Madras High Court
K. Padmanabhan vs Municipal Commissioner Representing ... on 8 November, 1997
Equivalent citations: (1998)2MLJ294
ORDER S. Jagadeesan, J.
1. The petitioner is the landlord. He filed the eviction petition H.R.C.O.P.No. 11 of 1990 on the file of the Rent Controller, Pattukkottai to evict the respondent on the ground that the building is required for his personal occupation and the respondent has constructed a new municipal office complex and the same is ready for occupation. The building is, not required for the use of the respondent any more.
2. The respondent herein filed counter stating that the building has been leased out for non-residential purpose and the same cannot be converted for residential one and further the municipal office is a wing of State of Tamil Nadu and as per the notification, all the Departments of State Government are essential services and hence there cannot be any petition for eviction of the respondent. No office complex was constructed for Pattukkottai Municipality and only the godown was constructed and hence the building is required for the occupation of the respondent.
3. After elaborate discussion, the Rent Controller dismissed the eviction petition on the ground that the Municipality being an essential service notified by the Government, the eviction petition cannot be Ordered.
4. Aggrieved by the same, the petitioner filed an appeal in H.R.A.No. 2 of 1992 on the file of the Appellate Authority, Pattukkottai. The Appellate Authority also concurred with the finding of the Rent Controller and dismissed the appeal. While dismissing the appeal, the Appellate Authority further made an observation that the building had been let out only for the non-residential purpose and the same cannot be sought for by the petitioner for his residential occupation. Aggrieved by the same, the present revision has been filed.
5. Mr. R. Muthukumaraswamy, the learned Counsel for the petitioner contended that the notification relied upon by the respondent clearly mentions that various Government departments are notified as essential service. The Municipality, being a local authority, cannot be considered as a Department of the Government. The local authority, being a separate entity, it would not fall within the purview of the Government notification. He further contended that the Appellate Authority has made an observation that the building had been leased out for non-residential purpose and the same cannot be converted into residential purpose. Though the Rent Controller has not discussed this issue, it is not open to the Appellate authority to go into that question. Even assuming that it is open to the Appellate Authority to consider the same, in view of the recent judgments, the finding has to be set aside. With regard to the maintainability of the petition, on this ground, it would depend upon the nature of the building and not the purpose of the user. Admittedly, in this case, the building is only suitable for residential purpose and it is only a house. The respondent is using it for their office purpose and hence the objection raised by the respondent cannot be countenanced.
6. On the contrary, the Government Pleader contended that the Municipality is also a wing of the Government and comes within the scope of the Government notification, wherein it has been declared as an essential service. Hence the petition is liable to be dismissed. Both the authorities have rightly dismissed the petition. Further the remedy available for the petitioner is only to get exemption from the Government.
7. I carefully considered the contention of both the counsel. Section 10(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, is as follows:
(4) No Order for eviction shall be passed under Sub-section (3):
(i) against any tenant who is engaged in any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section, unless the landlord is himself engaged in any employment or class of employment which has been so notified, or
(ii) in respect of any building which has been let for use as an educational institution and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf so long as such recognition continues.
The courts below rejected the claim of the petitioner on the ground that the petitioner is not entitled to seek eviction of the respondent in view of the restriction imposed under Section 10(4)(i) of the said Act, holding that the Municipality is a Department of the Government as per G.O.Ms.No. 3440, Local Administration, dated 27.10.1960. The counsel for the respondent relied upon two judgments of this Court reported in Ramamoorthy v. The Post Master General (1993) 1 M.L.J. 13 (N.R.C.). The above case relates to a place occupied by the post office. Naturally the post office is one of the Departments under the Central Government. This may not be of any use for the respondent. The other case relied upon by the counsel for the respondent is reported in Govindarajulu v. Jayaramon 1976 T.L.N.J. 106. In this case also there is no discussion as to whether the Municipality is a Department under the Government. This is also of no use for the respondent.
8. It may be pertinent to note that the Parliament has amended the Constitution by introducing the 73rd and 74th Constitution Amendment Act, 1992, whereby the Part IX and IX-A of the Constitution were introduced. The need for the introduction of such amendment by the Parliament has been stated in Shorter Constitution of India by Babu (Twelfth Edition) at page 772, which is as follows:
The Village Panchayat as a unit of local administration since the early British days, but they had to work under Government control. When Indian leaders pressed for local autonomy at the national level, the British Government sought to meet this demand by offering concession at the lowest level, at the initial stage, by giving powers of self-government to Panchayats in rural area and municipalities in urban areas, under various local names under different enactments, e.g., the Bengal Local Self-Government Act, 1885; the Bengal Village Self-Government Act, 1919, the Bengal Municipal Act, 1884.
In the Government of India Act, 1935, the power to enact legislation was specifically given to the Provincial Legislature by Entry 12 in the provincial legislative List. By virtue of this power, new Acts were enacted by many other States vesting powers of administration, including criminal justice, in the hands of the Panchayats.
Notwithstanding such existing legislation, the makers of the Constitution of Independent India were not much satisfied with the working of these local bodies as institutions of popular government and, therefore, a Directive was included in the Constitution of 1949 in Article 40 as follows:
The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government.
But notwithstanding this Directive in Article 40, not much attention was given to hold elections in these local units as a unit of representative democracy in the county as a whole. During the time of Mr. Rajeev Gandhi it was considered necessary to further the organisation of these local units by inserting specific provisions in the Constitution itself on the basis of which the Legislatures of the various States might enact detailed laws according to the guidelines provided by the Constitutional provisions.
By virtue of this amendment to the Constitution, the Panchayats and Municipalities are no longer under the control of the Government and they are governed by the elected representatives. When the elected representatives are incharge of the administration of the Panchayats and municipalities at any rate it cannot he said that the Municipality is a Department of the Government. In the same book, the Constitution ofunicipalities has been extracted as follows at page 774:
While Panchayats are the institutions of self-Government in rural areas called 'villages' as specified in the notifications issued by the Governor of a State, the Municipalities (Part-IX-A) are the institutions of self-Government in the urban area, called a 'Metropolitan Area' as specified in the Governor's notification issued under Article 243-P. A Municipality may be constituted for a 'municipal area', which is a part of a 'Metropolitan area' as specified by the Governor. In specifying an area to be a municipal area, the Governor shall take into consideration its size, the municipal services provided or proposed to be provided by an industrial establishment in that area.
Such areas, again, will be divided, having regard to their population, the revenue generated for local administration, the percentage of employment in non-agricultural activities and the like, - into three categories viz., - (a) a 'transitional area' i.e., an area in transition from a rural to an urban area (b) a 'smaller urban area', and (c) a 'larger urban area' For the three categories aforesaid, the municipal institution shall be called:
(a) A 'Nagar Panchayat' for a transitional area;
(b) A Municipal Council for a smaller urban area; and
(c) A 'Municipal Corporation' for a larger urban area; (Article 243-0) As in the case of the Panchayats, similar provisions are made, for election to a Municipality (Article 243-R), reservation of seats for scheduled castes and Tribes and their women (Article 243-T); Finance Commission (Article 243-Y); State Election Commission (Article 243-A).
In view of the above provision in the Constitution, the Municipalities cannot be considered to be a Department under the Government so as to attract the provision of Section 10(4)(i) of the said Act.
9. Now the question remains for consideration is whether the petitioner is entitled to seek eviction for the residential purpose. Admittedly the building occupied by the respondent is only a residential house; but used for non-residential purpose. The earlier view is that once the building is used for non-residential purpose, then the eviction cannot be sought for by the landlord for his residential purpose. Subsequently this view has been changed in view of the Supreme Court judgment reported in Busching Seimitz Private Ltd. v. Menghani . It would be better to refer to the latest judgment of this Court reported in Kovilpillai Nadar v. Tiresha Ammal (1997) 1 L. W. 585, wherein the learned Judge has discussed this aspect in detail, which is as follows:
The main point urged before me by learned Counsel appearing for the revision petitioner is that admittedly, the respondent is carrying on business in the petition premises and the respondents seeks eviction for owner's occupation to accommodate his son for his residential purposes. According to learned Counsel for the petitioner, the petition for eviction is not maintainable under the relevant provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
In this connection, he relied upon the decision of this Court in Lakshmanan v. Hajee Alavudeen Saheb Sons (1980) M.L.J. 9, wherein this Court has held that since the premises in question was a non-residential premises and since the claim of the landlord was for residential purposes, the landlord was not entitled to evict the tenant. He also relied upon the dictum laid down by this Court in Padmavathy Ammal v. Manickam (1981) M.L.J. 359, which runs as follows:
The only hurdle the landlord faced in this case was that the premises having been let out for nonresidential 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 it be for non-residential purposes. It is only if the landlady requires it for non-residential purposes she can maintain this petition. In this case, though the claim is not for additional accommodation but is a petition for eviction on the ground of wilful default, in view of the conversion of the building and user for different purposes and for personal occupation, and the absence of provision for enabling the 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.
It is no doubt true that the view earlier taken by this Court was that the landlady cannot ask a residential premises for non-residential purposes. But this view underwent a change, as could be from the decision of this Court in Indira v. Vinayagam Chettiar (1989) 1 M.L.J. 186, wherein it has been held as follows:
On a reading of sub-clauses (i) to (iii) of Section 10(3) (a), it is important to notice that the building which is the subject matter of these clauses is referred to either as residential building or non-residential building. The clauses do not refer to a building used for non-residential purpose or residential purpose. The use of the adjective 'residential' or 'non-residential' qualifying the word 'building' therefore clearly indicates that what is important is the nature of the building and not the use to which it is put. This construction is supported by the restriction on the power of the landlord or the tenant to convert a residential building into a non-residential building imposed by Section 21. The conversion referred to has reference to the nature and character of the building as such. When the three sub-clauses of Section 10(3)(a) refer to the building being residential or non-residential the reference is obviously to the nature and structural characteristics of the building as such. If a residential building is used for non-residential purpose, it cannot be said to be a non-residential building within the meaning of sub-clause (iii). A building which by its nature is non-residential in character will not become residential merely because it is used for residential purposes unless it has been so converted to facilitate its use for residential purpose. Whether a building is non-residential building, or not will, therefore, have to be determined on the structural characteristics of the building and the purpose for which it is constructed. There is a statutory bar against conversion of a residential building into a non-residential one. A building which has a bathroom or kitchen and other amenities which are characteristics of a residential building must therefore be treated as a residential building notwithstanding its use for anon-residential purpose.
This view came to be confirmed by the Supreme Court in the case reported in Busching Schmitz Private Limited v. P.T. Menghani , wherein the Supreme Court has considered the question as follows:
The question that was posed for consideration before the Supreme Court is as follows:
Is the purpose of the lease decisive of the character of the accommodation?
While answering the said question, the Supreme Court held as follows:
Guided by this project oriented approach, we reject the rival extreme positions urged before us by Shri Nariman and Shri Jain. Residential premises are not only these which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell, if a beautiful bungalow were let out to a businessman to run a showroom or to a mediation group or music society or meditational or musical uses, it remains nonetheless a residential accommodation. Otherwise, premises, may one day be residential, another day commercial and, on yet a later day, religious use or purpose of the letting is not conclusive test. Likewise, the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazaars cannot make them residential premises. This is a case of Reductio AdAbsurdum... The house we are considering was built on land given for constructing a residence is being used even now for residence is suitable otherwise for residence and is being credibly demanded for the respondent's residence. Residential suitability being the basic consideration this building fills the bill. Nothing said in the affidavit in opposition puts it out of the pale of residential accommodation. A building which reasonably accommodates a residential user is a residential accommodation nothing less, nothing else. The circumstances of the landlord are not altogether out of place in reaching a right judgment. The purpose test will enable others who own houses to defeat the government by pleading that they do not own residential premises because the lease is for commercial use, built though it was and suitable though it is, for residence.
The above cited decision of the Supreme Court clearly laid down that the usage or purpose test is not at all a criterion to find out whether a building is residential or non-residential but one must go by structural and physical features of the building to find out whether it is a residential or non-residential building.
In fact, this view of the Apex Court has been followed by this Court in Rajamanickam v. Ranganathan (1995) 2 M.L.J. 139 : (1994) 2 L.W. 86, wherein this Court has held as follows:
Section 14(3) of the Tamil Nadu Buildings (Lease and Rent Control) Act contemplates conversion of a residential building into non-residential building and vice versa. This provision contemplates the structural alteration in the case of conversion of one building into another or vice versa and not on the basis of purpose test. In the instant case, the authorities below have concurrently taken the view that structurewise, the let out building is a residential one and fit for residential accommodation. Therefore, by applying the law laid down in Busching Schmitz Private Limited v. P.T. Menghani , it must be held that the application for eviction by the landlord in this case under Section 10(3) (a) (i) of the Act is maintainable. Therefore, there is no difficulty in holding that if the structure of a building indicates that it is a residential purpose, and it is used for non-residential purpose, a petition for eviction filed against a tenant who is carrying on business in that place, is maintainable by the landlord, who wants it for residential purpose.
Since the learned Judge had elaborately discussed the entire aspects in detail, it is unnecessary for me to once again traverse the same. It is suffice to say that in view of the judgment reported in Kovilpillai Nadar v. Tiresha Ammal (1997) 1 L.W. 585, the petition is maintainable by the landlord seeking eviction for his residential purpose. As the courts below have totally failed to consider the question in its correct perspective the Order s of the Rent Controller as well as the Appellate Authority are set aside and the civil revision petition is allowed with cost of Rs. 1,000. The respondent is granted three months time to vacate and hand over possession.