M. Navamani vs A.S.A. Arumugham

P. Thangavel, J.—This Civil Revision Petition has been filed by the tenant against the judgment and decree dated 20.3.2001 and made in

R.C.A.No.38 of 1996 on the file of the learned Rent control Appellate Authority Sub Judge) Virudhunagar.

2.The facts that are necessary for the disposal of this Civil Revision Petition are as follows:

The Revision Petitioner who is the tenant of the premises described in the Rent Control Petition on a monthly rent of Rs260/= (Rs.130-00 towards

rent and Rs.130-00 towards amenities). He is the respondent before the Rent Control Court. A sum of Rs. 520/- was received by the respondent

herein as landlord of the premises towards advance.

The tenancy is according to English calendar month. Respondent herein in occupation of the rental premises bearing door No.7, T.S. Chidambara

Nadar Street, Virudhunagar. Respondent is not having any other non-residential premises of his own in Virudhunagar to carry on his business

excepting the building in which the revision petitioner is in occupation as tenant. The rear portion of the building in which demised premises situate

was vacated by one Nagarajan a tenant and the said premises is kept vacant by the respondent herein. The premises under the occupation of the

revision petitioner is also required for the occupation of the respondent herein. The revision; petitioner has not vacated the premises despite

request. It is on this ground the respondent herein has petitioner before Rent Control Court has filed a petition for eviction of the revision petitioner

on the ground of own use and occupation u/s 10(3)(a)(iii) _of the Tamilnadu Buildings (Lease and Rent Control) Act, hereinafter called as ""the

Act"".

3.The revision petitioner as respondent before the Rent control court resisted the claim made by the respondent herein on the following grounds:

The petition filed by the respondent herein as petitioner is not maintainable as per law. The requirement of the demised premises for own use and

occupation is not bonafide. The respondent has been in possession of the premises bearing door No.7, T.S. Chidambara Nadar Street,

Virudhunagar for over 40 years and there was no demand by the landlord of the said premises to vacate the same by the respondent herein. The

respondent herein also is having many other non-residential buildings of his own in Virudhunagar itself.

The rent for the premises is Rs.130/- p.m. and not Rs.260/=. A sum of Rs.130/- is collected towards amenities every month. The respondent

herein refused to receive the rent and therefore the revision petitioner filed a petition before the Rent Control Court for deposit of rent and the

same was dismissed. An appeal filed against the order and decretal order was also dismissed by the Rent Control Appellate Authority. The

advance of Rs.520/= was not adjusted towards payment of rent. The respondent is attempting to evict the revision petitioner from the demised

premises some how or other. On this ground the revision petitioner as respondent before Rent Controller has sought for the dismissal of the

petition.

4.After considering the material evidence available on record, the Rent Controller has come to the conclusion that the revision petitioner herein is

liable to be evicted from the demised premises and accordingly ordered eviction. The revision petitioner herein has preferred an appeal in

R.C.A.No.38/1996 on the file of the learned Appellate Authority (Sub Judge), Virudhunagar against the order and decretal order of the learned

Rent Controller in RCOP No.17/1994. After considering the submissions made by the parties and on the material evidence available on record,

the learned Rent Control Appellate Authority has concurred with the findings of the Rent Controller and dismissed the appeal. Aggrieved by the

judgment and decree dated 20.03.2001 and made in R.C.A.No.38/1996 on the file of the Rent Control Appellate Authority, Virudhunagar, the

tenant as Revision petitioner has come forward with this Civil revision petition.

5.The respondent herein was examined as P.W.1 and Exx.P-1 to P-3 were marked before the Rent Control Court on the side of the respondent

herein. The revision petitioner who was the respondent before the Rent Control Court was examined as R.W.1 but no documentary evidence was

produced before that court. Admittedly the property described in the Rent Control petition is owned by the respondent herein and it is the front

[portion of the building bearing Door No. 9, Vallikutty Nadar Street, Ward No.14 Virudhunagar, Kamarajar District. The fact also remains that

the revision petitioner is paying a sum of Rs.1230/- every month as amenities charges and Rs.130-/- as rent, totalling a sum of Rs. 260/- p.m. The

fact also remains that there was a tenant by name K.G. Nagarajan in the rear [portion of the building and he had vacated the said portion even

before filing of this petition for eviction against the revision petitioner. It is admitted in the petition that the said rear portion of the building is in the

occupation of the respondent herein this premises is also required for his own use and occupation along with the above said portion already under

his occupation. It is not in dispute that the respondent herein is in the occupation of the premises bearing Door No. 7, T.S. Chidambara Nadar

Street, Virudhunagar owned by public trust by paying rent for not less than 20 years. Even though the revision petitioner has stated that there are

other non-residential buildings owned by the respondent herein, in Virudhunagar, no acceptable evidence has been produced before court below

to substantiate such contention. Therefore such a plea of the revision petitioner has not been acceptable by the courts below. In view of the fact

that the respondent is in occupation of the rented premises to carry on his business, it was concurrently held by the courts below that the

requirement of the demised premises for carrying on his own business is bonafide. It is on this ground eviction was ordered concurrently by the

courts below. On the facts narrated supra, the findings of the courts below cannot be held to be erroneous one so far as his requirement is

concerned.

6.The learned counsel for the revision petitioner would contend that the petition under S. 10(3)(a)(iii) of the Act, is not maintainable and the

respondent herein may have to file a petition only under S. 10(3)(c) of the Act for evicting the revision petitioner from the demised premises for

additional accommodation and not for his own use and occupation. As already pointed out, it is admitted case of the respondent even in the

pleadings in the petition that he is in occupation of the rear portion of the building and he requires the demised premises which forms part of the

front portion, to carry on his own business. It will mean that he requires the demised premises to carry on his business by way of additional

accommodation.

7.The Apex Court in Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, has, held as follows:

It is no doubt true that u/s 2(2) a building has been defined as not only a building or hut but also part of a building or hut let separately for

residential or non-residential purpose. That would, however only mean that a part of a building which has been let out or which is to be let out

separately can also be construed as a separate and independent building without reference to the other portion or portions of the building where it

is not necessary to treat the entire building as one whole and inseparable unit. A limitation on the definition has been placed by the Legislature itself

by providing that the application of the definition is subject to the contextual position. Therefore it follows that where the context warrants the entire

building being construed as one integral unit, it would be inappropriate to view the buildings consisting of several disintegrated; units and not as one

integrated structure. Secondly there is vast difference between the words ""residential building"" and ""non-residential building"" used in Section 10(3)

(a)(i)and(iii) on the one hand and section 10(3)c) on the other. While section 10(3)(a)(i) and (iii) refer to a building only as residential or non-

residential. Section 10(3)(c) refers to a landlord occupying a part of a building whether residential or non residential. Further more, Section 10(3)

(c) states that a landlord may apply to the Controller for an order of eviction being passed against the tenant ""occupying the whole or any portion

of the remaining part of the building"" . If as contended by the appellant each portion of a building let out separately should always be construed as

an independent unit by itself then there is no scope for a landlord occupying ""a portion of a building"" seeking eviction of a tenant ""occupying the

whole or any part of the building"". It is therefore obvious that in so far as Section 10(3)(c) is concerned the legislature has intended that the entire

building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should

be viewed as one whole and integrated unit land not as different entities. To import the expansive definition of the word ""building"" in Section 2(2)

into Section 10(3)(c) would result in rendering meaningless the words ""part of a building"" occupied by the landlord and a tenant ""occupying the

whole or any portion of the remaining of the building"". The third factor militating against the contention of the appellant is that if a portion of a

building let out to a tenant is to be treated in all situations as a separate and independent building then Section 10(3)(c) will be rendered otiose

because the landlord can never then ask for additional accommodation since Section 10(3)(a) does not provide for eviction of tenants on the

ground of additional accommodation for the landlord either for residential or non-residential purposes. It is a well settled rule of interpretation of

statutes that the provisions of an Act should be interpreted in such a manner as not to render any of its provisions otiose unless there are compelling

reasons for the Court to resort to that extreme contingency.

... ... ...

A landlord who is occupying a part of a residential building may notwithstanding anything contained in Cl. (a) apply to the controller for an order

directing any tenant occupying the whole or any portion of the remaining part of the of the building to put the landlord in possession thereof, if he

requires additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be.

A land lord who is occupying only a part of a non-residential; building may notwithstanding contained in Cl. (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 purposes of a business which he is carrying on, as the case may be.

If clause (3) is construed in this manner there can be no scope for a contention that a landlord can seek additional accommodation for

residence only if the building is a residential one and likewise he can seek additional accommodation for business purposes only if the building is a

non-residential one.

Following the decision reported in Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, a learned single Judge of this court in A.P.

Swamy Vs. Kunjithapatham (1994-2-L LW 661) has held as follows;

Admittedly in the present case, the landlord is in occupation of the entire first floor portion and the tenant is in occupation of the ground floor. A

plain reading of S. 10(3)(c) of the Act would go to show that in the present case the petition ought to have been filed only under S. 10(3)(c) of the

Act. ... ...

Therefore in the present case, the petition filed for eviction under S. 10(3)(a)(iii) of the Act is not maintainable"". ...

The learned counsel for the revision petitioner has also brought to the notice of this court the decision reported in R.V. DHARMALINGA

MUDALIAR V. k. ANNAMALAI 1994 LW 487 In that ca an application filed for eviction by the landlord on the ground of requirement of

additional accommodation for the use of landlord''s son and his family under S. 10(3)(c) of the Act was resisted by the tenant by contending that it

would be open to the landlord to ask for additional accommodation for himself and not on the ground of requirement of his son or any member of

his family. In that case it was held by a learned single judge of this court that the application is clearly maintainable and it is open to the landlord to

ask for additional accommodation in order to enable his son to live comfortably with the members of his family enjoying all facilities and it is not for

the tenant to state that this should not be done on questions of relative hardship. There is absolutely no hardship to which the petitioner will be

subjected by an order of eviction being passed against him. Under the above said circumstances the order of eviction passed by the Appellate

Authority was upheld by the learned single Judge of this court. The principles laid down in the case cited above, would lead to hold that the

landlady who is in occupation of a part of a building, cannot maintain an application for eviction under S. 10(3)(a)(iii) of the Act, but only under S.

10(3)(c) of the Act. Since this petition has been filed by the respondent herein as landlady under S. 10(3)(a)(iii) of the Act, this petition cannot be

maintained as rightly contended by the learned counsel for the revision petitioner. In view of the said position, the concurrent findings of the courts

below are not in accordance with pronounced judgments of this court as well as by the Apex court. Therefore the concurrent findings of the courts

below are liable to be set aside.

8.The learned counsel for the respondent herein submits that the order passed by this court should not stand in the way of the respondent herein in

filing an appropriate petition for eviction under appropriate section of the Act. This court makes it clear that this order will not stand in the way of

the respondent herein in approaching the court for eviction in accordance with law.

9.In fine the decree and judgment passed by the learned Rent Control Appellate Authority (Sub Judge) Virudhunagar, are set aside and the Civil

Revision Petition is allo1wed but without costs. In view of the disposal of the main civil Revision Petition, the petition in C.M.P.No.1869/2002 is

closed.