B.K. Shankar vs L.M. Rajalakshmi and Others

The tenant, against whom the authorities below have passed an order for eviction from the premises in his occupation on an application filed in

that behalf by the respondents herein under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, (18 of 1960) as amended

by Act 23 of 1973 (hereinafter referred to as ''the Act''), is the petitioner. The premises bearing door No. 140 V. M. Street, Royapettah, Madras

14, admittedly belonged to one K. V. Panchanadam, who died in January 1980 and his legal representatives are the respondents herein. The

petitioner is a tenant in occupation of that premises on a monthly rent of Rs. 75, payable on or before the 1st of the succeeding calendar month.

According to the case of the respondents originally, the letting out of the premises in the occupation of the petitioner was for residential purposes,

but that some, time later, the petitioner used the premises both for residential and non-residential purposes, which user was also consented to and

acquiesced in by the deceased K. V. Panchanadam.

Stating that the premises in the occupation of the petitioner was being used exclusively for non-residential purposes, and claiming that the second

and the third respondents herein required the said premises for the purpose of carrying on their own business under the name and style of Janatha

Radio Corporation which was being run in a portion of their residential building as they were not in occupation of any other non-residential building

of their own for the purpose of their business in the city of Madras, the respondents filed H.R.C. 31 of 1981 before the Rent Controller (XIII

Judge, Court of Small Causes) Madras, under S. 10(3)(a)(iii) of the Act, praying for an order of eviction against the petitioner.

In his counter, the petitioner pleaded that the application filed by the respondents under S. 10(3)(a)(iii) of the Act was not maintainable as it was

stated in the application for eviction that the original letting out to the petitioner was for residential purposes. The petitioner put forth the plea that

right from 1941 onwards, with the consent of the then owners and also subsequently with the consent of the deceased K. V. Panchanadam, the

premises had been continuously used by the petitioner both for residential and nonresidential purposes for over 40 years and that the respondents

cannot evict the petitioner by relying upon S. 10(3)(a)(iii) of the Act. The requirement of the premises for the purpose of carrying on the business

of Janatha Radio Corporation was also disputed by the petitioner. The petitioner also characterised the claim of the respondents as lacking in bona

fides. The loss and hardship that would be caused to the petitioner in the event of an order of eviction being passed against him was also pleaded

as a ground for rejecting the application of the respondents. Claiming that he had put up some constructions, the petitioner contended that the

provisions of the Act can be applied only with reference to the building of which he was a tenant and not those which had been put up by him.

Before the Rent Controller, on behalf of the respondents, Ex.R. 1 was marked and the third respondent was examined as P. W. 1, while on

behalf of the petitioner, he was examined as R.W.1 and Exs.R.1 to R.3 were filed. On a consideration of the oral as well as the documentary

evidence, the learned Rent Controller found that the premises in the, occupation of the petitioner was of a nonresidential character and, therefore,

the application filed under S. 10(3)(a)(iii) of the Act was maintainable. Adverting to the admission of the petitioner that the respondents had been

carrying on business under the name and style of Janatha Radio Corporation, the Rent Controller found that since the respondents did not own any

other nonresidential building, they would be entitled to ask for an order of eviction for carrying on such business in their own premises but in the

occupation of the petitioner and that the requirement in that regard was also bona fide. On those conclusions, the application for eviction filed by

the respondents herein was allowed and an order of eviction was passed against the petitioner. Aggrieved by the order of eviction, the petitioner

preferred an appeal in R.C. A. 1339 of 1982 before the Appellate Authority (IV Judge, Court of Small Causes) Madras. On a reappraisal of the

oral as well as the documentary evidence, the Appellate Authority concurred with the conclusions of the Rent Controller and upholding the order

of eviction, dismissed the appeal. It is the correctness of this order that is challenged by the petitioner in this civil revision petition.

The learned counsel for the petitioner first contended that the respondents came forward with the case that the premises in the occupation of the

petitioner was originally let out for residential purposes and that they cannot be permitted to abandon their case and rely upon the case of the

petitioner with reference to the nature of the building in the occupation of the petitioner and seek relief on that footing And, therefore, the

application for eviction filed by the respondents under s. 10(3)(a)(iii) of the Act, as if the building in question is a non-residential one, is not

maintainable. On the other hand, the learned counsel for the respondents contended that though at the inception the building was let out for

residential purposes, yet, subsequently, the user for non-residential purposes had been permitted and also acquiesced in by the predecessors-in-

interest of K. V. Panchanadam and by the deceased K. V. Panchanadam himself and; therefore, the application for eviction in respect of a building

used for nonresidential purposes, as in this case, would undoubtedly be maintainable.

In the application for eviction, the respondents had stated that the premises was originally let out for residential purposes, but that some time

later the premises had been used both for residential and non-residential purposes, such user being acquiesced in and consented to by the

predecessors in interest of the deceased K. V. Panchanadam and the deceased K. V. Panchanadam himself and that at the time of the filing of the

eviction application, it was exclusively used for non-residential purposes. With reference to this, the petitioner stated in his counter that the claim

made by the respondents that the premises had been let out for residential purposes is not correct, but that on the other hand, right from 1941

onwards, the premises had been used continuously both for residential and non-residential purposes for nearly forty years with the specific consent

of the previous owners as well as that of late K. V. Panchanadam. Under the Act, there is no definition of the expressions ''residential building'' and

''non-residential building'' occurring in Ss. 10(3)(a)(i) and 10(3)(a)(ii) and (iii) of the Act. Whether a particular building is a residential or a non-

residential one has to be decided with reference to the purpose of letting. If the building had been let out for residential purposes, it would be a

residential building and if it was let out for non-residential purposes, it was a notice-residential building. A Full Bench of this Court in T.

Dakshinamoorthy Vs. Thulja Bai and Another, had occasion to consider this question and it was pointed out that where a building has been let out

for both purposes, partly residential and partly non-residential, then into which category the case would fall, whether residential or non-residential,

has to be ascertained and determined with reference to the real, main and substantial purpose of letting. Bearing in mind the test laid down by the

Full bench referred to above, the question of maintainability of the application for eviction under S. 10(3)(a)(iii) of the Act has to be considered.

There is no abandonment at all of the case set up by the respondents and adoption of the case of the petitioner by the respondents as contended in

the circumstances of this case. Even according to the respondents, the premises had been let out for residential and non-residential purposes which

was consented to by the predecessors-in-interest as well as by the deceased K. V. Panchanadam. This precisely is also the case of the petitioner,

for according to him, for the last 40 years or so ever since 1941 onwards, the petitioner had been putting the premises to residential as well as

non-residential user. It was only the petitioner, who, after having taken such as stand, attempted to alter it by stating that the premises had been

used as a residence of his son. With reference to that claim, it is seen that the petitioner is a resident of Sri Nagar Colony, Saidapet, and naturally

the son of the petitioner should also be, in the ordinary course living with the petitioner. The only piece of evidence in support of the case of the

petitioner that the premises is a residential one, is Ex.R.1. The application for eviction was filed some, time in December 1980 and 24-1-1981 was

the first hearing date Ex.R. 1 has come into existence in January 1981. It is, therefore, not improbable that having received the notice of the

eviction application filed by the respondents, the ration-card Ex.R. 1 had been secured to make it appear that the son of the petitioner was residing

in the premises in question. The best person to have spoken to such use of the premises as residence is the son of the petitioner, but for reasons

unknown, he has not been examined at all. R.W. I in the course of this chief-examination has stated that he purpose of letting out was residential

and non-residential. However, in the course of his cross-examination, he would categorically admit that the purpose of letting out was only non-

residential. It is, therefore, obvious that the premises had not been used as a residence by the son of the petitioner. There is no dispute that the

petitioner is carrying on business in the premises in his occupation and in the absence of any evidence, to show that the premises was initially let out

exclusively for residential purposes and was also used as such only for residential purpose, the case of the petitioner that being a residential

building, the application for eviction under S. 10(3)(a)(iii) of the Act is not maintainable cannot be accepted.

Viewing the letting out as a mixed one, namely for residential as well as non-residential purposes as admitted by R. W. 1, and as stated by P.W. 1,

the letting out would be for residential and non-residential purposes in which case it would be open to the respondents to seek an order for eviction

of the petitioner either under Sec. 10(3)(a)(i) of the Act as a residential building or under S. 10(3)(a)(iii) of the Act as a non-residential building, as

laid down by the Full Bench in T. Dakshinamoorthy Vs. Thulja Bai and Another, . It is pointed out therein at page 398 (of Mad LJ): (at pp. 418-

419 of AIR), that where the letting is found to be equally for residential and non-residential purposes and not mainly or substantially for the one or

the other kind of purposes, the application by the landlord may well stand, whether filed under S. 7(3)(a)(i) (comparable to Sec. 10(3)(a)(iii) of the

Act) of the Tamil Nadu Buildings (Lease and Rent Control) Act 25 of 1949. On the facts and circumstances and the evidence in this case, it is

clear that the building had been let out and used for residential and non-residential purposes or at any rate exclusively only for non-residential

purposes and, therefore, the application filed by the respondents under S. 3(a)(iii) of the Act was maintainable.

The learned counsel for the petitioner next contended that even according to the decision of the Full Bench referred to earlier, it would be

necessary for the authorities below to have found out the predominant purpose of letting and that in its absence the order for eviction could not be

sustained. On the facts and circumstances and the evidence, the authorities below in this case have concurrently found that the case of the

petitioner that the premises had been used as a residence of his son Srinivasa murthy is not acceptable; but that the petitioner had been carrying on

the business in the premises and, therefore, the building would only be a non-residential building. Thus, even the predominant purpose for which the

building had been let out had been determined in this case to be a non-residential one and looked at from that point of view also the application

filed by the respondents under S. 10(3)(a)(iii) of the Act was properly laid and entertained.

The learned counsel for the petitioner next contended that if the case of the respondent is accepted and an order of eviction is passed, that

would amount to recognising the conversion of a residential building into a non-residential building and passing an order of eviction on that footing,

which is prohibited under S. 21 of the Act and, therefore, no order for eviction could be passed. The prohibition now contained in S. 21 of the Act

was first introduced under S. 11(1) of the Tamil Nadu Act 15 of 1946 which provided that no residential building can be converted into a non-

residential one except with the permission in writing of the Controller. S. 16(l) of that Act provided a punishment of simple imprisonment for three

months or a fine of Rs. 2000 or both for a contravention of S. 11(1). The same provisions were retained under Tamil Nadu Act 25 of 1949.

Under the Tamil Nadu Act 18 of 1960, the prohibition continued to remain in the shape of S. 21 of that Act and the punishment for contravention

of that provision was provided under S. 33(1) which enabled the imposition of a fine of Rs. 1000. Subsequently, under the Act, S. 21 continued to

remain as before, though the fine imposable was enhanced to Rs. 2,000. It is thus clear that S. 21 of the Act frowns upon the conversion of a

residential building into a non-residential one. Here, it is the case of the petitioner himself that the letting out was for residential as well as

nonresidential purposes even from 1941 onwards. This is also supported by the evidence of R.W.1. That would mean that even long prior to the

introduction of S. 11 by Tamil Nadu Act 15 of 1946 with effect from 1- 10- 1946, the conversion had been accomplished. Therefore, S. 11 of the

Tamil Nadu Act 15 of 1946, as it then stood, or S. 21 of the Act, as it now stands, would not apply to this case. Besides, the contravention of the

provisions had been made a punishable offence under S. 16(l) of the Tamil Nadu Act 15 of 1946 and now by Sec. 33 of the Act, though the

punishment varied.

This also indicates that a conversion of a residential building into a non-residential building without the permission in writing of the Controller was

treated as a separate and independent offence by itself and not having any bearing upon or relation to the entitlement of an order, for eviction on

one of the stated grounds enumerated in the Act In other words, if a case is made out for eviction under one or more of the provisions of the Act,

relief cannot The refused to be given on the ground that there is a conversion of the building, which, as pointed out earlier, has been treated as an

independent and separate violation of the provisions of the Act for which a punishment has also been provided. Under those circumstances, the

petitioner cannot take shelter under the plea that there has been an unauthorised conversion of the residential building into a non-residential

building, by the respondents and, therefore, they are not entitled to an order for eviction as prayed for by them.

The petitioner has clearly admitted in the course of his evidence as R.W.1, that the respondents are carrying on business under the name and

style of Janatha Radio Corporation and that for want of accommodation for such business, they are carrying on the business in their residence.

From this it is evident that the respondents do not have any other non-residential building of their own for the purpose of carrying on their business

which is admitted even by R.W. 1 to be carried on by them. The authorities below were, therefore, quite justified in holding that the requirement of

the respondents for the purpose of carrying on their own business under the name and style of Janatha Radio Corporation is bona fide. No

exception can,.therefore, be taken to the order for eviction passed against the petitioner by the authorities below. No ground has also been made

out for interfering with the order of eviction passed by the authorities below in the exercise of the revisional jurisdiction under S. 25 of the Act.

Consequently the civil revision petition is dismissed with costs.

Petition dismissed.