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Madras High Court · body

2007 DIGILAW 966 (MAD)

R. Marichamy v. B. V. Purushothaman & Another

2007-03-16

R.BANUMATHI

body2007
Judgment :- Challenging the Order of eviction under Sec.10(3)(a) (iii) of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960, [for short, the Act], for own use and occupation ordered by the Appellate Authority, Tenant has preferred this revision. For convenience, parties are referred in their original rank in RCOP. 2. Eviction Petition was filed by the landlords under Ss.10(3)(a)(iii) and 10(3)(c) of the Act. First Petitioner is the husband and the second Petitioner is his wife. Respondent is Tenant in respect of a shop portion in D.No.131, Gill Nagar Extension, Choolaimedu, Chennai, on a monthly rent of Rs.3,750/-. Landlords are residing in a portion of the ground floor of the Petition premises. First Petitioner/landlord is a Chartered Accountant, having office at No.21, Kasi Chetty Street, Chennai-79. His son is also an Income Tax Practitioner. First Petitioner underwent hernia operation and was advised by doctors not to travel by two wheelers or three wheelers. Hence Petitioners filed Eviction Petition for own use and occupation and additional accommodation. 3. Tenant opposed the Eviction Petition contending that requirement of landlords is not bonafide. Case of Tenant is that he is running a provision store and his family is depending on his income and he is paying rent regularly. According to the Tenant, landlords demanded Rs.5,000/- as rent and additional advance of Rs.2,00,000/-and when it was refused, landlords have filed Eviction Petition and there is no bonafide. 4. In consideration of evidence adduced, Rent Controller ordered eviction on the ground of additional accommodation under Sec.10(3)(c) of the Act. In appeal preferred by the Tenant, Appellate Authority observed that Order of eviction under Sec.10(3)(c) of the Act is not in accordance with law and the decision of the Supreme Court in Kanniammals case. Appellate Authority considered the evidence and concluded that landlords are entitled to seek eviction for own use and occupation under Sec.10(3)(a)(iii) of the Act. 5. Appearing for the Revision Petitioner/Tenant, learned Senior Counsel Mr.S.V.Jayaraman submitted that Appellate Authority was not justified in ordering eviction under Sec. 10(3)(a)(iii) of the Act. It was further submitted that the essential ingredients under Ss.10(3)(a)(iii) and 10(3)(c) of the Act are entirely different and when the landlord has not preferred any appeal against the relief claimed under Sec. 10(3)(a) (iii) of the Act, and when no argument was advanced on the said relief, Appellate Authority erred in ordering eviction under Sec.10(3)(a)(iii) of the Act. It was further submitted that the essential ingredients under Ss.10(3)(a)(iii) and 10(3)(c) of the Act are entirely different and when the landlord has not preferred any appeal against the relief claimed under Sec. 10(3)(a) (iii) of the Act, and when no argument was advanced on the said relief, Appellate Authority erred in ordering eviction under Sec.10(3)(a)(iii) of the Act. It was further submitted that without affording opportunity to the Tenant, Appellate Authority independently considered the matter and the Order of eviction passed under Sec.10(3) (a)(iii) of the Act is perverse and unsustainable. 6. Countering the arguments, learned Senior Counsel Mr.Venkatachalapathy has submitted that necessary facts were set out in the Eviction Petition making out ground for own use and occupation. It was further submitted that only by way of abundant caution, landlords have included both Sections and in view of the decision of the Supreme Court in 2002 (4)SCC 627 , Appellate Authority has rightly ordered eviction under Sec.10(3)(a)(iii) of the Act instead of under Sec. 10(3)(c) of the Act. 7. There is no dispute that Tenant is in occupation of shop portion measuring 11 x 29 on the western side in the ground floor, on a monthly rent of Rs.3,750/- and running provision store. Landlords are residing in the rest of the portion in the ground floor. First Petitioner/landlord is a Chartered Accountant, having his office at No.21, Kasi Chetty Street, Chennai, which is about 15 kms. from the tenanted building. First Petitioner, who examined himself as PW-1 has stated that he has undergone hernia operation and that he cannot travel 15 kms. to his office at Kasi Chetty Street. Son of first Petitioner [PW2], is an Income Tax Practitioner and both of them want to have their office in the tenanted premises. In his evidence, PW-2 has stated that apart from the tenanted building, they own no other building, which satisfies the essential requirement under Sec. 10(3)(a)(iii) of the Act. 8. Sec.10(3)(c) of the Act would apply only in case where the landlord is occupying a building which is his own. Under Sec.10(3)(c) of the Act, the expression "notwithstanding anything contained in Clause (a)" is very significant. 8. Sec.10(3)(c) of the Act would apply only in case where the landlord is occupying a building which is his own. Under Sec.10(3)(c) of the Act, the expression "notwithstanding anything contained in Clause (a)" is very significant. 10(3)(c) of the Act empowers the landlord to claim possession of the building which is in the occupation of the Tenant if he requires it for his own occupation, either for his residential or nonresidential purposes, depending on the nature of the building. If the Tenant is occupying a portion of the building for one purpose and if the landlord is occupying another portion of the same building for another purpose, still the landlord can seek additional accommodation. Under Sec.10(3)(c) of the Act, irrespective of the purpose for which the Tenant is occupying his portion of the building. 9. If the landlord is occupying another portion of the same building for residential purpose, landlord cannot seek additional accommodation for non-residential purpose. In the present case, Landlords and their family are residing in the rest of the ground floor portion of the building. The Tenant is running a provision store. That portion in occupation of Tenant for non-residential premises is required by the landlord for nonresidential purpose, i.e. for starting office for himself and his son-PW-2, who is also an Income Tax Practitioner. Requirement of the landlords certainly would not fall under the ingredients of requirement for additional accommodation under Sec. 10(3)(c) of the Act. 10. The question whether landlords in occupation of the same building should invoke Sec.10(3)(c) or 10(3)(a)(i) or 10(3)(a)(iii) of the Act has been repeatedly examined by Courts in several cases. In Kanniammals case, 2000 (2) CTC 312 SC = 2002 (4)SCC 627 , the position was set at rest by the Supreme Court. Elaborately laying down the position of law as to when a Petition under Sec.10(3)(c) of the Act would lie and when it would not, referring to 1987 (2) SCC 707 [Shri Balaganesan Metals Vs.Shanmugham Chetty], in Kanniammals case, Supreme Court has held as follows ::- "The phraseology employed by the legislature in framing Sec.10(3)(c) and the use of non obstante clause therein make it clear that Sec. 10(3)(c) overrides the provisions of Sections 10(3)(a)(i) and (iii). The latter provisions i.e. Sections 10(3)(a)(i) and (iii) have two in-built restrictions viz., the landlord seeking eviction of a Tenant thereunder should not be occupying a building of his own, and secondly, the nature of user of the leased property by the Tenant must correspond to the nature of the requirement of the landlord. The use of the words "requires additional accommodation", as qualifying "for residential purposes or for purposes of a business which he is carrying on" indicates that under Section 10(3)(c) the requirement for additional accommodation must be for the same purpose for which the part of the building in occupation of the landlord is being used. If a landlord is occupying only a part of a residential building he may seek ejectment of the Tenant for his requirement of additional accommodation for residential purpose though the tenancy premises are being used by Tenant for non-residential purpose. Similarly, a landlord who is occupying only a part of a building for non-residential purpose may have the Tenant evicted if he requires additional accommodation for non-residential purpose, it being immaterial that the Tenant is occupying a part of the premises for residential purpose. Since the requirement of additional accommodation by the landlord is with reference to the manner of his user of that part of the building which is in his occupation, it is the nature of that requirement that should prevail over the manner of user of the Tenant of the portion leased out to him. In other words, the need for additional accommodation is for extending the user of the building by the landlord to the leased portion for the same purpose for which the portion not leased out is being used. It is not the requirement of Sec.10(3)(c) that the nature of the requirement of the landlord and the nature of the user of the leased portion by the Tenant should coalesce. That being the position of law, Section 10(3)(c) would not cover the present case where the landlady is occupying the not-leased out portion of the building for residential purpose and the requirement for additional accommodation in another part of the building is for a non-residential purpose. That being the position of law, Section 10(3)(c) would not cover the present case where the landlady is occupying the not-leased out portion of the building for residential purpose and the requirement for additional accommodation in another part of the building is for a non-residential purpose. The appellant landlady rightly did not seek eviction of the Tenant under Section 10(3)(c) and the High Court is not right in forming an opinion that the landlady could have maintained the application for eviction only under Section 10(3) (c) of the Act". 11. Referring to the above decision, the Appellate Authority has rightly held eviction ordered by Rent Controller for additional accommodation under Sec. 10(3)(c) of the Act is not in accordance with law laid down by the Supreme Court. The Appellate Authority considered the matter afresh and ordered eviction on the ground of own use and occupation under Sec.10(3)(a)(iii) of the Act. Main contention of Tenant is that when Rent Controller ordered eviction under Sec.10(3)(c) of the Act and landlord did not prefer any appeal for non-consideration of the relief claimed under Sec.10(3)(a)(iii) of the Act. It was further urged that Appellate Authority had no jurisdiction to consider the relief claimed under Sec.10(3)(a)(iii) of the Act, as it was not at all an issue before the Appellate Authority and no arguments was advanced on the said relief. It was further submitted that without affording opportunity to the Tenant and without hearing any arguments on the ground of Sec.10(3)(a)(iii) of the Act, Appellate Authority suomotu proceeded to consider the matter afresh and that approach bordering on perversity cannot be sustained. .12. The contention that landlords have not invoked 10(3)(a)(iii) of the Act cannot be countenanced either factually or legally. Sufficient pleadings and evidence are in record, setting out the grounds for own use and occupation. In his evidence, PW-2 has stated that they own no other building and PW-2 was elaborately cross-examined suggesting that the landlords or PW-2 own a house in No.1, I Street, Kamarajar Nagar, Choolaimedu, Chennai. PW-2 has denied the same. It was also suggested to PW-2 that plinth area of the said house at Kamarajar Nagar would be 1,000 sq.ft. with ground floor and first floor and that first floor had been leased out. It was further suggested to PW-2 that they could very well set up their office at No.1, I Floor, Kamarajar Nagar. PW-2 has denied the same. It was also suggested to PW-2 that plinth area of the said house at Kamarajar Nagar would be 1,000 sq.ft. with ground floor and first floor and that first floor had been leased out. It was further suggested to PW-2 that they could very well set up their office at No.1, I Floor, Kamarajar Nagar. The very fact that PW-2 was elaborately cross-examined on the aspect that the landlords are owning other building of their own in Kamarajar Nagar clearly shows that parties were aware of the issues involved. Enquiry proceeded on the premise that basis of requirement of landlord is only for own use and occupation under Sec.10(3)(a)(iii) of the Act. 13. No doubt essential ingredients of Sec.10(3)(c) of the Act is different from that of Sec.10(3)(a)(iii) of the Act. As noticed earlier, both in the Petition and in their evidence, landlords have categorically stated that the premises is required for their accommodation for use of first Petitioner and his son [PW-2]. By way of abundant caution, Petition was filed quoting both Sections. It is well settled that a party is not disentitled to get relief sought for on account of misquoting the provisions of law or quoting two Sections, provided the landlord is otherwise entitled to eviction, on facts and proof. Eviction Petition was filed quoting both Sections. In the counter filed by the Tenant, no plea was raised on the aspect of relative hardship. 14. The next contention of Tenant that he was taken by surprise by Order of eviction under Sec.10(3)(a)(iii) of the Act is only technical. Mere technicalities should not come in the way of giving effect to bonafide requirement if it is proved on facts and evidence. More so, when both Sections were quoted and parties have understood the issues involved and adduced evidence for Sec.10(3)(a)(iii) of the Act. .15. Next grievance of the Tenant is that the Appellate Authority on its own considered the aspect of own use and occupation and Tenant was not heard on the ground under Sec.10(3)(a)(iii) of the Act, which was negatived by the Rent Controller. Under Sec.23 of the Act, it is the duty of the Appellate Authority to consider oral and documentary evidence on record. Before confirming or setting aside the Judgment of Rent Controller, Appellate Authority should apply his mind, while disposing of the appeal. Under Sec.23 of the Act, it is the duty of the Appellate Authority to consider oral and documentary evidence on record. Before confirming or setting aside the Judgment of Rent Controller, Appellate Authority should apply his mind, while disposing of the appeal. When parties have adduced evidence regarding ingredients under Sec. 10(3)(a)(iii) of the Act, Appellate Authority was empowered to go into that aspect with the available material on record. Under Sec.23 of the Act, Appellate Authority is empowered to make such further enquiry either himself in person or may call the Rent Controller to make such further enquiry and report. But ultimately the decision could only be by the Appellate Authority. It is well settled that Rent Control Appellate Authority has no power to remand and could only call for a finding from the Rent Controller. As Appellate Authority is empowered to make such further enquiry personally, Appellate Authority was justified in going into the aspect under Sec.10(3)(a)(iii) of the Act and it cannot be said that approach is either illegal or perverse. It is not open to the Tenant to contend that he was taken by surprise by the Order of Appellate Authority ordering eviction on the ground of own use and occupation, as the parties were well aware of the issues involved. Order of eviction passed by the Appellate Authority for own use and occupation is not vitiated. 16. Exercise of revisional jurisdiction under Sec.25 of the Act is supervisory in nature and the High Court may call for records only for determining the legality or propriety of the orders passed. Exercising revisional jurisdiction, High Court would not interfere with the finding of the Appellate Authority unless it suffers from perversity or illegality. Approach of the Appellate Authority cannot be said to be erroneous, illegal or perverse, calling for interference and this revision is bound to fail. 17. In the result, the Order passed in R.C.A.No.611/2003 dated 15.06.2004 on the file of VII, Court of Small Causes, Chennai is confirmed and this revision is dismissed. No costs. 18. Three months time is granted for vacating and handing over vacant possession.