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P.i. Kurian Vs. the Government of Tamil Nadu, Represented by the Deputy Secretary to Government, Home Department and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1972)1MLJ477
AppellantP.i. Kurian
RespondentThe Government of Tamil Nadu, Represented by the Deputy Secretary to Government, Home Department and
Cases ReferredKhan Chand v. State of Punjab
Excerpt:
- .....was non-residential and since that portion was required for their residential purpose by way of additional accommodation, they had no remedy under the act to evict the tenant. the petitioner opposed the request for exemption. upholding the objection, the government rejected the petition for exemption by order dated 3rd july, 1968. the landlords applied to the government for reconsideration of their order stating that they were not permanently residing in the premises and were unable to move the court for eviction of the petitioner. the government referred the matter to the accommodation controller, who reported that respondents 2 and 3 were living in a portion of the premises and were using another portion for their business. after considering the objections of the petitioner, the.....
Judgment:
ORDER

K.S. Palaniswamy, J.

1. Kannappan and Dhanapal, respondents 2 and 3, are the owners of No. 55, Rangasayee Naidu Street, Perambur, Madras. The building consists of several portions. The owners are in occupation of a portion for their residential use and of another small portion for their business as newspaper agents. There are eight other non-residential portions in the occupation of private tenants. One of these portions is in the occupation of the petitioner, Kurian, on a monthly rent of Rs. 45 where he is conducting his bakery and show-room. There have been litigations between the petitioner on the one hand and respondents 2 and 3 on the other with regard to the tenancy of the petitioner. The landlords not being able to get the petitioner evicted through the provisions of the Madras Buildings (Lease and Rent Control) Act, 1960, (hereinafter referred to as the Act), they approached the State Government an the year 1967 seeking exemption of the building under Section 29 of the Act. In the petition to the Government they stated inter alia that since the portion in the occupation of the tenant (petitioner) was non-residential and since that portion was required for their residential purpose by way of additional accommodation, they had no remedy under the Act to evict the tenant. The petitioner opposed the request for exemption. Upholding the objection, the Government rejected the petition for exemption by order dated 3rd July, 1968. The landlords applied to the Government for reconsideration of their order stating that they were not permanently residing in the premises and were unable to move the Court for eviction of the petitioner. The Government referred the matter to the Accommodation Controller, who reported that respondents 2 and 3 were living in a portion of the premises and were using another portion for their business. After considering the objections of the petitioner, the Government granted exemption of the building from the provisions of the Act, by their order dated 2nd January, 1970. This Writ petition is filed by the tenant praying for the issue of a writ of certiorari to quash the said order of exemption.

2. In passing the order of exemption, the Government observed:.the Government now find that having regard to the recent decision of the Madras High Court reported in Govindan v. Rajagopal Nadar : (1968)2MLJ315 , it has to be taken that the landlord, who requires for his own residential use the non-residential portion in the occupation of the tenant, Thiru P.I. Kurian, cannot invoke Section 10(3)(c) and seek the eviction of the tenant before the Rent Controller. The landlord-petitioner has, thus, no remedy under the provisions of the Act. The Government therefore, now consider that this is a fit case for the grant of exemption under Section 29 of the Act. They have accordingly decided to exempt the portion of premises No. 55, Rangasayee Street, Perambur, Madras, which has been under the tenancy of Thiru P.I. Kurian, from the provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

On behalf of the petitioner it is contended that the above view taken by the Government is erroneous in law, that the decision in Govindan v. Rajagopala Nadar : (1968)2MLJ315 , relied on by the Government has not decided the point correctly, that even though the landlords Want the portion in the occupation of the petitioner for their residential purpose, it is yet open to them to apply under Section 10(3)(c) of the Act and that where a remedy is available to a landlord under the Act, it is not open to the Government to exercise the power to exemption. It is, therefore, contended that the order is vitiated.

3. The question as to the circumstances under which the Government could exercise their power of granting exemption has been the subject of consideration in some decisions. In Chinniah Servai v. State of Madras : (1960)2MLJ191 , the applicability of Section 13 of the 1949 Act, corresponding to Section 29 of the present Act, arose for consideration. The Bench pointed out that Section 13 did not specify the grounds on which exemption could be granted and that it would be legitimate for the exercise by the Government of their powers conferred under Section 13, if the provisions of the Act did not cover a particular case. A similar view was taken by another Bench in Devassay v. State of Madras : (1970)1MLJ533 . The landlords are admittedly in occupation of one portion of the premises for residential purpose and another portion for non-residential purpose. The petitioner is in occupation of another portion for non-residential purpose. The landlords want to recover possession of that portion from the tenant by way of additional accommodation not for their business but for their residence. Thus, what the landlords Want is recovery of possession of a non-residential portion for their residential use. Section 10(3)(c) of the Act enables the landlord to apply for eviction of the tenant on the ground of need of additional accommodation. It reads:

A landlord who is occupying only a part of a building whether residential or non-residential, 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 or for purposes of a business which he is carrying on, as the case may be.

This corresponds to Section 7(3)(c) of the 1949 Act. It is contended on behalf of the petitioner that the landlord applying for additional accommodation under the aforesaid provision, need not necessarily show that the additional accommodation sought for should be used I y the landlord for the same purpose for which the tenant, sought to be evicted, is using it and that all that the landlord should establish is bona fide requirement. The contention is that it is open to the landlord to readjust the additional accommodation in the manner convenient to him even though the portion in the possession of the tenant may be used by the tenant for a purpose different from the one for which the landlord may desire to put after eviction. Such a view was no doubt taken by Balakrishna Ayyar, J., in G.R.P. No. 1746 of 1957, the ratio of which is reported in Premchand Motichand v. Hameed Sultan (1958) 2 M.L.J. 315. But Venkataraman, J., to whom the aforesaid decision does not appear to have been cited, took a contrary view in Govindan v. Rajagopal Nadar : (1968)2MLJ315 . In that case, the; landlord was occupying one portion of a building for non-residential purpose. In the other portion of the building, there were, four tenants who were occupying those portions for residential purpose. The landlord required. those portions for the residence of himself and the members of his family. Though he was occupying a portion only for non-residential purpose, he wanted the portions in the occupation of the tenants for being used for residential purpose. In dealing with the question whether such a case would fall under Section 10(3)(a) or 10(3)(c), the learned Judge observed:.even though the landlord, is already occupying a part of the building taking the structure as a whole for non-residential purposes, it cannot be said that merely because of that circumstance Section 10(3)(c) is attracted because the occupation of that non-residential portion is for non-residential purposes, whereas he wants to occupy the other portions for residential purposes. The natural and normal interpretation of Section 10(3)(c) is that if a landlord is occupying a part of a residential building for residential purposes and wants additional accommodation for residential purposes in the same building, then Section 10(3)(c) will apply. But this is not such a case.

In other words, the view of the learned Judge was that the purpose for which the additional accommodation is going to be used should be the identical purpose for which the tenant is also using the building for the time being. In the instant case, the landlords, though they occupy one portion for residential purpose and another portion for non-residential purpose, want a portion in the occupation of the petitioner for their additional accommodation for residential purpose, whereas the tenant is using that portion for non-residential purpose. Relying upon the decision of Balakrishna Ayyar, J., referred to above, Mr. Ramaswami, Counsel for the petitioner, contended that it was still open to the landlords to apply for eviction through the Rent Controller and that, therefore, it cannot be said that the landlords were without a remedy under the Act. No doubt, the Andhia Pradesh High Court has taken a similar view as the view taken by Balakrishna Ayyar, J. vide Parasuramiah v. Lakshmamma ( : AIR1965AP220 .

4. On behalf of the landlords, reliance was placed upon the expression 'as the case may be' occuring in Section 10(3)(c) of the Act and it was argued that the said expression cannot permit the application of the same alternative to both the contingencies or vice versa and that it is implicit in the use of this phrase that one out of the various alternatives would apply to one out of the various situations and not otherwise. In other words the argument was that if a landlord wants a non-residential portion in the occupation of a tenant for additional accommodation, he could ask for it only for the same purpose. No doubt, the expression 'as the case may be' was construed by a Full Bench of the Punjab High Court in Khan Chand v. State of Punjab , as being applicable only to one or the other alternatives only, but would not apply to-both alternatives. Mr. Ramaswami, Counsel for the petitioner, placing strong-reliance upon the decision of the Andhra. Pradesh High Court, pointed out that the learned Judge Venkataraman, J., had evidently overlooked the use of the expression 'notwithstanding anything contained in Clause (a)' occurring in Clause (c) of Section 10(3) and that if the learned Judge had taken note of that expression, he would not have taken the view which he had taken. Construing the non-obstante clause occurring in Section 10(3)(c), the Andhra Pradesh High Court held that such an expression was used to distinguish cases of eviction, falling under Clause (a) and that, therefore, if the landlord satisfies the Rent Controller that he wants additional accommodation, in the same building, it is open to him to readjust the additional accommodation, in the manner convenient to him and that it cannot he insisted that the additional accommodation sought for should be used by the landlord for this same purpose for which the tenant sought to be evicted was using it. The Andhra Pradesh High Court also construed the expression 'as the case maybe' occurring in Section 10(3)(c) as only meaning that the requirement of additional accommodation may be for residential or for non-residential purpose. The argument of Mr. Ramaswami was that on a proper construction of Section 10(3)(c) it should be held that the view held by the Andhra Pradesh High Court is correct. His submission was that if that view is correct, then it would follow that the landlords, in the instant case were entitled to apply to the Controller for eviction of the petitioner even though they (the landlords) want the portion in the occupation of the petitioner lot their residence, as against the non-residential use of the portion of the petitioner.

5. I feel it unnecessary to go into the question whether the view of Venkataraman, J., is correct or not, though I am inclined to agree with Mr. Ramaswami that the. view expressed by Venkataraman, J., requires re-consideration having regard to the language of Section 10(3)(c). Be that as it may, the question is, whether the petitioner, in the instant case, is entitled to have the order of the Government quashed. The Government took all the relevant circumstances into consideration. The attention of the Government was drawn to the decision of Venkataraman, J. The material facts of this case are that the petitioner is occupying a portion for non-residential purpose, where-as the landlords want that portion for their residential purpose by way of additional accommodation. The view of Venkataraman, J., does not permit the landlords to apply for eviction under Section 10(3)(c). The Government, therefore, thought that this is a case where the landlords are not able to approach the Rent Controller for evicting the tenant, and that it is therefore, a fit case where they could exercise the power of exemption. As the power of exemption has been exercised under such circumstances, the question is, has the Government exercised their jurisdiction irregularly or illegally or exceeded their jurisdiction? I do not think so. The Government were bound to follow the decision of this Court and implement it. It was not open to the Government to doubt the correctness of the decision and tell the landlords that the decision was wrong and that they were not going to follow it. The Government bona fide came to the conclusion that the landlords were without a remedy of initiating proceedings under the Act to get additional accommodation of the portion in the occupation of the petitioner. In that view, the Government exercised the power of granting exemption. Therefore, I do not think that this is a case where I should interfere with the order of the Government. In the result, the petition fails and is dismissed. No order as to costs.


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