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PETITIONER: MUDIGONDA CHANDRA MOULI SASTRY

       Vs.

RESPONDENT: BHIMANEPALLI BIKSHALU & OTHERS

DATE OF JUDGMENT:       04/08/1999

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

JUDGMENT:

V.N.KHARE, J.

     This  is  a landlords appeal.  The landlord  filed  a petition  for  eviction of the respondent- tenant  from  the premises  in dispute on the grounds, namely, (a) he required the  said  premises for his own needs;  (b) the  tenant  has committed  default  in payment of rent;  (c) the tenant  has acquired an alternative accommodation;  and (d) the premises was    in   a    dilapidated    condition   which   required reconstruction.  The Rent Controller, after having satisfied that  the  grounds  for  eviction  were  well-substantiated, allowed  the petition filed by the landlord.  Aggrieved, the tenant  preferred  an  appeal.    The  appellate   authority dismissed  the appeal filed by the tenant.  The High  Court, however,  in the Civil Revision Petition filed by the tenant held, that by virtue of sub-section (4) (i) of Section 10 of A.P.   Building  (Lease, Rent & Eviction) Control Act,  1960 (hereinafter  referred to as the Act) no order of eviction can  be  passed against the tenant, as the tenant is in  the employment  in  a department which has been declared  as  an essential   service.    The  High   Court   further,   after re-assessing  the evidence reversed the finding of facts  as regard  other grounds for eviction of the tenant arrived  at by  the  two  courts   below.   Consequently,  the  revision petition  filed  by the tenant was allowed and the  petition filed  by  the  landlord  for eviction  of  the  tenant  was rejected.

     Learned  counsel  for the appellant has  assailed  the order  of the High Court on two grounds.  Firstly, that  the tenant  having  been transferred from Tenali to Marcherla  - another  town,  the  protection under sub-section 4  (i)  of Section  10, was not available to the tenant and,  secondly, it  was  not  open to the High Court, while  exercising  its revisional jurisdiction to re-assess the evidence and arrive at a different finding contrary to the concurrent finding of facts  recorded by the two courts below.  After we heard the matter, we find that both the submissions of learned counsel for  the  appellant are well-substantiated.  So far  as  the first submission is concerned, it is worthwhile to reproduce Section 10 (4) (i)of the Act, which is as under :-

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     Section  10  (4)  - No order for  eviction  shall  be passed under sub- section (3) -

     (i)  against  any  tenant  who   is  engaged  in   any employment or class of employment notified by the Government as an essential service for the purposes of this sub-section unless  the landlord is himself engaged in any employment or class of employment which has been so notified;  or

     A  perusal  of the aforesaid provision shows  that  no order  of  eviction can be passed under sub- section (3)  of Section  10 of the Act against any tenant, who is engaged in any  employment  or  class  of employment  notified  by  the Government  as an essential service for the purposes of this sub-section.  In the present case, the tenant was working as Senior   Assistant(Accounts)   in   I.T.I.,   Tenali.    The Government  issued a notification under sub-section (4)  (i) of  Section 10 declaring service in I.T.I.  as an  essential service.   Therefore,  any  person in employment  in  I.T.I. enjoyed  immunity  from eviction from any order that may  be passed under sub-section (3) of Section 10 of the Act.  But, in  the present case, the tenant was transferred from Tenali to Marcherla - a place which is about 110 miles from Tenali. Under  such  circumstances,  the question  that  arises  for consideration  is whether a tenant employed in a  department catering  essential services if transferred to another  city or  town,  will he still enjoy the protection from  eviction from  any order that may be passed under sub-section (3)  of Section  10 of the Act ?  The aforesaid provisions show that the  object behind clause (i) of sub-section (4) of  Section 10  is  that  an employee who is employed for  rendering  an essential  service is not to be ejected from the premises of which  he  is a tenant lest he would put to a  hardship  and inconvenience  which  may,  ultimately,   interfere  in  his working  in  catering  essential services  to  the  society. Keeping  in  mind the object we are of the view that once  a tenant,  who was engaged in catering essential services, has been  transferred to another city or town, the protection to such  a tenant against an order passed under sub-section (3) of Section 10 of the Act ceases to available to him as he is no  longer required to cater essential services.  If we give a literal interpretation to clause (i) of sub-section (4) of Section  10,  then it would lead to an  anomalous  position. For  example,  if a tenant working in a department which  is rendering  essential services is transferred to another city or  town  where he is posted in a department which  is  also engaged  in  providing  essential service s and he  takes  a premises  on rent for his residence.  does it mean that such a  tenant enjoys protection against eviction at both places, namely,  in  the  original place of posting  and  subsequent place  of  posting.  But that is not the object  behind  the provision  of Section 10 (4) (i) of the Act.  It was pointed out  before the High Court by the appellant that in view  of transfer  of  the  tenant from Tenali, the  protection  from ejectment  under Section 10 (4) (i) is not available to  him but  the  High  Court rejected the said  submission  on  the ground  that  the transfer of tenant from Tenali  would  not come in the way of protection available to the tenant.  This view of the High Court is repugnant to the object behind the provisions  of  the Act.  Therefore, we find that  the  view taken  by the High Court in applying sub-section (4) (i)  of Section  10  of  the Act in the present  case,  was  totally misplaced.

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     Coming  to the second submission what we find is that, that  the Rent Controller and the First Appellate  Authority after  assessing the evidence recorded concurrent finding of facts  that the need of the landlord was bona fide.  It  was not  pointed  out  that the said finding suffered  from  any legal  infirmity.  Under such circumstances, it was also not open  to  the  High  Court in  exercise  of  its  revisional jurisdiction  to have indulged in re-assessment of  evidence and  thereby interfered with the concurrent finding of facts recorded  by  the two courts below, especially when  it  was found  by the High Court that the tenants wife had  already acquired  a  vacant accommodation in the town of Tenali  and the tenant himself was transferred from Tenali to Marcherla. Since  the petition deserve to succeed on these two grounds, we  are  not inclined to go into the other grounds on  which the landlord sought eviction of the respondent-tenant.

     For  the aforesaid reasons, we find that the  judgment and  order  passed  by the High Court under  appeal  is  not sustainable  in law and, therefore, liable to be set  aside. We  order  accordingly.  The appeal is, therefore,  allowed. However, there shall be no order as to costs.

     After   the  order  was   dictated,  learned   counsel appearing  for the tenant prayed that the  respondent-tenant may  be granted some time to vacate the premises.  To  this, counsel  for the appellant has no objection.  We, therefore, direct  that the respondent-tenant shall not be dispossessed from  the  premises in question for a period of  six  months i.e.    upto   31st   of    January,   2000   provided   the respondent-tenant  deposits the arrears of rent/damages,  if any,  before  the  Rent  Controller within  two  months  and continues  to  pay  month  to   month  rent/damages  to  the landlord.   The  respondent-tenant  on  the  expiry  of  the aforesaid  period  shall  had over the vacant  and  peaceful possession of the premises to the landlord.