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PETITIONER: SMT.  G.  KAUSHALYA DEVI

       Vs.

RESPONDENT: GHANSHYAMDAS

DATE OF JUDGMENT:       12/01/2000

BENCH: D.P.Wadhwal, S.Saghir Ahmad

JUDGMENT:

     D.P.  Wadhwa,J.

     Leave  granted.  Appellant is a tenant.  His  eviction from  suit  premises has been affirmed by the High Court  in revision filed by him.  Feeling aggrieved, he has filed this appeal.  Respondent-landlord filed eviction petition against the  appellant  under  the   provisions  of  Andhra  Pradesh Buildings  (Lease, Rent and Eviction) Control Act, 1960 (for short,  the  ’Act’)  on three grounds, namely,  (1)  willful default  in payment of rent;  (2) bona fide requirement  for personal  occupation;   and (3) the tenant does not  require the  premises  as he had secured alternative  accommodation. Premises   are  non-residential.   During   the  course   of proceedings  before  the  Rent  Controller,  the  ground  of securing  alternative  accommodation was not pressed.   Rent Controller  held  that there was default in payment of  rent and  also  that the premises were required bona fide by  the landlord  for conducting his business.  He ordered  eviction of  the  appellant.  The Appellate Authority under  the  Act affirmed  the findings of the Rent Controller upholding  the eviction   of  the  appellant.    Against  that  order,  the appellant  filed revision in the High Court under Section 22 of  the Act.  High Court by the impugned judgment was of the view that there was no willful default in payment of rent by the  appellant and on that finding order of eviction on that ground  was set aside.  On the remaining ground of bona fide requirement  of the landlord, High Court concurred with  the findings of both the courts.  This finding has been assailed before  us  by  the Appellant.  Mr.   Dhruv  Mehta,  learned counsel  appearing  for  the appellant, submitted  that  the order  of  eviction of the appellant on the ground  of  bona fide  requirement  of the landlord was bad in law as it  was contrary to the provisions of sub-clause (iii) of clause (a) of  sub-section  (3) of Section 10 of the Act.  He said  the landlord was already in occupation of certain shop premises, though  on lease, in the same city where he was running  his business  in partnership.  It was, therefore, submitted that the  Landlord  was thus entitled to remain in possession  of the  shop  premises.   Section   10(3)(a)(iii)  of  the  Act provides  for  eviction of the tenant when it is found  that the  landlord  requires the building whether residential  or non-  residential for his own occupation.  This Section,  in relevant  part,  we  set out as under :   10.   Eviction  of

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tenants :- (1)...  (2) ...  (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) ...  (ii) ...  (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 gain 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-   residential building  of  his own.  (b) to (e) ...  (4) to (8)..."  Suit premises  were purchased by the respondent-landlord by  sale deed dated 4.11.1991 wherein it was provided that respondent was  purchasing  the premises to provide  accommodation  for himself  for the purpose of carrying on his own  independent business.   Admittedly  respondent  was  already  having  an established  business  dealing in Readymade Garments in  the name and style of M/s.  Seetha Traders in partnership in the premises  which were leased by the partnership.  It was thus submitted   that  since  the   respondent  was  already   in possession  of  a non-residential premises in the same  very town,  ground  for eviction as contained in  clause  Section 10(3)(a)(iii)  of the Act was not available to him.  It  was submitted  that it was immaterial whether the respondent was in possession of the premises as tenant or otherwise.  We do not  think the expression "to the possession of which he  is entitled"  would mean possession otherwise than as an  owner or  in that capacity or having a superior right or under any of  the  grounds  under  the Act.  The  expression  "to  the possession  of  which he is entitled" was construed  by  the Constitution Bench of this Court in M.  Padmanabha Setty vs. K.P.   Papiah Setty [(1966) 3 SCR 868].  This expression was also  found  in  the  Mysore House  Rent  and  Accommodation Control   Act,   1951  and  was   the  subject   matter   of interpretation in the case of M.  Padmanabha Setty vs.  K.P. Papiah  Setty  [(1966) 3 SCR 868].  In that  case,  landlord filed an application under Section 8(3)(a)(ii) of the Mysore Act  for  eviction  of  the tenant on  the  ground  that  he required  the  premises  in dispute for his  own  right  and occupation.   This  Section in the Mysore Act is as under  : "(3)(a)  A landlord may, subject to the provisions of clause (d)  apply to the court for an order directing the tenant to put  the landlord in possession of the house (i) in case it is  a residential building, if the landlord requires it  for his  own occupation or for the occupation of a member of his family  and if he or such member, as the case may be, 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, if the landlord requires it for a business  which he or a member of his family is carrying  on and  if  for  the purposes of the said business  is  not  in occupation  of a non-residential building which is owned  by

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or  to the possession of which the landlord or such  member, as  the  case may be, is entitled whether under this Act  or otherwise"...   "Provided further that where a landlord  has obtained possession of a house for his own use or occupation or for the use or occupation of a member of his family under this  clause  he shall not be entitled to apply again  under this  clause  (i)  ...   (ii)  for  possession  of  another non-residential  building of his own, for himself or for the same  member  of  his  family,  in  case  he  has   obtained possession of a non- residential building."

     The  Court held :  "A tenant who can be evicted  under the  conditions  prescribed in s.8(2) of the Act  cannot  be said,  in our view, to be entitled to the possession of  the premises  of  which he is a tenant.  No doubt he  cannot  be evicted till one or more of the conditions prescribed by the section  are  fulfilled, but it is difficult to  equate  his right  to  stay  in the premises till he is  evicted  to  an entitlement  of  the  possession of the  premises.   Section 8(3)(a)(ii)  deals with two types of cases;  first where the landlord  is  in occupation of a non-  residential  building which  is  owned  by him, and  secondly,  a  non-residential building  of which he is in occupation not as a landlord but otherwise.  The object of the Act is to prevent unreasonable evictions  of tenants.  Can it be said that the  Legislature is considering it to be unreasonable for a landlord to shift to  his  own premises while he is in occupation of  tenanted premises  over  which  he  has  not  an  absolute  right  of possession but only a right to remain in possession till one of  the  conditions in s.8(2) is satisfied, and over one  of which  he  has no control.  For instance, the  landlord  may require  the  premises for repairs or reconstruction or  the neighbours  may  complain  that  the  tenant  is  guilty  of nuisance  or  annoyance, or the landlord may think that  the tenant  has  committed some acts of waste as are  likely  to impair materially the value or utility of the house.  If any of  these conditions is proved, he is liable to be  evicted. In  our  view,  in  the   context  the  words  "entitled  to possession"  have a more positive content and are more  akin to  the right of possession which an owner has in respect of the building owned and occupied by him."

     It will be seen that provisions of Section 8(3)(a)(ii) of  the  Mysore  Act  are quite in  pari  materia  with  the provisions  of  Section  10(3)(a)(iii)  of  the  Act.    We, therefore,  cannot  accept the contention of  the  appellant that  since the respondent is already having his business in a  leased  premises of which he is in possession, he  cannot seek  eviction  of the appellant.  It is not  disputed  that other  conditions of Section 10(3)(a)(iii) are satisfied  in favour  of the landlord.  A contention was also raised  that another  shop  had  been  purchased by  the  mother  of  the respondent with the amount loaned by the respondent and that on that ground it could also be said that the respondent was entitled  to  possession  of  that   shop  as  well.    This contention  has been repelled by the High Court and  rightly so.   High Court upheld the finding of the courts below that the  respondent required the suit premises for his  personal occupation  for  conducting  the  business  and  that  these findings were neither perverse or based on any extraneous or irrelevant  material.  High Court was also of the view  that the  Act  did  not prohibit eviction of the  tenant  by  the landlord  if  the  members  of the family  of  the  landlord possessed  other non-residential premises.  Even though  the respondent  and  his  brothers were conducting  business  on

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partnership  basis  in M/s.  Seetha Traders, yet it  was  no ground to contend that the requirements of respondent is not bona  fide.   We agree.  No other submission has  been  made before  us to take any different view other than that  taken by  the  High  Court.  We, therefore, dismiss  this  appeal. However, with the consent of both the parties, we grant time up  to October 31, 2000 for the appellant to vacate the suit premises  on  his filing of a usual undertaking within  four weeks from today.  There will be no order as to costs.