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2010 DIGILAW 739 (AP)

Mohammed Afsar Pasha v. Noor Us Sohel

2010-08-10

L.NARASIMHA REDDY

body2010
Judgment 1. Respondent is the owner of premises bearing No.12-2-225, situate at Murad Nagar, Hyderabad. She is residing in a substantial part of it. A mulgi, carved out of the premises, was given on rent to the petitioner for nonresidential purpose. Respondent filed R.C. No.391 of 2006 before the IV Additional Rent Controller, Hyderbad under Section 10 (3) (c) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act (for short 'the Act') for eviction by pleading the grounds of wilful default in payment of rents and bona fide requirement of the premises for additional accommodation. The R.C. was opposed by the petitioner. Through judgment dated 17-04-2009, the learned Rent Controller rejected the ground of wilful default, but allowed the case on the ground of additional requirement. Aggrieved thereby, petitioner filed R.A. No.62 of 2009 in the Court of the Chief Judge, City Small Causes Court, Hyderabad. The appeal was dismissed on 18-06-2010. Hence, this revision under Section 22 of the Act. 2. Sri Basith Ali Yavar, learned counsel for the petitioner, submits that the premises in the occupation of the petitioner is under non-residential use, whereas the plea of the respondent is that the said premises is required for additional residential accommodation. Learned counsel submits that such a prayer is opposed to the purport of Section 10(3)(c) of the Act. He places reliance upon a judgment of the Supreme Court in GANGARAM v. N. SHAKAR REDDY (AIR 1989 SUPREME COURT 302). On merits, the learned counsel submits that the respondent failed to make out a case and that the eviction is sought only for the purpose of giving the premises on lease to another tenant, at a higher rent. 3. Sri Mohammed Adnan, learned counsel for the respondent, on the other hand, submits that there is no prohibition in law for a landlord of the premises to secure additional accommodation even if the purpose of the premises under his occupation; and of the one that is needed for additional accommodation, is not the same. He submits that there is acute shortage of accommodation for the respondent and her children, who are studying in educational institutions and that they are not only denied of privacy but also are subjected to serious hardship. 4. There is no dispute as to the relationship of tenant and landlady between the petitioner and the respondent. He submits that there is acute shortage of accommodation for the respondent and her children, who are studying in educational institutions and that they are not only denied of privacy but also are subjected to serious hardship. 4. There is no dispute as to the relationship of tenant and landlady between the petitioner and the respondent. It is also a matter of record that in the entire building, except the portion let out to the petitioner, the respondent and her family are residing and that the petitioner is running a Bangle Store in the mulgi let out to him. The respondent sought eviction of the petitioner on two grounds, viz., willful default and additional accommodation. The first ground did not weigh with the Rent Controller and the finding recorded thereon, was not challenged by the respondent. The eviction of the petitioner was ordered on the ground of additional accommodation, referable to Section 10(3)(c) and the same was upheld by the lower appellate Court. 5. Section 10 of the Act enlists the grounds, on which the owner of a premises, can seek eviction of the tenant therein. Bona fide requirement of the premises for the purpose of landlord or his family members is one of the recognized grounds. Within this category, there is further classification. The case where a landlord is already in occupation of part of the premises and he needs the other portion under lease to a tenant, it is covered by Section 10 (3)(c). The provision reads as under: "10 (3) (c): A landlord who is occupying only a part of a building, whether residential or non-residential may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be." 6. From a perusal of this provision, it becomes clear that it is only when a portion of one and the same building is partly in occupation of the landlord, and partly in occupation of a tenant, that the relief under this Section can be prayed for. From a perusal of this provision, it becomes clear that it is only when a portion of one and the same building is partly in occupation of the landlord, and partly in occupation of a tenant, that the relief under this Section can be prayed for. In case, the premises under the occupation of the landlord, and the one in occupation of the tenant are distinct and different from each other, the provision does not apply. Structural unity of the premises is sine qua non to invoke this provision. This was explained by the Hon'ble Supreme Court in GANGARAM'S CASE (supra 1). It is not in dispute that the premises that is let out to the petitioner is an integral part of house bearing No.12-2-225, Murad Nagar, Hyderabad and that the rest of the portion is under the use and occupation of the respondent. Therefore, the provision gets attracted. 7. It is strongly urged on behalf of the petitioner that the provision does not apply to the cases, where the uses of premises under the occupation of the landlord on the one hand and the tenant on the other hand, though situated in the same premises, are different. To put it precisely, the contention is that if the landlord is in occupation of residential premises, he cannot seek eviction of a tenant from the non-residential premises for additional accommodation and vice versa, even if both the premises are part of the same building. It is difficult to accept this contention. The provision of law extracted above, does not insist that the owner of a premises can seek additional accommodation if only the use of both the premises is same. It must not be ignored that it is the ultimate use or purpose, the premises is be put to, that makes it residential and non-residential and there is no prohibition in law for altering the use from one to another. Much would depend upon the location, commercial or residential viability, in determining the use to which the premises can be put to. It is not uncommon that a perfect residential flat or house is put to commercial i.e. non-residential use, if it proves to be beneficial to the parties, particularly to the landlord. Similarly, in case the commercial activity slows down or ceases, naturally, the use of the premises has to change in the other direction. It is not uncommon that a perfect residential flat or house is put to commercial i.e. non-residential use, if it proves to be beneficial to the parties, particularly to the landlord. Similarly, in case the commercial activity slows down or ceases, naturally, the use of the premises has to change in the other direction. Hence, there is no strength in the argument advanced by the petitioner in this regard. 8. The Civil Revision Petition is, accordingly, dismissed. There shall be no order as to costs. 9. Learned counsel for the petitioner submits that his client needs reasonable time to procure alternative premises and prays for time for vacating the premises. This request is opposed by the respondent. 10. Having regard to the facts and circumstances of the case, time is granted to the petitioner to vacate the premises on or before 31-03-2011, subject to conditions that (a) he shall file an undertaking to the effect that he will put the respondent in vacant possession of the premises on or before 31-03-2011 before the Rent Controller within two (2) months from today; (b) he shall clear the arrears of rent and electricity bills in respect of the premises within two (2) months from today and shall continue to pay the rents regularly.