G. Satyanarayana vs Smt. Sabir Begum and Another

R. Bayapu Reddy, J.—The revision petitioner is the tenant and the revision is filed against the Orders dated 18-3-1993 in R.A. No. 234 of 1989 on the file of the Chief Judge, City Small Causes Court, Hyderabad, by which the appeal was allowed thereby setting aside the orders of the HI Addl. Rent Controller, Hyderabad dated 8-3-1989 in R.C. No. 839 of 1987 and allowing the petition for eviction.

The second respondent herein is the son of the first respondent. They filed R.C. 839 of 1987 seeking eviction of the revision petitioner herein from the petition schedule premises on the ground of bona fide requirement for personal use. The petition schedule premises is a non-residential building which was let out to the revision petitioner in the year l976 and he is running his Scooter work- shop in the said premises ever since then paying the rent to the first respondent who is the owner of the premises. The petition was filed for eviction of the revision petitioner contending that the first respondent and her husband have been carrying on meat business in a rented premises at Ameerpet; that they have three sons and five daughters and the eldest son who is the second respondent has become a major and they proposed to set up another meat shop in his name as their family consists of number of persons to be maintained and as the present income is not sufficient for their maintenance; that the petition schedule premises which was leased out to the petitioner herein is, therefore, required for such purpose and that, therefore, the petition was filed seeking eviction of the petitioner on such ground of bona fide requirement for personal use.

The petitioner herein, who is the tenant, contested the petition contending that the respondents are already running their business in meat in a rented premises at Ameerpet; that they do not require the petition schedule premises for the alleged business to be started in the name of the second respondent; that such ground is only invented for seeking eviction and it is not a bona fide requirement; that the petition for eviction was filed only with a view to coerce him to enhance the rent and that the petition is, therefore, liable to be dismissed.

The learned III Additional Rent Controller dismissed the petition on the ground that the respondents are already in possession of a building in which they are running their meat shop and as such, they are not entitled to seek eviction of the tenant in view of the provisions of Section 10(3) (a) (iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ''the Act'').

The respondents herein, thereupon, filed R.A. No. 234 of 1989 before the Chief Judge, City Small Causes Court, Hyderabad, questioning the orders of the Rent Controller and the said appeal was allowed by the orders dated 18-3-1993 holding that the respondents are in possession of only rented premises and they want to start their business in their own premises which was leased out to the petitioner and that the provisions of Section 10(3) (a) (iii) of the Act cannot be said to be a bar for seeking eviction of the petitioner from the petition schedule premises as it is established that they bona fide require the said premises for their own use. The present revision petition is filed questioning the said orders of the Chief Judge, City Small Causes Court, Hyderabad.

The point that arises for consideration in this revision petition is whether the respondents herein are entitled to seek eviction of the petitioner under the provisions of Section 10(3) (a) (iii)of the Act and whether the orders of the Chief judge, City Small Causes Court, Hyderabad are not valid and illegal and are liable to be set aside?

The second respondent is the major son of the first respondent who is the owner of the petition schedule premises which is admittedly a non-residential building. The said premises was let out to the petitioner herein in the year 1976 and he is carrying on his scooter work-shop in the said premises ever since then. The husband of the first respondent is admittedly carrying on his meat business in a rented building at Ameerpet. As their family consists of five daughters and three sons, out of whom the second respondent is the eldest son, and as it was felt that their income earned from the present meat business is not sufficient to maintain their family, they proposed to start another meat shop in the name of the second respondent in the petition schedule premises as he has since attained majority, in order to supplement their family income. Admittedly, there is no other building except the petition schedule premises belonging to the respondents where they can commence their proposed new business in the name of the second respondent. Under such circumstances, the respondents required the petition schedule premises which is a non-residential building for their use and they, therefore, filed the petition for eviction u/s 10(3) (a) (iii) of the Act on the. ground of bona fide requirement for personal use. The respondents herein have let in the evidence of the first respondent examined as P.W.1 and the second respondent examined as P.W.2. A perusal of their evidence clearly shows that they are now running their meat business in a rented shop at Ameerpet; that they do not have any other building of their own except the petition schedule premises which was leased out to the present revision petitioner and that inasmuch as the income they are now earning from the meat business is not sufficient to maintain their family, they proposed to start another meat shop in the name of the second respondent who has already attained majority and that, therefore, they wanted the revision petitioner to vacate the premises to enable them to commence their new meat shop in the name of the second respondent. As already stated above, it is not disputed that the second respondent has since attained majority, that the respondents have no other building except the petition schedule building which is leased out to the petitioner and that they are now running their meat business only in a rented shop. Under such circumstances and in view of the evidence adduced in the petition, there are absolutely no valid reasons to disbelieve the contention of the respondents that they bona fide require the petition schedule premises for their own use for commencing the meat shop in the name of the second respondent.

The contention of the petitioner who is the tenant, however, is that the respondents are not bona fide in seeking his eviction and that their only intention in filing the petition is to coerce him to enhance the rent for which he is not agreeing. He has also let in the evidence of R.W.2 besides his own evidence as R. W. 1 to show that the respondents had previously demanded rent at enhanced rate and that the present petition is one more attempt to coerce him to make further enhancement in the rent for which he did not agree. But, such contention of the petitioner cannot be accepted and the requirement of the respondents for personal use cannot be dubbed as mala fide in view of the facts and circumstances which are revealed from the evidence adduced in the case. As a matter of fact, the trial Court did not even come to the conclusion that the requirement of the respondent is not bona fide. The petition was, however, dismissed by the trial Court only on the ground that the respondents are already in possession of a building in which they are running their meat shop and that therefore, the present petition is not maintainable in view of the provisions of Section 10(3) (a) (iii) of the Act. A perusal of the evidence adduced in the case, therefore, clearly shows that the requirement of the respondents is bona fide as they want to start their meat business in the name of the second respondent who is the eldest son and who has since attained majority.

As already stated above, the trial court dismissed the petition only on the ground that the respondents are already in possession of a non-residential building in which they are running their meat business and that, therefore, they cannot seek eviction of the petitioner from the petition schedule premises in view of the provisions of Section 10(3) (a) (iii) of the Act. The trial Court evidently relied upon a Full Bench decision of this court reported in Vidyavathi Bai v. Shankerlal to come to such conclusion. But it is clear from the facts and circumstances of the case and the observations made by this court in another Full Bench decision reported in Vijayalaxmi Printing Press Vs. Nandula Shankar and Others, that the observations made by this Court in the earlier decision reported in Vidya Bai and Another Vs. Shankerlal and Another, have no application to the facts of the present case and that the trial Court has clearly erred in relying upon the said decision and in coming to the conclusion that the respondents are not entitled to file the petition for eviction as they are in possession of another building in which they are running their meat shop. In order to appreciate the point in dispute in this regard, it will be useful to refer to the provisions of Section 10(3) (a) (iii) of the Act and the observations made by this court in the above cited two decisions and some other decisions in which the same point arose for consideration.

The provisions of Section 10(3) (a) which are relevant for our purpose are as follows:-

"Section 10(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-

(i) in case it is a residential building-

(a).. .. ..

(b).. .. ..

(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use,

(iii) in case it is any other non-residential building, if the landlord is not occupying a non-residential 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..."

It is to be seen that there are two parts in Section 10(3) (a) (iii) of the Act. The first part relates to the case where the landlord who is already in occupation of a non- residential building of his own and the second part deals with a case where the landlord who is merely in occupation of a non-residential premises to the possession of which he is entitled under the Act or otherwise. In the Full Bench decision of this court reported in Vidya Bai and Another Vs. Shankerlal and Another, it is observed by Their Lordships as follows:-

"It is our considered opinion that u/s 10(3) (a) (iii) of the Act a landlord in occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another non-residential building in the occupation of a tenant ; the bar under the Section against securing eviction of the tenant of such non-residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the applicant (landlord) or to meet the bona fide need of any other member of the family of the applicant (landlord), are all, in our view, irrelevant considerations in the context of construing the provisions in Section 10(3) (a) (iii) of the Act which, in clear terms, interdicts the landlord, in absolute terms, from seeking recovery of the non-residential building belonging to him in the occupation of the tenant. We, therefore, hold that the ruling given by the Division Bench to the contrary in B. Balaiah Vs. Chandoor Lachaiah, does not represent the correct legal position."

In view of such observations made in the said Full Bench decision of this Court, the trial Court dismissed the petition filed by the present respondents evidently on the ground that the provisions of Section 10(3) (a) (iii) of the Act are a bar for filing such petition as the respondents are already in possession of another non- residential building in which they are running their meat shop. But in the later Full Bench decision of this court reported in Vijayalakshmi Printing Press v. N. Shanker (2 supra), the matter was clarified and it was specifically held that the building that was the subject matter of eviction in the case concerned in the earlier Full Bench decision was the own building of the landlord and as such, the first part of Section 10(3) (a) (iii) of the Act applied to the said case and that Their Lordships were not concerned in that decision with a landlord who was running his business in a rented premises which comes under the second part of Section 10 (3) (a) (iii) of the Act. In para-9 of the decision reported in Vijayalaxmi Printing Press v. N. Shankar (2 supra), while trying to clarity the point with reference to the observations contained in the earlier Full Bench decision reported in Vidyavathi Bai v. Shankerlat (1 supra) it is observed as follows:-

"Assuming that there is something in the said judgment which can be construed as disentitling a landlord, who is merely a statutory tenant, from claiming possession of his own premises from a non-residential tenant, we hereby clarify that the Full Bench decision in Vidyabai v. Shankerlal (1 supra) is an authority only for the purpose of the first part of Section 10(3) (a) (iii) viz., the words "is not occupying a non-residential building in the city, town or village concerned which is his own." The Full Bench decision does not, it is hereby clarified- have any effect on the second part of the Section which falls squarely within the scope of the Supreme Court judgment"

In the present case, it is admitted that the respondents are not having any other building of their own and that they are running their present meat business only in a rented premises. As held by the Supreme Court in the decision reported In M. Padmanabha Setty Vs. K.P. Papiah Setty, the right of a statutory tenant to remain in possession is a ''right to stay'' in possession and cannot, therefore be equated with a ''right to possession''. In the said decision of the Supreme Court Their Lordships were dealing with the same question that arose for consideration with reference to the provisions of Section 8(3) (a) (ii) of the Mysore Rent Control Act which are identical in language with the provisions of Section 10(3) (a) (iii) of the A.P. Rent Control Act. It is observed by Their Lordships of the Supreme Court in the said decision:

"A tenant who can be evicted under the conditions prescribed in Section 8(2) of the Act cannot be said in our view, to be entitled to the possession of the premises of which he is a tenant. No doubt he cannot be evicted till one or more of the conditions prescribed by the Section are fulfilled, but it is difficult to equate his right to stay in the premises till he is evicted to an entitlement of the possession of the premises. Section 8(3) (a) (ii) deals with two types of cases- first where the landlord is in occupation of a non- residential building which is owned by him and secondly, a non- residential building of which he is in occupation not as a landlord but otherwise. The object of the Act is to prevent unreasonable eviction of tenant. Can it be said that the Legislature is considering it to be unreasonable for a landlord to shift to his own premises while he is in occupation of tenanted premises over which he has not an absolute right of possession but only of the conditions in Section 8(2) is satisfied and over one of which he has no control?......In our view, in the context the words ''entitled to possession'' have a mere positive content and are more to akin to the right of possession which an owner has in respect of the building owned and occupied by him."

After referring to the said decision of the Supreme Court reported in Padmanabha Setty v. Papaiah Setty (3 supra) it is specifically held in the Full Bench decision of this Court reported in Vijayalaxmi Printing Press v. N. Shankar (2 supra) at page 187 as follows:-

"We accordingly hold that the landlord here, who is only statutory tenant, is not debarred from seeking possession of his own non-residential building. It is not incumbent on such a landlord to first vacate the non- residential premises in his occupation as a condition precedent for maintaining an eviction petition is respect of his own non-residential premises in the occupation of his tenant.

We are, therefore, of the view that the decision of the Supreme Court is directly in point and is binding on us, and the same continues to hold good so far as the second part of Section 10(3) (a) (iii) of the A.P. Act is concerned."

Therefore, the trial Court has clearly erred in dismissing the petition on the ground that the petition is not maintainable in view of the provisions of Section 10(3) (a) (iii) of the Act and as the respondents are already in possession of a building in which they are carrying on their business. In view of the observations made by the Supreme Court in the above cited decision and this Court in Vijayataxmi Printing Press v. N. Shankar (2 supra) the respondents are entitled to seek eviction of the petitioner on the ground of bona fide requirement of the petition schedule premises as they are now in possession of only a rented building in which they are running their meat business, and as their requirement is bona fide.

In the Division Bench decision of this Court reported in B. Balaiah Vs. Chandoor Lachaiah, it was held that in order to attract Section 10(3) (a) (iii) of the Act, the following four things must exist, viz.,

"1. It must be any other non-residential building;

The landlord is not occupying a non-residential building (in the city, town or village) which is his own or to the possession of which he is entitled;

He requires it for the purpose of a business which he is carrying on or which he bona fide proposes to commence; and

his claim is bona fide."

Regarding 4th requirement, it is already found that the respondents'' requirement is bona fide inasmuch as they want to start a new meat business in the name of the second respondent who has already attained majority. Regarding 3rd requirement it is observed by the Division Bench in the above cited decision as follows:-

"It seems now to be beyond any doubt that these expressions need not necessarily be confined to the physical requirement of the landlord himself. These and similar other expressions ought to be liberally construed and not in a narrow way. They are susceptible of a wide meaning. They include the landlord''s "family and dependents and such person-or persons who may be essential and necessary for occupation". In order to find out who are such persons:

"It is not only permissible but it is proper and desirable for the Court to bear in mind the context of the social order, the habits and ideas of living and the social and religious customs of the community to which the individual concerned belongs."

Whether the need of a particular person is the need of the landlord will naturally have to be decided in view of the circumstances of each case.

Broadly stated, however, these phrases not only include the members of the landlord''s family but all those persons who are socially or economically dependent on him and whose responsibilities he has accepted. This is based on the necessity of realising that the family in India whether joint or separate is the social unit of Indian civilization and it is greater public importance to keep it together.

We have, therefore, no hesitation in holding that when the major son, a coparcener in a joint Hindu family, intends to start a business, the third requirement of the said provision could be deemed to have been satisfied, as this requirement would be the requirement of the landlord. Such a case, therefore, plainly falls within Section 10(3) (a) (iii)."

Therefore, in the present case also the respondents proposed to start a new business in meat in the name of the second respondent, who is their major son, with a view to augment their income to maintain the joint family consisting of number of persons and as such, there are no valid reasons to question the bona fides of the respondents in filing the petition for eviction of the petitioner on the ground of personal requirement.

Regarding the second requirement as specified in the above cited decision of the Division Bench, it is observed by Their Lordships in the said decision:

"Weare, therefore, of the clear opinion that what the said provision means is that: when a landlord, who is in occupation of a non-residential building in a city, town or village requires another non-residential building of his own in the same city, town or village, as the case may be, from his tenant, for the purpose of the business which he is carrying on-which can mean shifting or expansion of the business which he is carrying on or for commencing a new business-can successfully claim eviction of his tenant if he is able to satisfy the Rent Controller that the non-residential building which he is occupying is not sufficient or suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to commence, or that the shifting of his business has in circumstances of the case, become inevitable. It would be open to him to prove that the non-residential building which he is occupying is not exclusively his own or that he is not entitled to its exclusive possession. Any one of the above mentioned cases falls, in our view, within the ambit of Section l0 (3)(a)(iii)."

In the present case, it is an admitted fact that the respondents are now carrying on their business only in a rented building and that they are not having any other non-residential building of their own except the petition schedule premises which they require bona fide for expanding their business by starting a new business in meat in the name of the second respondent. Therefore, in view of all such circumstances, the provisions of Section 10(3) (a) (iii) of the Act are clearly applicable to the present case and inasmuch as the requirement of the respondents is proved to be bona fide requirement, they are entitled to seek eviction of the petitioner from the petition schedule premises as rightly held by the learned Chief Judge, City Small Causes Court, Hyderabad. Therefore, there are no valid reasons to interfere with such orders of the appellate Court.

In the result, the Revision Petition is dismissed with costs of the respondent. One month time is granted for the petitioner to vacate.