Andhra HC (Pre-Telangana)
Mahender Kumar vs Mohd. Allauddin And Anr. on 29 November, 2005
Equivalent citations: 2006(1)ALD722, 2006(1)ALT456, AIRONLINE 2005 AP 14
Author: N.V. Ramana
Bench: N.V. Ramana
ORDER N.V. Ramana, J.
1. This C.R.P. is directed against the order dated 11-4-2005, passed by the Chief Judge, City Small Causes Court, Hyderabad, dismissing the appeal in R.A. No. 181 of 1998, by confirming the order dated 4-3-1998, passed by the Principal Rent Controller, Secunderabad, allowing R.C. No. 143 of 1996, filed by the respondents seeking eviction filed by the petitioner from the schedule premises.,
2. The revision petitioner is the tenant while the respondents are the landlords. The respondents-landlords filed the R.C. seeking eviction of the petitioner from the schedule premises on the ground of bona fide requirement. The petitioner-tenant filed counter inter alia contending that he is using the premises for non-residential use, and the plea that the respondents-landlords required the premises for their bona fide requirement, is incorrect, they are living in their own house. The Principal Rent Controller, considering the rival contentions, allowed the R.C. Aggrieved thereby, the petitioner-tenant filed appeal. The appeal was dismissed. The order impugned in this C.R.P. is against the order in appeal.
3. Heard the learned Counsel for the petitioner-tenant and the learned Counsel for the respondents-landlords.
4. The learned Counsel for the petitioner-tenant submitted that since the respondents-landlords have leased out only vacant land to the petitioner-tenant without any building or structure existing therein, the Rent Controller, had no jurisdiction to entertain the R.C., and though this point was raised in appeal, the learned appellate Judge without considering the said fact, erroneously held that in view of certain previous proceedings, the petitioner-tenant is not entitled to raise this objection.
5. He submitted that the appellate Judge committed error in placing much reliance on the recitals of Clause 5 of Ex.P9-rental agreement and Clause 9 of Ex.A16-lease deed to the effect "that the tenant shall not make any material additions or alterations to the prernises without the written consent and permission of the lessor", to come to the conclusion that the premises leased out is not an open space, but contains a shed. He submitted that the shed in the open land was constructed by the petitioner-tenant, and at any rate, having regard to the dictionary meaning of the word "shed", it cannot even be said to be a hut or a house, so as to fall within the definition of the word "building" as defined in Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. In support of his submission that a shed cannot be a building within the meaning of Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, the learned Counsel for the petitioner-tenant placed reliance on the judgment of the apex Court in Koti S. Anamma v. Jonnalagadda M. Rao, .
6. He submitted that since the respondents-landlords are residing in their own houses, the Rent Controller as well as the appellate Court committed an error in holding that the respondents-landlords bonafidely required the premises, and more so when the open land leased out to them is being used for non-residential purposes. In the absence of any material filed, the finding of the Rent Controller as also the appellate Court, that respondents-landlords obtained permission to convert the land from one of non-residential to that of residential, is erroneous.
7. He thus prayed that the impugned order, passed by the appellate Judge confirming the order of the Principal Rent Controller, be set aside and the C.R.P. allowed.
8. On the other hand, the learned Counsel for the respondents-landlords argued in support of the orders under revision. He submitted that the respondents-landlords do not own any property, except the one covered by the R.C., which was gifted to them by their father. Since the petitioners are not having house of their own, they required the premises for their bona fide requirement, and they had already applied to the Municipal Corporation of Hyderabad, for construction of a residential building and also paid necessary charges. He submitted' that the open land lease out to the petitioner-tenant contains a shed, surrounded by walls on three sides, and irrespective of its use, the same being a building, the Principal Rent Controller has jurisdiction, and at any rate, the petitioner-tenant having not raised this in previous litigation, cannot contend that the Principal Rent Controller has no jurisdiction to entertain the R.C. He submitted that the meaning of the word "building" as defined in Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, should be liberally interpreted, he placed reliance on the judgment of the apex Court in A. Satyanarayan Shah v. M. Yadgiri, 2003 (1) ALD 81 (SC) : 2002 (8) Supreme 340. He, thus submitted that no interference is called for with the orders under revision, and prayed that the C.R.P. be dismissed.
9. I am unable to agree with the submission of the petitioner-tenant that the land leased out by the respondents-landlords to the petitioner-tenant being an open land containing a tin shed, without any building or structure therein, the Principal Rent Controller has no jurisdiction to entertain the R.C. The petitioner, who examined himself as R.W. 1 in his evidence stated that he is carrying on business of motor workshop in the premises, and originally when the premises was taken on lease by his father and uncle, it was an open land, on which subsequently, his father erected a tin shed. Though the petitioner-tenant in his evidence stated that his father got erected the shed, he did not place any evidence to show as to when and who erected it.
10. Now that it has become clear that there exists a tin shed in the leased out land, it may be noticed whether the said tin shed can be considered to be a building, within the definition of the word "building" defined in Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, for it is the contention of the petitioner-tenant that the tin shed cannot even be considered a hut or a house, so as to fall within the meaning of the word "building" as defined in Section 2(iii). The word "building" has been defined in Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 to read:
Section 2(iii) - "Building" means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purposes and includes--
(a) the gardens, grounds, garages, and outhouses if any, appurtenant to such house, hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut.
(b) Any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house.
11. The apex Court in A. Satyanarayan Shah v. M. Yadigiri (supra), following its decision in Suryakumar Govindjee v. Krishanmmal and others, , wherein it held that the expression "hut" cannot be restricted only to huts or cottages intended to be lived in, and that it will also take any shed, or hut or other crude or third class construction consisting of an enclosure made of mud or by poles supporting a tin or asbestos roof that can be put to use for any purpose -residential or non-residential in the same manner as any other first class construction, its judgment in Ashok Kapil v. Sana Ullah (dead) and Ors., , wherein it quoted with approval Stroud's Judicial Dictionary (Vol.1, 5th Edn.) - "what is a building must always be a question of degree and circumstances", while citing with approval Victoria City Corpn. v. Bishop of Vancouver Island, (1921) 2 AC 384, it quoted the observations of a celebrated lexicographer that "the ordinary and natural meaning of the word building includes the fabric and the ground on which it stands" and lastly cited Black's Law Dictionary (5th Edn.) also with approval, which defined "building" as a structure or a edifice enclosing a space within its wall, and usually, but not necessarily, covered with a roof. A roofless structure was held to be a building.
12. After referring to the above, the apex Court observed that the term "building" has to be interpreted liberally and not narrowly, and held at Para 9:
On the authority of above said decided cases, it can be concluded that the term 'building' has to be interpreted liberally and not narrowly. In our opinion, a wooden structure, which is in the nature of a permanent structure standing on the land and which has walls and roofs though made of wood, would fall within the definition of building as defined in Clause (iii) of Section 2 of the Act. In the context in which the term 'building' has been used and keeping in view the purpose of the Act, the term 'building', as defined, ought to be so interpreted as to include therein a structure having some sort of permanency and capable of being used for residential or non-residential purpose.
13. In the instant case, though the petitioner-tenant contends that it is a tin shed, in his evidence, he stated that the schedule premises is having walls on three sides and there is a firewood shop behind the schedule premises. This being the oral testimony of the petitioner as R.W.I, and there being no clear evidence let in by the petitioner-tenant to show that only an open land was leased out to him by the respondents-landlords, the appellate Judge looked into the contents of Ex.P9-rental agreement dated 16-7-1953 and Ex.P16-lease agreement dated 21-2-1980, which are oldest in point of time, when compared to the other lease agreements, namely Exs.P16, P17, P18, P19, P2 and P3, which are later in point of time, dated 21-2-1980, 13-4-1982, 2-6-1983, 1-5-1985, 5-6-1986 and 6-6-1986 respectively, to ascertain whether only open land was leased out or it contained any structures thereon. In Para 5 of Ex.P9-rental agreement dated 16-7-1953, it was mentioned that a thatti shed is there, and it was inter alia agreed to by the parties that the tenant shall not make any material additions or alterations to the premises without written consent of the landlord, and similar such recitals are found in Clause 9 of Ex.P16-lease agreement dated 21-2-1980. These recitals clearly go to show that the land leased out to the petitioner-tenant contained a shed, for if there was no shed at all, there was no necessity for the parties to agree that "the tenant shall not make any material additions or alterations to the premises without written consent of the landlord". The shed in question, which is said to be having three walls covered by a tin roof, enclosing space within the three walls, wherein the petitioner is carrying on the business of motor workshop, can be said to be a "building", because of the permanent nature of the walls and. more so having regard to the judgment of the apex Court in A. Satyanarayana Shah v. M. Yadigiri (supra).
14. Having regard to the law, as stated above, reliance placed by the learned Counsel for the petitioner-tenant on the judgment of the Apex Court in Koti S. Anamma v. Jonnalagadda M. Rao (supra), does not assist him in any manner, and more so having regard to the fact that in the said case, the premises, which was covered by zinc sheets was not let out, but only the saw mill machinery which was housed in the premises was let out. Taking cognizance of the fact that only the saw mill machinery was leased out and not the premises, the apex Court held that the lease is of saw mill machinery which is covered by a zinc sheet shed, the dominant purpose of the lease is to lease out the machinery, the shed is only an adjunct, and a zinc sheet shed which has been erected merely to cover the machinery cannot be a predominant reason for the lease. But that is not the case on hand. In the instant case, the unalienable property, in which tin shed with three walls raised, was leased out.
15. The land leased out by the respondent-landlords to the petitioner-tenant, which comprises a tin shed covered by three walls, providing space within them, for the reasons stated above, for all purposes is a building within the meaning of the word "building" as defined in Section 2(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, and more so when the petitioner-tenant is carrying on the business of motor workshop. In that view of the matter, the Principal Rent Controller cannot be said to have no jurisdiction to entertain the R.C., and no exception can be taken to the Principal Rent Controller entertaining the R.C. and exercising his jurisdiction. Further, the petitioner-tenant having failed to produce any evidence to show that the respondents-landlords are having property other than the one leased out to the petitioner-tenant, and the evidence of the respondents-landlords being that they are residing in separate buildings by paying rents, the Principal Rent Controller as well as the appellate Judge have rightly rejected the plea of the petitioner-tenant that the respondents-landlords did not require the premises bonafide.
16. For the foregoing reasons, I find no merit in the C.R.P., and the same is accordingly dismissed. No costs.