The Manager, Deluxe Roadlines and Another vs Jainullabudeen

S.S. Subramani, J.—Tenants in R.C.O.R No. 25 of 1992, on the file of District Munsif s Court, Erode - Rent Controller, are the revision

petitioners.

Landlord who is the sole respondent in this revision sought eviction of the petitioners on the ground that the building is required for their own

occupation, partly for residential and partly for non-residential purpose. It is the case of the landlord that he has no other building of his own for the

purpose of doing business and also to reside, and it is a residential building that has been taken on rent by these revision petitioners, for using the

same for non-residential purpose.

The main ground in the petition that was raised by the revision petitioners was that the petitioners cannot seek eviction of the building for

residential as well as non-residential purpose, when the letting was for non-residential purpose alone. They also disputed that the building is a

residential building.

The Rent Controller believed the evidence of the landlord and ordered eviction. He permitted the landlord to get possession holding that the

building is required for residential as well as non-residential purpose.

The matter was taken in appeal before the Appellate Authority by the aggrieved tenants. The Appellate Authority found that the landlord is

entitled to get possession on the ground that the building is required bona fide for their residential purpose. The other ground was found against.

But the eviction order was confirmed. It is the concurrent order that is challenged in this revision.

The only legal point urged by learned Counsel for the revision petitioner is that when a building has been let out for non-residential purpose,

eviction cannot be had for residential purpose. Learned Counsel for the revision petitioner relied on a Full Bench decision of this Court reported in

T. Dakshinamoorthy Vs. Thulja Bai and Another, and contended that the said decision still holds good. Whether a building is residential or non-

residential is to be considered from its user and not from the structure. Even if the structure is residential, if the building was let in for non-residential

purpose, as per the definition of ''building'' under the Rent Control Act, it becomes a non-residential building. Therefore, there is a statutory bar u/s

10(3)(a)(i) and (iii) of the Act, for getting possession of a building which does not satisfy the nature of the building.

As against the said contention, learned Counsel for the respondent submitted that the Full Bench decision of this Court, Referred to supra, is no

longer good law in view of various decisions of the Supreme Court as well as this Court.

Learned Counsel relied on the decision reported in Busching Schmitz Private Limited Vs. P.T. Menghani and Another, , which was followed in

S.P. Jain Vs. Krishna Mohan Gupta and Others, . He further relied on the decision reported in P. Kesavan (Dead) through Lrs. Vs. Ammukutty

Amma and Others, and also on various decisions of this Court.

Indira v. Vinayagam Chettiar (1988) 2 L.W. 454 is a case under the Pondicherry Buildings (Lease and Rent Control) Act, decided by M.N.

Chandurkar, C.J. In Shelat Brothers v. Lodd Narendradas (1988) 2 L.W. 8 (Short Notes) Ratnam, J., as he then was, has also considered a

similar question.

In a very recent decision of this Court reported in Kovilpillai Nadar v. Tiresha Ammal (1997)1 L.W. 585 also, a similar question was

considered.

There are other decisions also on this point wherein their Lordships of the Supreme Court as well as this Court have held that to decide the

nature of the building, the structure has to be given the predominance and not is user.

In S.P. Jain Vs. Krishna Mohan Gupta and Others, , their Lordships said thus:

Residential premises are not only plots which are let out for residential purposes nor do all kinds of structures where humans may manage to dwell

are residential. Use or purpose of the letting is no conclusive test. Whatever is suitable or adaptable for residential use, even by making some

changes, can be designed residential premises. Residentiality depends for its sense on the context and purpose of the statute of the project

promoted.

(Italics supplied)

In the above case, their Lordships followed an earlier decision of Justice Krishna Iyer reported in Busching Schmitz Private Limited Vs. P.T.

Menghani and Another, . While referring to that judgment, in paragraph 18 of the judgment, their Lordships said thus:

We are of the opinion that law should take pragmatic view of the matter and respond to the purpose for which it was made and also take

cognizance of the current capabilities of technology and life style of the community. It is well settled that the purpose of law provides a good guide

to the interpretations of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltd. case that

legislative futility is to be ruled out so long as interpretative possibility permits. Residentiality depends for its sense on the context and purpose of

the statute of the project promoted.

When these decisions were brought to the notice of learned Counsel for the revision petitioners, he submitted that so far as Tamil Nadu Rent

Control Act is concerned, ''building'' has been given a separate definition and that was the reason why in T. Dakshinamoorthy Vs. Thulja Bai and

Another, a Full Bench of our High Court held that for the purpose of letting, user of the building will decide the nature of the building. I do not think

the said contention could be accepted, for, in the decisions of the Supreme Court referred to supra, it has been unequivocally held that the user of

the building is not conclusive test to decide the nature of the building. Apart from the same, the argument cannot hold good in view of the decision

reported in P. Kesavan (Dead) through Lrs. Vs. Ammukutty Amma and Others, . That was a case coming under the Kerala Buildings (Lease and

Rent Control) Act, where the definition of ''building'' is the same as in our Act. In paragraph 10 of that judgment (at page 205), it was held thus:

It appears clear that this conversion as contemplated for which permission was required is conversion by the tenant and cannot be a conversion by

the landlord, quite apart from the fact that in this case there was no conversion of the building sought. The building was used for non-residential

purpose and the purpose for which the building was sought was for residential purpose. It appears to us that putting to a different purpose the user

of the building is not a conversion of the building as such. It has been found that the building as it is without any structural change can be put to

residential purpose. There was no conversion of the building as such involved in this case hut a change of user of the building.

(Italics supplied)

The eviction order in that case was confirmed.

So far as this Court is concerned, the decision of M.N. Chandurkar, C.J. reported in Indira v. Vinayagum Chettiar (1988) 2 L.W. 454 is

opposite on this point. There also, the learned Judge considered a case under the Pondicherry Rent Control Act, where also a siiular definition has

been given for the word ''building''. In that case, it was held thus:

A (sic) by its very nature is non-residential in diameter will not become (sic) merely because it is used for residential (sic) unless it has been so

converted as to facilitate its use for residential purpose. Whether a building is non-residential building or not will, therefore, have to be determined

on the structural characteristics of the building and the purpose for which it has been constructed. There is a statutory bar against conversion of a

residential building into a non-residential one. A building which has a bathroom and kitchen and other amenities which are charactertics of a

residential building can therefore be treated as a residential building notwithstanding its use for a non-residential purpose.

In Shelat Brothers, v. Lodd Narendradas (1988) 2 L.W. 8 (Short Notes), Ratnam, J., as he then was, has held thus:

The mere user of a room in a residential building for non-residential purposes will not make the building as a whole a non-residential building as to

bar the landlords from availing the benefits of Section 10(3)(a)(iii) of the Act. This has been laid down in R. Rangaswami Iyengar v. Postmen''s

Cooperative Credit Society through its President and Anr. 91 L.W. 403. Under those circumstances, the respondents in C.R.P. Nos. 313 of 1984

and 314 of 1984 would undoubtedly be entitled to maintain an application u/s 10(3)(a)(iii) of the Act.

In the last decision referred to supra, namely, Kovilpillai Nadar v. Tiresha Ammal (1997) 1 L.W. 585 it was held thus:

...if the structure of a building indicates that it is a residential purpose, and it is used for non-residential purpose, a petition for eviction filed against a

tenant who is carrying on business in that place, is maintainable by the landlord, who wants it for residential purpose.

There are also various other decisions on the point in issue. But I do not want to multiply the same.

In view of the decisions of the Supreme Court and also by this Court, referred to supra, I do not think any reliance could be placed on the Full

Bench decision reported in T. Dakshinamoorthy Vs. Thulja Bai and Another, . Moreover, on going thr6ugh that decision, I further find that their

Lordships did not rule out that the nature of structure is irrelevant. Their Lordships of the Full Bench have also held that the nature of construction

is also a relevant factor for consideration, though the user was given predominance. To that extent, the decision of the Supreme Court is otherwise.

In that view, it has to be held that the decision of the Full Bench to that extent is not good law.

No other point was argued by learned Counsel on both sides.

In the result, the Civil Revision Petition is dismissed with costs.