Andhra HC (Pre-Telangana)
Godavari Metal Rolling Mills ... vs Dara Satyamalli Viswanadha Anji ... on 27 December, 1996
Equivalent citations: 1997(2)ALT496, 1997 A I H C 2147, (1997) 1 LS 449, (1997) 1 RENCR 601, (1997) 3 ANDHLD 385, (1997) 2 ANDH LT 496, (1997) 2 APLJ 63
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER V. Bhaskara Rao, J.
1. This revision petition is filed by the tenant against the decree and order in R.C.A. No. 30/1988 on the file of Subordinate Judge, Rajahmandry, dated 28-8-1981 assailing the eviction order in respect of the petition schedule premises which is let out for a composite purpose of residential and non- residential purposes being contrary to the authority in Dr. Madhusudan Mahuli v. L. Indira Bai, 1987 (2) ALT 504 = 1988 (1) APLJ 159. and ignoring the fact that the landlord/respondent is only a sleeping partner in a firm Viswanadha Traders and no family member ever carried on business at any time.
2. The facts giving rise to this revision petition in brief are that the landlord filed R.C.C. No. 63/1981 under Section 10(3)(a)(i) and (iii) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, for short the 'Act', on the ground that he has completed his studies and intends to engage himself in whole time business independently as well as in partnership, which he entered into earlier while he was a student. The name of the firm is Viswanadha Traders. He has requested the tenant to give vacant possession of the Schedule premises. He wants to use item No. 1 for his residence in the first floor by constructing the first floor over the present premises, which is a pucca construction and to use item No. 2 for his business requirement.
3. The tenant/revision petitioner resisted the petition by filing a counter. It is averred that the petitioner is a sleeping partner in Viswanadha Traders and he is a very rich man and that Viswanadha Traders is located in the own premises of one of the partners. The intention to set up an independent business in the Schedule premises apart from using the same for Viswanadha Traders is untrue and mala fide.
4. The landlord also filed R.C.C. No. 62 of 1981 under Section 4 of the Act for fixation of fair rent to item No. 1 at Rs. 2,000/- per month and for item No. 2 at Rs. 600/- per month. Both these R.C.Cs. were tried together and common evidence was recorded. PWs. 1 and 2 have been examined on behalf of the landlord and Exs. A-l and A-2 and X-I are marked. The tenant also adduced oral and documentary evidence. R.Ws. 1 and 2 were examined and Exs. B-l, B-2 and X-2 are got marked. The Rent Controller considered the above oral and documentary evidence and fixed the rent for item No. 1 at Rs. 400/- and for item No. 2 at Rs. 250/- per month. He also held that the landlord has established that both items 1 and 2 were required for bona fide purpose of his residence and business. Accordingly both R.C.C.Nos. 62/81 and 63/81 have been allowed. Aggrieved by the quantum of fair rent fixed by the Rent Controller, the landlord filed R.C.A. No. 32/1988 while the tenant also filed R.C.A. No. 29/1988 challenging the above quantum contending that 20 it is excessive. He also filed R.C.A. No. 30/1988 against the eviction order passed in R.C.C.No. 63/1981. The appellate authority - Subordinate Judge, Rajahmandry, disposed of these three appeals viz., R.C.A. No. 29/1988, 30/1988 and 32/1988 by a common order. He formulated the following two points for consideration:-
1. Whether the fair rent fixed by the Rent Controller for both the items of the Schedule is liable to be changed?
2. Whether the landlord requires the petition Schedule premises bona fide for his personal occupation?
On point No. 1, the learned Subordinate Judge held that the rent fixed by the Rent Controller is fair and reasonable and accordingly the order in R.C.C.No. 62/1981 has been confirmed. The parties did not choose to carry the matter in revision to this Court insofar as the fixation of fair rent is concerned. On Point No. 2 it is held that the material on record shows that the landlord required both the items of the Schedule for his bona fide personal requirement and dismissed the tenant's appeal RCA. No. 30/1988. Aggrieved by the above order and decree, the tenant has preferred this revision petition.
5. Mr. T. Veerabhadriah, learned Counsel for the tenant/revision petitioner strenuously contended that this being a case of composite lease, there is no provision in the Act for seeking eviction of the tenant and that the only remedy available to the landlord is the Civil Court. He asserted that the composite lease cannot be split up and two causes of action, one relating to the residential premises and the other relating to non-residential premises cannot be joined 45 in one proceeding in the absence of a specific provision in the Act. He relied on a judgment cited supra (1). On the other hand Mr. M.S.K. Sastry, learned Senior Counsel for the landlord contended that Section 10 of the Act has the effect of ousting the jurisdiction of the Civil Courts inasmuch as it enjoins that a tenant shall not be evicted except in accordance with the provisions of the Act. He further contended that it is well settled that in the case of a composite lease of both residential and non-residential premises, a landlord can succeed by filing a single petition in respect of both residential and non- residential premises if he can establish bona fide requirement of both premises at the same time. He, therefore pointed out that clauses (i) and (iii) of Section 10(3)(a) of the Act operate simultaneously to a case of this type and hence the Civil Court cannot have jurisdiction. Mr. Sastry has taken me through the record and pointed out that both the Courts below have concurrently found that the landlord is able to establish bona fide requirement of both items 1 and 2 of the Schedule and hence the revision petition is fit to be dismissed.
6. Having regard to the rival contentions, the following points arise for determination:-
1. Whether the provisions of the Rent Control Act are applicable to a case of composite lease of a residential and non-residential premises?
2. Whether the landlord/respondent is able to establish his bona fide requirement of a residential and non-residential premises?
7. At the very outset Mr. Veerabhadrayya stated that the tenant has no objection to vacate item No. 2 and make it available to the landlord to start his proposed business and he wanted to continue his business in item No. 1 while residing in a portion thereof, but the learned Counsel for the landlord did not agree. Both the learned Counsel have been heard on merits.
8. It is not in dispute that the landlord has completed his education and the family belongs to a trading community and he is a partner in Viswanadha Traders. He has specifically averred that besides Viswanadha Traders, he wants to start his own business. It is also his case that he wants to construct first floor on item No. 1 and reside therein and conduct business in item No. 2. Undoubtedly the case is one of composite lease for residential as well as non residential premises. The question is whether the provisions of the Rent Control Act are applicable to an eviction petition or not. It would be beneficial to extract Section 10(1) of the Act.
"(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 12 and 13:
Provided that where the tenant, denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said section, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded".
A bare reading of the above provision makes it abundantly clear that by a special enactment the Legislature intended to create a special forum for adjudicating the disputes between tenants and landlords. The legislative intention is manifest in the wording that a tenant shall not be evicted except inaccordance with the provisions of the Act. It is no doubt true that an exception is provided for in the proviso to sub-section (1) of Section 10. If the tenant denies the title of the landlord or claims right of permanent tenancy, the proviso enjoins that the Rent Controller shall decide whether the denial or claim is bona fide or not, and if he records a finding affirmatively, the landlord shall have to seek a remedy in a civil Court. Otherwise it is only the Rent Controller that has jurisdiction to entertain eviction petitions.
9. The thrust of argument of Mr. Veerabhadrayya is that it being a case of composite lease, there is no specific provision for eviction of a tenant from a composite building of residential and non-residential purpose. It is no doubt true that there is no such specific provision dealing with composite leases, but it does not mean that the landlord in such a case should be driven to a civil Court instead of adopting a summary remedy provided for herein. Sub-section (3)(a)(i) relates to a residential building while clause (iii) therein is in respect of a non-residential building. I shall now refer to some of the Judgments which interpreted the above provision.
In the judgment cited supra (1) it is held, "In the instant case the premises are let out for dual purpose and therefore it is composite lease comprising residence as well as non-residential. In view of dichotomy maintained under Section 10(3)(a) of the Act between respective requirements and causes of action for filing eviction petition for residential and non-residential premises the requirement for residence cannot be availed for eviction from non-residential premises and equally the requirement for non-residential purpose cannot be pressed into service for eviction from residential premises. There is no provision under the Rent Control Act for eviction based upon bona fide personal requirement in respect of premises let out for mixed purpose of residential and non-residential. The Rent Control Act bearing a slant towards the protection of the tenants against unreasonable evictions provided sufficient safeguards to the landlords for eviction and otherwise. The bona fide personal requirement is founded upon the legitimate necessity of the landlord and in the event of composite lease the landlord is deprived of the remedy under the Rent Control Act. The Rent Control Act is a self contained enactment beset with provisions broadly balancing the rights and obligations of the tenants and landlords and expeditious and efficacious remedies and the absence of any provision regarding the eviction of the premises having composite lease deprived the expeditious remedy under the Rent Control Act and the landlord is obliged to seek remedy by a civil suit".
I carefully perused the above judgment. It is noteworthy that some of the judgments of the Supreme Court as well as a Division Bench of this Court do not appear to have been brought to the notice of my learned brother Rama Rao, J., who rendered the above judgment. In Susheela Bai v. Chandulal T. Parikh, 1975 ALT 133. a Division Bench of this Court consisting of Sri A. Sambasiva Rao, A.C.J., as he then was, and Sri Raghuveer, J., as he then was, considered the question whether the provisions of the Act provided for the remedy of eviction in respect of a composite lease. In that case, the building happened to be both residential and non-residential one and the landlady thought that there was no provision in the Act which provided for moving the Rent Controller and therefore, she approached the Government for granting exemption of the premises from the preview of Section 10 of the Act under Section 26 of the Act. The Government issued G.O.Ms.No. 933, G.A.D., dated 16-10-1971. The tenant filed W.P.No. 21/1972 for quashing the G.O., and it was allowed by a learned single Judge Sri Obul Reddi, J., as he then was. The tenant filed W.A.No. 481/1973 challenging the above order. The Division Bench held, "In the light of the decisions of the Supreme Court above referred to relied upon by our learned brother, we are in perfect agreement with him. The lease is a single one and it may be that the tenant is using part of it for residential purposes and the other part of it for his business purposes. It is not permissible to the landlord to split the lease and say that there is no provision in the Act under which he can seek eviction under the provisions of the Rent Control Act....".
It is further held, We do not think that Section 26, despite the non-obstante clause, is intended by the Legislature to confer unbridled power on the Government to exempt any building or class of buildings from all or any of the provisions of the Act. The very purpose of the Act is to regulate the leasing of buildings, the control of rent thereof and the prevention of unreasonable eviction of tenants therefrom. Certainly, a provision of such an enactment cannot be permitted to be utilised for defeating these purposes. In other words, if a statute has provided for securing a relief in a particular manner, that cannot/be given a go-by and recourse cannot be taken to the power of exemption, thereby defeating the provisions of the statute and the purposes for which the Act has been made"....
It is, therefore, clear from the above discussion of the Division Bench that an eviction petition would lie before the Rent Controller under the provisions of the Act even in respect of buildings let out for dual purposes.
10. This very question came up for consideration before the Supreme Court in Firm Panjumal Daulatram v. Sakhi Gopal, . After referring to the earlier judgment in Miss. S. Sanyal v. Gian Chand, . the Supreme Court held, "The residential portion is a part of the building and is in accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bona fide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement".
In the later part of the judgment, it is further held, "there is no question of splitting up of the contract in the present case, as is abundantly plain from what we have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into Section 12(l)(e) and (f). The consequence is inevitable that the eviction order has to be upheld".
11. In Yeshpal Roy v. G. Dinesh Kumar, my learned brother Motilal B. Naik, J., repelled the contention of the tenant that the eviction proceedings are not maintainable before the Rent Controller when the lease is of composite nature. It is held, "The short question therefore which falls for consideration before this Court is whether the eviction petition is maintainable under the provisions of the Act in a situation where the lease is of composite nature involving residential and non-residential premises. On behalf of the respondents-tenants Sri Aziz Ahmed Khan, the learned Counsel placed 25 reliance on the decisions in Dr. Madhusudan Mahuli v. L. Indira Bal (1987 (2) ALT 504) and Miss. S. Sanyal v. Gian Chand . On behalf of the petitioner-landlord Sri N. Raghavan placed reliance on the decisions in K. Y. Yadaiah v. Chikoli Yadamma and Firm Panjumal Daulatram v. Sakhi Gopal. It is contended on behalf of the petitioner-landlord that the decisions cited in support of the contentions of the respondents- tenants in Dr. Madhusudan Mahuli v. L. Indira Bai (1st cited supra) and Miss. S. Sanyal v. Gian Chand (2nd cited supra) have not properly been understood by the lower appellate Court and therefore the lower appellate Court has committed grave error in arriving at the conclusion that eviction petition is not maintainable before the Rent Controller where lease is of composite nature and it has failed to appreciate the decisions cited before it. In view of the decisions in K. Y. Yadaiah v. Chikoli Yadamma (1971 A.P.H.C. Notes 239) and Firm Panjumal Daulatram v. Sakhi Gopal it is very much clear that the eviction proceedings could be entertained even in case where the lease is of composite nature".
In view of the law laid down by the Supreme Court and Division Bench of this Court and followed by my learned brother Motilal B. Naik, J., I am of the view that eviction petition in respect of a composite lease is maintainable before the Rent Controller provided that he is satisfied that in one and the same proceeding both the residential premises as well as non-residential premises are required for bona fide occupation of the landlord. Point No. 1 is answered accordingly.
12. Point No. 2:
As already stated above, both the Courts below have concurrently found that there is sufficient material to base the conclusion that the landlord requires both items Nos. 1 and 2 for his residence as well as his business. On an earnest consideration of the reasoning given by the learned Subordinate Judge and the material on record, I am unable to take a different view. I accordingly hold that the revision petition is devoid of any merit.
13. In the result, the revision petition is dismissed. The tenant is given two months time to vacate the premises, failing which the landlord will be entitled to evict him in due process of law. There will be no order as to costs.