Madras High Court
Hindustan Petroleum Corporation ... vs B. Saravanan And Ors. on 24 February, 1997
Equivalent citations: (1997)2MLJ32
ORDER S.S. Subramani, J.
1. Respondents 2 and 3 in R.C.O.P. No. 3 of 1990, on the file of Rent Controller (District Munsif), Pollachi, are revision petitioners.
2. One V. Balasubramnaiam, father of respondents 1 to 6 herein, filed the said eviction petition under Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, on the following allegations: The landlords are owning a mill for deshelling groundnut. It is their family business. The existing place is quite insufficient for their business and, therefore, the landlord has to construct godowns and also drying yards petition mentioned premises alone is suitable place for locating the same, since it lies just adjacent to the petitioner's business place. Hence, the landlords require the petition mentioned building as additional accommodation for their business. They have to demolish and reconstruct the petitioned premises to make it suitable as additional accommodation for their business. It is further said that originally the landlord planned to construct residential accommodation in the petition mentioned premises. But, since the extension of business is more important, he was very much in need of the premises as additional accommodation for business by demolition and reconstruction.
3. Petitioners herein filed a detailed counter wherein they took a contention that the landlords are not entitled to get possession in view of the various Statutes which enable them to purchase the site. It is further said that they have got a right of pre-emption. It is also said that they effected improvements. They also took a contention that a petition under Section 10(3)(c) of the Act is not maintainable since the schedule premises is an independent structure unconnected with the building occupied by the landlords. A further contention was also taken that if it is a case of additional accommodation, it is for the personal use of the landlords. Immediately after the eviction petition was filed, landlord died, and the ground of personal use cannot be inherited by his legal representatives. They also said that the lie and location of the property is also such that it cannot be used as additional accommodation. It is their case that on the ground level, there are two bunks and underneath, there is a petrol tank. If that be so, from the very nature, it cannot, be made use of by the landlords along with the rest of the building in their possession. They also said that for the business run by the landlords, the schedule premises is not suitable. The bona fide was, therefore, disputed.
4. Rent Controller as well as the Appellate Authority decided against the tenants on all the grounds. During, the course of trial, landlords gave up their claim under Section 14(1)(b). Their claim in the eviction petition was under Section 10(3)(c) of the Act. They said that the need of the premises is only as an additional accommodation, and if their bona fides are proved, it is for them to decide as to how they could make use of the same and, therefore, there is no relevance in adding one more Section to the eviction petition under Section 14(1)(b) of the Rent Control Act.
5. Rent Controller found that the landlords are entitled to get eviction under Section 10(3)(c) of the Act. In paragraph 13 of the Order, the Rent Controller held that since the schedule premises and the portion occupied by the landlords belong to the same owner, and the schedule premises is also situated adjacent to the residential building, that will be sufficient to invoke the provisions of Section 10(3)(c). The Rent Controller followed the decision reported in Children's Choice represented by its Partner Mr. Lakshmichand Shamjee v. G.K. Adiseshiah and Anr. (1982) 1 M.L.J. 411, for the said purpose. He further came to the conclusion that the personal use referred to in the eviction petition should not be strictly considered. He found that the right is also hereditable one. All the other contentions regarding pre-emption and benefits claimed under statutes by the tenants were all found against. The matter was taken in appeal by the tenants in R.C.A. No. 7 of 1994, on the file of Appellate' Authority, (Sub Judge, Udumalpet). Appellate Authority also confirmed the decision. While confirming the decision of the Rent Controller, the appellate authority held that the petition under Section 10(3)(c) of the Rent Control Act is also maintainable. It also came to the conclusion that under the partition deed entered into between the members of the family, the schedule premises as well as the premises occupied by the landlords were allotted to the same person and they were treated as one block and part of the same property. It also relied on the Commissioner's report to come to the conclusion that the schedule premises and the building formed part of the same ownership even though adjacent to one another. It, therefore, held that the petition under Section 10(3)(c) of the Act is justified. All other findings of the Rent Controller were also confirmed by the appellate authority.
6. It is against the concurrent findings of the authorities below, tenants have come before this Court with the above revision petition.
7. Learned Counsel for the petitioners submitted his arguments on only one point, namely, whether the eviction petition under Section 10(3)(c) of the Rent Control Act is maintainable.
8. Learned Counsel submitted that if the finding of the court is that the application is maintainable, the other findings are only concurrent findings of fact which, this Court, sitting in revision, will be reluctant to interfere. Since 'maintainability' is a question of law, even though the findings of the authorities below are concurrent, the same could be considered by the revisional court.
9. So, the only point that has to be considered in this revision is, whether a petition under Section 10(3)(c) of the Act is maintainable.
10. Under the Rent Control Act, the landlord is entitled to get eviction of the tenant on various grounds. The schedule premises is a non-residential one. For bona fide own occupation, a landlord is entitled to get an order of eviction under Section 10(3)(a)(iii) of the Act. If it is a case of additional accommodation, eviction is sought for under Section 10(3)(c) of the Act. But, one thing that is common in both these cases is, the claim is made for bona fide own occupation. If the landlord wanted to retain the existing building for his own occupation and wants to get possession of an additional space, that will be a case coming under Section 10(3)(c) of the Act, i.e., the present premises in his occupation in insufficient for his requirements. If the landlord wants to transplant himself from the present occupation and wants to occupy that portion of the premises occupied by the tenant, it will be a case of own occupation, coming under Section 10(3)(a)(iii) of the Act. That is the difference between the two Sections. But, as I said earlier, in both these cases, the landlord wanted to occupy that portion of the building let out to the tenant, for his bona fide own use. But, while considering the applicability of these two Sections, even though both of them are exclusive, evidence that has to be let in is different. In a case coming under Section 10(3)(a)(iii), the entire building is in the occupation of the tenant, whereas, when we come to Section 10(3)(c), a portion is in the occupation of the landlord, and another portion is in the occupation of the tenant. It is only when the landlord says that he cannot meet the requirements or that the portion presently in his occupation is not sufficient for his needs, and he also wants to occupy that portion of the building occupied by the tenant it squarely comes under Section 10(3)(c) of the Act. That means, the structure or building must be occupied both by landlord and tenant. It is the occupation of both landlord and tenant in one structure that is contemplated under Section 10(3)(c). It is not the ownership of the building that matters. Even if the landlord happens to be the owner of two adjoining buildings, that will not come under Section 10(3)(c).
11. The Commissioner has filed his report. It is seen therefrom that the schedule premises is situated on the western portion facing Raja Mill Road. For the entire property, the northern boundary is also Raja Mill Road, which runs east west. Thereafter, when it comes to the schedule premises, the Raja Mill Road turns to the west. The schedule premises is situated at a corner.
12. The landlords are residing on the eastern end of the entire property, and in the portion occupied by them, it is seen that they have four or five shop-rooms, a godown, music room, etc. A drying yard is also there in front of the residential premises. One distinguishing feature that is seen from the plan is that the schedule premises is separately ear-marked and separated from the main structure and the main compound by putting up a compound wall running north south. In the plan submitted by the Commissioner, it is seen that the FG lane separates the schedule premises from that of the property in the occupation of the landlord. No portion of the shoprooms in the possession of the landlords touches the schedule building. It is entirely a different structure and in between the structures, there is also a narrow open space. A compound wall also separates them. The structures situated between the two blocks are entirely different and the same is also not connected in any way. It is true that all these items form one item of property. Schedule premises is situated on the western portion and the remaining portion is situated on the eastern portion of the entire premises. On going by the plan, it is very clear that the building situated in the schedule premises and the building in the occupation of the landlord can under no stretch of imagination be treated as part of the same structure. The building in the occupation of the tenant is given entirely a different door number. It is also clear that the office-room in the schedule premises and other premises very close to the other buildings in the possession also could not have been constructed in the same period. It also could not have been brought under the same roof.
13. In the report, the Commissioner has only said that if the schedule building is also taken possession of by the landlords, that will be advantageous for their business in view of the close proximity of the two buildings.
14. While R.W. 1 was examined, who is the third petitioner, he said thus:
In view of the above admission, along with the Commissioner's Report, it is clear that the schedule premises is not part of the same structure or the same building.
15. In Gangaram v. N. Shankar Reddy , the Supreme Court had occasion to consider a similar provision under the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act. In the said Reports, a comparison was made with reference to the Tamil Nadu Buildings (Lease and Rent Control) Act also. Paragraph 8 to 11 of the Reports read thus:
On a consideration of the matter, we find that the contention of Mr. Nambiar, which has found acceptance with the appellate court and the High Court is not at all a tenable one. What Section 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in Section 10(3)(c) are : "the landlord who is occupying only a part of the building" and "any tenant occupying the whole or any portion of the remaining part of the building." Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings if they are owned by two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord's possession and enjoyment of the premises in his occupation being affected. Viewed in that manner, it can at once be seen that the leased premises in the appellant's occupation can be independently sold and the purchaser delivered possession without the respondent's possession of door No. 11-249 being affected in any manner. As a matter of fact, the previous history of the building shows that before it was purchased by the respondent, it was owned by Shri Sitaram Rao and the respondent was owning only door No. 1-1-249. Such being the case, merely because the appellant (sic respondent) has acquired title to door No. 1-1-250 also, it can never be said that the building under the tenancy of the appellant became part and parcel of the respondent's building No. 1-1-249. Similarly, the fact that the two buildings are separated only by a single wall with no intervening space between them would not alter the situation in any manner because the identity of two separate buildings is not to be judged on the basis of the buildings being separated by a single wall or by two separate walls with intervening space in between them.
Section 10(3)(c) which occurred Section 7(3)(c) in the Madras Buildings (Lease and Rent Control) Act, 1949 has been properly construed, by Chandrasekhara Sastri, J. in M. Ramaswamy Naidu v. P. Venkateswarlu. The learned Judge has stated that Section 7(3) "applies only to a case where the landlord is occupying a part of a building and still requires the remaining part for the purpose of his own business as additional accommodation." This decision has not been noticed by the appellate authority and the High Court and they have proceeded solely on the basis mat as per the ratio in Balaiah v. Lachaiah, the respondent is entitled to an order of eviction even under Section 10(3)(a)(iii) for additional accommodation despite the fact that he is in occupation of a building of his own.
Mr. Nambiar referred to the definition of the word "building" in Section 2(iii) of the Act and argued that if for the purposes of the Act, where the contract warrants it, different portions of the same building can be treated as separate buildings, it should conversely be held that if adjoining buildings are owned by the same person and one of them is in the occupation of the landlord and the other by tenant, then for purposes of Section 10(3)(c) the two buildings should be treated as an integrated and composite building. We are unable to accept this argument because firstly the terms of Section 2(iii) do not afford scope for such a construction and secondly the argument fails to take note of the purpose and object lying behind the definition of "building" in the manner in which the clause is worded. Section 2(iii) has been provided so as to make the provisions of the Act applicable to the whole of the building as well as to parts of it depending upon whether the entirety of the building has been leased out to a tenant or different portions of it have been let out to different tenants. There is, therefore, no room or scope for the respondent to invoke Section 2(iii) to contend that two different premises should be treated as a single and integrated building for the purposes of the Act if the two buildings adjoin each other and are owned by the same person but under different occupation, i.e., one by the landlord and the other by the tenant. Mr. Nambiar then argued that if Section 10(3)(c) is to be construed as being applicable only when different portions of the same building are in the occupation of the landlord as well as one or more tenants, it would result in a landlord like the respondent who is genuinely in need of additional accommodation being left with no remedy whatever for securing additional accommodation for his business needs. We find it unnecessary to go into the merits of this submission because however genuine the respondent's need for additional accommodation may be and whatever be the hardship resulting to him by non-eviction of the appellant, we cannot giant any relief to the respondent under the Act as it now stands. As per the Act the relief of eviction of a tenant can be given to a landlord only under two situations viz., (1) where the landlord is not in occupation of a building of his own or to the possession of which he is entitled to by an order of eviction under Section 10(3)(a)(iii) and (2) where the landlord is in occupation of only a portion of his building and is bona fide in need of additional accommodation and another (sic.) or the remaining portion of the building is in the occupation of a tenant or tenants by ordering his or their eviction under Section 10(3)(c). The legislature has not provided for Section 10(3)(c) being made applicable to a landlord where he owns adjoining buildings and is in occupation of the other and the landlord is bona fide in need of additional accommodation for his residential or business needs. If the hardship experienced by landlords similar to the respondent is to be alleviated, then it is for the legislature to remedy the situation by making suitable amendments to the Act and it is not for the Court to read Section 10(3)(c) beyond its terms oblivious to the limitations contained therein and hold that a separate tenanted building adjoining the building in the owner's occupation would also form part of the latter building.
[Italics supplied]
16. If the principle enunciated by the Supreme Court is applied to the facts of this case, I do not think the landlord will be entitled to get eviction in this proceeding. The Rent Controller in paragraph 13 of his order thus:
This reasoning is against the spirit of the principle enunciated by the Supreme Court. The Rent Controller was of the view that if the ownership of the two adjoining properties and the buildings are owned by the same person, Section 10(3)(c) could be applied. If we apply the test formulated in paragraph 9 of the judgment of the Supreme Court, the reasoning of the Rent Controller may not hold good.
17. When the matter was taken in appeal, the appellate authority also accepted the reasoning of the Rent Controller. The same is clear from paragraph 9 of the judgment.
18. The decision relied on by learned rent Controller, viz., Children's Choice represented by its Partner Mr. Lakshmichand Shamjee v. G.K. Adiseshiah (1982) 1 M.L.J. 411, may not have any application to the facts of this case. In that case, six rooms under the same roof were occupied by both the landlord and the tenant. Three rooms were in the occupation of the landlord and three rooms were in the occupation of the tenant. But, all the six rooms formed part of the same structure and the building was one. In such circumstances, the Court came to the conclusion that Section 10(3)(c) of the Act would apply. The facts of that case do not apply tot he the case on hand. If Section 10(3)(c) of the Act does not apply, the order of eviction passed by the authorities below will have to be set aside.
19. Learned Counsel for the respondents submitted that he can support the order of eviction under Section 10(3)(a)(iii) of the Act also. It is his case that the additional accommodation is one of the reasons for enlarging the business, and the requirement is bona fide own use. The same can be inferred from a reading of paragraph 4. He further said that when the landlord says that the schedule premises requires demolition and reconstruction, to suit their convenience, importance is given only to bona fide own use. The pleading itself says that the schedule premises is not a part of the building, but it is an adjacent place. If all these are taken together, learned Counsel submitted that on the very same reasoning, the landlord is entitled to get an order eviction, though under a different section.
20. It is true that from a reading of paragraph 4 of the eviction petition, an inference can be drawn that the requirement is for bona fide own use, though the words 'additional accommodation' are also used. But the Authorities below have not taken into consideration the pleadings in that way and when the Section is mentioned in the eviction petition, only Section 10(3)(c) of the Act is noted. So, one thing that is clear is that the Authorities below have not applied their mind to Section 10(3)(a)(iii) of the Act.
21. The only question, is, whether the landlords should be permitted to adduce evidence in this case regarding their claim under Section 10(3)(a)(iii) by remanding the case, or whether they should be asked to file a separate petition.
22. From the proceedings before the authorities below, it is clear that the landlords were not serious in agitating the issue. They stressed their case only under Section 10(3)(c) of the Act. In that view of the matter, I do not want an old case to be remanded to the Rent Controller for fresh decision. The landlords will be at liberty to file a fresh petition under the relevant provisions of the Rent Control Act. I am allowing this revision petition only on the ground that on the available materials, Section 10(3)(c) cannot be applied, and the eviction petition is not maintainable. Since I am considering only the maintainability of the petition under Section 10(3)(c) of the Act, the questions regarding bona fide own occupation or requirement for demolition and reconstruction are left open for decision in separate proceedings.
23. In the result, the civil revision petition is allowed. The orders of the Authorities below are set aside. R.C.O.P. No. 3 of 1990, on the file of Rent Controller (District Munsif, Pollachi) shall stand dismissed. There will be no order as to costs. C.M.P. No. 2838 of 1996 (stay petition) is dismissed. C.M.P. No. 6366 of 1996 for vacating the stay is allowed.