Madras High Court
R.V. Dharmalinga Mudaliar vs K. Annamalai on 1 April, 1981
Equivalent citations: AIR1981MAD312, (1981)2MLJ234, AIR 1981 MADRAS 312, (1981) 94 MADLW 487 (1981) 2 MADLJ234, (1981) 2 MADLJ234
ORDER
1. The only contention urged in this civil revision petition at the in-e stance of the tenant is that the application filed by the respondent herein under S. 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960, as amended by Act 23 of 1973, (hereinafter referred to as the Act) for an order of eviction against the petitioner is not maintainable. The petitioner is a tenant in respect of the first floor in premises No. 76 T. K. Mudali St. Choolai, Madras 7 on a monthly rent of Rs. 85. Admittedly, the respondent is the landlord of the premises. According to the case of the respondent, his first wife's son, who is working as an Executive Engineer in the Corporation of Madras, requested the respondent to provide him with a portion in order to set up his family separately and that in May 1976, when the second floor portion fell vacant, the respondent made it available to his son. Alleging that the second floor portion has asbestos roofing, which makes the premises very hol, during day time, that the roofing had also developed leakage and that there is no water facility available for the family of his son, his wife and two children, the respondent filed an application under S. 10(3)(c) of the Act, for an order of eviction against the petitioner herein in respect of the first floor under his occupation after terminating the tenancy by notice.
2. The petitioner resisted the application by contending that the petition is not maintainable and that the application for eviction had been filed on account of the refusal of the petitioner to accede to a demand for higher rent by the respondent. The application for eviction, was also characterised as mala fide.
3. On a consideration of the oral as well as the documentary evidence, the teamed Rent Controller held that, the application for eviction filed by the respondent herein is not maintainable and that it is also not bona fide. On this conclusion, the application was dismissed Aggrieved by this, the respondent preferred an appeal in H.R.A. No. 1279 of 1979 to the appellate authority - (7th Judge, Court of Small Causes), Madras, The appellate authority held that the petition for eviction is maintainable and that the application is also bona fide and genuine. The question of relative hardship was also considered by the appellate authority and it was found that greater hardship would be caused to the son of the respondent by not making the additional accommodation available to him than the hardship that the petitioner would be put to as a result of the passing of the order of eviction. On these conclusions, the dismissal of the application for eviction was set aside and an order of eviction was passed.
4. The principal objection raised by the learned counsel for the petitioner is that the respondent, cannot maintain an application for an order of eviction under S. 10(3)(c) of the Act, on the ground that such additional accommodation is required for his son. Elaborating this contention, it is urged that it would be open to the landlord to ask for additional accommodation for himself and not on the ground of the requirement of his son or any other member of his family. On the other hand, the learned counsel for the respondent contends that the wider interpretation put upon the word 'landlord' by Courts having been accepted by the Legislature, it stands to reason th3t the additional accommodation need not be personal only to the landlord and that such accommodation could also be secured for and on behalf of himself or for his son or other members of his family as well.
5. Before proceeding to consider the rival contentions raised, the provisions of the section in so. far as they are relevant may be referred to. S. 10(3)(c) of the Act runs thus-
"A Iandlord 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 buliding 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."
6. The scope and amplitude of the requirement intended by the use of the words 'if he requires additional accomniodation for residential purposes or for purposes of a business which he is carrying on' has to be ascertained. The word 'landlord' as it stood originally had been 'interpreted in several. decisions' of, this court. Venkatadri J. in Kolandaivelu ,.Chettiar v, Koolayana Chettiar, 1961 Mad LJ 184 held that the word 'landlord' cannot be treated . as rigid, but should be interpreted in an elastic manner to include a dependent as well. This interpretation was given in the,light of the provisions of Tamil Nadu Act 18 of 1960. Likewise, in Kangu v. Ahmedunnissa Begum, 1963-1 Mad IJ 97, Veeraswami J. as he then was, had occasion to interpret S. 7(3)(c) of Tamil Nadu Act 25 of 1949. This section, it may be noticed, is comparable to S. 10(3)(c) of the Act. In that case, the application was filed on the ground that the landlady's son-in-law who was practicising as a doctor required a portion of the premises for opening a clinic and it was not disputed that the son-in-law and the daughter with their children were living in the same house. A wider interpretation of the words 'his own occupation' in S. 7 (3) of the Act was given by the Rent Controller as well as the appellate authority and the propriety of this view was canvassed before this court.
A literal construction of the words 'if ,he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on' was attempted and an argument was raised that merely because the son-in-law happened to be living with the landlady, that would not enable the landlady to secure additional accommodation for residential purposes or for purposes of the business which he was carrying on. Veeraswami J. as he then was, observed at page 99 thus:-
"I am also inclined to take the view that the words 'for. his own occupation' should receive a liberal interpretation. If that is so, there is no reason why a different principle should apply to clause (c) of sub-sec. (3) of S. 7. The words 'if he requires, in that provision should, in my opinion, be understood in the same libe ral sense as the words 'his own occupation' in clause (a) of that sub-section have been understood. What is meant, as I think by the words 'his own occupation' or 'if he requires, is that the requirement is not that of a stranger. It is not necessary to attract those words that the need should be personal to the landlord. But where the line should be drawn will depend upon the particular facts in each case. It may, however, be generally stated, without intending to be precise, or exhaustive, that the need of close relations who happen to live with the landlord or landlady may well satisfy the words 'his own occupation' or 'if he requires'. I do not say that the relationship is the only test. Dependency, social customs, and habits, usage, practice of a particular community and like considerations may well be taken into account in determining whether the requirement of those words is satisfied."
7. Ultimately, it was held that the words 'if he requires' should not be read in a narrow sense of a landlord's personal needs, but that the requirement of the landlord's family would also be within the expression 'if he requires' and in this view, the order of eviction was upheld. Again in Saraswathi v. Vadivelu Chettiar, , Ramaprasada Rao J. as he then was, had occasion to consider the question whether a landlady could maintain an application for an order of eviction on the ground that the premises was required for the business carried on by her husband. An objection was raised that as the premises was not required by the landlady, but only for her husband, the application for eviction was not maintainable. In dealing with this objection, the learned Judge held that the word 'landlord' appearing in S. 10(3)(a)(iii) should receive the same liberal interpretation and that the expression 'landlord' appearing both in the old and in the new Acts do bear the same meaning and connotation.
It was pointed out that the addition of the expression 'son! by amending Act 18 of 1960, was for the purpose of making the benefit of the legislation available to the son as well and that the exclusion of or the enumeration of the other dependants cannot lead to the irresistible conclusion that the Legislature by necessary Implication intended to exclude such dependants from obtaining such benefits. To arrive at this conclusion, the learned Judge relied upon the following passages in Maxwell on the Interpretation of' Statutes 12th Edn. at pages 92 to 95 under the caption of 'Beneficial Construction';-
"......It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of,' it ......... The conjunction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words ..... If, however, there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary sense, that sense may be given to it."
8. Under the caption 'Construction most agreeable to justice and reason' at page 199, it is observed as under:-
"In determining either the general object of the Legislature, or the meaning of its language, in any particular passage, it is obvious that the intention which appears.~ to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one."
9. Ultimately, the learned Judge ob-served as follows:-
"I do not think that a beneficial construction-a construction in consonance with justice, equity, reason and good conscience- would exclude a request by a landlady for being put in possession of her building for the use and occupation by her husband for his business. In Hindu society it is the legitimate duty of the wife to provide comfort to her husband and a fortiori it is so far furtherance of the interests of the business of her husband in which it can safely be presumed that she is vitally interested."
However, in A. Muthukumaraswami v. A. Devaraj, 1976-2 Mad LJ 520 Ramaprasada Rao J. as he then was, held that the failure on the part of the Legislature to expand the definition of the word 'landlord' in S. 10(3)(c) when it amended the word 'landlord' in S. 10(3)(a)(i) to (iii) by Act 23 of 1973, would make it clear that it would not be within the canon of propriety to interpret the expression 'landlord' appearing in S. 10(3)(c) of the Act liberally. But it must be remembered that in K. C. Devassy v.,The State of Madras, 1970-1 Mad LJ 533, a Division Bench of this court held, even an the language of S. 10(3)(a)(i) of Tanriil Nadu Act 18 of 1960, as it then stood, that the words 'for his own occupation or for the occupation of his son' would include his daughter as well. In dealing with this question, Veeraswami Q J. observed thus (at p. 534):-
"But, since the Legislature has also used the language 'for the occupation of his son' it is urged that this is an indication that, at least, a daughter is not taken into account. The rationale behind the inclusion of the son is that the ground of eviction should be available to a landlord for the occupation of his nearest kith and kin. Where to draw the line may be left to particular cases. But the case of a daughter is to our mind a fortiori and, we can see no reasonable justification for differentiating a son from a daughter in the matter of requirement of the landlord for purposes of his own occupation. It should not be lost sight of that the statutory protection of tenancy is a departure from the normal provision controlling the relationship of landlord and tenant under the Transfer of Property Act, and, we should think, that for that reason, it should receive a liberal interpretation so as to mitigate, where necessary, the rigour on the landlord. That is not to say that, on a matter like that, one is expected to lean in favour of a landlord. We suggest no such thing at all, but, in balancing the facts, a reasonable view should be taken as to who is the nearest kith and kin the necessity of whose occupation in the premises may be viewed as the necessity of the landlord's own occupation."
From the above observations, it is clear that though a daughter was not specifically included within the definition 'for his own occupation or for the occupation of his son', yet, as a matter of interpretation, it was held that the Legislature intended a daughter also to be included within the meaning of S. 10(3)(a)(i) of the Act. It is necessary to remember that it is this extended and expanded interpretation that was recognised, accepted and also given effect to by the amendm6nt Act 23 of 1973 which by Sec. 3 (3) inserted S. 2 (6A) which included in the definition 'member of his family' in relation to a landlord, his spouse, son, daughter, grand child or dependant parent. By the same Act, under S. 10(2) for the words 'his son' wherever they occurred the words 'any member of his family' were substituted, The background which lead to the introduction of this amendment would thus clearly establish that this wider interpretation earlier given by courts and referred to above was accepted and had been given effect to in the statutes, though under S. 10(3)(a)(i) to (iii) of the Act. Yet, when the Legislature thought fit to accept this expanded interpretation of the word 'landlord' it is too much to say there was a conscious omission on its part not to give effect to it with reference to S. 10(3)(c) of the Act alone.
I am not able to appreciate that there is any indication that there was any such deliberate or conscious omission on the part of the Legislature, especially when it had accepted the wider interpretation put by this court in K. C. Devassay v. State of Madras, 1970-1 Mad LJ 533. Further, there cannot be any objection in principle in applying this expanded interpretation which had been made the basis of the legislation for Act 23 of 1973, to cases falling under S. 10(3)(c) as well. It also stands to reason, justice, equity and good conscience that if a landlord or a landlady can secure accommodation either for himself or herself or any other member of his or her family, the landlord or landlady as the case may be should be enabled to recover additional accommodation also for himself or herself and the members of the family. The reliance placed by the learned counsel for the petitioner on the decision in A. Muthukumaraswami v. A. Devaraj, 1976-2 Mad LJ 520 and M. Ramalingam v. V. Kodandaraman, 1980-2 Mad LJ 283, cannot, therefore, be of any avail to the petitioner. In Surekha v. The United Bank of India, 1980-1 Mad Li 212, a wider interpretation of the words 'if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying on' in S. 10(3)(c) of the Act has been accepted after reviewing the earlier cases on the subject. Under these circumstances, the application filed by the respondent herein for an order of eviction against the petitioner under S. 10(3)(c) of the Act was clearly maintainable.
10. The evidence of P. W. r discloses that the second floor, wherein the son of the respondent is now residing has been provided with asbestos roofing and is devoid of any water facility and therefore there is nothing wrong in the respondent entertaining a desire that his son should be accommodated more comfortably whereby he can live peacefully with his wife and two children. The requirement of the respondent on this ground cannot, therefore, be said to be either mala fide or is otherwise motivated. The only other consideraLLion that would be relevant is whether the order of eviction should be refused on the ground of relative hardship. It is not the case of the petitioner that it is impossible to secure similar accommodation in the locality. Indeed under Ex. P-3, the rejoinder notice sent by the respondent herein to the petitioner, a request is made by the respondent that he may place the first floor at his disposal and occupy the second floor.
This stand taken by the respondent, apart from making it clear that the petition for eviction is not actuated by any design or oblique motive but is only bona fide, further establishes that the petitioner had been offered alternative accommodation in the very same premises. The petitioner would, no doubt, say that the son of the respondent should continue to reside in the second floor as before, but certainly that is not very reasonable attitude on the part of the petitioner. It is certainly open to a landlord to ask for additional accommodation in order to enable his son to live comfortably with the members of his family enjoying all facilities and it is not for the tenant to state that this should not be done on question of relative hardship. As pointed out earlier, there is absolutely no hardship to which the petitioner will be subjected by an order of eviction being passed against him. Under these circumstances, the order for eviction passed by the appellate authority is upheld and the civil revision petition is dismissed with costs. This petition having been set down for being mentioned the court made the following order:-
The learned counsel for the petitioner prays that the petitioner may be granted some time to vacate the premises and the learned counsel for the respondent has no objection for granting three months' time to the petitioner for this purpose. Accordingly, the petitioner will have three months' time from 30th" March 1981, to vacate and hand over vacant possession of the premises to the respondent.
11. Order accordingly.