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Andhra High Court · body

2010 DIGILAW 922 (AP)

Syed Abdul Wahab v. Wilfred D’Souza

2010-09-24

B.CHANDRA KUMAR

body2010
Judgment This revision is directed against the order dated 20.12.2007 passed in R.A. No. 405 of 1999 by the learned Additional Chief Judge, City Small Causes Court, Hyderabad, under Section 20 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘the Act’), whereby and whereunder the appellate authority has reversed the order dated 26.10.1999 passed by the II Additional Rent Controller, Hyderabad in R.C. No. 161 of 1997 and allowed the appeal filed by the landlord. The parties hereinafter will be referred to as they are arrayed before the Rent Controller for the sake of convenience. The facts of the case, in brief, are as follows. The petitioner is the owner of the property bearing municipal No.4-1-315, 4-1-326, 4-1-320, 4-1-321, 4-1-322, 4-1-323, 4-1-324 4-1-326 and 4-1-426, situated at Troop bazaar, Bank Street, Hyderabad. Now we are concerned with an extent of 202.65 sq. feet of the property bearing municipal No.4-1-426 (hereinafter referred to as ‘the petition schedule property). The respondent is the tenant of the petition schedule property. Originally, the total extent of the petition schedule mulgi No.4-1-426 was 244.64 sq. ft., and out of which an extent of 202.65 sq.ft., was allotted to the share of the petitioner and the remaining area i.e., 42 sq. ft., was allotted to one Prem Shanker Asthana. The agreed rent of Rs.250/- per month is being shared by the petitioner and Prem Shanker Asthana at Rs.207/- and Rs.43/- per month respectively and there is no dispute whatsoever between the petitioner and the said Prem Shanker Asthana. Though there was earlier litigation between the parties, when the respondent filed R.C. No.242 of 1989 for deposit of the rents and when the petitioner filed a civil suit in O.S. No.4345 of 1985 on the file of the III Additional Judge alleging that the respondent caused damage to the property, but we are not concerned with that litigation at present. Since the petitioner himself filed a memo withdrawing the grounds in respect of default and damage to the property, now we are concerned only with regard to the issue of bona fide requirement of the petition schedule premises by the petitioner for the purpose of providing a passage to the entire complex. It is not in dispute that the properties are situated in a prime locality of Hyderabad city adjacent to the road leading from Abids to Koti via Toorp Bazar. It is not in dispute that the properties are situated in a prime locality of Hyderabad city adjacent to the road leading from Abids to Koti via Toorp Bazar. It is also not in dispute that there is a lane towards the rear side of the building on the western side of the premises. However, the width of that lane seems to be not consistent and in some places it is 10 feet and in some other places it is 17 feet and the width increases while going towards further west and may be even 20 feet at some places. The petitioner applied for sanctioned plan to the municipal authorities and though the present passage is only 3 feet towards east i.e., towards main road from Abids to Koti (called as Bank street) the petitioner has shown 17 feet wide passage in his plan while applying for permission to the municipal authorities. It appears that there were about eight or nine other tenants in the premises, but they had vacated the premises enabling the petitioner to construct the complex. The petitioner had constructed the cellar, ground, first floor and second floor. Thus, a multi storied building has been constructed. The building of former Chief Minister Sri N.T. Rama Rao and the building of Mr. P.S. Asthana are on either side of this property. The petitioner’s further case is that the proposed 17 feet wide passage is required for ingress and egress and unless such a wide passage is provided it would not be convenient for ingress and egress into the multi storied building. His further case is that due to non-cooperation of the respondent, he is unable to handover the premises to the bank authorities and, as a result of which, he has incurred loss of Rs.3800/- per day. It is also his case that he has obtained loan from the Punjab National Bank for construction of multi-storied building and that he has leased out the premises except second floor to the Punjab National Bank and that he has retained the second floor for his personal business requirement. It is also his case that the respondent has been running a spectacle shop in the premises and that he has offered to the respondent an alternative accommodation facing main road or in the same complex on the rear side by making new construction within one month. It is also his case that the respondent has been running a spectacle shop in the premises and that he has offered to the respondent an alternative accommodation facing main road or in the same complex on the rear side by making new construction within one month. Ex.P1 is the sanctioned plan, Ex.P2 is the rough sketch of the entire premises showing the petition schedule property. The petition schedule property is shown in yellow colour. The portion of Asthana is shown in green colour. The existing passage is shown in orange colour. The alternative accommodations are shown in pink and blue colours in Ex.P2. The specific case of the respondent is that he is the tenant in the premises since 1979 and that as per the directions in R.C. No.242 of 1989 he has been paying Rs.207/- to the petitioner and Rs.43/- to Prem Shanker Asthana. He has been carrying the optical business in the petition schedule premises as well as in other premises. The petitioner is having vast properties in and around Hyderabad and he has been carrying on business in pharmaceuticals. The petition schedule mulgi is facing towards Abids to Koti road, which is one way road of 60 feet from Abids to Koti. While applying for permission to the municipal authorities, the petitioner has wrongly shown as if the entire ground floor is in his occupation, though it is in the occupation of the respondent and other tenants. The main case of the respondent is that the petitioner does not require the petition schedule property as there is a passage on the rear side of the building. It is also the case of the respondent that if his business is shifted from petition schedule premises he will loose his customers and there is a proposal for widening of the western side of the premises. With regard to alternative accommodation, the respondent’s case is that if he shifts his business from the petition schedule premises to western side he cannot get any customers. It is also his case that as there is already 4 feet passage on the southern side towards main road no inconvenience is caused to the users of the entire premises. It is also the case of the respondent that he has no objection if the petitioner demolishes the premises and reconstruct at its place. It is also his case that as there is already 4 feet passage on the southern side towards main road no inconvenience is caused to the users of the entire premises. It is also the case of the respondent that he has no objection if the petitioner demolishes the premises and reconstruct at its place. Based on the above pleadings, the Rent Controller has formulated necessary points for determination. On behalf of the petitioner, he himself has been examined as PW.1 and Exs.P1 to P7 are marked. On behalf of the respondent, the respondent himself has been examined as RW.1 and Exs.R1 to R5 are marked. The learned Rent Controller, on appreciation of the entire oral and documentary evidence on record, observed that the petition is not maintainable under Section 10(3) (iii)(b) of the Act as the requirement of the premises for the purpose of passage cannot be treated as for the purpose of his business. The learned Rent Controller also observed that there is a 12 feet wide lane on the rear side of the building and the petitioner has not shown that the petition schedule property has been in the possession of the tenant while seeking approval of the plan from the municipal authority and accordingly dismissed the RC. Aggrieved by the same, the petitioner/landlord made an appeal before the appellate authority. The appellate authority, having considered the provisions of Section 10(3)(a)(iii) of the Act and Section 11(3) of Kerala Buildings (Lease and Rent) Control Act, 1965 and relying on a decision of the Supreme Court reported in Kunhamma v. Akkali Purushothaman 2007 AIR SCW 2493, held that 3 feet passage on the rear side of the premises is not sufficient to pass through a four wheeler and that widening of passage by the landlord also has to be treated as a bona fide requirement and accordingly allowed the appeal. Aggrieved by the same, the tenant has filed the present revision. Heard both the counsel. Sri B. Sree Ramakrishna, learned counsel for the petitioner herein and the respondent in RC, submits that the petition itself is not maintainable under Section 10(3)(a)(iii) of the Act and, therefore, the Rent Controller has no jurisdiction to deal with the petition and no such relief as prayed for by the petitioner can be granted under the said provision. Sri B. Sree Ramakrishna, learned counsel for the petitioner herein and the respondent in RC, submits that the petition itself is not maintainable under Section 10(3)(a)(iii) of the Act and, therefore, the Rent Controller has no jurisdiction to deal with the petition and no such relief as prayed for by the petitioner can be granted under the said provision. It is his submission that Section 10(3)(c) of the Act is applicable where the landlord requires the premises for residential purpose or for the purpose of a business which he is carrying on. He further submits that the judgment of the Supreme Court in case between Kunhamma v. Akkali Purushothaman (1 supra) is not applicable to the facts of this case and that the relief granted by the apex Court while dealing with Kerala Buildings (Lease and Rent) Control Act, 1965 in extreme circumstances cannot be generously construed to apply to the facts and circumstances of the present case where it is pertaining to non-residential accommodation. In that case, the building was bona fidely required by the Landlord for his personal accommodation. It is also his submission that generally most of the plots have only one side opening, whereas the present premises is having two sides opening and as the petitioner is having alternative passage towards rear side lane, it cannot be said that the petitioner required the petition schedule premises for bona fide requirement. It is also his contention that there is a proposal of widening of road towards west and the same was not considered by the appellate Court. It is also his submission that the petitioner has suppressed that the respondent is the tenant of the petition schedule premises while showing 17 feet wide passage in his plan seeking permission from the municipal authorities. He has relied on a judgment reported in M.D.K. Hotel Enterprises Pvt. Ltd., Hyderabad v. Gurumukhadas A. Manghanami 1999-ALT-2-258. Sri B. Vijaysen Reddy, learned counsel for the respondent/landlord and petitioner in RC, submits that Abids – Koti road is a main road known as bank street and that the petitioner has shown 17 feet passage while applying for permission with a view to provide sufficient passage to the entire complex in which he has constructed ground, first and second floors and leased out the premises to several persons including the Punjab National Bank. It is also his submission that in fact the Punjab National Bank agreed to take the entire premises on lease only on condition of providing sufficient passage and that the petitioner has been loosing rents for not showing sufficient passage to his other tenants and that the petitioner is also facing difficulty in not having sufficient passage to the entire premises. It is also his submission that though there is a passage to the rear side of the entire premises, but it is leading to a lane which is not a main road and that lane is also not having equal width at all the places and it is not useful for ingress and egress of number of vehicles and customers. His main submission is that the relevant provisions of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 and Kerala Buildings (Lease and Rent) Control Act, 1965 are almost similar and therefore the appellate Court is justified in relying on the judgment of the Supreme Court while considering the relevant provisions of Kerala Act. The points that arise for consideration are; (1) whether the petitioner is entitled for the relief under Section 10(3)(a)(iii) of the Act, (2) whether the requirement of a passage can be considered as the bona fide requirement and (3) what relief can be granted to the parties in the facts and circumstances of the case. Section 10(1) of the Act is as follows. 10. Eviction of tenants:- (1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13: Provided that where the tenant, denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that theclaim is unfounded. Section 10(3)(a)(iii) of the Act is as follows. Section 10(3)(a)(iii) of the Act is as follows. (3)(a) A landlord may subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building- ………………………….. (iii) in case it is any other non-residential building, if the landlord is not occupying a nonresidential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise: (a) for the purpose of a business which he is carrying on, on the date of the application; or (b) for the purpose of a business which in the opinion of the Controller, the landlord bona fide proposes to commence: Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered: Provided further that, where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this Clause,-- (i) in case he has obtained possession of a residential building, for possession of another residential building of his own; (ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own. Section 10(c) of the Act is as follows. (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. The above provisions make it clear that in case of non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned he is entitled to evict the tenant, if he requires the premises for the purpose of a business which he is carrying on, on the date of the application or for the purpose of a business which is in the opinion of the Controller, the landlord bona fide proposes to commence. Thus, it appears that if the landlord is having a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled for the purpose of a business which he is carrying on, on the date of the application, he is entitled to evict the tenant. The relevant words are for the purpose of a business which he is carrying on. Now it has to be seen that what is the purpose of a business which he is carrying on. That means the other non-residential building which he owns or to the possession of which he is entitled must be useful for the purpose of his business which he is carrying on, on the date of the application. If for any other nature of business which he is not carrying on i.e., for different nature of business if he requires non-residential building it appears that the landlord is entitled for eviction of the tenant. Clause 3(c) of Section 10 of the proviso reveals that a landlord who is occupying only a part of a building, whether residential or non-residential 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, he may apply for eviction of the tenant occupying the whole or any portion of the remaining part of the building. Therefore, even in a case where the landlord requires additional accommodation for residential purpose or for the purpose of business which he is carrying on as the case may be he may seek eviction of the tenant. Admittedly, the petitioner has leased out the other premises within the compound of his building. He has also demolished the old structure and constructed a shopping complex with ground, first and second floors. He has also leased out a portion to the Punjab National Bank. Now it has to be seen whether leasing out the premises amounts to doing business. In my considered view, even leasing out the premises also amounts to business. Oxford dictionary Thesaurus and word power guide defines the business as “a person’s regular occupation or trade, work to be done or matters to be attended to, a person’s concern, commercial activity and a commercial organization”. In my considered view, even leasing out the premises also amounts to business. Oxford dictionary Thesaurus and word power guide defines the business as “a person’s regular occupation or trade, work to be done or matters to be attended to, a person’s concern, commercial activity and a commercial organization”. As per the Chambers dictionary, 10th edition, business means “employment; a trade, profession or occupation; a task or errand incumbent or undertaken; a matter requiring attention; dealings, commercial activity; a commercial or industrial operation; a commercial or industrial concern; the level of commercial activity; one’s concerns or affairs; a matter or affair; a complex, difficult or awkward matter or affair; action as distinguished from dialogue (theatre); thing, used quite indefinitely, sort of thing, the state of being busy”. Businessman means man engaged in trade or commerce. Thus, business includes things dealing with. The word business is not defined under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960. Now, it has to be seen whether the requirement of the premises by the petitioner can be said to be a bona fide one. Admittedly, the entire premises is having openings on two sides. Of course, the petition schedule property is towards the main road leading from Abids to Koti known as bank street. There cannot be any dispute to say that this is the main road with 60 feet width. Admittedly, the premises is having a lane towards rear side (western side). However, it is an admitted case that the width of that lane is not consistent. From the evidence it appears that at some places its width is 17 feet and in some places its width is 12 feet or 20 feet. Of course, the petitioner himself seems to have shown the width of western side road (lane) as 20 feet. He has also left 10.9 feet for road widening towards western side. He denied the suggestion that the width of western side road is 30 feet. He denied the suggestion that western side road for the complex is sufficient for ingress and egress and the requirement of the premises for entrance purpose is a crooked up ground. He has also admitted that he had constructed the complex in order to get more rental income. He denied the suggestion that western side road for the complex is sufficient for ingress and egress and the requirement of the premises for entrance purpose is a crooked up ground. He has also admitted that he had constructed the complex in order to get more rental income. Merely because he had constructed complex for getting more rental income it cannot be said that the petitioner is not entitled to make further constructions and get more rents. Of course, there is no documentary evidence to show that the Punjab National Bank is not willing to occupy the ground and first floor for not providing pathway towards eastern side. It appears that for the present, the Bank is using the western side lane for ingress and egress. Admittedly, towards the main road i.e., towards bank street there is only 3 feet passage at present. Admittedly, a big complex has come with two floors. It appears that the other tenants have already vacated the premises and after they vacated, the new building has been constructed. RW.1 himself deposed that he does not know whether any four wheeler can pass through the existing passage from the main road. Admittedly, a four wheeler cannot pass through a 3 feet wide passage. As the business increases and it appears that several customers do come to the bank and to the premises and the vehicular traffic may be more in future and therefore it is better if the sufficient passage is provided for ingress and egress to the entire premises. Admittedly there is a lane to the rear side of the premises, but admittedly, it is a lane. Though the lane may be leading to the main road i.e., to the GPO or NTR estate, but the same can be equated with the petition schedule premises which is a direct opening to the eastern side main road. Admittedly, the eastern side road is a very big road of about 40 feet width leading from Abids to Koti called as bank street and this cannot be compared to a lane which is towards western side of the premises. Of course there appears to be a proposal for widening of this lane, but, nobody can say when it may be materialized. Of course there appears to be a proposal for widening of this lane, but, nobody can say when it may be materialized. As on today, it appears that the western side lane is not having same width through out the lane and therefore the same cannot be said to be sufficient passage to the premises. A pragmatic approach is required and as I have observed earlier, keeping in view the development in business, increase of vehicular traffic and customers in future it may be just and reasonable to hold that though the premises may be having a lane towards the back side, but a passage towards main road is necessary for ingress and egress. Therefore, the same has to be treated as a bona fide requirement of the petitioner. As far as the judgment in M.D.K. Hotel Enterprises Pvt. Ltd., Hyderabad v. Gurumukhadas A. Manghanami (2 supra), relied on by the learned counsel for the petitioner herein is concerned, the same is not applicable to the facts of the present case, since in that case, on facts, it was found that there is a parking space which is sufficient for about 20 Cars and there was a separate parking space for scooters and in the above circumstances it was held that the additional parking space cannot be treated as a bona fide requirement. Bona fide requirement as held by the Supreme Court in Ram Dass v. Ishwar Chander AIR 1988 SC 1422 , should genuine, honest and conceived in good faith. It was also indicated that landlord’s desire for possession, however honest it might otherwise be, has, inevitably, a subjective element in it. The “desire” to become “requirement” must have the objective element of a “need” which can be decided only by taking all relevant circumstances into consideration so that the protection afforded to tenant is not rendered illusory or whittled down. The tenant cannot be evicted on a false plea of requirement or “feigned requirement” According to Oxford Dictionary Thesaurus and word power guide bona fide means “genuine, real and without intention to deceive”. Chambers 20th Century Dictionary defines bona fide to mean “in good faith: genuine”. The word “genuine” means “natural: not spurious: real, Pure: sincere”. Thus, bona fide means good faith, without fraud or deceit. Thus it refers to a state of mind. Therefore the requirement of the landlord should not be a mere desire. Chambers 20th Century Dictionary defines bona fide to mean “in good faith: genuine”. The word “genuine” means “natural: not spurious: real, Pure: sincere”. Thus, bona fide means good faith, without fraud or deceit. Thus it refers to a state of mind. Therefore the requirement of the landlord should not be a mere desire. Requirement must be higher than a mere desire, that means the land lord must require the premises and it must be for his business or it must be an additional requirement for his business. The requirement in the sense must be a need which is an outcome of the sincere and honest desire. Therefore, I hold that the petitioner required the premises for the purpose of his business and for which no other premises in the city is useful for the purpose of business which he is carrying on and for the purpose of the present business (leasing out the entire premises) to the tenants, the landlord bona fidely require the premises. It can also be said that the landlord who is in occupation of the other portion of the premises require the petition schedule premises for the purpose of his business which he is carrying on. Now it has to be seen that the respondent also has been doing business since last 20 years. Of course he is having optical shops in other premises in the city. But, however, this shop is abutting to the main road leading from Abids to Koti. The tenant may be true in saying that if he shifted his shop from the present premises, he may loose his customers. He may be also right in saying that even if he is given alternative accommodation on the western side of the premises the same may not be useful for his business. Therefore, it has to be seen that what is the just and reasonable relief that can be granted to the party in the given facts and circumstances of the case. Though an advocate-commissioner was examined as PW.2, but he had categorically stated that he did not visit the western side road leading from GOP to NTR estate. When we refer to the evidence of the petitioner who is examined as PW.1, the petitioner himself had categorically stated that he is prepared to provide alternative accommodation to the respondent. Though an advocate-commissioner was examined as PW.2, but he had categorically stated that he did not visit the western side road leading from GOP to NTR estate. When we refer to the evidence of the petitioner who is examined as PW.1, the petitioner himself had categorically stated that he is prepared to provide alternative accommodation to the respondent. He has specifically deposed that he can provide alternative accommodation facing the main road as requested by the respondent. It is also his case that he is prepared to give alternative accommodation in the same complex on the rear side and if the respondent agrees for the same he is prepared to construct the required premises within one month. When the petitioner is ready to provide alternative accommodation towards main road, I think that the petition can be allowed on such condition to enable the tenant to continue his business. It is the duty of the Court to do justice to the parties. Though in some cases there may be a specific prayer or not, but where the Court feels that in the interest of justice and in the interest of both the parties if certain directions are required I feel that the Court is empowered to give such directions. It has to be seen that in the petition the petitioner while praying that a direction be given to the respondent to vacate and handover the vacant and physical possession of the petition schedule property also prayed to pass such other order or further orders as the Court deems fit and proper for which the petitioner is entitled to. When the Court feels that parties are entitled to certain reliefs, I feel that the Court is empowered to pass any such other or further orders as the Court deems fit and proper in the circumstances of the case. Since the need of the petitioner is that his newly constructed premises must have a passage or sufficient width with sufficient height and the need of the respondent is that he must have a shop facing towards main road, these two requirements are to be fulfilled by giving specific directions to the parties. In the circumstances, the revision petition is allowed. Consequently, the order of the appellate Court is set aside and the order passed by the learned rent controller is restored. However, subject to the modifications as below. In the circumstances, the revision petition is allowed. Consequently, the order of the appellate Court is set aside and the order passed by the learned rent controller is restored. However, subject to the modifications as below. The petitioner shall provide alternative accommodation to the respondent towards main road within one month from the date of receipt of a copy of this order and on providing such alternative accommodation towards main road, the respondent shall vacate the premises within one month thereafter. If for any reason, the above said direction is not practicable or convenient to both the parties then the respondent shall vacate the premises within two months from the date of receipt of a copy of this order and then the petitioner shall provide a passage of about 14 feet and then leaving a height of 10 feet construct a shop on the said ramp i.e., leaving a passage of about 14 feet width and 10 feet height and then construct a shop on such ramp and also provide steps from the main road to that shop and this construction shall be completed within four months from the date of vacating the premises by the tenant and the same shall be provided to the respondent tenant. In the circumstances no order as to costs.