose is not there and on the other hand, we have only a dichotomous division of the purpose. Consequently, unless we are forced to reach the conclusion that a particular building or letting has been taken out of the scope of the Act itself, we have to allot a particular building into one or the other of the two categories, namely residential or non-residential. It is only in this light that the Full Bench of this Court laid down the test of finding out the main real and dominant purpose of the letting for the purpose of allocating the building to one or ottier of the two categories, namely residential or non-residential.

8. The subsequent decision of the supreme Court in S. Kartar Singh v. Chaman lal and Ors. : [1970]1SCR9 is also to the same effect. There also the Supreme Court referred to its earlier decision in Dr. Gopal Dass Verma v. Dr. S.R. Bhardwaj : [1962]2SCR678 and held that the statute contemplated a threefold purpose and in fact used the very same expression the Full Bench of this Court used, while making some observations concerning the English Act and decisions. The Supreme Court observed as follows:

The position in England is different where premises are let partly for business purposes and partly for residence. There the statutory provisions lay down that where a dwelling is let partly for business purposes and partly for residence, the Rent Act applies to the whole. Morever, where there is no covenant as to user and the question is what user was contemplated, by the tenancy agreement; the test was the 'main purpose' or 'predominant intention' or 'the prevailing contemplation' or 'a preponderating contemplation for the letting'. We are unable to derive any assistance from the English cases on the point.

In fact, the above observation of the Supreme Court will support the Full Bench decision of our Court with reference to our statute because our statute classifies purposes only into two categories, residential and non-residential and therefore the test for finding out whether in a particular case it was for residential purpose or non-residential purpose, has to be in the light of the observations by the Full Bench.

9. In this context it will be useful to refer to the decision of the Judicial Committee of the Privy Council in Harnam Singh v. Jamal Pirbhai (1951) A.C. 688 which dealt with the provisions contained in the Increase of Rent and Mortgage Interest (Restrictions) Ordinance, 1940 of Kenya. The Judicial Gommitte at page 701 observed as follows:

In their Lordships' view, the effect of this legislation was to create two independent codes applying to dwelling houses on the one hand and to premises used for business purposes and the other specified purposet (which lor brevity may be called 'business premises') on the other. In each the subject the possession of which is under statutory protection is a physical unit, either the dwelling house or the business premises; and in the case of 'mixed' premises which have some connexion with both descriptions, the true problem is to discover to which of the two categories such a property ought the more appropriately to be ascribed since it is a contradiction in terms that it should be ascribed simultaneously to both.

10. In view of the position resulting from the decisions of the Supreme Court cited above, Mr. M.R. Narayanaswami, learned Counsel for the petitioner was forced to contend that as far as our statute is concerned, where a building is let for both residential and non-residential purposes such a building is outside the scope of the Act itself. Of course it is an extreme argument and unless we are driven to that position with reference to the language of the enactment, such a contention cannot be accepted. In my view, the argument of the learned Counsel will lead to unintended consequences. If that argument is accepted, in every case where a building has been let out for both residential and non-residential purposes, the building will be outside the scope of the Act, not only with reference to eviction but also with regard to payment of rent and other benefits sought to be conferred by the Act on the tenants. In S. Kartar Singh v. Chaman Lal and Ors. : [1970]1SCR9 an advocate while residing in the same premises used a part thereof for his professional purpose. In Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj : [1962]2SCR678 a doctor used a portion of the premises in which he was residing for his professional purposes. It is not uncommon that many advocates and doctors use a room or two in their residence for official professional purposes such as a consultation room in the case of an advocate. If the argument of Mr. M.R. Narayanaswami is to be accepted, all those cases will fall outside the statute. There are several instances in our State, if not in our country where in metropolitan cities many persons reside without their families, in connection with their profession, employment or business and they happen to take their food in a private mess. There are several cases where a part of a residential building is used for running a private mess by the tenant. If the argument of the learned Counsel is to be accepted, all those buildings will be outside the scope of the Act both with reference to liability to eviction of the tenant and with reference to the fixation of fair rent also. It would not have been the intention of the legislature that a very large category of buildings be left outside the scope of the Act because they have been let out for both residential and non-residential purposes. It is not as if except in a very few cases, in all the cases it could not be found out as to what the main, dominant or the principal purpose for which the building is let out was. The cases to which I have drawn attention can easily be brought into one or the other of the two categories. For instance, in the case of a lease of a building to an advocate who uses a room or two in the house for office purposes, there is no difficulty in holding that the dominant-and main purpose of the lease was residential. So will be the case of a lease to a doctor to which I have made reference already. Consequently, there is absolutely nothing in the language or the scheme of the Act to show that the legislature intended to confine the tenancies covered by the Act only to cases where the building was let out exclusively for residential purpose or exclusively for non residential purpose and did not intend the Act to cover a case where the building has been let out partly for residential and partly for non-residential purpose. In view of this position, I am unable to accept the extreme contention put forward by the learned Counsel for the petitioner.

11. For the above reasons, I hold that the order of the Appellate Authority is correct and it does not call for any interference. The Civil Revision Petition fails and the same is dismissed. There will be no order as to costs in this petition.


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