ORDER
M.N. Chandurkar, C.J.
1. The petitioners are the heirs of the Neelakantan who admittedly owned the premises in question situated at Pondicherry. They filed a petition for eviction of the respondent who is admittedly using the premises for business purposes.
2. According to the petitioners, they were staying with the father of Neelakantan as a joint family, but since after the death of Neelankantan in 1979, differences had arisen in the family, the petitioners left the family house and are now living in a rented house. Their claim, therefore, is that they are without any house of their own and they require the premises in question for their personal occupation.
3. This petition is contested by the tenant on the ground that Neelakantan had already started proceedings against him for eviction on the ground that he needed the premises for starting a business, being H.R.C.O.P. No. 96 of 1974, which had been dismissed. The tenant denied that the petitioners require the premises.
4. The Rent Controller found that the petitioners did not have any other building of their own other than the demised premises. He took the view that since petitioner-1 had become a widow and wanted to live separately along with her children, her need must be taken to be bona fide.
5. The main question which fell, therefore, for consideration before the Rent Controller was whether the petitioners could be denied the relief on the ground that the premises were non-residential. The Rent Controller seemed to have inspected the premises and found that the house has got rooms, thalwaram, open space, bath room and kitchen and structurally the house was meant for residential purposes. It was also situated in a residential area. He, however, found that in the house the tenant had stored chillies. The Rent Controller referred to Section 21 of the Pondicherry Buildings (Lease and Rent Control) Act, 1969, (hereinafter referred to as the’ Act’) which created a bar against converting a residential building to a non-residential building except with the permission of the Controller. It may be mentioned that the provisions of the Pondicherry Act are identical to those of the Tamil Nadu Buildings (Lease and Rent Control) Act 11960. Holding that the building was essentially and structurally a residential house capable of being used for residential house capable of being used for residential purpose, the Rent Controller found that there was no bar in law for ordering eviction in such a case. Accordingly, he allowed the petition of the petitioners.
6. The tenant filed an appeal against this order. The Appellate Authority took the view that the premises were used for non-residential purpose and in such a case, only Section 10(3)(a)(iii) of the Act would apply and eviction could not be ordered on the ground of requirement for personal occupation. He relied on two decisions of this Court, namely, (i) Lakshmanan v. Hajee Alluddin Saheb Sons ; (ii) Padmavathiammal v. Manickam. . These are also the decisions which were relied upon by the learned Counsel for the tenant respondent in this revision petition. The Appellate Authority, therefore, set aside the order of the Rent Controller, and dismissed the petition filed by the petitioners.
7. In this revision petition which was filed challenging the order of the Appellate Authority, the learned Counsel argued that the petitioners were clearly entitled to a relief under Section 10(3)(a)(iii) of the Act, on the footing that the permises in question are a residential building and the mere fact that it was being used for nonresidential purpose, did not deprive the landlords of their right to claim this premises if the other conditions in Section 10(3)(a)(i) of the Act are satisfied. He relied heavily on the nature of the building and its structural characteristics referred to by the Rent Controller after personal inspection of the premises. He also contended that there is no other building of their own which they could occupy.
8. In the course of the arguments, the learned Counsel appearing on behalf of the tenant filed an affidavit in which the averment was that during the pendency of this litigation, the petitioners have already secured possession of another premises which were in the occupation of a tenant by name B.N. & Sons. The premises in question are situated at No. 93, Mahatma Gandhi Road, Pondicherry The averment made in the affidavit was that the petitioners having already secured possession of other premises on the ground of bona fide requirement, this revision petition should be dismissed.
9. In reply to this averment, an affidavit has now been filed by one of the petitioners, Srinivasan, who is the eldest son of the deceased Neelakantan, in which he has stated that premises No. 93, Mahatma Gandhi Road, Pondicherry, by virtue of a will made by Neelankantan’s father, was entrusted to the management of the two brothers of Neelankantan by an arrangement contained therein. A zerox copy of the will with its English translation has been produced. This indicates that Neelakantan’s father was worried about Neelakantan’s wife and children in whom he had not evinced any interest as he had taken to gambling and racing in the company of his friends and he was according to this father, wasting away the properties, and the premise in No. 93, Mahatma Gandhi Road, were, therefore, to be held in trust by the other two sons of the testator for the benefit of the members of the family of Neelakantan and his wife attained the age of 21 years. It is stated that the last issue of Neelakantan is a daughter who is now 14 years old and for seven more years, the property will have to be managed by Neelakantan’s two brothers. As a matter of fact, proceedings for eviction of the tenant on the ground of default were not taken by the petitioners at all but were taken by the two brothers of deceased. Neelakantan. There is, therefore, no substance in the contention that the petitioners are not entitled to the premises in question on the ground that they have secured other accommodation during the pendency of this litigation.
10. As already pointed out, the learned Counsel appearing on behalf of the tenant has relied on two decisions of this Court referred to above in support of the contention that the premises being non-residential premises, having regard to the provisions of Section 10(3)(a)(iii) of the Act, if the landlord does not require the premises for the purpose of any business, then the tenant cannot be evicted. The relevant provisions which consideration are contained in Section 10(3)(i)(ii) and (iii) which read as follows:
the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned;
(ii) in case is a non-residential building, which is used for the purpose of keeping a vehicle or adopted for such use, if the landlord requires it for his own use of for the use of any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own;
(iii) in case it is any other non-residential building if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying, on a non residential building in the city, town or village concerned which is his own….
The two provisions in Sub-section (3)(a) of Section 10 are not relevant for our purpose.
11. The three sub-clauses of Section 10(3)(a) deal with three different kinds of cases referred to therein. Under Sub-clause (i) which refers to a residential building in the occupation of the tenant, the landlord can ask for the residential building for his own occupation or for the occupation of any member any member of his family; but the condition to be satisfied is that neither he nor any member of his family should be occupying a residential building of his own in the city, town or village concerned. Sub-clauses (ii) and (iii) refer to a non-residential building. The provisions in Sub-clause (ii) specifically deal with a non-residential building which is adapted for such use and the landlord is entitled to ask such non-residential building if he requires it for his own use or for the use of any member of his family and if he or any member of his family and if he or any member of his family is not occupying any such building in the city, town or village concerned which is his own. The use of the words, such building, indicates that the occupation contemplated by the Sub-clause (ii) must be for the purpose of keeping a vehicle Sub-clause (iii) refers, to any other non-residential building, which obviously means a non-residential building other than the one referred to in the earlier clause. The condition under which a landlord can ask for the kind of non-residential building referred to in Sub-clause (iii) are identical to those in Sub-clause (ii). On a reading of these sub clauses it is important to notice that the building which is the subject matter of those clauses is referred to either as residential building or non-residential building. The clauses do not refer to a building used for non-residential purpose or residential purpose. The use of the adjective, ‘residential or non-residential’ qualifying the word, ‘building’ therefore, clearly indicates that what is important is the nature, of the building and not the use to which it is put to. This construction is supported by the provisions in Section 21 of the Act which reads as follows:
No residential building shall be converted into a non-residential building except with the permission in writing of the Controller.
Section 21, therefore, is a restriction on the power of the landlord or the tenant to convert a residential building into a non-residential building. The conversion referred to has reference to the nature and character of the building as such. The obvious purpose of enacting Section 21 was to ensure that the accommodation available for residential purposes is not reduced. Therefore, when the three sub clauses of Section 10(3)(a) refer to the building being residential or non-residential, the reference is obviously to the nature and structural characteristics of the building as such. If a residential building is used for non-residential purpose, it cannot be said to be a non-residential building within the meaning of Sub-clause (iii). A building which by its very nature is non-residential in character will not become residential in character will not become residential merely because it is used for residential purpose unless it has been so converted as to facilitate its use for residential purpose, Whether a building is non residential building or not will, therefore, have to be determined, on the structural characteristics of the building and the purpose for which it has been constructed. There is a statutory bar against conversion of a residential building into a non-residential one. A building which has a bathroom or kitchen and other amenities which are characteristics of a residential building must therefore be treated as a residential building notwithstanding its use for a non residential purpose.
12. I am supported in the view which I have taken by the decision of the Supreme Court in Busching Schmits v. Menghani A.I.R. 1977 S.C. 1969. The Supreme Court in that case was dealing with the provisions of Section 14A of the Delhi Rent Control Act. Under Section 14-A of the said Act, it is provided that where a landlord is in occupation of any residential building allotted to him by the Central Government and when the Government requires him to vacate such premises on the ground that he owns in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on and from the date of such order to such landlord, not-withstanding anything contained elsewhere in this Act or in any contract (whether express or implied) custom or usage to the contrary a right to recover immediate possession of any premises let out by him”. The claim of the landlord for eviction of the tenant in that case was resisted by the tenant on the ground that the premises were let out for a non residential-cum-commercial purpose to a joint sector company which was carrying on its business besides using it for the residence of its managing director, and, therefore, the premises could not be said to be, a residential accommodation, belonging to the landlord as contemplated by Section 14-A(i) of the Act. It was not in dispute that the building was let out for commercial purpose also and for a long time it was used as an office of the tenants business and the manager was also residing in a part thereof. The questions which were posed by the Supreme Court for decision were, Is the purpose of the lease decisive of the character of the accommodation? Does user clinch the issue?, while answering these questions in the negative, the Supreme Court in paragraph 17 of the judgment observed as follows:
Residential premises are not only those which are let out for residential purposes as the appellant would have it. Nor do they cover all kinds of structures where humans may manage to dwell if a beautiful bungalow were let out to a businessman to run a show-room or to a meditation group or music society for meditational or music classes, it remains none the less a residential, accommodation. Otherwise premises may one day be residential another day commercial and on yet a later day, religious. Use or purpose of the letting is not conclusive test. Likewise the fact that many poor persons may sleep under bridges or live in large hume pipes or crawl into verandahs of shops and bazars cannot make them residential premises. That is a case of reductio ad absurdum Referring to the fact that engineering skills and architectural designing have advanced far enough to make multipurpose edifices and, by minor adaptations, make a building serve a residential, commercial or otherwise, the Supreme Court observed.
‘Whatever is suitable or adaptable for residential uses, even by making some changes, can be designated “residential premises.
Then, in paragraph 19 of the judgment, it was observed as follows:
… The house we are considering was built on land given for constructing a residence, is being used even now for residence, is suitable otherwise for residence and is being credibly demanded for the respondent’s residence. Residential suitability being the basic consideration this building fills the bill…. A building which reasonably accommodates a residential user is a residential accommodation nothing less, nothing else.
The Supreme Court thus laid down law that if poremises are adaptable for residential uses easily, then they must be treated as “residential premises”. In the instant case, the premises in question are purely residential in character having regard to their structural characteristics and therefore merely because the premises were used for storing chillies they cannot be treated as non-residential premises.
13. So far as the two decisions relied upon by the learned Counsel for the tenant are concerned, the decision in Lakshmana v. Hajee ajee Alluddin Sahib Sons . in fact, supports the view which I have taken above. The facts of that case will show that the learned Judge applied his mind to the question as to whether the building in that case was a residential or a non-residential building. The case of the tenant was that the building was a non-residential one and therefore the landlord could not get it for residential purpose. The learned Judge referred to the oral evidence in that case and inter alia referred to the fact that the premises were rented out only for non-residential purposes, that the tenant was doing business ever since he became a tenant that there were no residential house in the street in which the petition mentioned premises were situated and that there is no well, kitchen or bath room in the petition mentioned premises….” The learned Judge observed that having these facts in mind “we have to come to the conclusion whether the premises is a residential building or a non-residential building.”
… In the absence of any definite evidence with reference to the nature of the building that has been let out, we can only him to the user of the premises and taking into consideration the user and the acquiescence on the part of the landlord, I have no hesitation in coming to the conclusion that the premises in question is a non-residential building:(underlining mine)
The observations quoted above will indicate that the learned judge took into account the user of the building only because of the absence of the other circumstances such as the non-existence of a kitchen, well and a bath room which are a normal characteristic of a residential building. This decision is not therefore an authority for the proposition that whenever a residential building is used for non-residential purpose, it will automatically fall within the description of a ‘non-residential building.’
14. The other decision is Padmavathiammal v. Manickam appears to be distinguishable on fads. That was a case in which the premises consisted of two portions and were constructed for residence of two tenants. The landlord had knowingly let out the premises for being used for a laundry. In the vacant backyard, there were concrete tables, tubes and other things which are used for laundry business and a three phase electric connection had been provided. Six roms were used for laundry and three rooms were used for the residence of the tenant. The claim for eviction on the ground of personal occupation was made on the footing that the premises were given for residential purposes and it was only the tenant who had converted it into non-residential purposes . Both the Courts below had concurrently found that there was no conversion by the tenant subsequent to the lease transaction and that the presmises were let out for non-residential purposes. The learned judge took the view as follows:
The evidence on record goes to show that the premises though structurally a residential one, has been utilised for family purposes and for the said purpose, it cannot be s aid that such a building cannot be utilised. The open yard of nearly two grounds has been utilised for washing clothes. Hence, the nature of the property can easily fit in for the purpose for which it is claimed to have been taken on lease.
The decision, therefore, turned on the finding that the premises also constituted a non-residential building which was expressly taken on lease for non-residential purposes. That decision is not therefore of any assistance to the tenant in this case. It was a building suitable also for non-residential purposes.
15. On facts found, it is clear that the petitioners are not occupying any house of their own, that the premises in question are residential premises, and that they do not become a non-residential building merely because they are used for storing chillies. Having regard to the structural nature of the building, the Rent Controller was clearly right when he allowed the claim of the petitioners on the ground of personal occupation. It is, therefore not possible to sustain the order of the Appellate Authority. The order of the Appellate Authority is thus set aside.
16. The revision petition is allowed and the order of the Rent Controller is restored. In the circumstances of the case, there will, however, be no order as to costs.