http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11  

PETITIONER: BODDU NARAYANAMMA

       Vs.

RESPONDENT: SRI VENKATARAMA ALUMINIUM CO. & ORS.

DATE OF JUDGMENT:       21/09/1999

BENCH: V.N.Khare, Syed Shah Mohammed Quadri

JUDGMENT:

SYED SHAH MOHAMMED QUADRI,J.

     This  appeal,  by special leave, is from the  judgment and  order  of  the High Court of Andhra  Pradesh  in  Civil Revision  Petition  No.134 of 1996 passed on July 29,  1997. It raises a question of interest, namely, whether a petition by  a  landlord seeking eviction of a tenant  under  Section 10(3)(a)(i)(b)  of the A.P.  Act from the demised  building, let  out under a composite lease for residential as well  as non-residential purposes, is maintainable?

     The  appellant is the landlady and the respondents are tenants  of  premises  bearing D.Nos.19/76-A  and  19/76A-1; Innespeta,  Rajahmundry  (hereinafter  referred to  as  "the demised  building")  which comprises of a residential and  a non-residential portion.  She and her husband filed eviction petition,  R.C.C.No.71 of 1981, on the file of the Principal District  Munsif-cum-Rent  Controller,   Rajahmundry,  under Section  10(3)(a)(i)(b)  of  the  Andhra  Pradesh  Buildings (Lease,  Rent  and  Eviction) Control Act,  1960  (which  is referred  to in this judgment as ’the A.P.Act’) against  the respondents  (the  first respondent is the partnership  firm and  respondents  2  to 5 are its  partners)  seeking  their eviction  from  the demised building on the ground  of  bona fide requirement for the personal residence of their family. The  respondents  resisted the petition, briefly stated,  on two  grounds  :  (i) the lease granted in their favour is  a composite  lease and as such the petition for their eviction is  not  maintainable  and  (ii)   the  requirement  of  the appellant is not bona fide.

     The learned Rent Controller recorded the findings that the  requirement of the appellant is not bona fide and  that the  eviction petition is not maintainable;  in that view of the matter, he dismissed the eviction petition.  The husband of  the appellant died in the meanwhile.  The appellant then filed  an  appeal,  R.C.A.No.11/1994,   before  the  learned Subordinate  Judge,  Rajahmundry,  the  Appellate  Authority under  the  A.P.  Act.  By its order dated  27.11.1995,  the Appellate  Authority  held  that   the  requirement  of  the appellant  was  bona  fide  and the  eviction  petition  was maintainable.   Accordingly,  the  Appellate  Authority  set aside  the  order  of the Rent Controller  and  allowed  the appeal.   The  respondents  carried   the  matter  in  Civil Revision  Petition before the High Court of Andhra  Pradesh.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11  

While  confirming  the finding that the requirement  of  the appellant  was bona fide, the High Court on the question  of maintainability,  set  aside  the  order  of  the  Appellate Authority  holding  that  the   eviction  petition  was  not maintainable.   The  revision petition was thus  allowed  on 29.7.97.   It  is against that order of the High Court,  the appellant is in appeal before this Court.

     Mr.Sudhir  Chandra,  learned  senior counsel  for  the appellant,  urged  that  the  building  as  a  whole  is   a residential one and the purpose for which a portion of it is used  cannot really change its nature;  therefore, the  High Court  erred in holding that in respect of a composite lease for  residential and non-residential purposes, the  eviction petition  filed for personal occupation of the appellant was not  maintainable.  On the ground that there is no provision in the A.P.  Act entitling the appellant to seek eviction in case  of a composite lease, submits the learned counsel, the appellant  cannot  be rendered remediless and the  statutory lease cannot be converted into a lease in perpetuity.

     Mr.M.S.Ganesh,   learned   senior   counsel  for   the respondents,  on  the  other hand, has  submitted  that  the building  comprises  of  two  separate  portions  -  one  is residential  and  the other non-residential - and  there  is dichotomy  in  the Act for purposes of eviction  of  tenants inasmuch  as  with regard to eviction from  residential  and non-residential  premises  separate  grounds  are  provided; that  on  the  ground of bona fide personal  requirement  of residence of the appellant, eviction of non-residential part of  the building cannot be sought for and as the lease is  a composite one, no eviction can be ordered even in respect of residential  part  of  the  building;  the  High  Court  is, therefore,  right  in holding that the eviction petition  is not maintainable.

     To  appreciate  the rival contentions of  the  learned counsel,  it  would  be  necessary to  notice  the  relevant provisions of the A.P.  Act.

     Section  2(iii) defines the term ’building’ as follows :

     "2(iii).  "Building" means any house or hut or part of a  house or hut, let or to be let separately for residential or non-residential purposes and includes :-

     (a)  the  gardens, grounds, garages and out-houses  if any, appurtenant to such house, hut or part of such house or hut  and  let or to be let along with such house or  hut  or part of such house or hut;

     (b)  any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or  hut, but does not include a room in a hotel or  boarding house."

     Sections  10,  12  and  13 of the  A.P.   Act  provide grounds  for eviction of tenants.  We shall presently  refer to  Section  10(3)(a)  with which we are  concerned  in  the appeal.

     A  perusal  of the definition of the  term  ’building’ shows  that (a) any house or hut, or (b) part of a house  or hut,  let  or  to  be  let  separately  for  residential  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11  

non-residential  purposes, is a building for purposes of the Act;   it  takes  in  the   gardens,  grounds,  garages  and out-houses,  if any, appurtenant to such house, hut or  part of  such house or hut and also any furniture supplied or any fittings  affixed  by the landlord for use in such house  or hut or part thereof.  However, a room in a hotel or boarding house is excluded from the meaning of the term ’building’.

     But, if a house/hut is having both residential as well as  non-  residential  portions which are let  out  together under  a  composite lease, will it be within the meaning  of the  term  ’building’?  And will it be covered by  the  A.P. Act?   In  the definition of the term "building" in  Section 2(iii)  of  the Act, the words "let or to be let  separately for  residential or non-residential purposes", indicate that where  any house or hut or parts thereof are let  separately for residential or non- residential purposes, each part will be  a building within the meaning of that term.  It does not and  cannot  mean  that  when a residential  portion  and  a non-residential  portion  of  a  building are  let  under  a composite  lease,  the  whole building as such will  not  be within  the  meaning of the term ’building’ for  the  simple reason that a house whether it is wholly residential, wholly non-residential   or   partly     residential   and   partly non-residential is by definition a ’building’.

     Section  1(2)(a)(b)  of  the A.P.  Act  says  that  it applies   to   the  cities   of   Hyderabad,   Secunderabad, Visakhapatnam,  Vijayawada and to all Municipal Corporations and  municipalities  in  the  State of  Andhra  Pradesh  and Section  32  says that the A.P.  Act shall not apply to  any building  owned by the Government.  Under Section 26 of that Act,  the  Governor  of Andhra Pradesh  has  exempted,  with effect  from  October  26, 1983, - (1) all buildings  for  a period   of  ten  years  from   the  date  on  which   their construction is completed and (2) buildings the monthly rent of  which  exceeds Rs.1,000/-.  The building in question  is within  the  limits of Municipality of Rajahmundry, thus  it satisfies  the requirement of Section 1(2)(a)(b) and neither Section  32 excludes it from the purview of the Act nor does it fall under any of the exemptions granted under Section 26 of  the  A.P.   Act.  Now, it cannot be that a  building  is within  the purview of the A.P.  Act if let out  exclusively for  residential purpose or exclusively for  non-residential purpose  or  let  out separately in  parts  for  residential purpose  and non-residential purpose but outside its purview if  let out under a composite lease for residential and non- residential  purposes.   To hold so would be to  defeat  the object  of  the  A.P.   Act.  It follows  that  the  demised building is within the meaning of the term "building" and is within the ambit of the A.P.  Act.

     With  regard  to  the question of  maintainability  of eviction  petition  under  Section 10(3)(a)(i) of  the  A.P. Act,  there is no controversy that when a building having  a residential  and non- residential portions is let separately to  a person, a petition for eviction of the tenant from the residential  or non-residential portion or both on the  plea of  personal  requirement  of  residence or  business  of  a landlord, as the case may be, is maintainable but there is a conflict  of  opinion  among various High Courts as  to  the maintainability  of a suit/petition for eviction filed by  a landlord,  on  the  ground of his  personal  requirement  of residence,   against   a  tenant   who  is  occupying   both residential and non-residential portions of a building under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11  

a composite lease.

     Now,  we shall refer to the views expressed by various High  Courts  on  the  question   of  maintainability  of  a suit/petition  filed  on  the ground of bona  fide  personal requirement  of residence of the landlord for eviction of  a tenant holding residential and non-residential portions of a building under a composite lease.

     The  High  Court of Andhra Pradesh in Ghan  Shyam  vs. Laxmi  Narayana  [1990  (1)  ALT 43];   the  High  Court  of Rajasthan  in Om Prakash vs.  Smt.Chand Devi [1973 RCR 562]; the  High  Court  of  Madras in  Moinuddin  Khan  Sahib  vs. Rukmani  Ammal  [1973  All  India RCJ  311]  and  Tikamchand Mithalal  Jain vs.  M.R.Narasimhachari [AIR 1981 Madras 21]; the  High  Court  of  Madhya Pradesh  in  Jamna  Prasad  vs. Nandkishore  [1976  MPLJ 28], Panjumal Daulatram  (Firm)  vs Sakhi Gopal Thakurdin Agrawal [1977 MPLJ 762] and Jagitkumar vs.  Jagdeeshchandra [AIR 1982 MP 144] took the views that a suit/petition, under the respective Act, for eviction of the tenant    from   a    premises    having   residential   and non-residential  accommodation held under a composite lease, on  the  ground of personal requirement of residence of  the landlord,  is maintainable.  The reasoning is that there are two   kinds   of  accommodation    viz.,   residential   and non-residential so if an accommodation is primarily used for residential  purposes it has to be classified as residential although  a part of it is used for non-residential  purposes and  vice  versa.   There is also emphasis on  the  dominant purpose  of the lease.  However, the contrary view is  taken in  Dr.Madhusudan Mahuli vs.  Lambu Indira Bai [1987 (2) ALT 504]  by the High Court of Andhra Pradesh and in  Gokulchand vs.   Krishnachandra & Anr.  [1977 All India RCJ 376] by the High  Court  of Madhya Pradesh on the ground of  absence  of specific  provision  in the A.P.  Act and the M.P.  Act  for eviction of the tenant holding a building having residential and non-residential portions under a composite lease.

     Apropos  the  discussion, the following  decisions  of this Court are apposite :

     In  Dr.  Gopal Dass Verma Vs.  Dr.  S.K.  Bhardwaj and Anr.  [1962 (2) SCR 678], the appellant was the landlord and the respondent was the tenant of the premises which were let for  use  as  the  residence  of the  tenant  but  from  the inception  of the tenancy, the premises were being used  for commercial  purposes also i.e.  for his professional work as E.N.T.   Specialist.  The appellant sued the respondent  for ejectment,  inter alia, under Section 13(1)(e) of the  Delhi and Ajmer Rent Control Act, 1952 (for short ’the Delhi Act’) for  his personal requirement of residence.  The trial court decreed  the  suit  but  the Appellate and  the  High  Court dismissed  it  on the ground that from the beginning of  the tenancy,  a substantial part of the premises was used by the respondent for his professional work with the consent of the appellant.  On appeal, this Court held that the premises let for  residential purposes were being used by the  respondent with  the  consent of the appellant for commercial  purposes also  so  it  ceased to be premises let  for  a  residential purpose  alone and as such the appellant could not eject the respondent under Section 13(1)(e) of the Delhi Act.

     In  S.Sanyal  vs.  Gian Chand [1968 (1) SCR 536],  the predecessor  in  title  of the respondent let out  the  suit premises  to the appellant- tenant for her residence and for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11  

running  a school.  Thereafter, the respondent purchased the house  and filed a suit under Section 13(1)(e) of the  Delhi Act  for  eviction  of the appellant on the ground  that  he required  the premises bona fide for his own residence.  The trial court dismissed the suit.  On revision, the High Court held  that a decree for ejectment limited to that portion of the  house  which was used for residential purposes  by  the tenant   could  be  granted  and   remanded  the  case   for demarcating that portion and passing a decree.  On appeal to this  Court against the order of the High Court, it was held that  the  contract of tenancy was a single and  indivisible contract  and  in the absence of any statutory provision  to that  effect, it was not open to the Court to divide it into two  contracts - one of letting out for residential purposes and  the  other  for non-residential purposes  for  granting relief under Section 13(1)(e) of the Delhi Act in respect of the  portion  used  for   residential  purposes.   Following Dr.Gopal  Dass Verma’s case (supra), it was observed that if in  respect  of  premises  originally  let  for  residential purposes,  a decree for ejectment could not be passed on the grounds  mentioned in Section 13(1)(e), if subsequent to the letting,  with the consent of the landlord, the premises was used  both for residential and non-residential purposes, the bar  against  the  jurisdiction of the Court would  be  more effective  when  the  original letting was  for  purposes  - non-residential  as well as residential.  It may be recalled that  the  condition  for invoking Section 13(1)(e)  of  the Delhi  Act  is that the premises be held by the  tenant  for residential purposes.

     In  Motilal & Anr.  vs.  Nanak Chand & Ors.  [1970 All India  RCJ 99], the suit-house was let out to the tenant for residence and for running a school.  The landlord’s suit for ejectment against the tenant filed under Section 13(1)(e) of the  Delhi  Act  was  dismissed by the trial  court  on  the preliminary  issue  of maintainability of the suit  but  the District  Judge reversed the decree and remanded the case to the  trial  court.  The revision against that  order  having been dismissed by the High Court, an appeal by special leave was  filed  in  this  Court.  Relying  on  the  judgment  in S.Sanyal’s  case (supra), it was held that as the owner  let out the premises to the tenant for residence and for running a  school, the suit for ejectment on the ground of bona fide personal  requirement  was not maintainable and it  was  not open  to  the  Court  to demarcate  the  portions  used  for residential  and non-residential purposes as the contract of tenancy  was  single  and indivisible contract  and  in  the absence  of  a statutory provision, it was not open  to  the Court  to divide it into two contracts and grant eviction of the portion which was used for residential purposes.

     For  appreciating the above noted decisions, it may be pointed  out here that though the A.P.  Act, the Tamil  Nadu Act,  the M.P.  Act, the Rajasthan Act and the Delhi Act are in  pari materia, yet provisions of these Acts dealing  with grounds  of eviction of a tenant for personal requirement of residence of a landlord are not in haec verba.

     Since  the three cases decided by this Court, referred to  above, arose under Section 13(1)(e) of the Delhi Act, it will be useful to quote that provision here :

     "13(1)(e).  Protection of a tenant against eviction -

     (1) Notwithstanding anything to the contrary contained

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11  

in  any other law or any control, no decree or order for the recovery  of  possession of any premises shall be passed  by any  court  in  favour of the landlord  against  any  tenant (including a tenant whose tenancy is terminated):

     Provided  that nothing in this sub-section shall apply to  any  suit  or  other proceeding  for  such  recovery  of possession if the court is satisfied -

     (e)  that the premises let for a residential  purposes are  required bona fide by the landlord who is owner of such premises  for  occupation as a residence for himself or  his family and that he has no other suitable accommodation:

     Explanation  -  For  the   purposes  of  this  clause, "residential  premises" include any premises which have been let  for use as a residence are, without the consent of  the landlord,   used  incidentally  for   commercial  or   other purposes;

     A  perusal  of  this provision reveals  that  the  ban imposed  by  Section 13(1), that no decree or order for  the recovery  of  possession  of any premises in favour  of  the landlord  against  any tenant shall be passed, is lifted  in case  of  an  owner-landlord  of a premises  who  bona  fide requires it for occupation as a residence for himself or his family, provided that the premises was let for a residential purpose   and   the   landlord   has   no   other   suitable accommodation.   The explanation makes it clear that if  the premises let for residential purposes is used for commercial purposes  without  the  consent  of  the  landlord  it  will continue  to be a residential premises.  In other words,  if the  premises let for residential purposes is actually  used for  commercial  purposes  but without the  consent  of  the landlord,  the landlord can seek the eviction of the  tenant under  Section 13(1)(e) as the character of the premises  is statutorily  retained as a residential premises.  This is so because  the Delhi Act does not provide for eviction of  the tenant  from the premises other than residential premises on the  ground  of  bona  fide  requirement  of  the  landlord, (S.Sanyal’s case)(supra).

     It  may be noticed here that the provisions of Section 10(3)(a)  of the A.P.  Act and Section 13(1)(e) of the Delhi Act  are not in haec verba;  whereas the former provides for eviction   of   a   tenant   both   from   residential   and non-residential   premises  on  the   ground  of  bona  fide requirement  of  the  landlord,   the  latter  provides  for eviction  of  a  tenant on that ground  from  a  residential premises  only and not from a non-residential premises.  For this  reason,  the  judgments in  the  aforementioned  cases decided  under  Section 13(1)(e) of the Delhi Act cannot  be applied  to cases arising under Section 10(3)(a) of the A.P. Act  or Section 10(3)(a) of the T.N.  Act which are in  haec verba.    Section  12(e)  and  (f)  of  the  M.P.   Act   is substantially  similar  to the said provisions of  the  A.P. Act  and the T.N.  Act but Section 13(1)(h) of the Rajasthan Act  is  wider than the provisions of the A.P.  Act and  the T.N.  Act.

     Mr.Sudhir Chandra has further urged that a residential accommodation  is  one which is suitable for residence  even with necessary changes and as the tin shade (non-residential portion)  is not being used for more than a year pursuant to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11  

the orders of the Member Secretary, Andhra Pradesh Pollution Control   Board  under  Air   (Prevention  and  Control   of Pollution)  Act,  1981 and other authorities  directing  the respondents  not  to carry on any manufacturing activity  in the   residential  area  and  to   shift  the  same  to  any non-residential  area, so the non-residential portion can be put  to  residential use with necessary changes and  indeed, for  that  purpose  alone,  the eviction of  the  tenant  is sought;   therefore, the demised building has to be  treated as  residential  and  if so, eviction can  be  ordered.   In support  of his submission, he relied on the observations of this   Court  in  Busching   Schmitz  Private  Limited   vs. P.T.Menghani  & Anr.  [1977 (2) SCC 835].  In that case, the landlord  was  the  Government  servant.   He  let  out  the building  for  purposes of residence and for business  in  a portion  thereof.   He sought eviction of the  tenant  under Section  14A(1)  of the Delhi Rent Control Act, 1958 (59  of 1958).   That  application was opposed by the tenant on  the ground  that what was let out to him was not for residential purpose  but  for residential-cum-commercial purposes.   The tenant  was, however, refused leave to contest the  petition under  Section  25B(4) of the said Act.  He challenged  that order  in a writ petition before the High Court of Delhi but it  was  dismissed.  On appeal to this Court,  the  question which arose for consideration was whether the building which was  let  out  for the  residential-cum-commercial  purposes remained  a residential building?  It was held that whatever was  suitable  or  adaptable for residential  use,  even  by making  some  changes, could be designated  as  ’residential premises’.   Speaking for the Court Krishna Iyer,J., in  his inimitable style, observed :

     "Residential premises are not only these 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 musical uses, 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 no 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."

     The  learned counsel for the appellant has also placed reliance  on  the  following observations of this  Court  in M/s.Maulavi  Abdur Rub Firoze Ahmed & Co.  vs.  Jay  Krishna Arora [1976 (1) SCC 295] :

     "The  law does not require that the landlord must need the  premises for his own occupation only for the purpose to which  they  were being put by the tenant.  It may  well  be that  a tenant cannot put the demised premises to any  other use.   But there is no bar in law in the way of the landlord requiring   the  business  premises   for  his   residential occupation and vice versa, provided the premises are capable of  being put to different uses, as they seem to be in  this case."

     and contended that merely because the tenant was using the  portion  of the building for non-residential  purposes, there was no bar in law for the landlord to use the same for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11  

residential purposes.  That case arose under the West Bengal Premises Tenancy Act, 1956 (12 of 1956).

     It  is true that under the A.P.Act, there is no bar to convert  a  non-residential building into a residential  one though  Section  18  mandates that no  residential  building shall  be converted into a non- residential building  except with the permission in writing of the Controller.

     We  shall  now advert to Section 10(3)(a) of the  A.P. Act  under which the instant case arises and it will be  apt to quote it here :

     "10(3)(a).   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 a residential building --

     (a)  if  the landlord is not occupying  a  residential building  of his own in the city, town or village  concerned and he requires it for his own occupation;

     (b) if the landlord who has more buildings than one in the  city, town or village concerned is in occupation of one such  building  and he bona fide requires  another  building instead, for his own occupation;

     (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 and if he  is not occupying any such building in the city, town  or village  concerned which is his own or to the possession  of which he is entitled whether under this Act or otherwise;

     (iii)   in  case  it  is  any  other   non-residential building, if the landlord is not occupying a non-residential building in the city, town or village concerned which is his own  or  to the possession of which he is  entitled  whether under this Act or otherwise -

     (a) for the purpose of a business which he is carrying on, on the date of the application;  or

     (b) for the purpose of a business which in the opinion of  the  Controller  the  landlord  bona  fide  proposes  to commence :

     Provided  that  a person who becomes a landlord  after the commencement of the tenancy by an instrument inter vivos shall  not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered :

     Provided  further that, where a landlord has  obtained possession  of a building under this clause he shall not  be entitled to apply again under this Clause -

     (i)   in  case  he  has   obtained  possession  of   a residential  building, for possession of another residential building of his own;

     (ii)  in  case  he  has   obtained  possession  of   a non-residential  building,  for possession of  another  non-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11  

residential building of his own."

     The  provisions, extracted above, specify the  grounds for eviction of a tenant from a residential building as well as  from  a  non- residential building.  Sub-clause  (i)  of clause  (a)  of  sub-section (3) of Section  10  deals  with eviction of a tenant from a ’residential building’.  It says that  a  landlord  may apply to the Rent Controller  for  an order directing the tenant to put the landlord in possession of a residential building on any of the two grounds, namely, (a)  if the landlord is not occupying a residential building of  his  own in the city, town or village concerned  and  he requires it for his own occupation;  and (b) if the landlord who has more buildings than one in the city, town or village concerned  is in occupation of one such building and he bona fide   requires  another  building   instead,  for  his  own occupation.  Sub-clause (ii) thereof deals with the eviction of  a  tenant from 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 provided he is  not  occupying  any such building in the city,  town  or village  concerned which is his own or to the possession  of which  he  is entitled whether under this Act or  otherwise. Sub-clause  (iii) thereof furnishes the ground for  eviction of  a tenant from a non-residential building other than that falling  under  sub-clause  (ii);  if the  landlord  is  not occupying  a  non-residential building in the city, town  or village  concerned which is his own or to the possession  of which  he  is  entitled under the Act or  otherwise  and  he requires  it (a) for the purposes of a business which he  is carrying on, on the date of the application;  or (b) for the purpose  of  a  business  which,  in  the  opinion  of   the Controller,  the landlord bona fide proposes to commence, he may  seek  eviction  of the tenant.   These  provisions  are subject  to  two restrictions:  (i) a person who  becomes  a landlord by an instrument inter vivos after the commencement of  the  tenancy cannot apply under that clause  before  the expiry  of three months from the date of registration of the instrument;   and  (ii)  where  the  landlord  has  obtained possession  of a residential building under that clause,  he will  not be entitled to apply again under it whether he has obtained  possession of a residential or a non-  residential building of his own.

     It  is not necessary to refer to the other  provisions of Section 10 for purposes of the present discussion.

     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-clauses (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 therefrom.  However, there  is  no separate provision under which eviction  of  a tenant   can  be  sought  from   a  building,  having   both residential  and  non-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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11  

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.

     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 tenant-respondent is taken away  either expressly or by necessary implication.  Once it is  held  that  a  building   having  both  residential  and non-residential  portions which are let out together under a composite  lease  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 buildings  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  categorised  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-clauses (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.

     In  the instant case, it is admitted that the building comprises  of  two parts - (a) country tiled house used  for residential purposes and (b) a L-shape tin shade appurtenant thereto which is lesser in area than the residential portion and was being used for manufacturing aluminium vessels.  The dominant  purpose  of  the  lease  is  residential  purpose, non-residential   activity  being   incidental.   Now,  some material  is  sought to be placed on record to show that  no manufacturing  activity is being carried on in that  portion pursuant   to   the   orders  of   the   Member   Secretary, A.P.Pollution  Control  Board.  It is not disputed that  the demised   building   is  in   residential  area   where   no non-residential  activity  is  permitted to be  carried  on. While  respectfully agreeing with the test laid down by this Court  in Busching Schmitz case (supra), we are of the  view

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11  

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.  The impugned order of the High Court, insofar as it holds that the petition of the appellant under Section 10(3)(a)(i)(b) is not maintainable, is accordingly set aside and  the order of the Appellate Authority dated 27.11.95  is restored.  We approve the ratio in the judgments of the High Courts  which  are  in  accord   with  the  view   expressed hereinabove by us and overrule the ratio of the judgments of the  High Courts which have held to the contra.  Inasmuch as the  Appellate Authority as well as the High Court have held that  the requirement for residence of the appellant is bona fide  and as we have held that the petition of the appellant filed  under  Section  10(3)(a)(i)(b) is  maintainable,  the appellant  is entitled to a direction to the respondents  to put  the  appellant-landlord  in possession of  the  demised building.  The eviction petition, R.C.C.No.71 of 1981 on the file  of the Principal District Munsif-cum-Rent  Controller, Rajahmundry is ordered.  We grant time to the respondents to vacate  the demised building and put the  appellant-landlord in  vacant  possession of the same till December  31,  1999. The  appeal is accordingly allowed but in the  circumstances of the case without costs.