| SooperKanoon Citation | sooperkanoon.com/823604 |
| Subject | Tenancy |
| Court | Chennai High Court |
| Decided On | Jan-05-1994 |
| Reported in | (1994)1MLJ559 |
| Appellant | N.V. Jagannathan |
| Respondent | Mrs. Amrut Gowri and anr. |
| Cases Referred | Hameedia Hardware Stores v. Mohan Lal Sowcar |
Thanikkachalam, J.
1. The landlord is the petitioner herein. The petition for eviction was filed under Section 10(3)(i) and (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act, 23 of 1973 (hereinafter referred to as the Act). According to the landlord, he purchased the petition premises under a sale deed dated 24.6.1983. The petition premises was let out for the purpose of residence to the tenant. Thereafter, the tenant without consent of the landlord utilised the petition premises for non-residential purpose. The landlord by a letter dated 27.6.1983 intimated the tenant that he purchased the petition premises. The tenant accepted the tenancy and paid the rent to the subsequent purchaser, who is the petitioner in the eviction petition. On 2.6.1977 the landlord sent a notice to the tenant stating that the tenant without the consent of the landlord is using the premises for conducting a school under the name and style of 'Kalaimagal English School'. Thereafter, on 3.7.1983 the landlord sent a notice to the tenant requesting him to hand over the petition premises for the purpose of residence. The tenant sent a reply on 24.7.1983. In the said reply, the tenant stated that the school which is being conducted in the petition premises is affiliated and recognised by the Government and therefore, the landlord is not entitled to ask for possession. In the said reply the tenant also stated that he has spent a sum of Rs. 21,000 for putting up additional construction. According to the landlord, he is residing in a rented premises in West Mambalam and paying a monthly rent of Rs. 350. The landlord therefore stated that he is not having any other premises of his own in the City of Madras. The landlord also stated that the petition premises is required bona fide for conducting his business, which he is doing in a rented premises at No. 5, Karunanidhi 1st Cross Street, West Mambalam.
2. The tenant filed a counter stating that Kalaimagal Convent was started at No. 17, Sivan Koil Street, Power House, Kodambakkam, Madras 24 in the year 1962. The first respondent in the eviction petition is the Correspondent of the said School. Thereafter, in the year 1967, the premises at No. 50, Bajanai Koil Street, Sulaimedu was used for the purpose of conducting the branch. So also in the year 1968, the branch school was opened. From 1972 onwards the second respondent in the eviction petition has become another Correspondent to the abovesaid schools. It is not correct to state that the petition premises was let out for residential purpose. The prior owner of the petition premises did not raise any objection for conducting the school in the petition premises. The petition premises was let out for non-residential purpose. Even the subsequent purchaser the present landlord knew that the petition premises was being used for non-residential purpose. Kalaimagal Higher Secondary School is a recognised school by the Government of Tamil Nadu. The school, which is in the petition premises is a branch of the main school called Kalaimagal Secondary School. It is not correct to state that the landlord is conducting his business in a rented premises as alleged by him. Eviction cannot be asked both for the purpose of residential and non-residential. The tenant incurred an expenditure of Rs. 21,000 by putting up additional construction in the petition premises. It is therefore, the petition for eviction filed by the landlord is liable to be dismissed. Jagannathan was examined as P.W. 1. Gunasekaran was examined as R.W. 1. The landlord filed 10 documents and the tenant filed one document. Considering the facts arising in this case, the Rent Controller came to the conclusion that the petition premises was let out for nonresidential purpose. The Rent Controller further held that the landlord failed to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. The Rent Controller also held that the school conducted in the petition premises is recognised by the Government. For all these reasons, the petition filed by the landlord was dismissed. On appeal, the Rent Control Appellate Authority also held (hat the petition premises was let out for non-residential purpose and therefore, the landlord cannot ask for eviction under Section 10(3)(a)(i) of the Act. The Appellate Authority further held that in view of the provisions contained in Section 10(4)(ii) of the Act, the petition filed by the landlord is not maintainable. However, the Rent Control Appellate Authority accepted that there is bona fide on the part of the landlord is requiring the petition premises, under Section 10(3)(a)(iii) of the Act. Accordingly, the order passed by the Rent Controller was confirmed by the Rent Control Appellate Authority.
3. Aggrieved, the landlord is in revision before this Court. The leaned counsel appearing for the landlord submitted as under : Both the authorities below concurrently came to the conclusion that the petition premises was let out for non-residential purpose. The landlord is conducting his business in the rented premises. He is not having or in occupation of any other non-residential premises of his own in the City of Madras. Therefore, he required the petition premises bona fide under Section 10(3)(a)(iii) of the Act. Even according to the learned Rent Control Appellate Authority, the requirement of the landlord of the petition premises under Section 10(3)(a)(iii) of the Act is bona fide. Though affiliation was granted to the Kalaimagal Higher Secondary School, affiliation was not granted to its branch school now being conducted at the petition premises. The branch school, cannot be considered as a feeder to the main school. Exs. P-5 and P-6 would clearly go to show that the affiliation is not granted to the branch school. Affiliation is granted only for the school which is conducting IX, X and XI standards. In the petition premises, IX, X and XI standards arc not conducted. Since the branch school is not an affiliated institution, protection under Section 10(4)(ii) of the Act cannot be extended to the tenants-respondents herein. C.M.P. No. 15018 of 1986 was filed for permission to receive additional document. The additional document is a public document. Therefore, further tests over the said document are not necessary. The additional document could not be produced before the authorities below, since the petitioner herein was unable to obtain the same in time. The letter dated 24.9.1986 written by the Regional Officer Central Board of Secondary Education, Saidapet, Madras would clearly go to show that affiliation was granted only to Kalaimagal Higher Secondary School situated at 48, Rajeswari Road, Rajaram Methanagar, Madras-29. Therefore, the branch school cannot plead the benefit of affiliation granted by the Central Board of Secondary Education. For all these reasons, it was pleaded that the order passed by the authorities below is liable to be set aside and eviction may be ordered under Section 10(3)(a)(iii) of the Act.
4. On the other hand, the learned Counsel appearing for the respondents-tenants submitted as under:
The additional document filed by the landlord cannot be entertained at this stage without testing the veracity of the said document. The premises was originally let out for non-residential purpose by the prior owner. The school was being conducted in the petition premises even on the date when it was purchased by the present landlord. The present landlord used to receive the rent having known the fact that the petition premises is being utilised for non-residential purpose. The tenant incurred an expenditure of Rs. 21,000 for putting up an additional construction. The landlord failed to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. The affiliation granted in favour of the main school will hold good for the branch school also. The branch school is being conducted in the petition premises as a feeder school for the main school conducted under the name and style of Kalaimagal Higher Secondary School. Both the authorities below concurrently came to the conclusion that the landlord is not entitled to an order of eviction in view of the exemption as contemplated under Section 10(4)(ii) of the Act. It is only after considering Exs. P-5 and P-6, the authorities below came to the conclusion that the petition for eviction is not maintainable in view of the provisions contained in Section 10(4)(ii) of the Act. Since the conclusions arrived at by the authorities below are concurrent, it was pleaded that no interference is called for. I have heard the rival submissions.
5. Two points that arise for consideration in this revision are : (1) Whether the tenant is entitled to the protection given under Section 10(4)(ii) of the Act, and (2) Whether the landlord established his bona fide in requiring the petition premises under Section 10(3)(iii) of the Act. The landlord purchased the petition premises situated at No. 41, 7th Street, Sulaimedu, Madras-94 by a sale deed dated 23.6.1983. The sale deed was registered on 24.6.1983. The tenant in the premises attorned the tenancy in favour of the subsequent purchaser, who is the present landlord. According lo the landlord, the petition premises was originally let out by his vendor for residential purpose, and the tenant without the consent of the landlord is running the kinder garden school under the name and style of Kalaimagal English School in the petition premises. After the purchase the landlord issued a notice on 3.7.1983 indicating that the premises let out for residential purpose is being used for running a school. The landlord also stated that he is living in a rented premises and he purchased the petition premises for the purpose of his personal occupation. The tenant sent a reply on 22.7.1983 refuting the allegations contained in the notice issued by the landlord. According to the tenant, even the prior landlord permitted the tenant to use the premises for running the school. It was also stated that the tenant has put up an additional construction by incurring an expenditure of Rs. 21,000. According to the landlord, he made enquiries with the Central Board of Secondary Education. The Regional Office of the Board is situate at Saidapet, Madras. They provided a list of schools affiliated to the Board of Tamil Nadu. In the said list item No. 84, indicated that Kalaimagal English School, Kalyanapuram, Madras-24 is the institution affiliated to the Central Board of Secondary Education. The hand book of affiliation of institutions published by the Central Board of Education indicated that affiliation is not extended to branches run by any institution and if there is no affiliation, the grant is not extended to that institution. The landlord also found that no grant is given to Kalaimagal Kinder Garden School. Therefore, according to the landlord, the protection under Section 10(2)(iii) of the Act would not be applicable to the facts of this case. On the other hand, it is the case of the tenant that affiliation was granted to the main school Kalaimagal Higher Secondary School and the school, which is being conducted in the petition premises is a feeder school for the main school. Therefore, according to the tenant, the affiliation granted to the main school would also hold good for the branch school. According to the tenant, a separate affiliation is not necessary for the branch school. The tenant submitted that all the branches are functioning as feeding centres for the principal school in power house road, Kodambakkam and the entire administration of its branches is controlled by the principal school. The first respondent in the eviction petition was the correspondent for all the branches since he was the correspondent for principal school. From 1972 the second respondent is the correspondent for all the schools including the principal school. The original landlord was fully aware of the fact that the petition premises was used for running the school. Even after the purchase the present landlord did not raise any objection for conducting the school in the petition premises. Since the original landlord permitted the tenant to run the school in the petition premises, further permission from the subsequent purchaser is not necessary. The kinder garden school in the petition premises is only a branch and feeding school for the main school and it has no independent existence or administration. Therefore, by virtue of Section 10(4)(ii) of the Act, the landlord's application for owner's occupation can not be sustained since the school enjoys protection under the abovesaid provisions under Section 10(4)(1) of the Act.
6. Under the provisions of Section 10(4)(ii) of the Act, no order for eviction shall be passed under Sub-section (3) in respect of any building which has been let for use as an educational institution and is actually being used as such, provided that the institution has been recognised by the Government or any authority empowered by them in this behalf so long as such a recognition continues.
7. In order that the provisions of Section 10(4)(ii) may apply, the requisites to be specified, are : There must be letting. It must be for the use of as an educational institution and the building must still be used for the purpose and further the institution should be one that has been recognised by the Government or any authority empowered by the Government in that behalf and lastly such recognition must continue at the relevant date.
8. Section 11 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (Tamil Nadu Act 24 of 1974) deals with recognition of Private schools. Section 11 of the above said Act states as under:
Recognition of private school : (1) on receipt of an application by:
(a) any private school in respect of which permission has been or is deemed o have been granted under Section 6; or
(b) any minority school;
the competent authority may, after satisfying itself, that proper arrangements have been made for the maintenance of academic standard in the school, that the provisions of this Act arc complied with and that the prescribed conditions have been satisfied, grant a certificate, recognising the private school for the purpose of this Act.
(2) The certificate under Sub-section (1) shall be granted within such period as may be prescribed, 'According to Section 2, Clause 4 of the abovesaid Act, Government means the State Government. Even according to the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, Government mean Stale Government under Section 2(5) of the Act. In the present case, the private school run by the tenant is not recognised by the State Government or any authority empowered by them in this behalf. According to the tenant, the school in the petition premises is affiliated to the Central Board of Secondary Education. A copy of list of schools affiliated to the Board under All India Scheme by the Central Board of Secondary Education was filed as Ex. P-5. The Manual of Rules and Regulations relating to Central Board of Secondary Education is marked as Ex. P-6. As already pointed out, item No. 84 in the above said list indicated that Kalaimagal English School, Kalyanapuram, Choolaimedu, Madras-94 is the institution affiliated to the Central Board of Education. The school now running in the petition premises under the name and style of Kalaimagal English School does not find a place in the abovesaid list. According to the tenant since the main principal school was affiliated, the affiliation could held good for the branch school which is being conducted in the section premises also. The landlord filed a petition premises also. The landlord filed a petition C.M.P. No. 15018 of 1986before this Court for rcceiving additional document. This was opposed by the learned Counsel appearing for the tenant. According to the learned Counsel for the tenant, the additional document should not be permitted to be filed at this stage. The learned Counsel further submitted if the document is admitted at this stage, opportunity must be given to the tenant to test the veracity of this document, t have heard the learned Counsel appearing on both sides on this aspect. The additional document sought to be filed before this Court is a letter written by the Regional Officer Central Board of Secondary Education at No. 26, South Mada Street, Srinagar Colony, Saidapet, Mardas-15 to the landlord N.V.Jagannathan. In the said letter it is stated as under:
With reference to your letter cited on the subject I am to state that Kalaimagal English School situated at No. 41,7th street, Sowrashtra Nagar, Choolaimedu, Madras-94 is not affiliated to the Central Board of Secondary Education, New Delhi, However, Kalaimagal Higher Secondary School situated at 48, Rajeswari Road, Rajaram Methanagar, Madras-600 029 is affiliated to Central Board of Secondary Education, New Delhi. Thus according to Kalaimagal English School situated at No. 41, 7th Street, Sowrashtra Nagar, Choolaimedu, Madras-94. This document is a public document. Therefore, further proof is not necessary to test the veracity of the same. Therefore, C.M.P. No. 15018 of 1986 is allowed, and the landlord is permitted to file this document as additional evidence in the present case.
9. Further, in the petition premises the tenant is conducting only Kinder Garden School. Rule 3 of Rules for affiliation under Chapter VI in the Manual of Rules and Regulations of Central Board of Higher Secondary Education states as under:
No institution shall be affiliated or continue to be affiliated by the Board unless the middle section of the school (excepting Government Schools) if it has any, recognised by the Education Department of the State except in cases where the syllabus of the middle classes is approved by the Chairman of the Board.
According to Rule 5(b) of the Rules for affiliation, 'no institution shall be affiliated or continue to be affiliated unless it complies with the following requirements, viz. that the middle and primary sections of the school except Government schools continue to be affiliated by the Education Department of the State/Union Territory concerned or as provided in para 3 above.
We have already seen that in the letter dated 24.7.1986 the Regional Officer of the Central Board of Secondary Education has clearly stated that Kalaimagal English School situate at No. 41, 7th Street, Sowrashtra Nagar, Choolaimedu, Madras-94 is not affiliated to the Central Board of Secondary Education, New Delhi. Therefore, the learned Counsel appearing for the tenant cannot contend that the affiliation granted to the main principal school would also hold good for the primary school now being conducted in the petition premises. In view of the above said factual position, it is not open to the counsel for the tenant to submit that the tenant is entitled to the protection under Section 10(4)(ii) of the Act. The authorities below failed to consider the facts arising on this aspect in proper prospective. Therefore, the findings rendered by the authorities below on this aspect is liable to be set aside. In that view of the matter, I hold that the tenant is not entitled to ask for protection under Section 10(4)(ii) of the Act in respect of the petition premises.
10. Now what remains to be considered whether the landlord is entitled to an order of eviction under Section 10(3)(a)(i) or under Section 10(3)(a)(iii) of the Act. According to the landlord, he purchased the petition premises for the purpose of his residence. He is residing in a rented premises on a monthly rent of Rs. 350 in West Mambalam area. He also stated that he is not having any other premises of his own in the City of Madras. These facts were not controverted by the tenant. The landlord further submitted that he is also carrying on his business in a rented premises at No. 5; First Cross Karunanidhi Street, West Mambalam and he is not having any other non-residential premises of his own in the City of Madras. According to him, if the Rent Controller comes to the conclusion that the petition premises was let out for non residential purpose, he required the petition premises bona fide under Section 10(3)(a)(iii) of the Act. Therefore, eviction was sought for both under Sections 10(3)(a)(i) and 10(3)(a)(iii) of the Act.
11. It is the case of the landlord that petition premises was let out for residential purpose and it is the tenant, who converted the use of the petition premises to that of a non-residential one. On the other hand, the tenant contended that ever since the premises was let out, it was being used for running a school. The prior landlord knew that the tenant was running a school in the petition premises. No objection was made. Even after the purchase, the present landlord accepted the tenancy and used to receive the rent without any demur. Therefore, the present landlord also knew that the tenant is using the premises for running a school. Therefore, at this stage according to the tenant, it is not open to the landlord to state that the petition premises was let out for residential purpose. Both the authorities below considering the facts arising on this aspect, concurrently came to the conclusion that the petition premises was let out for non-residential purpose and the tenant did not change or convert the use of the building from a residential one to what of non-residential one. Therefore, the authorities below proceeded on the assumption that the petition premises was let out for non-residential purpose and the landlord cannot ask for eviction under Section 10(3)(a)(i) of the Act. Now we have to consider whether the landlord required the petition premises bona fide under Section 10(3)(a)(iii) of the Act. In the rent control proceedings, it is not necessary for the landlord to issue a notice prior to the filing of the petition. The petition for eviction was filed both under Section 10(3)(a)(i) and under Section 10(3)(a)(iii) of the Act. The tenant did not controvert the version put forward by the landlord that he is doing his business in a rented premises. The landlord filed documents to show that he was conducting the business in a rented premises as an agent in selling scent materials. This was also not controverted by the tenant. Since the authorities below concentrated much on rendering a finding with regard to the protection claimed under Section 10(4)(ii) of the Act, no proper finding was rendered on the question of requiring the petition premises bona fide under Section 10(3)(a)(iii) of the Act. Before the Rent Controller, the landlord filed ten documents. Those documents are not sufficient to render a finding that the landlord is carrying on his business on the date of filing the petition. Further, in order to obtain an order of eviction under Section 10(3)(a)(iii) of the Act, the landlord must not only prove that he is carrying on his business in a rented premises, and he is not having or occupying a premises of his own in the City of Madras but also prove the element of bona fide as contemplated under Section 10(3)(e) of the Act as pointed out by the Supreme Court in the case of Hameedia Hardware Stores v. Mohan Lal Sowcar (1988) 2 L.W. 1. In the present case, neither the landlord produced any particulars in establishing his bona fide under Section 10(3)(a)(iii) of the Act nor the authorities below rendered any finding on this aspect. Under such circumstances, I consider that the proper course would be to remit back the petition for eviction filed under Section 10(3)(a)(iii) of the Act for fresh disposal. Accordingly, I set aside the order passed by the authorities below both under Section 10(4)(ii) and Section 10(3)(a)(iii) of the Act and remit back the petition for eviction to the file of the Rent Controller with the direction to dispose of the petition for eviction filed under Section 10(3)(a)(iii) of the Act afresh in accordance with law after giving an opportunity of being heard to both the parties untrammeled by the findings given herein above. The parties arc at liberty to adduce evidence both oral and documentary in order to substantiated their respective case. In that view of the matter, the petition filed under Section 10(3)(a)(iii) of the Act alone is remitted back for fresh disposal.
12. In the result, the revision is allowed and the petition for eviction is remitted back for fresh disposal as indicated above. There will be no order as to costs. The Rent Controller is directed to dispose of this petition within three months from the date of receipt of this order.