M. Thirupathi Nadar and Sons vs Dr . S.L. Kantha Rao

Ismail, C.J.—The tenant is the Petitioner in the civil revision petition. The Respondent here in is the owner of premises bearing door No. 179, Govindappa Naicken Street, Madras-1. The said premises consist of two floors, ground floor and first floor. The Respondent-landlord is residing with his family and children in the first floor, which is a residential portion, while the Petitioner herein is carrying on business in the ground floor as a tenant under the Respondent. The Respondent filed a petition u/s 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, (Tamil Nadu Act XVII of 1960) (herein after referred to as the Act) for eviction of the Petitioner herein on the ground that the Respondent required the premises for carrying on his dispensary and clinic, which he was then carrying on at No. 112, Adiyappa Naicken Street, Madras-1, which was a rented place. When the office of the Rent Controller, Madras, returned the papers on the ground that the petition should have been filed u/s 10 (3) (c) of the Act, the Counsel for the Respondent simply added the provisions of Section 10 (3) (c) along with Section 10 (3) (a) (iii). It was in that set up the petition came to be disposed of. The Petitioner herein put forward several contentions against the order for eviction. It also took the point that Section 10 (3) (c) alone would apply to the present case and in that event, the relative hardship of the parties would have to be taken into account. The Rent Controller after considering the rival contentions of the parties and after considering the evidence, held that the requirement of the Respondent was bonafide, and directed the eviction of the Petitioner herein, The Petitioner preferred an appeal, and that appeal also was dismissed by the Appellate Authority . It is against these orders, the present civil revision petition has been filed.

When the petition came up for hearing the learned Counsel for the Petitioner took up the stand that it was only Section 10 (3)(c) that would apply to the case and not Section 10(3)(a) (iii) at all, that there was no pleading in the petition filed by the Respondent herein as to the relative hardship and that, therefore, the Rent Controller or the Appellate Authority had no jurisdiction to go into this question and give a finding against the Petitioner herein. This argument came to be advanced in view of the second point framed by the Appellate Authority and dealt with by the Appellate Authority. The second point that was framed by the Appellate Authority was:

whether the Petitioner (Respondent herein) requires the demised premises for additional accommodation for the purpose of a business which he and his son are carrying on.

That point was dealt with by the Appellate. Authority in paragraph 10 of its order pointing out that it was admitted by R. W. 2 that he has got another building of his own a furlong away from the demised premises and some portions are kept vacant in that building and that the hardship which may be caused to the tenant by granting the application would not outweigh the advantage to the landlord. The contention of the learned Counsel for the Petitioner is that this finding has been arrived at without there being a pleading by the Respondent himself and that, therefore, that finding. cannot be supported. As against this, the learned Counsel for the Respondent rested his case solely u/s 10(3) (a) (iii) of the Act without having recourse to Section 10(3)(c). According to the learned-Counsel for the Respondent, Section 10(3) (c) will have no application to the facts of the present case.

The matter came up for disposal before Ramaprasada Rao, the then Chief Justice. Before the learned Chief Justice it would appear that an argument was advanced by the learned Counsel for the Petitioner here in that to the present case, it was only Section 10(3)(c) that would apply and not Section 10(3)(a)(iii) of the Act. After referring to some of the arguments advanced and the decisions relied on, the learned Chief Justice proceeded to state:

Mr. Ratan, however, referred to the decisions of Balakrishna Ayyar J., in Premchand Motichand v. Hameed Sultan 1 (1958) 1 M.L.J. 32 ((S.N.) and Palaniswamy, J., in P.I. Kurian v. Government of Tamil Nadu 85 L.W. 364. and Kailasam J., in Saraswathi Sriraman and Another Vs. Pappi Chetty Raghaviah Chetty''s Charities and Others, In the later decisions, the view appears to be that in such cases it sect on 10(3)(c) which is invocable and not Section 10(3)(a) (i) or Section 10(3) (a) (iii) of the Act.

As there is a decision of a single Judge of this Court being the judgment of C.V. Govindan and Another Vs. A. Rajagopal Nadar, which is directly on the point and as there are certain views of other single Judges of this Court which to some extent support the contention of Mr. Ratan and particularly, in view of the observations of the Division Bench though hot directly touching in the matter at issue but indirectly having a bearing on the same, I am of the view that the matter has to be decided by a Division Bench of this Court.

The subject-matter shall, therefore, be posted before a Division Bench.

It is how the Civil Revision Petition has come up before us for hearing.

Before we deal with the contentions of the respective parties, we shall extract the relevant statutory provisions which require consideration. Section 2 of the Act defines certain expressions occurring in the statute. Section 2(2) of the Act States:

In this Act, unless the context otherwise requires building means any building or hut or part or a building or hut, let or to be let separately for residential or non-residential purposes and includes...

It is not necessary to deal with the inclusive portion of the definition for the purpose of this case.

Section 10 is the section providing for eviction of tenants. Section 10(3)(a) reads as follows:

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 if the landlord requires it, for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned:

(ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of any member of his family and, if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own;

(iii) in case, it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.

There are a few provisions to this section and it is not necessary to refer to them. Section 10 (3)(c) reads as follows:

10(3)(c). A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained 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 purposes of a business which he is carrying on, as the case may be.

The contention of the learned Counsel for the Respondent is that the Petitioner''s case squarely falls u/s 10(3)(a)(i) of the Act. His argument is that the ground floor in which the Petitioner is carrying on its business is a non-residential building. The Respondent is not occupying any building of his own for the carrying on of his business, namely, dispensary and clinic in this case, consequently he is entitled to obtain possession of the ground floor from the Petitioner for the purpose of locating his clinic in the said ground floor and this situation is directly and fully covered by Section 10(3)(a)(iii). On the other hand, the argument of the learned Counsel for the Petitioner is that the meaning given to the word building in Section 2(2) of the Act should not be imported into the word building occurring in Section 10(3)(c) and the word building occurring in Section 10(a) (3)(c) physical structure as it exists without there being any artificial splitting up the same and it cannot be a part of a building as contemplated by Section 2 (2) of the Act. In this case, the building consists of the ground floor in the occupation of the Petitioner and the first floor in the occupation of the Respondent; consequently, the Respondent is in occupation of a part of the building; therefore, when he wants to evict the Petitioner from the ground floor, he wants merely additional accommodation of the same premises for his own use and, therefore, it is Section 10(3)(c) which is directly applicable to the case and not Section 10(3)(a) (iii). We shall have to consider now which of these contentions is correct.

Before going into the correctness or otherwise of these contentions with reference to the statutory language itself, we shall refer to the decisions of this Court, to which the referring order makes mention, as well as certain other decisions relied on before us.

As we have pointed out already, the referring order itself points out that there is a direct decision of Venkataraman J., on this point in C.V. Govindan and Another Vs. A. Rajagopal Nadar, In that case, the premises, which was the subject-matter of consideration, consisted of five portions in all. In one portion, an oil mill of the landlord Rajagopal Nadar was being run. In the four other portions, the four tenants were living each separately. The landlord required the four portions for residence of himself and the members of his family and also of the three servants working in the oil mill. It was in that context, he filed a petition u/s 10(3)(a)(i) of the Act for eviction of the four tenants, since he required the building for his own occupation and was not occupying any residential building of his own in the City. In that context, the contention put forward on behalf of the tenants was that the petition should have been filed u/s 10(3)(c), because, admittedly, in one portion the landlord was having an oil mill and was seeking to recover possession of the other portions of the premises and that, therefore, the petition should have been filed only u/s 10(3)(c) and not u/s 10(3)(a)(i). The learned Judge, after considering the relevant provisions, observed:

It seems to me that on the facts of this case, the application of the landlord will fall u/s 10(3)(a)(i) and not u/s 10(3)(c). It may be noted that both in the definition in Section 2 (2) and in Sub-clauses (i) (ii) and (iii) of Section 10(3)(a)(i) a distinction is made between a residential building and a non-residential building and correspondingly occupation for residential purposes of the residential portion and occupation for purposes of business of the non-residential portions. It will be seen, therefore, that under the Act, the non-residential portion of the premises in question where the oil mill is being run and it is not disputed before me by the learned Counsel for the Petitioners that it cannot be used for residential purposes as it stands, will be a building separate from the other portions of the building which are occupied for residential purposes and which the landlord intends to occupy for purposes of is residence. In other words, even though the landlord is already occupying a part of the building taking the structure as a whole for non residential purposes, it cannot be said that merely because of that circumstances Section 10(3)(c) is attracted, because the occupation of that non-residential portion is for non residential purposes, whereas he wants to occupy the other portions for residential purposes. The natural and normal interpretation of Section 10(3)(c) is that, if a landlord is occupying a part of a residential building for residential purposes and wants additional accommodation for residential purposes in the same building, then Section 10(3)(c) will apply. But this is not such a case.

If this reasoning and conclusion of the learned Judge is to be applied to the facts of the present case, it is clear that the landlord, the Respondent herein, who is occupying the first floor for residential purposes, is not seeking to evict the Petitioner herein, from the ground floor for his own residential purpose, but for nonresidential purpose. If so, it is only Section 10(3) (a) (iii) that will apply and not Section 10(3)(c). The question for consideration again will be whether this decision of Venkataraman J. is correct. As we have pointed out already, the order of reference makes mention of certain other decision also. One such decision is that of Balakrishna Iyer J., in Premchand Moticand v. Hmeed Sultan (1958) 1. M.L.J. 32 (S.N.). We have sent for the judgment and perused the same. In that case, the tenant was the Petitioner before the High Court. He was living in a portion of No. 2/121, Audiappa Naicken Street, Madras-1. The landlord was using the rest of the premises partly as a residence for the members of his family and partly for the purpose of a business, he is carrying on. On the ground that he wanted additional accommodation both for purposes of residence and for purposes of his business, he sought to evict the Petitioner before the High Court. The Rent Controller dismissed the application filed by the landlord; but the same was allowed on appeal by the Appellate Authority. Hence, the tenant preferred the civil revision petition to the High Court. The learned Judge observed:

The principal argument of the learned Counsel for the Petitioner was this. In paragraph 6 of his petition the landlord stated that his intention was to use certain portions of the premises for business purpose and certain other portions for residential purpose. The evidence given shows that his intention is to divert the portion which the Petitioner is using as his residence for non-residential purposes. This, he cannot do and he cannot get an order of eviction for this purpose.

Now it is no doubt true that Clause (a) of Rule 3 of Section 7 of Madras Act XXV of 1949 proceeded on the basis that in the case of a residential business the landlord cannot obtain eviction unless he wants to reside in it himself. Similarly, in the case of a non-residential building a landlord cannot obtain eviction for his own use unless he wants it for purposes of his business. But Clause (c) which applies to portions of buildings does not appear to contain any such limitation. If a landlord occupies only a portion of a building and uses part of that portion as his residence and the rest for business purposes and, he wants further accommodation in the same building and on that ground seeks to evict a tenant, the tenant cannot insist that the landlord should continue to use as a residence that part which he himself was using as a residence. If the landlord can satisfy the condition that he wants further accommodation in the same building and obtains an order of eviction it would be open to him, to readjust the additional accommodation that he has obtained in the manner, he considers most convenient to himself.

We are of the opinion that this decision does not lay down any principle which is applicable to the present case. All that the decision points out is that the tenant cannot dictate that since he is occupying the portion for residential purpose, the land lord can recover vacant possession thereof only for residential purpose and not for non-residential purpose also. That appears to be the view taken by a number of judgments in this Court itself. In fact, one of us had an occasion to deal with this question. In O.V. Rengaswami Reddiar v. N. Jayaraj (Civil Revision Petition No. 2380 of 1977 judgment dated 6th December 1977) it was held as follows:

The tenant, who failed before the authorities below, is the Petitioner herein, He was directed to be evicted from the premises in question on the ground that the landlord required the same for additional accommodation. Both the Tribunals below held that the requirement of the landlord was bona fide. However, the learned Counsel for the Petitioner herein, contends that one point that was urged by him before the authorities below was not considered by them. That point is that the building that is sought to be obtained for additional accommodation is a non-residential building and the purpose of additional accommodation is residential. There is no substance in this contention. The relevant provision dealing with the requirement of additional accommodation is Section 10(3)(c) of the Tamil Nadu Act XVIII of 1960.

After extracting that provision, the judgment proceeded to state:

The language of this provision is in complete contrast with that contained in Section 10(3)(a) and the said Section 10(3)(a) compartmentalises the nature of the buildings and a person can obtain possession of a residential building for his own occupation only for residential purposes and similarly a person can obtain vacant possession of a non-residential building only for the purpose of carrying on his own business. In other words, Section 10(3)(a) compartmentalises the requirement of the landlord with reference to the nature of the building. But such compartmentalisation is not present in Section 10(3)(c). Not merely such compartmentalisation is not present in Section 10(3)(c), but also the language of Section 10(3)(c) is general and it states that the application of the landlord under that provision will be notwithstanding anything contained in clause (a). Therefore, I am unable to hold that the landlord cannot obtain vacant possession of a portion of the building on the ground of requirement of additional accommodation, if that portion was being used by the tenant for non-residential purposes and the landlord requires the same for residential purposes.

This view is in complete accord with the view taken by Bala-KRISHA ayyar j., referred to above.

The next decision referred to in the referring order is that of PalanisWAMY J., in P.I. Kurian v. Government of Tamil Nadu 85 L.W.364. What was the subject-matter of that decision was an order of the Government itself u/s 29 of the Act exempting the building in question from the provisions of the Act. That was challenged on the ground that the said exemption proceeded on the basis that the landlord did not have any remedy under the Act and that was the reason for exempting the building from the provisions of the Act. In that case the Government have stated in their orders:

...the Government now find that having regard to the recent decision of the Madras High Court reported in C.V. Govindan and Another Vs. A. Rajagopal Nadar, Nadar it has to be taken that the landlord, who requires for his own residential use the non-residential portion in the occupation of the tenant, Thiru P. I. Kurian, cannot invoke Section 10 (3)(c) and seek the eviction of the tenant before the Rent Controller. The landlord-Petitioner has thus no remedy under the provisions of the Act. The Government, therefore, now considers that this is a fit case for the grant of exemption u/s 29 of the Act. They have accordingly decided to exempt the portion of the premises No. 55, Rangasayee Street, Perambur, Madras, which has been under the tenancy of Thiru P. I. Kurian, from the provisions of Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

Challenging that order, and in particular the statement of the Government that the landlord had no remedy under the provisions of the Act, it was contended that the view taken by the Government was erroneous in law, for, the decision in C.V. Govindan and Another Vs. A. Rajagopal Nadar, relied on by the Government had not decided the point correctly, that even though the landlord wanted the portion in the occupation of the Petitioner for the residential purpose, it was yet open to him to apply u/s 10(3)(c) of the Act and that where a remedy was available to a landlord under the Act, it was not open to the Government to exercise the power of exemption. It was in that context the learned Judge had to consider two points, namely,(i) the circumstances under which the Government could exercise their power of granting exemption and (ii) whether the statement of the Government that the landlord did not have a remedy under the Act was correct or not. In that context, Palaniswamy J., referred to the judgment of Balakrishna Avyar J., which we have drawn attention to as well as to the judgment of Venkataraman J., to which we have made reference already. After referring to these two judgments, and in particular, the judgment of Venkataraman J., Palaniswamy J. stated:

In other words, the view of the learned Judge was that the purpose for which the additional accommodation is going to be used should be the identical purpose for which the tenant is also using the building for the time being. In the instant case, the landlords, though they occupy one portion for residential purpose and another portion for non-residential purpose, want a portion in the occupation of the Petitioner for their additional accommodation for residential purpose, whereas the tenant is using that portion for non-residential purpose. Relying upon the decision of Balakrishna Ayyar J-, referred to above, Mr. Ramaswami, Counsel for the Petitioner, contended that it was still open to the landlords to apply for eviction through the Rent Controller and that therefore, it cannot be said that the landlords were without a remedy under the Act. No doubt, the Andhra Pradesh High Court has taken a similar view as the view taken by Balakrishna Ayyar J., vide Parasuramiah v. Lakshmamma (1965) 1 AnWR 253. On behalf of the landlords, reliance was placed upon the expression as the case may be occurring in Section 10(3)(c) of the Act and it was argued that the said expression cannot permit the application of the same alternative to both the contingencies or vice versa and that it is implicit in the use of this phrase that one out of the various alternatives would apply to one out of the various situations and not otherwise. In other words, the argument was that, if a landlord wants a non-residential portion in the occupation of a tenant. for additional accommodation, he could ask for it only for the same purpose. No doubt, the expression "as the case may be" was construed by a Full Bench of the Punjab High Court in Khan Chand Tiloka Ram Vs. State of Punjab and Others, as being applicable only to one of the other alternatives only, but would not apply to both alternatives. Mr. Ramaswami, Counsel for the Petitioner, placing strong reliance upon the decision of the Andhra Pradesh High Court, pointed out that the learned Judge Venkataraman J., had evidently overlooked the use of the expression, notwithstanding anything contained in Clause (a) occurring in Clause (c) of Section 10(3) and that, if the learned Judge had taken note of that expression, he would not have taken the view which he had taken. Construing the non-obstante clause occurring in Section 10(3)(c) the Andhra Pradesh High Court held that such an expression was used to distinguish cases of eviction falling under Clause (a) and that, therefore, if the landlord satisfies the Rent Controller that he wants additional accommodation in the same building, it is open to him to readjust the additional accommodation in the manner convenient to him and that it cannot be insisted that the additional accommodation sought for should be used by the landlord for the same purpose for which the tenant sought to be evicted was using it. The Andhra Pradesh High Court also construed the expression as the case may be occurring in Section 10(3)(c) as only meaning that the requirement of additional accommodation may be for residential or for non-residential purpose. The argument of Mr. Ramaswami was that on a proper construction of Section 10(3)(c) should be held that the view held by the Andhra Pradesh High Court is correct. His submission was that, if that view is correct then it would follow that the landlords in the instant case were entitled to apply to the Controller for eviction of the Petitioner even though they (the landlords) want the portion in the occupation of the Petitioner for their residence, as against the non-residential use of the portion of the Petitioner.

I feel it unnecessary to go into the question whether the view of Venkataraman J., is correct or not, though I am inclined to agree with Mr. Ramaswami that the view expressed by Venkataraman J., requires re-consideration having regard to the language of Section 10(3)(c). Be that as it may, the question is, whether the Petitioner in the instant case, is entitled to have the order of the Government quashed.

After having made these observations, the learned Judge dismissed the writ petition holding that the Government bona fide came to the conclusion that the landlords were without a remedy of initiating proceedings under the Act to get additional accommodation of the portion in the occupation of the Petitioner in the light of the judgment of Venkataraman J., in the decision referred to above. In view of this conclusion, every one of the statements of the learned Judge extracted above would constitute only an obiter dicta, and it is not necessary for us to express any opinion on the correctness or otherwise of the same, and we shall, in the course of this judgment, deal with the scope of Section 10(3)(c) independently.

The next decision referred to in the referring order is that of Kailasam J., (as he then was,) in Saraswathi Sriraman and Another Vs. Pappi Chetty Raghaviah Chetty''s Charities and Others, . In that case, the Respondent before the High Court, who was the owner of the property, applied for additional accommodation of the premises occupied by the Petitioner to the High Court u/s 10(3)(c) of the Act. One of the contentions advanced on behalf of the tenants before the High Court was that the Respondent-trust was in occupation of the down-stairs for non-residential purposes and the tenants were, occupying the up-stairs for residential purposes and, therefore additional accommodation u/s 10(3)(c) can only be given to the landlord when it required the building for the purpose for which it was used by the tenants. The learned Judge stated that he did not see any such restriction in that clause and proceeded to state:

Sections 10(3)(a)(i) and (iii) makes it clear that when the landlord applies to the Controller for an order directing the tenants to put the landlord in possession of the building, he can either ask for possession of residential building under Clause (3) (a) (i) or non-residential building under Clause (3) (a) (iii) and there also, the purpose for which the building could be obtained is made specific, while u/s 10 (3) (c), the restrictions that are made applicable to Section 10(3)(a) are not insisted as Section 10 (3) (c) provides that notwithstanding anything contained in Clause (a) the landlord can 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 required additional accommodation for residential purposes or for purposes of a business which he is carrying on, as the case may be. In Section 10 (3) (c), the building referred to is the entire building and not the building with the restricted meaning, i.e., in occupation of the tenant alone or of the landlord alone. ''''The building" in this clause would take in the entire building that is in occupation of the landlord as well as the tenant and when the landlord wants additional accommodation, he may either need it for residential or for nonresidential purposes as long as it is in the same building. Strong reliance was placed on the words ''''as the case may be as indicating that he can apply only for residential or non-residential purposes as referred to in Section 10(3)(a). I am not able to accept this contention for the words are plain enough. The purpose behind the section also appears to be obvious that in the case of additional accommodation the landlord is given a little more indulgence. On a reading of the Sub-section, I would prefer the view taken by this Court in P.I. Kurian v. Government of Tamil Nadu 85 L.W. 364 rather than, the one expressed in C.V. Govindan and Another Vs. A. Rajagopal Nadar,

Here again, the only comment which we make is that the observations made by Palaniswam? J., in P.I. Kirian v. Government of Tamil Nadu 85 L.W. 364 were really obiter dicta and that the only decision on the point was that of Venkataraman J., in C.V. Govindan and Another Vs. A. Rajagopal Nadar, . With regard to the scope of Section 10(3)(c) itself we shall indicate our views later in the course of this judgment.

One other judgment, on which very strong reliance was placed by Mr. Ratan, the learned Counsel for the Petitioner, is that of a Bench of this Court reported in A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar, This decision was cited for the contention that the word building occurring in Section 10(3)(c) need not have the same meaning as given in Section 2(2) of the Act and will take in the entirety of the building as was held by Kailasam J., (as he then was), in the judgment which we have just dealt with. There is no difficulty in holding that where ever the word building occurs, it need not have the same meaning as given in Section 2(2) of the Act, because Section 2 itself opens by saying:

In this Act, unless the context otherwise requires.

Therefore, if the context in a particular provision requires that the word building should not be understood as defined in Section 2(2), certainly it is open to the Court to give the normal, natural and ordinary meaning which it is capable of, and for that purpose, it is not necessary to rely upon any decision. However, in view of the great insistence with which Mr. Ratan relied on this decision, we shall have now to refer to this decision and the context in which that decision came to be rendered. In that case, the Respondent was the owner of a building in the Municipal town of Erode which consisted of one block. On the east, the building was bounded by a public street called R.KV. Road and on the west there was another public street called Nethaji Road. Facing east and facing west there were several shops, each bearing distinct and separate door number. Those shops were let out to various tenants and they were in the ground floor of the building. The tenant in the case before the High Court was carrying on business in the shop bearing Door No. 290 facing Nethaji Road. In between the two rows of shops there was a mandi or godown in the possession and occupation of the landlord himself. The landlord was having his residence in the first floor over the shops facing R.K.V. Road. The landlord filed an application to evict the tenant from Door No. 290 on two grounds. He alleged that the tenant had sub-let portions of Door No. 290 to a tailor. Another ground was that the size of the landlords'' family had grown, as his sons had married and begotten children, that the existing accommodation in .the building was insufficient for a comfortable living of all the members of the family and that he required Door No. 290 for the purpose of widening a stair case lying adjacent to it in door No. 290 for the purpose of putting up a bath room and a lavatory. These were the grounds which came to be considered by this Court. After referring to the pleadings, this Court proceeded to state (at page 114):

We must point out at this stage that though the application for eviction purported to be one u/s 7(2)(ii) of the Act, the substance of the averments in the eviction application really indicates that the applications was preferred u/s 7(3)(c) of Madras Act XXV of 1949 corresponding to Section 10(3)(c) of Tamil Nadu Act XVIII of 1960). There cannot be any doubt that the tenant himself, understood the ground for eviction as one based on the later provision. The parties, therefore, went to trial before the Rent Controller on this single issue, viz., whether the landlord bona fide requires additional accommodation for his residential purposes and whether there are sufficient ground for evicting the tenant u/s 7(3)(c) of the Act.

The Rent Controller held that the landlord bona fide required the premises as and by way of additional accommodation and ordered eviction. But on appeal the Appellate Authority took a different view. According to the Appellate Authority, the landlord could not obtain the benefit of additional accommodation unless it was shown, that he was in occupation of a part of the building for residential purposes. Because of the fact that the portion bearing Door No. 290 in the occupation of the tenant bore an independent door number, the Appellate Authority reached the conclusion that it was not part of the building belonging to the landlord and the requirements of section 7(3)(c) of the Act were not satisfied. The landlord preferred a revision petition before the District Judge. The learned District Judge held that the Appellate Authority misdirected himself in not approaching the question in issue properly and from the correct standpoint, that there were enough grounds to sustain the order of the Rent Controller, that there could be no question of the bona fide of the landlord in seeking to evict the tenant and that the order of the Appellate Authority was erroneous. It was against those orders, the tenant preferred a revision petition to this Court. This Court considered the question whether the application filed by the landlord was maintainable u/s 7(3)(c) of Act XXV of 1949. After extracting the definition contained in Section 2(1) of that Act as well as the provisions contained in Section 2(3), the learned Judges proceeded to state (at page 115):

''Building'' includes part of building, but that part must be let or must be such as to be let separately for residential or non residential purposes. The anxiety of the Legislature in defining the word ''building'' as including a part, was perhaps only to obviate any contention which might be urged by a tenant in portion of a house from being evicted where sufficient grounds for eviction are present and, to confer the same privileges on a tenant of a part of those concerned upon a tenant in occupation of the whole. We may also observe that the Legislature has taken into account modern conditions of living and new modes of constructing buildings consisting of multiple stories due to lack of availability of abundant house-sites.

After extracting certain observations of Jessell M.R. in Yorkshire Insurance Co. v. Clayton 8 Q.B.D. 424 the Bench proceeded to state (at page 116):

The statutory definition of ''building'' as comprising a part would not, however, convert the part into a whole. Though the law might treat for purposes of a particular enactment a part of a building as really a whole building or in taking it as an entity for purposes of that enactment, it would, at best, be a statutory fiction. Any amount of fiction would not alter the hard fact, viz., that a part is part and is never the whole. Section 7(3)(c) of the Act has to be read, if possible, uninfluenced by fictions of any kind. Even statutory fictions are limited in their application, as they should be confined to the purpose for which they are created. Any extension beyond that purpose would not be permissible having regard to the canons of interpretation of statutes. This provision, Section 7(3)(c) enacts that a landlord, who is in occupation of a part of a building may apply for an order directing the tenant occupying the whole or a portion of the remaining part of the building to put the landlord in possession if he requires additional accommodation. The words ''part of a building'' occurring in this section are not abstruse and do not present a problem to be solved by seeking the aid of any rule of interpretation of statutes. The words employed are plain English words, whose meaning is simple and whose grammar is not difficult. The plain meaning of this section is that a landlord in occupation of a portion of a block of buildings can, for his own accommodation, evict the tenant in occupation of another portion of the same block. This he would be entitled to whether or not the portion in the occupation of the tenant has got, means of separate ingress and egress, whether it has been registered in the municipal property register as a separate unit of assessment or not, and whether the access to the house is by the same street from which the landlord has got access to his own portion or not. These are wholly irrelevant circumstances in order to ascertain the true position u/s 7(3)(c) whether a land-lord requires additional accommodation being in occupation of a portion of the building and seeking to evict a tenant in occupation of another portion of the same building.

The words ''part of a building'' in Section 7(3)(c) of the Act should receive their ordinary meaning without in any way influenced by the definition of the word ''building'' in Section 2. We would also like to point out that the definition in Section 2 itself is hedged in by the following words'' unless there is anything repugnant in the subject or context.

After referring to certain decisions of this Court, the learned Judges observed (at page 117):

In our opinion, there is no warrant to deprive the words in Section 7(3)(c) of the Act of their ordinary and natural meaning by engrafting the artificial definition of the word ''building'' in Section 2 upon them. The definition itself is restricted in its operation only when there is nothing repugnant in the subject or context. We cannot assume that ''part of the building'' which means physically and structurally a limb or portion, ceases to possess that character, because '' of the definition. We feel convinced that such an interpretation of the section would result in depriving it of any useful purpose.

Ultimately, the learned Judges held that the petition filed by the landlord was maintainable and dismissed the civil revision petition. We shall have occasion to make some comments on these judgments in the light of the statutory provisions contained in Section 10(3)(c) of the Act which we ourselves will consider.

We would like to refer to only one other judgment dealing with the meaning to be given to the word building occurring in another provision of the Act. That is the judgment of Ramakrishnan J., in R. Chellammal and Others Vs. Accommodation Controller, which dealt with the statutory provision contained in section 3 (10) (c) of the Act. Section 3 is the section dealing with the requirement of a landlord to give notice of vacancy to the Accommodation Controller. In that section, there is an exemption in Sub-section (10), and Section 3 (10)(c) reads:

Nothing contained in this section shall apply:

(a)....

(b).... ; and

(c) to a residential building, a part only of which is occupied by the full owner and the whole or any portion of the remaining part of such building is let to any tenant.

It is the scope of this section which came to be considered by RAMAKRISHN j., in the judgment referred to above. The learned Judge observed:

Before consideration of this question., I will deal with the argument of the learned Government Pleader based upon the definition of ''building'' in Section 2 (2) the Act, namely "building" will include ''part of a building''. If that extended meaning of the term is to be applied to Section 3(10) (c), it would appear as, if the portion occupied by the owner though a part, can be viewed as a building independent of the portion let out, which has to be viewed as a building by itself. If this extended meaning is to be given, Section 3(10) (c) will itself become meaningless, as the section is intended to deal with a building viewed as in two parts, one part in the occupation of the owner and the other let out to a tenant, and in such a case, immunity is given to the owner, from the requirement of reporting the vacancy of the portion let out. The extended meaning of the definition of building, as applicable to a part, should therefore be ruled out in this case. A similar view is held by a Bench of this Court reported in A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar, in the context of Section 7(3)(c) of the Madras buildings (Lease and Rent Control) Act, 1949 [corresponding to Section 10(3) (c) of Act XVUII of 1960]. In fact Section 2 (2) itself contains a necessary limitation to its application, namely, that it would not apply, if the context otherwise indicates to the contrary.

The learned Judge has simply followed the observations of the Bench judgment in relation to Section 3(10)(c) of the Act.

We shall now consider the scope of Section 10 (3) (c) of the Act ourselves. With respect we may point out that most of the judgments, to which we have drawn attention, have failed to take into account two expressions that occur in Section 10(3)(c). One is that the section makes a reference to residential building as well as a non-residential building. Most of the judgments, to which we have drawn attention, have merely concentrated on the scope of the expression building, whether it should be construed as defined in Section 2 (2) of the Act or otherwise, but did not pay pointed attention to qualifying words residential and nonresidential. The second is the expression at the case may be that occurs towards the end of Section 10 (3) (c). It is true that Palaniswamy J. as well as Kailasam J, (as he then was), have referred to that expression. But neither of them expressed any final opinion on the meaning to be given to that expression occurring in that context.

One significant thing to be noticed, which is common to Section 10(3) (a) as well as Section 10(3) (c) is the use of the expressions residential building and non-residential building. Section 10(3) (a) (i) uses the expression residential building. Section 10(3) (a) (iii) uses the expression non-residential building and Section 10(3)(c) uses the expressions residential building as well as non-residential building. The Act itself has not defined the expression residential building or non-residential building. It is a Full Bench of this Court which has defined this expression in the decision reported in Dakshinamoorthy v. Thuja Bai (1952) 1 M.L.J. 390. This Court in that case was considering the corresponding provisions of Madras Act XXV of 1949. After elaborately considering the question from all points of view, the Pull Bench laid down certain tests for the purpose of finding out whether a building is a residential building or a non-residential building as used in the Act. The Full Bench observed:

For the purpose of determining whether a building is residential or non-residential according to the view expressed above of what ''residential building'' means we have to bear in mind a few salient considerations, which we propose to indicate:

(1) Where there is an instrument of tenancy specifically and explicitly declaring the purpose of the letting as residential or non-residential, no difficulty generally arises. (2) whether there is no such instrument of tenancy, the question will have to be considered on the basis of direct evidence allude concerning the purpose of the letting, which may be adduced in a case. (3) if no such evidence too is forthcoming the Court can only look at the evidence concerning the user of the premises by the tenant down to the date of the application for eviction, as acquiescence in by the landlord. For, such user and such acquiescence afford a safe basis for an inference of agreement between the parties as to the purpose of the letting. (4) where there is evidence of such user, but there is no evidence of such acquiescence, the structural design, the antecedent user of the building by the landlord as known to the tenant and other surrounding circumstances, if any, will also have to enter into the determination of the question whether the building is or is not residential and (5) difficulty may sometimes still remain, i.e., even after applying the tests above indicated, if the building is found let for both kinds of purposes, residential and non-residential, no distinction being made between one part as let for one purpose and the other for the other purpose. In such a case it seems to us that what has to be determined as a question of fact is, what was the real, main and substantial purpose of the letting.

The crucial thing to be noticed with regard to these five tests is that they are applicable to a case of a building or a part of a building which has been let, but they can have no application to a building or a part of a building which is not let out and which continues in the occupation of the landlord only. Consequently there is no difficulty in applying these tests to the use of the expression residential building occurring in Section 10(3)(a)(i) and non-residential building occurring in Section 10(3)(a)(iii), because, in both the cases, the basis is that the building is in the occupation of the tenant and the landlord is seeking to recover possession of the same. But the said tests will fail if one comes to Section 10(3)(c), because, the section presumes that a part of the building is in the occupation of the landlord and a part of the building is in the occupation of the tenant. Consequently, if the word building occurring in Section 10(3)(c) is to be understood differently from the word building as defined in Section 2 (2) of the Act, there is no test to find out whether a building is a residential building or a non-residential building. We are emphasising this aspect of the case only for the purpose of showing that even after the Full Bench judgment, when the Act was re-enacted in the form of Tamil Nadu Act XVIII of 1960, the Legislature did not choose to incorporate a definition of the term residential building or non-residential building. This can be explained only on the basis that the Legislature proceeded on the basis that the Full Bench judgment of this Court will govern the situation and take care of it and there is no need for the Legislature to step in and define the expression.

Consequently, it is safe to proceed on the basis that it is the test laid down by the Full Bench that will have to be applied for the purpose of finding out whether a particular building is a residential building or a non-residential building. As we have pointed out already, that test will fail if we give to the word building occurring in Section 10(3)(c) of the Act the wider meaning or normal meaning of a single physical structure inclusive of the parts in the occupation of the tenant and in the occupation of the landlord. That will be one difficulty in understanding the expression building occurring in Section 10 (3)(c) in the manner suggested by the learned Counsel for the Petitioner. Again, we may point out that this aspect was not considered by any of the judgments to which we have drawn attention including the Bench judgment reported in A. Mohammed Jaffar Saheb Vs. A. Palaniappa Chettiar, referred to already. It may be that one way of getting out of the difficulty will be to characterise the entire building as residential or nonresidential based on the character of the part in the occupation of the tenant. Here again in there may be scope for further difficulty, if one part in the occupation of one tenant is residential and another part in the occupation of another tenant is non-residential.

Consequently, the question that will have to be considered is that, if the word building in Section 10 (3) (c) is to be understood without reference to the definition contained in Section 2 (2), how is one to determine whether a particular building is a residential building or a non-residential building? We have already extracted the section and the section expressly refers to both residential building and non-residential building. In any event, if a tenant puts forward a contention that the petition filed by the landlord u/s 10(3) (a) (iii) was not maintainable and it should be only u/s 10(3)(c), it is for him to make out how the provisions of Section 10(3)(c) will apply to the particular case In this case, the Petitioner had not pleaded any where in his pleadings that the building is a residential one or a non-residential one. In order to make Section 10(3) (c) applicable to the same, it is imperative that it must be made clear whether the building is a residential one or a non-residential one, because as we shall show later, the purpose for which the additional accommodation is required is inextricably bound up with the nature of the building.

However, strong reliance was placed on the expression contained in Section 10 (3) (c), namely, notwithstanding anything contained in Clause (a). According to the learned Counsel for the Petitioner, this clause itself will show that the expression building occurring in Section 10(3) (c) does not mean the same thing as that expression occurring in Section 10 (3) (a). It is no doubt true that when the Legislature uses the expression notwithstanding anything contained in some other provision it wants to resolve a conflict between two sets of provisions and to give an over-riding effect to the enacting provision which contains this non-obstante clause. But certainly this is not an universal or inflexible rule. Generally a clause beginning with notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force is sometimes appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an over-riding effect over the provision of Act mentioned in the non-obstante clause. However, this is not always the same case. That is what the Supreme Court stated in The South India Corporation (P) Ltd. Vs. The Secretary, Board of Revenue Trivandrum and Another, . The Supreme Court in that case was contrasting the use of the expressions subject to and notwithstanding and observed:

That apart, even if Article 372 continues the pre-constitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression "subject to" conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. Further, Article 278 opens out with a non-obstante clause. The phrase, ''notwithstanding anything in the Constitution'' is equivalent to saying that inspite of the other articles of the Constitution, or that the other articles shall not be an impediment to the operation of Article 278. While Article 372 is subject to Article 278, Article 278 operates in its own sphere inspite of Article 372. The result is that Article 278 over-rides Article 372 that is to say, notwithstanding the fact that a pre-constitution taxation law continues in force under Article 372, the Union and the State Governments can enter into an agreement in term of Article 278 in respect of Part B States depriving the State law of its efficacy. In one view Article 277 excludes the operation of Article 372, and in the other view, an agreement in terms of Article 278 over-rides Article 372.

However, the Supreme Court in The Dominion of India and Another Vs. Shrinbai A. Irani and Another, observed:

While recognising the force of this argument it is however necessary to observe that although ordinarily there should be a close approximation between the non-obstante clause and the operative part of the section, the non-obstante clause need not necessarily and always be co-extensive with the operative part, so as to have the effect of cutting down the clear terms of an enactment. If the words of the enactment are clear and are capable of only one interpretation on a plain and grammatical construction of the words thereof a non-obstante clause cannot cut down the construction and restrict the scope of the operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the operative part of the enactment.

Earlier, the Supreme Court had to consider the significance of this expression in Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, . In that case, the Supreme Court was considering the scope of Section 2 of the Supreme Court Advocates (Practice in High Courts) Act, 1951. That section read as follows:

Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of that High Court.

Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court, to practise in any High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.

The Supreme Court was considering the scope of the expression not withstanding anything contained in the Indian Bar Councils Act, 1926 occurring in that section and the judgment of the Calcutta High Court with reference thereto. Patanjali Sastri C.J., observed:

Turning now to the non obstante clause in Section 2 of the new Act, which appears to have furnished the whole basis for the reasoning of the Court below; and the argument before us closely followed that reasoning, we find the learned Judges begin by inquiring what are the provisions which that clause seeks to supersede and then place upon the enacting clause such construction as would make the right conferred'' by it co-extensive with the disability imposed by the superseded provisions. "The meaning of the section will become clearer", they observe: ''if we examine a little mote closely

what the section in fact supersedes or repeals.... The disability which the section removes and the right which it confers are co-extensive.'' This is not, in our judgment a correct approach to the construction of Section 2. It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning and the non-obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment....

Nor can we read the non-obstante clause as specifically repealing only the particular provisions which the learned Judges below have been at pains to pick out from the Bar Councils Act and the Original Side Rules of the Calcutta and Bombay High Courts. If, as we have pointed out, the enacting part of Section 2 covers all Advocates of the Supreme Court, the non-obstante clause can reasonably be read as over-riding ''anything contained'' in any relevant existing law which is inconsistent with the new enactment, although the draftsman appears to have had primarily in his mind a particular type of law as conflicting with the new Act. The enacting part of a statute must, where it is clear, be taken to control the non-obstante clause where both cannot be read harmoniously, for, even apart from such clause a later law abrogates earlier laws clearly inconsistent with it.

The same view was expressed by the Supreme Court in A.V. Fernandez Vs. The State of Kerala,

Thus it will be seen that the occurrence of the non-obstante clause in Section 10(3)(c) is not conclusive on this question and we have to find out what exactly the enacting part provides. As we have pointed out already Section 10(3)(c) apply to residential buildings as well as non-residential buildings and this is made expressly clear. In order to find out what exactly the purpose for which additional accommodation can be obtained under the provisions of Section 10(3)(c) it is necessary to read the provision distributively one dealing with residential building and the other dealing with non-residential building. For the purpose of understanding the real purport of that section, if the section is so read, it will read with regard to residential building as follows:

A landlord, who is occupying only a part of a residential building may notwithstanding anything contained 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.

Similarly the section will read with regard to the non-residential building as follows:

A landlord, who is occupying only a part of a non-residential building, may, notwithstanding anything contained 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 purposes of a business which he is carrying on.

This will be the position whether we give to the word building occurring in the Sub-section the normal meaning or the meaning as defined in Section 2(2). Whatever meaning we attribute to the word building occurring in Section 10(3)(c), before Section 10(3) (c) can be invoked the first thing that has to be ascertained is whether the building is a residential building or a non-residential building. If it is a residential building, the landlord can obtain additional accommodation only for the purpose of his residence. If it is a non-residential building, the landlord can obtain additional accommodation only for the purpose of the business which he is carrying on. This conclusion flows from the use of the two expressions occurring in the section. One is the expression, additional accommodation and the other is the expression as the case may be. The word additional is in common use and its meaning is very well understood by people generally as being something that is added to or put into a thing already in existence. In other words, it means an increase, an addition. The Shorter Oxford English Dictionary gives the meaning of the word additional as adj. Existing in addition, added. The Universal English Dictionary edited by Henry Cecil Wyld gives the meaning of the word additional as:

Coming as an addition, added, supplementary.

The Chambers Twentieth Century Dictionary gives the meaning of the word additional as adj. Added. This expression clearly indicates that what is required is additional to something in existence. Having regard to the dichotomy between the residential building and the non-residential building expressly provided for in the Sub-section itself, eviction can be sought only for the purpose of residence, if the building is a nonresidential one. This is reinforced by the expression as the case may be. We have already referred to the observations of Palaniswamy J., in P.L. Kurian v. Government of Tamil Nadu 85 L.W. 364. as to the meaning of the expression as the case may be. In that past the learned Judge has referred to the judgment of the Full Beach of the Punjab High Court in Khan Chand Tiloka Ram Vs. State of Punjab and Others, The Full Bench in that case was considering the following statutory provision found in the Punjab Security of Land Tenures Act, 1955 as amended in 1955:

Permissible area in relation to a landowner or a tenant, means thirty standard acres and where such thirty standard acres on being converted into ordinary acres exceed sixty acres, such sixty acres:

Provided that,--

(i) no area under an orchard at the commencement of the Act, shall be taken into account in computing the permissible area;

(ii) for a displaced person;--

(a) who has been allotted land in excess of fifty standard acres the permissible area shall be fifty standard acres or one hundred ordinary acres, as the case may be.

(b) who has been allotted land in excess of thirty standard acres, but less than fifty standard acres, the permissible area shall be equal to his allotted area.

(c) who has been allotted land less than thirty standard acres, the permissible area shall be thirty standard acres including any other land or part there of, if any, that he owns in addition.

The meaning of the expression as the case may be came to be considered by the Full Bench in that case. The Full Bench observed

One of the basic principles of interpretation of statutes is that it must be presumed that every word used in a section of a legislative enactment has been inserted with a purpose and some meaning must be assigned to it. The intention of having uselessly added surplus words or phrases should never be attributed to the Legislature. It has been authoritatively held by their Lordships of the Supreme Court in The J.K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. The State of Uttar Pradesh and Others, that the Courts always presume, while interpreting statutes, that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. Keeping the above principle in view we must assume that the Legislature has deliberately used the well-known expression "as the case may be" in the provision in question with some definite purpose and intendment. This expression necessarily means that at least two situations are envisaged by the earlier part of the section and two separate provisions or alternatives are provided in a later part of the same Sub-section to one of which the one alternative and to the other of which the other is intended to be applicable. The expression "as the case may be" cannot permit the application of the same alternative to both the contingencies or vice versa. It is implicit in the use of this phrase that one out of the various alternatives would apply to one out of the various situations and not otherwise, ''One'' here would of course include more than one contingencies for one set of circumstances in a given case.

We respectfully adopt the above observations with reference to the occurrence if the expression as the case may be towards the end of Section 10 (3) of the Act.

The presence of the expression as the case may be towards the end of Section 10 (3) (c) makes it absolutely clear that the two purposes preceding the expression, namely, for residential purpose or for purposes of business which he is carrying on are respectively relatable to the residential building and the non-residential building occurring in the opening of the provision and the significance of this expression cannot be ignored. If the significance of these expressions is taken into account, the result will be that for invoking Section 10 (3) (c) of the Act, the following conditions must be satisfied:

In the case of a residential building additional accommodation can be obtained only for residential purpose. In the case of a non-residential building additional accommodation can be obtained only for purposes of business which the landlord is carrying on. Thus, it will be seen that that part of Section 10 (3) (c) concerning the residential building corresponds to Section 10 (3) (a) (i) and the other part concerning non-residential building corresponds to Section 10 (3) (a) (iii). In such a correspondence, full meaning can be given to the non obstante clause. Section 10 (3) (a) (i) refers to the landlord not occupying a residential building of his own. Similarly Section 10 (3) (a) (iii) refers to the land lord not occupying ...a non-residential building.... Which is his own. With reference to these provisions, it may be possible to contend that a building includes its part and hence, if a landlord is in the occupation of a part of his building he cannot get possession of the part in the occupation of the tenant under these provisions. It is to meet such a situation separate provision has been made in Section 10 (3) (c) and hence the significance of the non-obstante clause.

If so construed, certainly Section 10 (3) (c) will have no application to the facts of the present case, because the Respondent-landlord did not require additional accommodation for the purpose of his residence. But, on the other hand, he requires additional accommodation for the purpose of running his dispensary and clinic. To such a case, Section 10 (3) (c) will have no application. As we have pointed out already, all the requirement of Section 10 (3) (a) (iii) are complied with in the present case, and. therefore, the Appellate Authority was right in holding that the petition was maintainable u/s 10 (3) (a) (iii) and, on merits, about which there was no controversy before us, allowing the eviction petition filed by the Respondent herein, who is the landlord. Consequently, the civil revision petition fails and is dismissed. There will be no order as to costs.