Madras High Court
Mrs. Thangam vs P.K. Madhavan on 26 February, 1986
Equivalent citations: (1986)1MLJ291
Author: S. Natarajan
Bench: S. Natarajan
ORDER S. Natarajan, J.
1. This revision petition has been filed by a landlady whose petition under Section 10(3)(a)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter referred to as the Act, for eviction of the respondent-tenant was dismissed by the Rent Controller and the said order of dismissal was confirmed by the Appellate Authority.
2. It is common ground that the ground floor of the building owned by the petitioner has been rented out to third parties and that the petitioner and the other members of her family including her son are living in the first floor. Independent of the main building, there is a shed or structure, which has been leased out to the respondent on a monthly rent of Rs. 80/-. It is stated that the respondent is. carrying on the business of a camera mechanic.
3. The petitioner sought eviction of the respondent on the ground that her son Srikrishnan, who has been examined as P.W.I. is employed in a company and that the shed in the occupation of the respondent is required for parking the scooter of P.W.I. To reinforce her claim for possession, she had further stated that there is also a possibility of her son purchasing a car and making use of it instead of the scooter.
4. The respondent resisted the petition and contended that there is a space of 3 1/2 feet near the stair-case in the main building and the petitioner's son can conveniently make use of that space for parking his scooter.
5. The Rent Controller dismissed the petition on the ground that the petitioner's son can continue to park his scooter in the neighbouring house belonging to his brother or in the alternative he can park his scooter in the space available near the stair-case. The Rent Controller has further held that without the petitioner's son owning a car in present, the petitioner cannot seek eviction of the tenant under Section 10(3)(a)(ii) of the Act. Lastly he has held that since P.W.I had earlier issued a notice, Ex.B-1, calling upon the respondent to vacate the premises, so that the landlord can demolish the shed and reconstruct the same, the present petition under Section 10(3)(a)(ii) of the Act is not bona fide. For all these reasons, the Rent Controller dismissed the petition for eviction.
6. In the appeal preferred to it, the Appellate Authority has held that before ever the petition for eviction under Section 10(3)(a)(ii) of the Act can be filed, the petitioner must show that the building in question is being actually used as a garage. But since in this case the respondent does not make such use of the building the petitioner cannot seek his eviction. The Appellate Authority has further held that since the building cannot be used as a garage without alterations or modifications being done, the petitioner's requirement of the building under Section 10(3)(a)(ii) of the Act cannot be sustained. For these reasons, the Appellate Authority has dismissed the appeal.
7. Mr. P.S. Chinnappa, learned Counsel for the petitioner contends that the Rent Controller and the Appellate Authority have erred in construing the scope and effect of Section 10(3)(a)(ii) of the Act and hence their orders should be set aside. The learned Counsel would say that what that section contemplates is only the use of the building for the purpose of keeping a vehicle in the rented building being of such a nature that it can be easily adapted for being used as a garage. His further argument is that it is not for the tenant to say as to where the landlord should keep his motor vehicle and hence the Rent Controller and the Appellate Authority were wrong in saying that P.W.I can keep the scooter in the space near the stair-case. Lastly the learned Counsel would say that the requirement of the building was not on the ground that a car is to be parked there. On the other hand, the requirement is only for parking of the scooter. But, incidentally it has been stated that the possibility of a car being purchased and being parked in the garage cannot also be ruled out.
8. On the other hand, Mr. C.T. Ramanujachari, learned Counsel for the respondent would say that both the authorities have clearly found that P.W.I has got adequate space in the main building itself to park his scooter and furthermore, he has also got use of his brother's building in the neighbour hood to park his scooter. The learned Counsel would, therefore say that both the authorities have concurrently found that the requirement of the building under Section 10(3)(a)(ii) of the Act is not a bona fide one and in the face of such a finding, this Court should not allow the revision petition.
9. For understanding the controversy, it is necessary to refer to Section 10(3)(a)(ii) of the Act, The Sub-clause 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)....
(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.
The scope and effect of this Sub-clause came to be considered in Jawanthraj Mehta v. Ramachandra Chetty (1965) 78 L.W.65 (Summary of rent cases). Natesan, J. has held in that case that What is envisaged under Section 10(3)(a)(ii) is not only a non-residential building, which is already used for the purpose of keeping a vehicle, but also a building which can be adapted for such use. The ratio in this case has been followed by Govindan Nair, C.J. in Panduranga Padayachi v. Dhanakoti Ammal and Anr. (1978) T.N.L.J. 54. It, therefore, follows that the shed in the occupation of the respondent need not be acutally used as a garage at the time the petition is filed. It may either be used as a garage or alternatively, it may be of such structural design that it can be used as a garage with certain adaptations. It is not the case of the respondent that the shed occupied by him cannot be used as a garage with certain adaptations. If the wooden partition etc., put up by him are removed, the shed can certainly be used as a garage. The Appellate Authority was, therefore, wrong, to holding that the petitioner must prove that the shed is being used as a garage in presents and furthermore the Sub-clause does not extend to a building, Which cannot be used without suitable adaptations being made.
10. Admittedly, the petitioner's son, P.W.I. is owning a scooter. The question is whether the petitioner is entitled to seek eviction of the respondent to enable her son to park his scooter in the leased premises. Merely because there is some space near the stair--case, it is not open to the respondent to contend that P.W.I can park his scooter there and there is no need for an independent shed. Similarly the contention that P.W.1 can park his scooter in the neighbouring house belonging to his brother (learned Counsel for the petitioner would say that he is not P.W. 1's brother, but he is P.VV. l is uncle i.e. father's brother) cannot also be sustained. All that Section 10(3)(a)(ii) of the Act requires is the availability of a building, which is used or could be used as a garage and the landlord being in need of it for his own use as a garage.
11. Learned Counsel for the respondent argued that a big shed is not required to park a scooter. Such a contention was raised in Panduranga Padayachi v. Dhanakoti Ammal and Anr. (1978) T.N.L.J. 54 also. In that case the tenant was in occupation of a go down, which was measuring 25'xl40'. The landlord required space for parking a Fiat Car. Dealing with that matter, the learned Chief Justice has held as follows:
Counsel is right in his submission that such a large space is not required for keeping a fiat car. But, nevertheless, the car will have to be kept somewhere and the only space that is available to the landlady is this space... When the landlady bona fide requires the building for keeping the car, the fact that space is large should not stand in the way of the Court ordering eviction, because it is not possible to order eviction of a part of a building and there is no provision in the Act as far as I know and none had been pointed out that a part of a building can be recovered.
12. In the light of the discussion contained above, it follows that the Rent Controller as well as the Appellate Authority were wrong in refusing to order eviction and dismissing the petition and the appeal filed by the petitioner. The revision therefore, succeeds and will stand allowed. There will be an order of eviction against the respondent in terms of the prayer contained in H.R.C. No. 34l7 of 1979. The respondent is, however, given time till 31.8.1986 to vacate the premises. No costs.