Madras High Court
Bhavani Madhurakavi vs V. Chandrasekaran And Anr. on 24 April, 1997
Equivalent citations: (1997)2MLJ566, 1997 A I H C 4183, (1997) 2 MAD LJ 566
ORDER S.S. Subramani, J.
1. Tenant in R.C.O.P. No. 44 of 1989 on the file of the Rent Controller, Karaikal is the revision petitioner.
2. Originally, the landlady filed the said R.C.O.P. and when the matter was pending before the appellate authority, she died. Her legal representatives are the respondents herein. The R.C.O.P. was filed by the landlady for eviction of the residential building under Section 10(3)(A)I of the Pondicherry Buildings (Lease and Rent Control) Act, 1969. It is averred by the landlady in the eviction petition that the agreed rent was Rs. 350 per month. She further said that she was residing with her son Chandrasekaran in a rented building and the landlord of that building demanded vacant possession. Therefore, the landlady sought for vacant possession of the schedule building.
3. In the counter statement filed by the petitioner herein, she stated that she was making use of the building for non-residential purpose and therefore, eviction for residential purpose could not be entertained.
4. The Rent Controller, by order dated 31.7.1990, found that the landlady is not entitled to possession since the building is used for non-residential purpose and the requirement of the landlady is for the residential purpose. Aggrieved by the judgment, the landlady filed R.C.A. No. 12 of 1990. The appellate authority reversed the finding of the Rent Controller and held that the landlady is entitled to the possession of the building by its very nature even it is used for non-residential purpose. The claim was also found to be bona fide. The revision petitioner was directed to hand over the vacant possession to the landlady.
5. The legality of the order is challenged in this revision.
6. The only point that was stressed by the learned Counsel for the petitioner is that application for eviction on the ground that the building is required for residential purpose cannot be entertained when the tenant is making use of the building for non-residential purpose. According to the counsel, unless the building is used for residential or let for residential accommodation, eviction cannot be allowed. Counsel stated that to prove whether the building is a residential accommodation or a non-residential accommodation, the purpose of letting and the use for which the building is put is of material consideration. If the building has been let or used for non-residential purpose, the building thereafter ceases to be a residential building. The nature of construction is not of importance according to him.
7. As against the said contention, the counsel for the respondent contended that the primary test to consider whether the building is a residential or a non-residential is the nature of construction. He further contended that even if some minor changes are to be effected and if it could be made use of a residential building, it will be a residential accommodation for the purpose of the Act. Which of the contentions is to be accepted is the only question in this revision.
8. Learned Counsel for the petitioner relied on the decision of a Full Bench of this Court in the case of Dakshinamoorthy v. Thulja Bai and Anr. . That is a case under the Madras Buildings (Lease and Rent Control) Act XV of 1946, Section 7(3) of that Act, which corresponds to Section 10(3) of the present Act which was considered by the learned Lordships of the Full Bench. In paragraph 15 of the judgment, the learned Lordships have held that:
It seems to us, therefore, that what is at the inception a residential building may well become a non-residential by force of the terms of a letting, and that any conversion after the letting, of a residential building into a non-residential may well take place within and only within the limits which the statute prescribes. That if prior to a letting a building happens to have been of one character it must for ever keep that character irrespective of what the effect of the letting or of the acts of parties subsequent to the letting may be, seems to our minds to be a difficult, if not impossible, position; having regard to the considerations about set forth. The original design of the structure may have been one suitable to residence, but if by the letting it became non-residential in character, there is no reason why one may not take it as such or the purpose of Section 7, Sub-section (3). It seems to us that if a landlord has let out a building for a residential or non-residential purpose as the case may be, it is only fair that when he seeks an order directing the tenant to put him in possession of the property, he has to show that he fulfils the requirements of Sub-clause (i) or (ii) of Clause (a) of sub-Section (3) of Section 7. Having let out the building as for a non-residential purpose, it would be unfair if we were allowed to urge the requirements of the building for his own occupation, which is really a condition of his seeking to recover a residential building let out by him. The purpose of the letting and the condition of the landlord's recovery have alike reference to a residential or non-residential purpose according as a given case falls under Sub-clause (i) or Sub-clause (ii) of Sub-section (3)(a) of Section 7.
The counsel farther submitted that this Full Bench decision was never taken note of by in any of the decision either by this Court or by Supreme Court and so far as this Court is concerned, this decision still holds good. On the basis of the said decision, the counsel further submitted that if the building was constructed as a residential building and the letting was for non-residential purpose or if the building was used for years together by the tenant for non-residential purpose, the statutory bar will apply and the building can, thereafter, be considered only as a non-residential building.
9. As against the said decision, the counsel for the respondent relied on the decision in the case of Busching Schmitz Private Ltd. v. P.T. Menghani and Anr. which is followed in the subsequent decision in the case of S.P. Jain v. Krishna Mohan Gupta and Ors. . He also relied on other decision of this Court which followed the principle enunciated by the Supreme Court. In the case of Busching Schmitz Private Ltd. v. P.T. Menghani and Anr. mentioned, the present question came for consideration under the following circumstances. The landlord of the building was a Government servant, who was allotted a Government quarters for his accommodation. At the same time, the Government servant had let his building to a tenant who was making use of the same for non-residential purpose. The Government wanted the landlord to vacate the building on the ground that what he let was a residential accommodation and therefore, disqualified to continue in the Government accommodation. In view of the direction of the Government, to vacate his quarters, the landlord filed an application for eviction of his tenant. The tenant contended that the building in his possession is a non-residential building and therefore, the landlord is not entitled to get possession. The question that came for consideration was, "what is the residential building for accommodation?" In paragraph 15 at page 843 of the said decision, their Lordships posed the question, thus:
The bone of contention between the parties is as to whether the premises let out are 'residential accommodation. It may be a pursuit of subtle nicety to chase the reason for using different expressions like 'residential premises' and residential accommodation' in the same section. If at all, 'accommodation' is ampler than premises. What is residential accommodation? If the building in dispute answers that description, the tenant must submit to eviction. So this is the key question.
In paragraph 16, the learned Judge further went on posing the question, thus:
Admittedly, the building was let out for commercial purpose also. Is the purpose of the lease decisive of the character of the accommodation? For a long time it was used as an office of the tenant's business, the manager also residing in a part thereof. Does user clinch the issue? At present, the main use to which the building is put is as residence of the manager.
Relevant portion of the judgment may usefully be extracted. Portion of paragraph 17 and paragraphs 18 and 19 reads as follows:
17. Law, being pragmatic, responds to the purpose for which it is made, cognises the current capabilities of technology and life-style of the community and flexibly fulfills the normative role, taking the conspectus of circumstances in the given case and the nature of the problem to solve which the statute was made. Legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute and the project promoted.
18. 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 meditation group or music society for meditational or musical uses, it remains non the less 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 no 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 bazars cannot make them residential premises. That is a case of reductio ad absurdum.
19. Engineering skills and architectural designing have advanced far enough to make multi-purpose edifices and, by minor adaptations, make a building serve a residential, commercial or other use. The art of building is no longer rigid and the character of a house is not an 'either or.' It can be both, as needs demand. It is so common to see a rich home turned into a business house a dormitory into a factory. Many small-scale industries are run in former living quarters. To petrify engineering concepts is to betray the law's purpose. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated 'residential premises'. And once it is 'residential' in the liberal sense, Section 14-A stands attracted. Dictionary meaning, commonsense understanding and architectural engineering concur in the correctness of this construction.
(Italics supplied)
10. As, I have said, the above decision was followed by the Supreme Court in the case of S.P. Jain v. Krishna Mohan Gupta and Ors. In paragraph 18 of the judgment, the learned Judge held, thus:
We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life style of the community. It is well settled that the purpose of law/provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd. case that legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of the statute of the project promoted.
The learned Judge also accepted the various meanings given in the Law Dictionary and the learned Judge also approved the meaning of a 'dwelling House' as stated in the book 'Words Phrases Legally Defined', volume 2, second edition, where it is stated, thus:
that 'dwelling house' meant a building used or constructed or adapted to be used wholly or principally for human habitation and "dwelling house' included any part of a house where that part was occupied separately as a dwelling house.
In the learned Judge's view:
Residential premises are not only plots which are let out for residential purposes nor do all kinds of structures where humans may manage to dwell are residential. Use of purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential use, even by making some changes, can be designated premises. Residentiality depends for its sense on the context and purpose of the Statute of the project promoted.
11. In the case of Ram Chander v. Gokul Chand Gupta and Ors. (1977) 1 R.C.J. 414 the learned Judge of the Delhi High Court held that:
the expression "residential" qualifies the word "accommodation" and the former is clearly, therefore, descriptive of the latter. The expression, therefore, clearly denotes the purpose for which the premises was built, the use to which it was intended to be put and the category to which it belongs. It is used in contra-distinction to a shop or a house of business. Whether an accommodation is residential or not would, therefore, depend on these factors and the purpose for which it was let out to a particular tenant or the actual use to which it is put or has been put, either with or without the permission of the landlord, would be wholly irrelevant in a determination of the question if the accommodation is residential in character.
(Italics supplied)
12. In the case of Mrs. P.N. Karkhanis v. P.N. Chopra (1977) 2 R.C.J. 567, in paragraph 17, the learned Judge stated that:
the phrase "residential accommodation as used in Section 14-A(1) simply means that the accommodation should be capable of being used as a residence or should have been built as a residence.
13. In the book 'Law of Rent Control, Eviction & Leases in India' by Agarwal, Volume 2, at page 989, the author has stated, thus:
The expression 'residential accommodation' denotes-
(a) the purpose for which the premises was built,
(b) the use to which it was intended to be put, and
(c) the category to which it belongs.
It is used in contra-distinction to a shop or a house of business.
Whether an accommodation is residential or not, would depend on these factors, and the purpose for which it was let out to a particular tenant or the actual use to which it is put or has been put, either with or without the permission of the landlord, would be wholly irrelevant in a determination of the question if the accommodation is residential in character.
The premises-
(a) being residential in nature, and
(b) having been planned and built as a residence, do not cease to be residential merely because it was-
(i) let out for a residential-cum-commercial purpose, or (ii) being used by the tenant partly for one and partly for the other, so long as it retains its essential characteristic as a residential premises and is not rendered unfit for use as a residence.
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 officers 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.
14. This Court also had occasion to consider this question in a very recent decision in the case of Kovilpillai Nadar v. Tiresha Ammal (1997) 1 L.W. 585 wherein the learned Judge considered the earlier law and held 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.
The learned Judge followed the principle laid down by the Supreme Court to the effect 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.
Since the learned Judge has followed the earlier decision of this Court, I do not want to multiply the other decisions, referred to by the counsel for the respondents.
15. With the above legal position, it is to be considered whether the schedule building is a residential or non-residential. It is seen that except one room, all the other rooms in the building are part of residence. There is a kitchen, a dining hall, a bed room, etc. and the building is also with the terrace that is given to her. The rent deed also do not say that the building was let for non-residential purpose. In the rent deed, the word used is 'house'. That also denotes the subject matter of the lease was residential. It was considered as a residential building and the revision petitioner is making use of a portion of the same for non-residential purposes. The learned Counsel for the petitioner relied only on the decision in the case of Dakshinamoorthy v. Thulja Bai and Anr. . In that decision, in paragraph 18 at page 416, the learned Judge considered this question and certain guidelines are given to consider regarding the nature of the building. It may be noted that the learned Judge of the Full Bench gave importance to the purpose of letting. Even applying the principles enunciated by the Full Bench, I do not find that there is an inconsistency in this case. The purpose of letting is not stated in the rent deed. Even though there is a written agreement, the learned Judge considered the use for which the building was put and the same has to be considered along with acquiescence. It was further held in the case that the evidence of the user, evidence of acquiescence, structured design, and similar circumstances will have to be considered. In this case, I have already stated that the structured design is that of a residential building and there is no pleading or regarding acquiescence. I do not think the petitioner's counsel was successful to persuade me to come to a different conclusion. It may also be noted that in the case of Busching Schmitz Private Ltd. v. P.T. Menghani and Anr. their Lordships having given importance only to the structure and physical features of the building and not to the purpose for which the building was put. Under Section 10(3) of the Act also, the purpose of letting is absent. If the word 'purpose' is not in the statute, naturally, the purpose as envisaged by the Full Bench decision is not of much importance.
16. In this connection, I may also make note of one decision of this Court under Pondicherry Buildings (Lease and Rent Control) Act, 1969 in the case of Indira and Ors. v. Vinayagam Chettiar (1988) 2 L.W. 454 wherein, it was held by the then Chief Justice M.N. Chandurkar, that:
A building which by its very nature is non-residential in character will not become residential merely because it is used for residential purpose unless it has been so converted as 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 has been 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 residents' building and therefore be treated as a residential building notwithstanding its use for a non-residential purpose.
17. In view of the legal principles and question argued before me, I do not think the petitioner could succeed on his plea. Once it is held that the building is residential premises and there is no other statutory inhibition against the landlord for taking possession of the same, the eviction order has only to be confirmed. No other question is argued. Therefore, the C.R.P. is dismissed with costs. Consequently, the C.M.P. Nos. 4395 of 1992 and 2870 of 1994 are dismissed.