K. Krishnamoorthy vs D.R. Subramanian on 31 July, 1996

ORDER

S.S. Subramani, J.

1. This revision is filed by the tenant in R.C.O.P. No. 16 of 1983, on the file of the Rent Controller, Tirupattur. The subject matter of this revision is a residential building occupied by the petitioner. Landlord is the respondent herein.

2. Landlord sought eviction of the tenant from the scheduled building on the ground that he needs the building bona fide for his own occupation. Initially, both the Rent Controller as well as the Appellate Authority found that the landlord is entitled to get eviction, and the claim is bona fide The matter came to this Court in revision filed by the very same petitioner in C.R.P. No. 226 of 1990. Before this Court, it was contended that the respondent has purchased a residential building and several other properties in the name of his wife and son and the subsequent acquisition disentitles the respondent from getting possession of the building. As per order dated 16.2.1990, this Court set aside the decisions of the Authorities below and remanded the matter to be considered afresh by the Appellate Authority. The relevant portion of the order of this Court reads thus:

It is not in dispute and indeed it is also accepted by the Appellate Authority in paragraph 9 of its order that subsequent to the filing of the application for eviction by the respondent, some properties had been purchased and the subsequent purchase should also be taken into account while considering the application filed for eviction by the respondent herein praying for an order of eviction against the petitioner. However, the Appellate Authority after referring to the three sale deeds under which properties have been acquired after the date of filing of the application for eviction, stated that as they stood in the name of the wife and son of the respondent, the respondent cannot be staff d to be in occupation of a residential building of his own. However, under Section 10(3)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, the requirement is that the landlord or any member of his family should not be in occupation of a residential building and under Section 2(6)(A) of the Act, “member of his family” in relation to landlord would include his spouse, son and others as well. This aspect of the matter has not be considered by the Appellate Authority and a decision on this question would be necessary for the disposal of the appeal. Inasmuch as that aspect, had not been gone into and that would be decisive on the question of entitlement of the respondent to an order of eviction against the petitioner, the order of the Appellate Authority cannot be sustained. Consequently, the civil revision petition is allowed, the order of the Appellate Authority is set aside and C.A. No. 68 of 1985 is remitted to the Appellate Authority, Tirupattur, for fresh disposal in accordance with law and in light of the observations contained herein.

After receipt of the order, the Appellate Authority again reconsidered the matter and came to the conclusion that the landlord is entitled to get possession of the building. It came to the conclusion that the building acquired by the wife or the vacant land acquired by the son will not disentitle the landlord to get an order of eviction, and it also took note of the fact that even those properties had been sold away and by the time the judgment was pronounced by the Appellate Authority, neither the son nor the wife of the landlord was in possession of any of those items. The bona fides of the landlord was confirmed by the Appellate Authority. It is against the revised judgment of the Appellate Authority, this revision is filed.

3. The only ground urged by learned Counsel for the petitioner is the acquisition of residential building in the name of the respondent’s wife and also vacant land in the name of his son. According to the learned Counsel, if any member of the family is in possession of a residential building which the landlord could also occupy, that will disentitle the respondent herein from getting eviction. For the said purpose, learned Counsel said that the wife and son are considered as ‘members of the family’ of the landlord, and possession of the building by them and which is available for residence will be sufficient to disqualify the landlord to get another building under the Act.

4. Under Section 10(3)(a)(i) to (iii) of the said Act reads thus:

A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building-

(i) in case it is residential building, if the landlord requires it for his own occupation or for 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 it is a non residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord 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 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.

This section came for interpretation in various cases. In Anamalai & Co. v. Sital Achi , the question that came up for consideration was in respect of a non-residential building. The landlord was in possession of a non-residential building, but the requirement was by a member of the family. While considering the same, this Court held thus:

…The learned Counsel for the petitioner contended that both under the main part of Section 10(3)(a)(i) and (iii) as well as the second proviso to that section the respondent is not entitled to file this application. According to the learned Counsel when the respondent obtained an order of eviction and got possession of a building, though for the purposes of residence and business of her husband she shall be deemed to be in occupation thereof for purpose of her residence and business of the building which is her own and therefore she would not satisfy the condition prescribed under Section 10(3)(i) and (iii). Even if it can be considered that the prior order of eviction was for purpose of her husband’s business, the proviso bars entertainment of another application by the respondent. On a plain and grammatical reading of the language used in Clause 3(a)(i), (iii), I am unable to accept this contention. In my opinion the owner of a residential premises could invoke the provisions of Section 10(3)(a)(i) if the building is required for his own occupation or for the occupation of any member of his family. The condition imposed under that section of not occupying residential building of his own is to be understood with reference to the person for whose occupation the building is required. Therefore, even if the owner of the house is occupying another residential building of his own he could apply for eviction of a tenant of another building if that building was required for the occupation of any member of his family. In Clause (3) of that sub-section the words use are “if the landlord or any member of his family is not occupying for purpose of business which he or any member of his family is carrying on a non-residential building which is the own. “Thus here also in the case of eviction of a tenant from a non-residential building the condition to be satisfied is that the person for whose business the building is required shall not be in occupation of a non-residential building of his own. In other words, the landlord though, he may be in occupation of a non-residential building for purpose of his business, could apply for eviction of a tenant in respect of another non-residential building if required for the purpose of a business which any member of his family is carrying on provided the person for whose benefit the non-residential building was required by the landlord is not already in occupation of non-residential building of his own. Any other construction in my opinion would nullify the amendment of the section by introduction of the words’ ‘any member of his family’. The second proviso to this sub-section would apply only to a case where the main part of Sub-clauses (i) and (iii) is applicable, for, if the landlord-petitioner does not satisfy the requirement of Clauses (i) and (iii) on that ground itself the petition would be liable to be dismissed and there can be no occasion for invoking the provision of the proviso….

The decision again came for consideration in A.S. Kannan v. S.C.M. Zackeriya 100 L.W. 213. That was a case of residential building where in the court held thus:

This Court has uniformly held that when the premises are sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the premises are required who should not occupy premises of his or of her own. The fact that the landlord occupies premises of his own would not disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own.

The condition imposed under Section 10(3)(a)(i) of the Act” not occupying residential building of his own” is to be understood with reference to the person for whose occupation the building is required. The second limb of Section 10(3)(a)(i) of the Act could only be interpreted as requiring that the person for whose benefit the premises are sought for should not occupy any building of his or of her own. The fact that the landlord who seeks eviction is himself occupying a building of his own would not be a bar to the landlord seeking eviction for the occupation of a member of his family, who does not occupy any premises of his or her own.

5. In M.K. Abdur Rashed Sahib v. A.R. Rahimunnissa Begum (1990) 1 L.W. 582 also, an identical question came for consideration and it was held thus:

One submission raised by the learned Counsel for the petitioner is that the respondent has inherited the said premises bearing Door No. 24, Murthuza Begumpetttah Street, Madras, on the death of the landlady of the said premises (who is none other than the mother of the respondent) in 1983, after the R.C.O.P. was filed, and that since the respondent had thus come to own the said premises, which is now in her occupation, Section 10(3)(a)(i) of the Rent Control Act cannot be invoked by the respondent.

The said provision runs as follows:

A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building.

(1) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family who is not occupying a residential of his own in the city, town or village. concerned.

According to the said Counsel, in the expression:

if he or any member of his family is not occupying a residential building of his own in the city, “the words ‘his own’, would refer only to the landlady in the present case and not her son. But in very many decisions like Annamalai & Co. v. Sital Achi , Indian Plywood Manufacturing Co. v. Balaramiah Chetti 99 L.W. 49 and A.S. Kannan v. S.C.M. Zackeriya 100 L.W. 213, this Court has held that the condition imposed under the said Section as per the words ‘not occupying a residential building of his own’ is to be understood with reference to the person for whose benefit the building is required. In A.S. Kannan v. S.C.M. Zackeriya 100 L.W. 213 reference to above, this Court observed as follows:

This Court has uniformly held that when the premises are sought for by the landlord for the benefit of any member of his family it is only that member of the family for whose benefit the premises are required who should not occupy premises of his or of her own. The fact that the landlord occupies premises of his own would not disentitle him from claiming eviction for the benefit of a member of his family, who does not occupy any premises of his own.

In the said decision, the learned Judge also held, referring to the decision in Jagannatha Chettiar v. R.V. Swarnambal 97 L.W. 182 as follows:

A perusal of the judgment would clearly indicate that the facts in that case are totally different and that therefore, the view expressed by the learned Judge on those facts is really not in conflict with the laws expressed by this Court in other decisions, referred to above. In Jagannatha Chettiar v. R.V. Swarnambal 97 L.W. 183, the landlord has initially sought eviction on the ground that he required the premises for his daughter. He had also claimed that neither himself nor his daughter was occupying any other building of their own. The tenant has resisted the eviction on the ground that the landlord was not living in rented premises, but the premises in which he was residing was his own. It is seen from the facts set out in the above judgment, that though initially the landlord has sought an eviction for the benefit of his daughter, who did not have a house of her own, during the evidence he had made it clear that eviction was sought for to enable him to go and live with his married daughter and son-in-law and that he could not do so in his house since the accommodation in the house, where he was residing, was not sufficient.

Therefore, the contention of the learned Counsel for the petitioner in this regard cannot be accepted….

6. In view of the binding precedents, the contention of the learned Counsel for the petitioner cannot be accepted.

7. It was further contended by learned Counsel that the sale deed taken in the name of the wife and subsequent transfer of the same by her are all a make-belief affair, and that it only to avoid an adverse decision in this case. According to learned Counsel, the very purchase in the name of the wife was benami or nominal, and in fact the subsequent sale was by the respondent himself in the name of his wife. He also referred to the oral evidence let in subsequent to the order of demand. The Appellate Authority considered the question and rejected it in its entirety.

8. In fact, for the said plea that the sale in favour of the wife is only nominal or benami, absolutely no evidence has been adduced before court. Since the wife is the owner, she is competent to alienate the property, and merely because a litigation is pending between her husband and the tenant, that will not disentitle the wife from alienating the property, [f such contentions are accepted at the instance of a tenant who is an utter stranger so far as the transactions are concerned, under the guise of questioning the transaction, the very legislation will be questioned as unconstitutional. In Yudhishter v. Ashok Kumar , a similar question came for consideration, where the landlord transferred a property sometime before the institution of the eviction proceedings. A contention was taken that the transfer by the landlord was to avoid an adverse decision before the Rent Controller and that the same is nominal. While rejecting the said contention, their Lordships of the Supreme Court held (in paragraphs 16 and 15) thus:

As the respondent had sold away the property 1 1/2 years before his suit for his need was instituted, it cannot be said that unless there was definite evidence that it was done with the intention to defeat the appellant’s claim so as to be read that the landlord occupied another residential house at the relevant time, i.e., at the time of institution of the suit. The sale of the house was with an intention or with a purpose to defeat the claim of the appellant or to take out the respondent from the purview of the limitation imposed by Section 3(3)(1)(a) of the Rent Act. The Appellate Authority accepted the respondent’s need and found him within the purview of the Act. The High Court did not interfere in revision, nor shall Supreme Court under Article 136.

Though the Rent Act is a beneficial legislation, it must be read reasonably and justly. If more limitations are imposed upon the right to hold the property then it would expose itself to the vice of unconstitutionality. Such an approach in interpretation of beneficial statutes is not warranted. It is true that one should iron out the creases and should take a creative approach as to what was intended by a particular provision but there is always, unless rebutted, a presumption as to constitutionality and the Act should be so as to prevent it from being exposed to the vice of unconstitutionality. State is also presumed to act fairly.

I reject the contention of the learned Counsel for the petitioner in that regard.

9. The acquisition in the name of the son and the subsequent sale in admittedly in respect of a vacant land. There cannot be any question of disqualification even if a vacant land is purchased and sold by the landlord.

10. Authorities below have concurrently held that the claim put forward by the landlord is bona fide The admission of the petitioner (tenant) about the difficulties which the landlord is undergoing since he could not occupy the building in the locality was also taken into consideration by the Authorities below. The tenant himself admitted that the landlord has to travel miles together. Taking into consideration the facts and circumstances of the case, the Rent Controller as well as the Appellate Authority have correctly come to the conclusion that the claim put forward by the landlord is in good faith, and the same is supported by materials.

11. I do not find any illegality, impropriety or irregularity in the orders passed by the Authorities below. The civil revision petition is dismissed, however, without any order as to costs.

12. Taking into consideration the facts and circumstances of the case, I think it will be just and proper if the tenant is given four months time to vacate the premises on condition that he will file an affidavit of unconditional undertaking within ten days from today, that he will handover possession of the building on or before the expiry of the said period, and that the rental arrears will also be paid within that time. The tenant should also pay the rent for the continued period of his occupation as and when the rent falls due. In case of default of any of the above conditions, the landlord is entitled to get possession irrespective of the time granted.