Smt.
G. Kaushalya Devi Vs. Ghanshyamdas [2000] INSC 12 (12 January 2000)
D.P.Wadhwal,
S.Saghir Ahmad D.P. Wadhwa,J.
Leave granted.
Appellant is a tenant. His eviction from suit premises has been affirmed by the
High Court in revision filed by him. Feeling aggrieved, he has filed this
appeal. Respondent-landlord filed eviction petition against the appellant under
the provisions of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1960 (for short, the 'Act') on three grounds, namely,
(1)
willful default in payment of rent;
(2)
bona fide requirement for personal occupation; and
(3) the
tenant does not require the premises as he had secured alternative
accommodation.
Premises
are non-residential. During the course of proceedings before the Rent Controller,
the ground of securing alternative accommodation was not pressed. Rent
Controller held that there was default in payment of rent and also that the
premises were required bona fide by the landlord for conducting his business.
He ordered eviction of the appellant. The Appellate Authority under the Act
affirmed the findings of the Rent Controller upholding the eviction of the
appellant. Against that order, the appellant filed revision in the High Court
under Section 22 of the Act. High Court by the impugned judgment was of the
view that there was no willful default in payment of rent by the appellant and
on that finding order of eviction on that ground was set aside. On the
remaining ground of bona fide requirement of the landlord, High Court concurred
with the findings of both the courts. This finding has been assailed before us
by the Appellant. Mr. Dhruv Mehta, learned counsel appearing for the appellant,
submitted that the order of eviction of the appellant on the ground of bona
fide requirement of the landlord was bad in law as it was contrary to the
provisions of sub-clause (iii) of clause (a) of sub-section (3) of Section 10
of the Act. He said the landlord was already in occupation of certain shop
premises, though on lease, in the same city where he was running his business
in partnership. It was, therefore, submitted that the Landlord was thus
entitled to remain in possession of the shop premises. Section 10(3)(a)(iii) of
the Act provides for eviction of the tenant when it is found that the landlord
requires the building whether residential or non- residential for his own
occupation. This Section, in relevant part, we set out as under : 10. Eviction
of tenants :- (1)... (2) ... (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) ... (ii) ... (iii) in case it is
any other non-residential building, if the landlord is not occupying a
non-residential building in the city, town or village concerned which is his
own or to the possession of which he is entitled whether under this Act or
otherwise (a) for the purpose of a business which he is carrying on, on the
date of the application; or (b) for the purpose of a business which in the
opinion of the Controller, the landlord bona fide proposes to commence :
Provided that a person who becomes a landlord after the commencement of the
tenancy by an instrument inter vivos shall not be entitled to apply under this
clause before the expiry of three months from the date on which the instrument
was registered:
Provided
further that, where a landlord has obtained possession of a building under this
clause he shall not be entitled to apply gain under this clause (i) in case he
has obtained possession of a residential building, for possession of another
residential building of his own; (ii) in case he has obtained possession of a
non- residential building, for possession of another non- residential building
of his own. (b) to (e) ... (4) to (8)..." Suit premises were purchased by
the respondent-landlord by sale deed dated 4.11.1991 wherein it was provided
that respondent was purchasing the premises to provide accommodation for
himself for the purpose of carrying on his own independent business. Admittedly
respondent was already having an established business dealing in Readymade
Garments in the name and style of M/s. Seetha Traders in partnership in the
premises which were leased by the partnership. It was thus submitted that since
the respondent was already in possession of a non-residential premises in the
same very town, ground for eviction as contained in clause Section
10(3)(a)(iii) of the Act was not available to him. It was submitted that it was
immaterial whether the respondent was in possession of the premises as tenant
or otherwise. We do not think the expression "to the possession of which
he is entitled" would mean possession otherwise than as an owner or in
that capacity or having a superior right or under any of the grounds under the
Act. The expression "to the possession of which he is entitled" was
construed by the Constitution Bench of this Court in M. Padmanabha Setty vs. K.P.
Papiah Setty [(1966) 3 SCR 868]. This expression was also found in the Mysore
House Rent and Accommodation Control Act, 1951 and was the subject matter of
interpretation in the case of M. Padmanabha Setty vs. K.P. Papiah
Setty [(1966) 3 SCR 868]. In that case, landlord filed an application under
Section 8(3)(a)(ii) of the Mysore Act for eviction of the tenant on the ground
that he required the premises in dispute for his own right and occupation. This
Section in the Mysore Act is as under :
"(3)(a)
A landlord may, subject to the provisions of clause (d) apply to the court for
an order directing the tenant to put the landlord in possession of the house
(i) in case it is a residential building, if the landlord requires it for his
own occupation or for the occupation of a member of his family and if he or
such member, as the case may be, 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, if the landlord requires it for a business which he
or a member of his family is carrying on and if for the purposes of the said
business is not in occupation of a non-residential building which is owned by
or to the possession of which the landlord or such member, as the case may be,
is entitled whether under this Act or otherwise"... "Provided further
that where a landlord has obtained possession of a house for his own use or
occupation or for the use or occupation of a member of his family under this
clause he shall not be entitled to apply again under this clause (i) ... (ii)
for possession of another non-residential building of his own, for himself or
for the same member of his family, in case he has obtained possession of a non-
residential building." The Court held : "A tenant who can be evicted
under the conditions prescribed in s.8(2) of the Act cannot be said, in our
view, to be entitled to the possession of the premises of which he is a tenant.
No doubt he cannot be evicted till one or more of the conditions prescribed by
the section are fulfilled, but it is difficult to equate his right to stay in
the premises till he is evicted to an entitlement of the possession of the
premises. Section 8(3)(a)(ii) deals with two types of cases; first where the
landlord is in occupation of a non- residential building which is owned by him,
and secondly, a non-residential building of which he is in occupation not as a
landlord but otherwise. The object of the Act is to prevent unreasonable
evictions of tenants. Can it be said that the Legislature is considering it to
be unreasonable for a landlord to shift to his own premises while he is in
occupation of tenanted premises over which he has not an absolute right of
possession but only a right to remain in possession till one of the conditions
in s.8(2) is satisfied, and over one of which he has no control. For instance,
the landlord may require the premises for repairs or reconstruction or the
neighbours may complain that the tenant is guilty of nuisance or annoyance, or
the landlord may think that the tenant has committed some acts of waste as are
likely to impair materially the value or utility of the house. If any of these
conditions is proved, he is liable to be evicted.
In our
view, in the context the words "entitled to possession" have a more
positive content and are more akin to the right of possession which an owner
has in respect of the building owned and occupied by him." It will be seen
that provisions of Section 8(3)(a)(ii) of the Mysore Act are quite in pari
materia with the provisions of Section 10(3)(a)(iii) of the Act. We, therefore,
cannot accept the contention of the appellant that since the respondent is
already having his business in a leased premises of which he is in possession,
he cannot seek eviction of the appellant. It is not disputed that other
conditions of Section 10(3)(a)(iii) are satisfied in favour of the landlord. A
contention was also raised that another shop had been purchased by the mother
of the respondent with the amount loaned by the respondent and that on that
ground it could also be said that the respondent was entitled to possession of
that shop as well. This contention has been repelled by the High Court and
rightly so. High Court upheld the finding of the courts below that the
respondent required the suit premises for his personal occupation for
conducting the business and that these findings were neither perverse or based
on any extraneous or irrelevant material. High Court was also of the view that
the Act did not prohibit eviction of the tenant by the landlord if the members
of the family of the landlord possessed other non-residential premises. Even
though the respondent and his brothers were conducting business on partnership
basis in M/s. Seetha Traders, yet it was no ground to contend that the
requirements of respondent is not bona fide. We agree. No other submission has
been made before us to take any different view other than that taken by the
High Court. We, therefore, dismiss this appeal.
However,
with the consent of both the parties, we grant time up to October 31, 2000 for the appellant to vacate the
suit premises on his filing of a usual undertaking within four weeks from
today. There will be no order as to costs.
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