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Shri Krishna P. Rivonkar Vs. the Chairman, V.K.S.C. Society and ors. - Court Judgment

SooperKanoon Citation

Subject

Property

Court

Mumbai High Court

Decided On

Case Number

Writ Petition No. 277 of 1991

Judge

Reported in

1993(2)BomCR261

Acts

Goa, Daman and Diu Rent Control Act, 1968 - Sections 23(3)

Appellant

Shri Krishna P. Rivonkar

Respondent

The Chairman, V.K.S.C. Society and ors.

Appellant Advocate

S.D. Lotlikar, Adv.

Respondent Advocate

U.S. Kolwalkar, Adv. for respondent No. 1

Disposition

Petition allowed

Excerpt:


.....is being occupied by him for his residence as well as of the other members of his family. the petitioner filed the eviction application before the rent controller under section 23(3) on the ground that he required those two rooms as additional accommodation for his residence as well as of the rest of his family. the learned counsel submitted that in his application for eviction the petitioner has, expressly averred that the suit property was consisting of his residential house which was in his actual occupation as well as of other members of his family save two rooms which were being occupied by the respondent. this means that the petitioner has clearly asserted that the building part of which has been let out to the respondent was a residential building which was in his occupation except the two rooms leased to the respondent. 7. shri kolwalkar, learned counsel appearing for the respondent, has supported the judgment of the rent controller as well as of the administrative tribunal and stated that once the suit premises had been admittedly rented by the petitioner for the purpose of running there a fair price shop which means purely for commercial purpose, the petitioner had no..........and order of the additional rent controller, ponda, dated 4-10-1988 in case no. b.i.d.g./2/88. by the aforesaid judgment and order of the additional rent controller dismissed an application filed by the petitioner against the respondent no. 1 under section 23(3) of the rent control act (hereinafter called 'the act') seeking the eviction of the respondent no. 1 (hereinafter called 'the respondent') from the part of the leased premises located in the same building which is being occupied by the petitioner on the ground of his requirement of that leased premises for his additional accommodation. however, the said dismissal of the application was done by the rent controller not on the merits of the application, but instead on a preliminary point raised by the respondent regarding the non-maintainability of the application on the ground that the premises had been leased to them for nonresidential purpose.2. the brief facts of the case are that the petitioner is admittedly the owner of residential building situated at bandora. this building in almost its entirety with the exception of two rooms is being occupied by him for his residence as well as of the other members of his family......

Judgment:


E.S. Da Silva, J.

1. By this writ petition filed under Articles 226 and 227 of the Constitution the petitioner is challenging the judgment and Order dated 28-2-1991 of the Administrative Tribunal, Goa, Daman and Diu, in Eviction Appeal No. 52 of 1988 which has upheld the judgment and Order of the Additional Rent Controller, Ponda, dated 4-10-1988 in case No. B.I.D.G./2/88. By the aforesaid judgment and order of the Additional Rent Controller dismissed an application filed by the petitioner against the respondent No. 1 under section 23(3) of the Rent Control Act (hereinafter called 'the Act') seeking the eviction of the respondent No. 1 (hereinafter called 'the respondent') from the part of the leased premises located in the same building which is being occupied by the petitioner on the ground of his requirement of that leased premises for his additional accommodation. However, the said dismissal of the application was done by the Rent Controller not on the merits of the application, but instead on a preliminary point raised by the respondent regarding the non-maintainability of the application on the ground that the premises had been leased to them for nonresidential purpose.

2. The brief facts of the case are that the petitioner is admittedly the owner of residential building situated at Bandora. This building in almost its entirety with the exception of two rooms is being occupied by him for his residence as well as of the other members of his family. The said two rooms which are not being occupied by the petitioner had been let out to the respondent for commercial purposes to run a fair price shop. The petitioner filed the eviction application before the Rent Controller under section 23(3) on the ground that he required those two rooms as additional accommodation for his residence as well as of the rest of his family. The case was registered in the Rent Controller's Court under No. 2 of 1987. The respondent filed a written statement resetting the application of the petitioner and raised a preliminary objection that the application was not maintainable under section 23(b). The respondent's contention was that since the premises had been let out for nonresidential purposes the benefit of section 23(3) was not available to him. The Rent Controller, however, upheld the preliminary objection raised by the respondent and dismissed the application which decision was subsequently affirmed by the Administrative Tribunal.

3. Shri Lotlikar, learned Counsel for the petitioner, has assailed both the orders of the courts below on the ground that the same are illegal and based on a wrong interpretation of the relevant provision of section 23(3) of the Act. The learned Counsel submitted that in his application for eviction the petitioner has, expressly averred that the suit property was consisting of his residential house which was in his actual occupation as well as of other members of his family save two rooms which were being occupied by the respondent. This means that the petitioner has clearly asserted that the building part of which has been let out to the respondent was a residential building which was in his occupation except the two rooms leased to the respondent. The respondent in his written statement did not specifically deny this averment of the petitioner and limited only to state that para 2 of the petition was being denied only for want of knowledge. According to Shri Lotlikar this type of denial was not denial at all in the eyes of law. Being so the Rent Controller was not expected to hold without even framing an issue for that matter that the building from which the respondent was sought to be evicted was not a residential building and instead was a nonresidential building.

4. Shri Lotlikar urged that for the purpose of section 23(3) of the Act what was relevant was not the purpose for which the suit premises had been let out or leased to the respondent but the very nature of the building out of which two rooms had been given to the respondent on lease. It was further contended by the learned Counsel that the reliance placed by the Rent Controller on the decision of a Single Judge of this Court dated 18-10-1985 in the Writ Petition No. 129 of 1985 was wrong and misplaced because the same was passed in curiam without considering the judgment of the Supreme Court in the case of Busching Schmitz Private Ltd. v. P.T. Menghani and another, : [1977]3SCR312 as interpreted by a decision of Division Bench of this Court dated 5-11-1984 in Shri Vinayak Jaiwant Camotim & 7 others v. Shri Gopal Budu Naik & 2 others, 1990 (1) GLT 58, which according to Shri Lotlikar was not even placed before the Single Judge.

5. It was also the grievance of the learned Counsel that another judgment of the Supreme Court in the case of Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others : [1987]2SCR1173 , has also been unduly distinguished by the Administrative Tribunal which did not properly consider the said ruling for the purpose of upholding the decision of the Rent Controller.

6. In order to appreciate the contentions of the learned Counsel for the petitioner I must consider the relevant provision of section 23(3) of the Act. The aforesaid section reads as follows :'A landlord who is occupying only a part of a residential building may, notwithstanding anything in sub-section (1), 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 his own use or for the use of any member of his family.'The aforesaid section thereof implies that the landlord who is in occupation of a building for his residence and requires the rest of the building which is partly leased to any tenant as additional accommodation can apply to the Controller for eviction of the said tenant. It is in the context of this provision that the petitioner made an application to the Rent Controller by stating that the portion let out to the respondent was necessary for him and his family for the purpose of his residence. However, the Rent Controller negativated the petitioner's prayer on the ground that the suit premises had been rented to the respondent admittedly for commercial purposes. From this fact the Rent Controller concluded that the premises being rented for commercial purposes could not be considered as residential building and as such the benefit of section 23 was not available to the petitioner. The Rent Controller while reaching to this finding has relied on the definition of 'building' provided in section 2(e) of the Act according to which 'building' is any building or a part of building let separately for use as a residence or for any other purpose. From this definition the Rent Controller gave a finding that the suit premises consisting of two rooms having been let out by the petitioner admittedly for commercial purpose that part of the building has to be treated as a separate nonresidential building and as such the petitioner was not entitled to get its possession by evicting the respondent. It was the Rent Controller's view that the landlord could avail of the provisions of section 23(3) only in case the part of the premises had been leased to the respondent for residential purpose in which case only the suit premises could be treated as residential building.

7. Shri Kolwalkar, learned Counsel appearing for the respondent, has supported the judgment of the Rent Controller as well as of the Administrative Tribunal and stated that once the suit premises had been admittedly rented by the petitioner for the purpose of running there a fair price shop which means purely for commercial purpose, the petitioner had no right to seek the eviction of the respondent on the ground of additional accommodation since section 23(3) could be availed by him only if the premises had been let out for residential purpose. The learned Counsel has also taken support of the definition of the word 'building' in section 2(e) in order to contend that the leased pemises consisting of two rooms for commercial purpose was to be treated as a separate building meant for nonresidential use.

8. I am unable to accept the interpretation given by the Rent Controller in respect of the provision of section 23(3) of the Act. Admittedly the said provision provides the landlord who is occupying a part of a residential building with a right to obtain eviction of the remaining part of the same building which is being occupied by a tenant in case the landlord requires the leased premises for additional accommodation. Nowhere in the aforesaid section there is any restriction for the landlord to exercise this right only in case the remaining portion of the building is rented to a tenant for residential purpose only. Apart from the fact that the language of the provision refers to the right of the landlord who is occupying only a part of the residential building to 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 in case he requires additional accommodation for his own use or for the use of any member of his family which by itself means that the law does not contemplate the exercise of this right by the landlord only in case the tenant occupies the leased premises for residential purpose, in my view there is also no justification to put a restriction to this right only in such situations which by itself would defeat the very purpose of the remedy made available to the landlord. Therefore, there is no scope to import for the purpose of interpretation of section 23(3) the concept or the definition of the word 'building' provided in section 2(e) of the Act.

9. This my view is fully supported in the judgment relied by Shri Lotlikar in the case of Shri Balaganesan Metals v. M.N. Shanmugham Chetty and others, : [1987]2SCR1173 , which is a case dealing with section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960) which is substantially pari materia with the present section 23(3) of the Act. In the said judgment while interpreting the aforesaid section vis-a-vis the definition of the 'building' in section 2(2) of the Tamil Nadu Act which is also similar to section 2(e) of the Act, the Court observed that in so far as section 10(3)(c) is concerned the Legislature has intended that the entire building, irrespective of one portion being occupied by the landlord and the other portion or portions being occupied by a tenant or tenants should be viewed as one whole and integrated unit and not that as different entities. To import the expansive definition of the word 'building' in section 2(2) into section 10(3)(c) would result in rendering meaningless the words 'part of a building' occupied by the landlord and a tenant 'occupying the whole or any portion of the remaining of the building.' If a portion of a building let out to a tenant is to be treated in all situations as a separate and independent building then section 10(3)(c) will be rendered otiose because the landlord can never then ask for additional accommodation since section 10(3)(a) does not provide for eviction of tenants on the ground of additional accommodation for the landlord either for residential or nonresidential purposes. The same considerations which led the Supreme Court to record these observations are to be applied in the present case. Admittedly the landlord is occupying a part of a building which is meant for his residence as well as of his family and only two rooms of that building are in possession of the tenant who is using it on commercial basis for the running of fair price shop. Therefore, irrespective of the purpose for which the said two rooms were leased to the respondent the nature of the building should be the only relevant consideration and being so the residential nature of the building should not be disputed. It is not the purpose for which two rooms of that building were rented by the landlord to the respondent which is material so as to determine the real nature of the word 'building' which according to the judgment of the Supreme Court is to be viewed as one whole and integrated unit and not as different entities by unduly importing the meaning of definition of section 2(c) of the Act.

10. Shri Kolwalkar's submission that the Tamil Nadu Act is not similar to the Goa Act does not appear to be sound because according to him the difference between the Act lies essentially on the fact that the said Act provides remedy to the landlord even in the case the landlord is occupying part of the building for nonresidential purpose. In my view this difference is patently immaterial and only shows that the scope of the Tamil Nadu Act is wider so as to cover a different situation in which a landlord is occupying the building not only for residential purpose but also for nonresidential purpose. However, the substance of the Act remains the same for the purpose of affording remedy to the landlord who is in possession of a part of the building when he requires the remaining portion of same building for the purpose of additional accommodation. In the case of Shri Vinayak Jaiwant Camotim & 7 others v. Shri Gopal Budu Naik & 2 others, 1990(1) GLT 58, a Division Bench of this Court while dealing with the Act in connection with a case under section 22(2)(c) has held that for the purpose of determining the real meaning of the word 'dwelling house' the test to find out whether a leased premises is or not a dwelling house is not the purpose which the tenant used but the very character of the premises. The said judgment of this Court has relied on another decision of the Supreme Court in the case of Busching Schmitz Private Ltd. v. P.T. Menghani and another : [1977]3SCR312 , wherein the Supreme Court has expressly observed that the purpose of lease is not decisive of character of accommodation and residential premises are not only those which are let out for residential purposes. Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated as residential premises. Shri Kolwalkar's submission that this ruling given by the Division Bench of this Court is also not attracted to the present case because the same was given in a different context and while dealing with a different section of the Act is not to be accepted. It is true that the case under consideration before the Division Bench was a case of eviction sought for by the landlord against the tenant on the ground that he required the entire building for his residence under section 22(2)(c) of the Act but the issue which arose for determination of the Court with regard to the definition of the words 'dwelling house' which means a house meant for residential purpose appears to be the same which is to be considered in the present case while dealing with the definition of the word 'residential building'. I see no reason to distinguish the ratio of this judgment with the one which is to be drawn in the present case and in my view it is the nature of a building and not the purpose for which the same was leased which should be looked into in order to give a finding as to whether a building is to be classified as a residential building or a nonresidential building.

11. Reliance was also placed by Shri Kolwalkar on a judgment rendered by the Single Judge of this Court dated 18th October, 1985 in Writ Petition No. 129 of 1985, Evaristo Esteneslao Rodrigues and others v. Vamon Anant Porob Mahambrey and others, in which case the judgment of the Supreme Court in Busching Schmitz Private Ltd. v. P.T. Menghani and another : [1977]3SCR312 , was distinguished and wherein the Court held that it was the purpose of the lease which was to be considered and not the character of the accommodation being relevant or material to determine the nature of the building. I am afraid that it is difficult to follow this decision even to the extent that in my opinion it unsuccessfully tried to distinguish the judgment of the Supreme Court for the simple reason that the same obviously goes against the very ratio of the aforesaid Apex Court's ruling. It appears that the said judgment was also given in curiam because the decision of the Division Bench of this Court in Vinayak Jaiwant Camotim's case, 1990(1) G L T 58, was not placed before him for his consideration.

12. In the circumstances I am of the view that the impugned judgments of the Administrative Tribunal as well as of the Rent Controller were also passed in curiam by wrongly holding that the remedy under section 23(3) of the Act is not available to the petitioner on the ground that part of the building which is admittedly in his possession for residential purpose has been leased to the respondent for nonresidential purpose. Being so the finding given by the Rent Controller and which was affirmed by the Administrative Tribunal to the effect that the application of the petitioner before the Rent Controller is not maintainable cannot be sustained having been recorded on a totally misconceived and impermissible interpretation of the relevant provision of the Act.

13. The result is that the petition is allowed and the judgments and Orders of both the courts below, namely, of the Rent Controller, Ponda, dated 4th October, 1988 as well as of the Administration Tribunal dated 28th February, 1991 are hereby quashed and set aside. The case is remanded to the Rent Controller with a direction that bearing in mind that this matter is dragging for a considerably long time right from 1987 the same be considered on merits and disposed of as per the law as early as possible. Rule accordingly made absolute in the above terms with no order as to costs.


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