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2004 DIGILAW 1516 (AP)

Uppala Veeresam v. Alladi Sairam

2004-12-17

BILAL NAZKI, S.R.K.PRASAD

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BILAL NAZKI, J. ( 1 ) THE second appeal has come before us on a reference by a learned single Judge of this Court. Before this reference is answered, it will be pertinent to refer to certain material facts giving rise to the second appeal. ( 2 ) THE plaintiff filed a suit for possession of the suit premises. He contended that he had purchased the suit premises from Balde siva Prasad under a registered sale deed dt. 9-9-1988. The defendant was carrying on cloth business in a portion of the suit premises on a monthly rent of Rs. 215/ -. Perior thereto, the vendor of the plaintiff had rented out the premises to the defendant. The house was constructed in 1984. The tenancy was determined with effect from 28-2-1990 by a notice. The defendant claimed in his written statement that he was a tenant from 1952 and he was paying rent of Rs. 400/- p. m. till 1984. On a compromise reached between him and Balde Siva prasad in R. C. No. 254 of 1984, the defendant surrendered the mulgi to B. Siva prasad and obtained 50% of the floor space occupied earlier and was paying rs. 215/- p. m. as cent. The building was not constructed in 1984, but it was constr6cted prior to 1957. Some alterations were made by the vendor of the plaintiff on a petition under Section 12 of the A. P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short "the Act") and the provisions of the act are applicable to the suit premises and as such notice of eviction issued by the plaintiff was incorrect. ( 3 ) ONE of the issues framed by the trial court was whether the Court had jurisdiction to entertain the suit. During the trial, it came to light that in R. C. No. 254 of 1984 under section 12 of the Act the tenant was directed to deliver possession of the premises on or before 10-10-1984 and the landlord was directed to complete the construction of the building within two months from the date of eviction of the premises and on completion of the construction, the landlord was directed to put the tenant back into possession of a portion on a monthly rent of Rs. 215/ -. These facts are undisputed. 215/ -. These facts are undisputed. Under Section 12 of the Act a tenant is entitled to re-possession of the rented premises after reconstruction and such an order has been passed by the rent Controller in RC. No. 254 of 1984. Section 12 of the Act lays down, "12. Recovery of possession by landlord for repairs, alterations or additions or for reconstruction: (1) Notwithstanding anything in this Act, on an application made by a landlord, the Controller may, if he is satisfied, (a) that the building is reasonably and bona fide required by the landlord for carrying out repairs, alterations or additions which cannot be carried out without the building being vacated; or (b) that the building consists of not more than two floors and is reasonably and bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. (2) No order for recovery of possession under this section shall be passed unless the landlord gives an undertaking that the building on completion of the repair, alterations or additions or the new building on its completion will be offered to the tenant, who delivered possession in pursuance of an order under sub-section (1), for his occupation before the expiry of such period as may be specified by the controller in this behalf. (3) In case the tenant, to whom the building or the new building, as the case may be, is offered under subsection (2) by the landlord does not want to occupy it, the landlord shall give notice of vacancy in writing to the authorized officer under sub-section (1) of Section 3. (4) Nothing in this section shall entitle the landlord, who has recovered possession of the building for repairs, alterations or additions or for reconstruction to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the controller at the time of passing an order under sub-section (1 ). (4) Nothing in this section shall entitle the landlord, who has recovered possession of the building for repairs, alterations or additions or for reconstruction to convert a residential building into a non-residential building or a non-residential building into a residential building unless such conversion is permitted by the controller at the time of passing an order under sub-section (1 ). " ( 4 ) ON analysis of this Section, on first principles a tenant can be asked to vacate a building on satisfaction of the Controller that the building was reasonably and bona fidely required by landlord for carrying out repairs, alterations or additions which cannot be carried out without the building being vacated. Under sub-section (1) (b) a building can also be demolished for the purpose of re-construction and under sub-section (4) a building cannot be converted, if it has been recovered under Section 12 of the Act, into a residential building, if it was a non- residential building and vice varsa. Going by this section, it presupposes that the vacation of premises by tenant is for the purpose of repairs, alterations or additions or for reconstruction. Therefore we have no doubt in our mind that the tenancy does not cease during the period in which the building is occupied by the landlord for the purpose of carrying out repairs, alterations or additions. The relationship of tenancy does not cease. The landlord continues to be the landlord and the tenant continues to be the tenant and the tenancy relates back to the date when it was originally created. Section 26 of the Act gives power to the Government to exempt buildings from all or any of the provisions of the Act and the Government has passed G. O. Ms. No. 636, G. A. D. (Accommodation-A), dated 29-12-1983, which lays down, "in exercise of the powers conferred by section 26 of the Andhra Pradesh buildings (Lease, Rent and Eviction) control Act, 1960 (Andhra Pradesh Act xv of 1960), the Governor of Andhra pradesh hereby exempts with effect on and from the 26th October, 1983, from the operation of the provisions of the said Act- (a) all buildings for a period of ten years from the date on which their construction is completed; and (b) buildings the monthly rent of which exceeds rupees one thousand. xxxxxxxxxxxxx" ( 5 ) THE contention is that the building was constructed after 1983, therefore the Act will not apply for a period of ten years from the date on which the building was constructed. The learned single Judge found certain judgments of this Court reported in bhoopathi Gowri Shanker v. M/s. Nathmal harikishan and Bros, a firm represented by its partner Ratanlal and others, Kondeti suryanarayana v. Pinninti Seshagiri Rao and Shiv Raj v. Ashok Kumar and another to be conflicting with each other on this question, and therefore he referred the matter to the Division Bench. In Bhoopathi gowri Shanker v. M/s. Nathmal Harikishan and Bros, a firm represented by its partner ratanlal and others (supra) the Court held, "under Section 12 the tenancy does not abate and the tenancy continues to subsist with an interruption for a short time. The right of the tenant to get redelivery of the premises is sanctioned by Sec. 12 of the Act and the provisions of the Act including the G. O. , does not have any impact upon the operation of sec: 12. In this case, the landlord in his notice called upon the tenant to execute the rental deed at the rate stipulated by him. The tenant while tentatively agreeing to pay the rent took up the plea that the rent should be fair rent fixed under law. The unilateral stipulation of rent by landlord is not visualized and in the absence of agreement the fair rent should be fixed. Therefore the fair rent has to be determined. " ( 6 ) IN Kondeti Suryanarayana v. Pinninti seshagiri Rao (supra) that Court held, the G. O. says that in exercise of the powers conferred by Section 26 of the act the Governor exempted from the operation of the provisions of the Act all buildings for a period of ten years from the date on which their construction is completed. The language used is "all buildings are exempted for a period of ten years from the date on which their construction was completed. " In other words, irrespective of the fact whether the building was constructed for the first time or by demolishing the existing building it is exempted from the provisions of the Act for a period of ten years from the date of completion of the construction of the building. " In other words, irrespective of the fact whether the building was constructed for the first time or by demolishing the existing building it is exempted from the provisions of the Act for a period of ten years from the date of completion of the construction of the building. The G. O. does not make any distinction between the building constructed for the first time and the building constructed by demolishing the existing building. Therefore, the respondent is entitled to the benefits of the G. O. If he is entitled to the benefit of the G. O. the question of the respondent giving an undertaking does not arise, as the provisions of the Act are not applicable for a period of ten years from the date of completion of the building, during which period the tenant s right of reinduction gets suspended. " ( 7 ) IN Shiv Raj v. Ashok Kumar and another (supra) the Court held that the building was a new construction, therefore it was exempt from the provisions of the Act and as such the suit for eviction was maintainable in a civil Court. ( 8 ) THE purpose of eviction or handing over of possession of premises under section 12 of the Act is only to make repairs, alterations or additions or reconstruction and the purpose is not the eviction of a tenant. Therefore if G. O. Ms. No. 636, dt. 29-12-1983 is applied to the buildings which are reconstructed after 29-12-1983, it would amount to defeating the safeguards provided under Section 12 of the Act. It is common knowledge that there are very old buildings which need reconstruction or alterations in a moving city like Hyderabad. Therefore the reconstruction would become a ploy to evict the tenants. No. 636, dt. 29-12-1983 is applied to the buildings which are reconstructed after 29-12-1983, it would amount to defeating the safeguards provided under Section 12 of the Act. It is common knowledge that there are very old buildings which need reconstruction or alterations in a moving city like Hyderabad. Therefore the reconstruction would become a ploy to evict the tenants. If a landlord gets possession in terms of Section 12 of the Act and reconstructs a building and then determines the tenancy in terms of Transfer of Property act on the ground that the ANDHRA PRADESH BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1960 would not apply in terms of the G. O. , then sub-section (2) of Section 12 of the Act will be meaningless which lays down that no order for recovery of possession under section 12 of the Act shall be passed unless the landlord gives an undertaking that the building on completion of the repair, alterations or additions or the new building on its completion will be offered to the tenant, who delivered possession in pursuance of an order under sub-section (1), for his occupation. Therefore, in our view, a new building constructed after demolishing and after evicting tenant under Section 12 of the Act continues to remain an old building for the purpose of tenancy. As a matter of fact, even G. O. Ms. No. 636, dt. 29-12-1983 exempts only those buildings for ten years from the operation of the provisions of the act which are constructed after 26-10-1983 and in our view, a building which is constructed in terms of order passed under section 12 of the Act is not a construction, but is a reconstruction and reconstructed building is not, in our view, exempt under g. O. Ms. No. 636, dt. 29-12-1983. ( 9 ) THE judgment of this Court in Kondeti suryanarayana v. Pinninti Seshargiri Rao (supra) was challenged before the supreme Court and it was reversed. This judgment of the Supreme Court is reported in Kondeti Suryanarayana v. Pinninti sashagiri Rao. The Supreme Court considered the scope of eviction ordered under Section 12 of the Act and it held in para-5, "5. This judgment of the Supreme Court is reported in Kondeti Suryanarayana v. Pinninti sashagiri Rao. The Supreme Court considered the scope of eviction ordered under Section 12 of the Act and it held in para-5, "5. A perusal of the aforesaid provisions show that where a building is reasonably and bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the said building, the tenant shall have right of re-entry in the premises on its reconstruction. The language of sub-clause (b) of subsection (1) of Section 12 is plain and simple and does not suffer from any ambiguity. Therefore, when a landlord requires a building to be demolished, necessarily he has to reconstruct the building on the same site of the building and on reconstruction of new building the tenant has a right to re-enter in the said premises. Learned counsel for the respondent urged that the word "and" occurring in sub-clause (b) of subsection (1) of Section 12 is disjunctive and it has to be read as "or" meaning thereby that after demolition of the building the landlord is not required to reconstruct the building. If such interpretation is given, then it would encourage the unscrupulous landlord to get eviction of the tenants on the ground of demolition of the building which would be repugnant to the object of the Act which aims to prevent unreasonable eviction of the tenant from the premises. We are, therefore, of the view that where the landlord requires demolition of the building, he has necessarily to reconstruct the same with a right to the tenant to reenter in the premises. " ( 10 ) THERE is another judgment of the supreme Court reported in Raichurmatham prabhakar and another v. Rawatmal Dugar. Two questions were framed by the Supreme court for an answer. The first question was whether a new tenancy comes into existence, between the parties, on possession being restored to the tenant over the newly erected building or any part thereof, which would entitle the landlord to settle the rent and other terms of lease afresh? The Supreme Court was interpreting sections 10,12, and 13 of the Act, which operate in three different fields. The Supreme Court was interpreting sections 10,12, and 13 of the Act, which operate in three different fields. While analyzing the field of operation of sections 12 and 13 of the Act, the Supreme court held, "under Sections 12 and 13 the controller orders the tenant to deliver possession of the buildings to the landlord for a specific purpose and according to a calendar of events which binds the landlord and the tenant both. In other words, under Sections 12 and 13 the tenant is not evicted; the tenancy does not come to an end; the lease continues to survive; and yet the tenant ceases to be in actual possession of the building which is placed in possession of the landlord for a specific purpose. Under Clause (a) of sub-section (1) of Section 12 the purpose is "for carrying out repairs, alterations or additions which cannot be carried out without the building being vacated". Under Clause (b) of subsection (1) the purpose is "the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished". The provision seeks to achieve a multi-purpose. The tenant is protected because his tenancy does not come to an end and his right to re- occupy the building repaired, altered, added or erected continues to survive. The landlord is benefited because but for the tenant having been directed to deliver possession to him he could not have carried out such repairs, etc. , or rebuilding. The public interest is served as the buildings are kept in good state and habitable and new building activity continues to be carried on. " ( 11 ) GOING by the judgments of the supreme Court referred to above, we are of the view that a building reconstructed, repaired or altered after an order of eviction passed under Section 12 of the Act would not be exempt from the operation of the Act in terms of G. O. Ms. No. 636 dt. 29-12-1983. We answer the reference accordingly. The matter be placed before the learned single judge.