V. Bichawa vs M. Venkatesan

Ismail, J.—This civil revision petition under the Tamil Nadu Act XVIII of 1960 comes before this Bench on a reference made by the

Hon''ble the Chief Justice.

When the matter came before the Hon''ble the Chief Justice originally, reliance was placed on a decision of Kailasam, J. (as he then was) in K.

Shanmugha Appah Vs. S.S. Abdul Hameed, as well as an unreported judgment of the same learned Judge in Civil Revision Petition Nos. 73, 100

and 101 of 1971 and Civil Miscellaneous Petition Nos. 11248 and 11809 of 1971 Syed Ibrahim v. Sudarsan (1972) T.L.N.J. 259, judgment,

dated 21st March, 1972. The learned Chief Justice was not inclined to agree with the contention of the learned Counsel for the Respondent in the

civil revision petition, based on the said judgments, and hence the reference to this Court.

Before we proceed to deal with the question of law, on the basis of which this civil revision petition has been referred to a Bench, we shall refer

to the facts of this case. The Petitioner herein filed a petition, House Rent Case No. 1023 of 1976, against the Respondent herein before the Court

of Small Causes, Madras, for eviction of the Respondent u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Tamil

Nadu Act XVIII of 1960, hereinafter referred to as the Act, on the ground that the Petitioner herein required the premises for the immediate

purpose of demolition and re-construction. The Respondent herein resisted the petition putting forward the contention that the requirement of the

Petitioner was not bona fide. However, during the course of the hearing of the petition, he produced exhibit R-6, a registration copy of the sale

deed under which the property in question was purchased for the purpose of putting forward the contention that the Petitioner herein was not the

owner of the premises and, if at all, he could only be an agent of the owner and that consequently he had no right to maintain the present petition.

The Rent Controller, while finding that the requirement of the Petitioner was bona fide, held that the evidence of P.W. 1 that the petition-property

was purchased benami in the name of his wife remained unchallenged. He also referred to the evidence of the Respondent himself that he did not

make any enquiry with regard to the fact as to, who was the real owner of the Petitioner-building, that he took the lease of the Petitioner-building

only from the Petitioner and that he was paying the rent to the Petitioner, as the other tenants were paying rent to the Petitioner. In view of this, the

Rent Controller held that the petition was maintainable and, therefore, directed the eviction of the Respondent herein.

Against the order of the Rent Controller, the Respondent herein referred an appeal to the appellate authority. The appellate authority, while

concurring with the conclusion of the Rent Controller that the requirement of the Petitioner was bona fide, allowed the appeal and dismissed the

petition filed by the Petitioner herein on the sole ground that the Petitioner herein was only an agent of the owner of the property and consequently

he could not have maintained the petition without the previous written consent of the owner, as required u/s 10(8) of the Act. For the purpose of

coming to this conclusion, he relied on the decision of Kailasam, J. (as he then was), in Syed Ibrahim v. Sudarsan (1972) T.L.N.J. 259 to which

we have already made reference. The result was that the petition filed by the Petitioner herein u/s 14(1)(b) of the Act for eviction of the

Respondent was dismissed. It was to revise the order of the appellate authority that the Petitioner filed the above civil revision petition.

When the civil revision petition came up for hearing before the Hon''ble the Chief Justice, the Respondent sought to sustain the order of the

appellate authority with reference to the decision of Kailasam, J., (as he then was), referred to already. The learned Chief Justice disagreed the

view of Kailasam, J. (as he then was), and hence directed the above civil revision petition to be posted before a Bench.

Section 2(6) of the Act defines the expression, landlord as follows:

''Landlord'' includes the person, who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another

or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or, who would so receive the rent or be

entitled to receive the rent, if the building were let to a tenant;

Explanation.--A tenant, who sub-lets shall be deemed to be a landlord within the meaning of this Act in relation to the sub-tenant.

Section 10(1) of the Act states:

A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Sections 14

to 16.

There are two provisos to this Sub-section, which it is unnecessary to refer to for the purpose of this case. It is worthwhile pointing out that even

the heading of this section is Eviction of tenants.

Section 10(8) of the Act states:

Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of

the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.

As we have seen Section 10(1) of the Act refers to eviction u/s 10 as well as Sections 14 to 16. Section 14 deals with eviction of a tenant by a

landlord for repairs or for re-construction. Sections 15 and 16 are consequential sections and as far as the present case is concerned, we have

seen that the petition filed by the Petitioner for eviction of the tenant was u/s 14(1)(b) of the Act. The question that came to be considered by

Kailasam, J., (as he then was), was whether the provisions of Section 10(8) of the Act applied to eviction u/s 10 only or whether they applied to

evictions under Sections 14 to 16 also. The learned Judge took the view that Section 10(8) applied to evictions not only u/s 10, but also under

Sections 14 to 16.

The first decision of Kailasam, J. (as he then was), was the unreported decision in Syed Ibrahim v. Sudarsan (1972) T.L.N.J. 259. In that case

the petitions filed by the Petitioners for eviction of the tenants were held to be not maintainable on the ground that as contemplated in Section 10(8)

of the Act the previous written consent of the landlord had not been produced. The argument that was advanced before the learned Judge was that

Section 10(8) was applicable only to eviction u/s 10 and not to eviction u/s 14 of the Act for the reason that Section 14 contemplated the Rent

Controller passing an order directing the tenant to deliver possession of the building to the landlord and did not use the expression, eviction. But the

learned Judge repelled that contention by pointing out that Section 10(1) itself used the expression, eviction under Sections 14 to 16 and that

before there was no substance in the distinction sought to be made between Section 10 and Section 14 on the basis of the language used in

Section 14, with the result the learned Judge held that Section 10(8) applied to evictions not only u/s 10, but also u/s 14.

The next decision of Kailasam, J. (as he then was), in K. Shanmugha Appah Vs. S.S. Abdul Hameed, . In that decision also the learned Judge

had to consider the scope of Section 2(6) as well as Section 10(8) of the Act. As far as the facts of that case were concerned, the defence of the

tenant was the Petitioner was not entitled to maintain the petition as he was one of the joint co-owners. The learned Judge, while holding that

Section 10(8) would apply to an eviction u/s 14 also, took the view that, as far as the case with which he was concerned, the landlord did not fall

within the category covered by Section 10(8) and that, therefore, the previous written consent was not mandatory.

Consequently we have now to consider the question whether Section 10(8) applied to eviction u/s 10 only or it applied to eviction u/s 14 also.

We are of the opinion that Section 10(8) will apply to eviction u/s 10 as well as Section 14 of the Act. In the first place, Section 10(8) does not

use the expression, eviction under this section. Secondly, Section 10(8) is a part of Section 10 and Section 10(1) takes in not only eviction u/s 10,

but also eviction under Sections 14 to 16. Consequently merely as a matter of construction, we come to the conclusion that the applicability of

Section 10(8) is not confined or restricted only to eviction u/s 10, but it will extend to eviction under Sections 14 to 16 also.

Having come to this conclusion simply as a matter of construction of the language in the section, we are also of the opinion that there is nothing

on principle to exclude the applicability of Section 10(8) to eviction u/s 14. We have already seen the wide definition of the term landlord as

contained in Section 2(6) of the Act. That definition takes in a number of persons, who may have a very tenuous connection with the property.

Obtaining an eviction of a tenant in the occupation of a building has got serious consequences both for the tenant as well as the landlord and in such

a context, if the Legislature had taken the view that where a person, who applies to the Rent Controller for eviction of a tenant, is not really the

owner of the building, but happens to be a person appointed by the owner merely for the purpose of collecting the rent, such person must obtain

the previous written consent of the landlord for taking proceedings for eviction of the tenant, it cannot be said that such a provision is not a

reasonable one. A person who is appointed merely for the purpose of collecting the rent as an agent of the landlord may take into his head to apply

for eviction of the tenant of the premises in question, whether u/s 10 or Section 14 of the Act and take the consequences flowing therefrom. There

being no controversy that Section 10(8) applies to eviction u/s 10, we shall consider whether by applying Section 10(8) to eviction u/s 14, any

prejudice is caused to the landlord at all. We are of the opinion that no prejudice will be caused to the landlord for the simple reason that, if a

person appointed only for the purpose of collecting the rent from the tenant files a petition for eviction u/s 14 without reference to the owner of the

building, it may produce very serious consequence. That section contemplates the landlord taking all the necessary steps for the purpose of

immediately demolishing the building and re-constructing the same within the period prescribed in the statute and giving an undertaking to the Court

also to such an effect. If a person, who was appointed only for the purpose of collecting the rents, did all these things and ultimately it was found

that they were not binding on the landlord, namely, the owner of the building, the tenant who had been evicted from the property would be put to

serious inconvenience and the landlord himself would not be obliged to honour the commitments made by the agent on his behalf. Under these

circumstances, if the Legislature had thought fit to provide for the agent obtaining the previous written consent of the landlord, it could not be said

that such a provision made by the Legislature was an unreasonable one. Consequently both as a matter of construction as well as a matter of

common sense we come to the conclusion that the provisions of Section 10(8) apply not only to eviction u/s 10, but also to eviction u/s 14 of the

Act.

Thus, we agree with the view taken by Kailasam, J. (as he then was).

The next question for consideration is, whether the dismissal of the Petitioner''s petition for eviction on the ground that the requirements of

Section 10(8) have not been complied with is correct or not. That will depend on the scope of Section 10(8) itself. We have already extracted

both Section 2(6) as well as Section 10(8). Kailasam, J. (as he then was), had repeatedly pointed out in the two decisions referred to already that

out of several, classes of persons who would come within the scope of Section 2(6), as landlord, only a specified class had been mentioned in

Section 10(8) and it was that class which was required to obtain the previous written consent of the landlord before a petition for eviction could be

maintained. The question then that arises for consideration is, which is that class which is covered by Section 10(8).

There is a decision of a single Judge of this Court on the class of persons covered by Section 7(7) of the Tamil Nadu Buildings (Lease and

Rent Control) Act, XXV of 1949, corresponding to Section 10(8) of the Act. That provision was:

Notwithstanding anything contained in this section, no person, who is receiving or is entitled to receive the rent of a building merely as an agent of

the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.

Thus, it will be seen that Section 10(8) of the Act is identical with Section 7(7) of the Tamil Nadu Act, XXV of 1949. With reference to that

section, Srinivasan, J., in Pahalajmal Khatumal v. T.V. & Bros (1961) 1 M.L.J. 150 stated as follows:

The plain purport of the section appears to be nothing more than that no person, who is collecting the rent or is entitled to collect the rent of the

premises on behalf of the landlord and whose power in that connection is limited only to such collection of rent shall be entitled to take any steps

for the eviction of the tenant except with the previous consent of the landlord. The expression ""merely as an agent of the landlord"" has necessarily

to be read along with the earlier clause ""who is receiving or is entitled to receive the rent"". ""Merely"", therefore, qualifies the extent of the power of

the agent and where such power is limited only to receiving the rent or to be entitled to receive the rent, such an agent cannot apply for the eviction

of the tenant unless he is armed with the further power in the shape of previous written consent of the landlord. This, to my mind, is the proper

interpretation to be placed on this section. It does not mean, as argued on behalf of the Petitioner, that notwithstanding that the agent holds a

general power which specifically includes the power to take steps in eviction proceedings on behalf of the landlord, even then, there should be a

separate written consent for that purpose.

This view of the learned single Judge of this Court has been followed by a single Judge of the High Court of Andhra Pradesh in D. Seshagiri Rao v.

M.V. Sastry (1970) 1 A.W.R. 349. Before the High Court of Andhra Pradesh it was contended that the word merely used in Section 10(8) of the

Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act (Act XV of 1960), corresponding to Section 10(8) of the Act was to distinguish

an agent from other persons, who were included in the definition of landlord and that the said Sub-section could not be interpreted to mean that it

was applicable only to an agent, who was authorised only to receive the rent or, who was entitled to receive the rent. While rejecting the argument,

the Andhra Pradesh High Court followed the judgment of Srinivasan, J., referred to above. We are of the opinion that the view taken by

Srinivasan, J., is the correct view as to the scope of Section 10(8) of the Act and any other view will lead to the position that even when a person

holds a general power of attorney from the owner of a building and is empowered to take all proceedings which the owner of landlord can take, he

should still obtain the previous written consent of the landlord for the purpose of filing a petition for eviction as contemplated by Section 10(8) of

the Act. Having regard to the object of the provision we are of the opinion that the Legislature could not have contemplated any such situation and

that Section 10(8) of the Act applies only to a person, who has been appointed as an agent only for the purpose of collecting the rent from the

building and will not take in the other types of agents of the landlord, who may be empowered by the landlord himself to take proceedings for

eviction also. Consequently the class of persons contemplated by Section 10(8) of the Act is a very limited class and only with reference to that

class, the requirement of obtaining the previous written consent of the landlord for filing a petition for eviction will apply.

Against the background of this construction of Section 10(8), we have now to see, whether the Petitioner in this case will fall within the scope

of Section 10(8) or not. As we have pointed out already, the Rent Controller recorded a finding in his order that the case of P.W. 1 that the

petition-property was purchased benami in the name of his wife remained unchallenged. Consequently, it is clear that, it was the husband, who was

acting on behalf of the wife, with reference to the property belonging to the wife, and was letting out the property as well as collecting the rent,

from the tenants. In such a context, the Petitioner herein was not an agent solely for the purpose of collecting the rent for the building in question,

but he is a general agent of the wife as it happens generally in our country, having regard to the customs and habits of the people. Therefore, the

Petitioner in the present case will not fall within the scope of Section 10(8) of the Act requiring him to obtain the previous written consent of his

wife for the purpose of filing the petition for eviction with the result the petition for eviction filed by the Petitioner herein cannot be said to be not

maintainable, by virtue of the provisions contained in Section 10(8) of the Act. We have already referred to the fact that both the Rent Controller

as well as the appellate authority have concurrently held that the requirement of the Petitioner was bona fide.

Under these circumstances, the civil revision petition is allowed and the order of the appellate authority will stand set aside and that of the Rent

Controller will stand restored. Time to vacate and deliver vacant possession--one month. There will be no order as to costs.