ORDER
1. Questioning the order of the Rent Control Appellate Authority in CMA No. 2 of 1995 dated 20-7-2000 both the tenant and the landlady filed CRP No. 4138 of 2000 and CRP No. 3044 of 2001 respectively to the extent the judgment of the Rent Control Appellate Authority went against their interest.
2. As both the revision petitions relate to same mulgi bearing No. 10-5-40, Seshapriya Street, Chittoor, they can be disposed of by a common judgment.
3. The parties are referred to as the tenant and the landlady for brevity.
4. Apart from the general issues that arise for consideration in these revisions, an issue of general importance i.e., whether the landlord can seek eviction of a tenant from a non-residential building both for residential and non-residential purposes has to be decided.
5. The landlady after exchange of notices, filed RCC No. 3 of 1993 on the file of the Principal District Munsif-cum-Rent Controller, Chittoor, seeking eviction of the tenant from the demised premises under Section 10(3)(a)(iii) of the Andhra PradeshBuildings (Lease, Rent and Eviction) Control Act, 1960 (for short 'the Act') on the ground that she requires the premises for her residential purpose and also for doing business to maintain herself and her daughter of marriageable age and also on the ground that the building requires extensive repairs.
6. In the light of the averments made in the petition, I feel that the application seeking eviction would have been filed under Section 12(4) of the Act rather than under Section 12-A of the Act.
7. The averment in the petition is as follows:
'The petition schedule premises is suitable both for residence and running a shop as business premises. The petitioner has been requesting the respondent to vacate the premises to facilitate her to carry out extensive repairs, re-constructions and alterations to suit for her residence and business purpose'.
8. Eviction of a tenant can be sought under Section 12A of the Act for effecting repairs but the tenant shall be re-inducted into the possession of the building. Under Section 12(4) of the Act, the landlord can seek recovery of possession of a building for effecting repairs and alterations, etc., but he cannot convert a residential building into a non-residential building or a non-residential building into a residential building unless such a conversion is permitted by the Rent Controller at the time of passing to be verified an order under Sub-section (1) Section 12 of the Act.
9. In the light of the above legal position, since the landlady wants to effect certain repairs to the demised building to suit for her residence as well as for business purpose, she would have an application under Section 12(4) of the Act.
10. Before going into the merits of the case, I must place on record that the purpose and intendment of the Act is to help the tenant who is subjected to uncalled for litigation. Due to scarcity of accommodation in urban areas and gradual raise in rents due to appreciation of value of the urban property, the landlords were found to be exploiting the situation for their unjustified personal gains. At the same time the Act is intended to safeguard the legitimate interest of the landlords and thereby preserve the social environment and promote social justice. The provisions of the Act are, therefore, not required to be interpreted in a hyper technical manner in which case it may result in frustrating the object of the legislation as held by the Supreme Court while explaining the purport and intendment of the Act in Liaqahmed and Ors. v. Habeeb-ur-Rehman, : AIR2000SC2470 .
11. I am of the view that as the days passed by, the unscrupulous tenants taking advantage of the provisions of the Act are making the landlords, who claim recovery of possession on genuine grounds, to run from pillar to post to recover possession of the building. Hence, now time is ripe for the Court to look into the interests of the landlords as well as the tenants and weigh their claims judiciously and see that the scales of justice cannot swing heavily in favour of the tenant as happened in this case.
12. The tenant in this case having taken the mulgi on rent for running a stationery business about three decades ago and flourished well in his business has gone to the extent of denying the legitimate plea of bona fide requirement of the demised building by the land lady for purpose of her residence and for doing business in it to eke out her livelihood apart from celebrating her daughter's marriage being an estranged landlady with no other means of livelihood.
13. Coming to the facts of the case, it is not in dispute that the landlady is an estranged woman (a divorcee) with a female child and at the time of separation, her husband has given the demised mulgi and another mulgi towards her maintenance in the year 1971. As her child is a teenaged girl and no one is there to look after their interests in Chittoor, she started living with her parents at Palamaneru along with her daughter and mainlining herself with the rents that are being received by her from the two mulgies. By the time of filing of this petition, the tenant was paying a rent of Rs. 500/- per month. The case of the landlady is that her daughter passed 10th Class and to get her daughter educated she wants to shift her residence to Chittoor and she also intends to do some business to augment her income to get her child educated and also to celebrate her marriage. As she has no residential building of her own in Chittoor Town she wanted to stay in the demised mulgi which is of the size of 10' x 30' and take up some business activity, after effecting necessary repairs or modifications to it. Hence she filed this petition on the ground of personal occupation both for residential and non-residential purposes and also to effect repairs to the building to suit her needs for staying in the premises.
14. After appreciating the evidence, both oral and documentary, the Rent Controller found that the landlady requires the building for bona fide requirement. As far as the relief sought for under Section 12(A), the Rent Controller rejected same on the ground that she has not given an undertaking to induct the tenant into the premises after effecting the repairs. To my mind the Rent Controller has simply looked into the facts of the case from the provision that was given in the petition instead of looking into the averments of the petition. Had the Rent Controller looked into the contents of the petition he would have granted the relief under Section 12(4) of theAct as there seems to be some conflict of opinion with regard to the conversion of a non-residential building into residential building without the permission of the Rent Controller in writing.
15. Aggrieved by the said order and decree the tenant carried the matter in appeal to the Rent Control Appellate Authority by filing CMA No. 2 of 1995. The appellate Authority having found that the request of the landlady for residential purpose as a bona fide one confirmed the order of eviction. But at the same time he reversed the finding of the Rent Controller with regard to the requirement of the demised premises by the landlady for business purpose, on the ground that she has not given the particulars of the business she wanted to start and the tenant could not have the opportunity of denying or accepting the plea of the landlady.
16. As stated supra while the tenant filed CRP No. 4138 of 2000 against the order of eviction passed by the Court below, the landlady filed CRP No. 3044 of 2001 for rejecting her plea that the building is required for non-residential purpose and the tenant filed Revision No. 4138 of 2000 to the extent that the order went against his interest.
17. First I will take up CRP No. 3044 of 2001 filed by the landlady.
18. The learned Counsel appearing for the tenant placed strong reliance on a judgment of this Court in G. Narayana v. Gogikar Kishanji, 1988 (2) ALT 218. In that case, the landlady sought for eviction of the tenant from the premises without pleading specifically with regard to her requirement. In other words, she has not stated what business she intends to start and simply she stated that herself and her son intends to establish electric motors manufacturing industry or any other like industry in the suit building by makingnecessary alterations and repairs. His Lordship Justice Sitarama Reddy as he then was having referred to certain decisions of this Court as well the Supreme Court, observed that Section 10(3)(a)(iii)(b) is emphatic and it postulates that the petitioner landlord must bring out adequately the necessary material without any ambiguity enabling thereby the tenant to counteract the claim sought to be made by the landlord. His Lordship further held in paragraph 11 of the judgment as follows:
'Hence this Court is constrained to hold that the landlord has not made out any case whatsoever within the meaning of statutory provisions for eviction of the premises in question as he has failed to plead specifically in terms as per the requirement of the law. It cannot be left out later for establishing the case on the basis of the evidence to be let in. The tenant must be told on particulars being furnished in the pleadings that for purposes mentioned thereto the eviction has to be caused, so that he may have an opportunity to dislodge the same. In the absence of the same, the Rent Control jurisprudence, which has grown in beneficially construing the provisions in favour of the tenant, forbids the landlord to embark upon the expedition of establishing a case by leading evidence without pleading the same. Hence the eviction petition highly suffers from infirmity in not establishing the case for eviction'.
19. But at the same time, the learned Judge has not taken note of a judgment of Justice P.A. Chowdary as he then was in Vishnu Prasad Bhatt v. K. Narayana Rao and Ors., 1982 (1) ALT (NRC) 26, wherein his Lordship while interpreting the language of Section 10(3)(a)(iii)(b) of the Act observed thus: ........... the Rent Controller to form anopinion that the proposal of the landlordto commence the business is bona fide. This is a rule relating to proof. The section does not lay down any rule of pleading. The general allegation of the landlord that he bona fide wants to do business in the premises whether supported by details or not will be held by the Rent Controller to have been proved or not to have been proved not on the basis of the averments in the pleading, but on the basis of evidence adduced by the landlord and other materials and probabilities in the case. To decide the question whether the landlord bona fide proposes to commence business or not, no particular form of pleading is required by any provision of Law.'
20. Further their Lordships of the Supreme Court in Raj Kumar Khatan v. Bibi Zubaida Khatun, : AIR1995SC576 , while considering a similar provision in Bihar Building (Lease, Rent) Act i.e., Section 11 observed as follows:
'It was not necessary for the appellants-landlords to indicate the precise nature of the premises. Even if the nature of business would have been indicated nobody could bind the landlords to start the same business in the premises after it was vacated'.
21. In Dattatrya Laxman Kamble v. Abdul Rasul Moulali Kotkune and Anr., 1999 (4) Supreme 350, while considering a similar plea of bona fide requirement under Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 their Lordships to the Supreme Court reversed the finding of the Bombay High Court that the land lord failed to prove the bona fides of his claim on the ground that he has not proved that he had the know-how to do the business in electrical goods, by holding thus:
'If a person wants to start new business of his own it may be of his ownadvantage if he acquires experience in that line. But to say that any venture of a person in the business filed without acquiring past experience reflects lack of his bona fides is a fallacious and un-pragmatic approach. Many a business have flourished in this country by leaps and bounds which were started by notice in the field; and many other business ventures have gone haywire despite vast experience to the credit of the propounders. The opinion of the learned single Judge that acquisition of sufficient know-how is a prescribed-condition for even proposing to start any business, if gains approval as a proposition of law, is like to shatter the initiative of young talents and deter new entrepreneurs from entering any field of business or commercial activity. Experience can be earned even while the business is in progress. It is too pedantic a norm to be formulated that 'no experience no venture'.
22. As both the judgments of the Supreme Court squarely answered the issue of bona fide requirement, the view taken by Justice Sitaram Reddy is no longer a good law.
23. The issue can be seen from another angle also. At the time of filing of application, the landlord may feel to do a particular business to eke out his livelihood but as we are witnessing in day in and day out that the petitions filed by the landlords for eviction on the ground of bona fide requirement are being attained finality only after a decade or more and the business which the landlord might have thought of profitable at the time of filing of the petition, may turn into an non-profitable one after a lapse of considerable period for various reasons. Further as we are in competitive era and in global village ruled by information technology, where people can earn money with or without having recourse to any employment of outsider, and new businesses are coming up day in and day out, it is always open for the landlord to start a business which, according to him, is more profitable and economical. Hence the Courts cannot insist that the landlord has to give the name of the business he intends to start and the working details of the same in the eviction petition itself. In my view such an insistence by the Court will be committing violence on the language employed in the Act.
24. Keeping the dictum laid down by the Supreme Court in mind, let me examine the averments made by the parties in support of their pleas. The tenant in his reply sent to the notice dated 13-9-1992 issued by the landlady, except stating that the premises is suitable for running business only and is not fit for residence, he did not deny the averment of landlady that she requires the building for doing business also. What all stated in the reply issued by his Advocate is that 'his client's business is well developed with prosperity having goodwill and large interest.... If your client intentions are to damage the goodwill of the business of my client with illegal activity she will be liable for costs and consequences arising thereof.
25. As stated supra that the landlady specifically pleaded that she wants to shift her residence to Chittoor to get her daughter educated and augment her income by taking up some business activity. She also stated that she intends to convert the suit building for her residence also. In the counter except stating that the prayer sought for in the petition is not for the bona fide requirement and the premises is not suitable for residence, the tenant never disputed her statement that she wants to shift her residence to Chittoor and take up business activity. From the above it is seen that the tenant never whispered about the claim of the landlady that she wants to start a business of her own in the demised premises. Hence the finding of the Rent Control Appellate Authority to the extent that the requirement of the building by the landlady for non-residential purpose was not proved is vitiated and it cannot be sustained in law and it is accordingly set aside.
26. Now I will take up the CRP No. 4138 of 2000 filed by the tenant.
27. The main contention of the tenant in this revision petition is that the building being a non-residential building the same cannot be converted into a residential premises and no eviction of the tenant who is involved in business can be ordered for residential purpose of the landlord. The learned Counsel for the tenant in support of his plea placed reliance on several judgments of this Court and also on Section 12(4) of the Act wherein it is stated that the landlord having taken possession of the premises for effecting repairs he cannot convert the residential building into the non-residential building and vice versa. But none of the judgments was delivered are with reference to Section 18 of the Act to the effect that no residential building shall be converted into a non-residential building except with the permission in writing of the Rent Controller. In other words, there is no embargo on the landlord from converting the non-residential building into a residential building. Viewed from that angle the question to be decided in this petition would be whether the tenant who is doing stationary business in the demised premises can be directed to vacate the premises for using the building for residential as well as non-residential purpose by the landlady.
28. In Boddu Narayanamma v. Venkatarama Aluminum Company and Ors., : AIR1999SC3549 , their Lordships of the Supreme Court while considering the question whether the landlord can seekeviction of the tenant who is in occupation of both residential and non-residential building under a composite lease on the ground of personal requirement of the premises and having considered the conflicting views expressed by various High Courts and also after analysing the grounds on which eviction of the tenant can be sought for under Section 10(3)(a), held as follows:
'A combined reading of Section 2(iii) and Section 10(3)(a) of the A.P. Act indicates that when a residential building or a non-residential building or parts thereof are let separately for residential and/or non-residential purposes, the provisions of Section 10(3)(a), namely Sub-clause (i) in case of a residential building and Sub-clause (ii) and (iii) in case of a non-residential building, can be invoked and on the requirements thereof being satisfied a landlord can seek eviction of a tenant there from. However, there is no separate provision under which eviction of a tenant can be sought from a building, having both residential and no-residential portions, held under a composite lease. For this reason, the High Court held that as the demised building was let out for residential and non-residential purposes under a composite lease to the respondent, the eviction petition of the appellant on the ground of her personal requirement of residence was not maintainable. In the result, the appellant is placed in such a position that she cannot seek recovery of possession of the demised building, not even of the residential portion, from the respondent by approaching the Rent Controller. She cannot also seek decree for eviction against the respondent on the aforementioned ground from civil Court because the building is found to be within the purview of the A.P. Act. In such a situation is she without any remedy? The riposte, in our view, is in the negative. (..... para 28)
There is nothing in the A.P. Act to suggest that the right of a landlord like the appellant to recover possession of the demised building from the respondent tenant is taken away either expressly or by necessary implication. Once, it is held that a building having both residential and non-residential portions which arc let out together under a composite tease is a building within the meaning of that term and within the ambit of the Act, such a building has to fall within one or the other category, namely, residential or non-residential the classification which is made in Section 2(iii) of the A.P. Act. We find it difficult to infer that the Legislature having brought such a building within the ambit of the Act and having provided for eviction of a tenant on the ground of personal requirement of the landlord from such a building when it is let out for residential purposes or for non-residential purposes or separately for residential and/ or non-residential purposes and having not taken away the right of the landlord to eject the tenant from such a building left him in the lurch without providing the remedy of eviction of tenant when let out under a composite lease. We cannot construe the provisions of the A.P. Act in that way. We have, therefore, to discern the remedy under the A.P. Act on the principle embodied in the maxim ubi jus ibi remedium. The building under that Act are classified as (i) residential, and (ii) non-residential. In our view, a building having residential and non-residential portions and let out under a composite lease has to be categorized as either a residential or a non-residential building having regard to its nature, accommodation, dominant purpose of lease, primary use of the building and other relevant circumstances on the facts of each case. On such determination, the suit/petition of the landlord has to be decided under Sub- clause (i) or Sub-clause (ii) or (iii) of Clause (a) of Section 10(3) of the A.P. Act, as the case may be. It may be noticed here that under Section 10(3)(a) of the A.P. Act, the relief is granted with reference to the nature of the building and not with reference to the purpose for which it is let (.... Para 29)
Their Lordships arrived at the above conclusion while approving the text laid down by the Supreme Court in Buschine Schmitz (P) Ltd. v. P.T. Menghani, (1997) 2 SCC 835, wherein the Supreme Court while observing that whatever was suitable or adoptable for residential use even by making some changes could be designated as residential premises, held as follows:
'We are of the view that the portion of the demised building let out for non-residential purposes can also be adapted with a little modification for residential purposes and indeed the claim of the landlord is to convert the same for residential purposes of the family. For all these reasons, we are of the considered view that the demised building has to be treated as a residential building. If so, the provisions of Section 10(3)(a)(i)(b) of the A.P. Act will be attracted and the eviction petition filed by the appellant will be maintainable'.
29. In the course of judgment, their Lordship also referred to Section 18 of the Act in para 24 in coming to the conclusion, in the end their Lordships held that the landlord can seek eviction of the tenant from the non-residential portion of the building also for residential purpose. In the case on hand it is not in dispute that the mulgi is of a very big size i.e., 10 x 30 feet. Hence, the same can be used for residential purpose of the landlady along with her daughter by making little modification, and also for doing business in the front portion of the demised premises.
30. The learned Counsel appearing for the tenant relied on the following judgments:
In Amtual Hafeez and Ors. v. D. Mohammed Ibrahim (Died) and Ors., 1996 (3) ALD 582, his Lordship Justice S. Dasaradha Rama Reddy while observing that a residential building need not be let out always for residential purpose and it can be let out for non-residential purpose also, held that non-residential premises can be let out only for non-residential purpose and the same will always remain as non-residential premises and can never be treated as residential premises unless its structure is altered. His Lordship did not consider the effect of omission of provision in the Act that a non-residential building cannot be converted as residential building, and simply jumped at the said conclusions. On the other hand, the absence of such a provision in the Act and permissibility of conversion of non-residential building as residential building which was taken possession by the landlord for effecting repairs clearly indicates that while seeking eviction of a tenant from a non-residential building, an option is given to the landlord to seek permission of the Court to convert a non-residential building into a residential building. But in the light of the judgment in Boddu Narayanamma's case the above decision is no longer a good law.
31. In Kurminayaka Mothilal v. Mohd. Jahiruddin (Died) and Ors., 1997 (1) ALD 770, the same learned Judge held that it is well settled that eviction from non-residential building cannot be sought on the ground of residential occupation. The said judgment is also no longer a good law.
32. In Sona Optics v. Shyam Sunderbhargva and Ors., 1997 (1) ALD 628, his Lordship Justice Krishnasaran Srivastav as he then was has taken a viewthat in the case of a composite lease consisting of residential and non-residential portion of a building the landlord cannot seek eviction of the tenant for residential purposes unless the case is covered by Section 10(3)(c) of the Act. In that case the learned Judge has taken the view that Section 10(3)(c) governs the composite lease consisting of residential and non-residential purposes and the landlord cannot seek eviction of the tenant from one of the portions of the building i.e., residential or non-residential as the contract is a composite one. In other words, in case of composite lease, the landlord can seek eviction on both the grounds, but not on a single ground. In the light of the judgment in Boddu Narayanamma's case, this judgment is not a good law.
33. For the foregoing discussion, I hold that the landlady proved the bona fide requirement for non-residential use apart from residential use and she can also use the non-residential building for residential purpose by effecting modifications as there is no embargo like that of one in case of residential building. The finding of the Appellate Court to the extent it went against the landlady is set aside and the order of eviction passed by the Rent Controller in RCC No. 3 of 1993 is confirmed.
34. Now the question is what is the time that can reasonably be granted to the tenant for vacating and handing over the vacant possession of the building to the landlady. The litigation started in the year 1993 and the tenant successfully dragged on the proceedings for nearly a decade and defeated the very idea of the landlady to shift her residence to Chittoor town to provide college education to her only daughter. Hence, I am inclined to give three months time from to day to the tenant to vacate and hand over the vacant possession of the mulgi to the petitioner.
35. I must place on record the efforts of Mr. K.S. Gopalakrishna and Mr. D. Vijaya Chandra Reddy appearing for the tenant in putting forth his case convincingly and made me to ponder over for a sufficient time in coming to a decision.