Important Point
A petition by a landlord seeking eviction of a tenant under Section 10(3)(a)(i)(b) of the A.P. Rent Control Act from the demised building, let out under a composite lease for residential as well as non-residential purposes, is maintainable.

Headnote:Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 - Section 10(3)(a)(i)(b) r/w Section 2(iii) - Eviction on ground of bona fide requirement of own residential occupation-Composite tenancy for residential and non-residential purpose - Eviction sought for residential purpose-Defence that eviction petition not maintainable in absence of provision in the Act-Not tenable-Building let out for residential and non-residential purpose under a composite lease does not fall out side definition of ‘building’ - A building having residential and non-residential portions and let out under a composite lease has to be categorised as either a residential or non-residential building having regard to its nature of accommodation, dominant purpose of lease, primary use of building and other relevant circumstances on facts of each case-Relief under Section 10(3)(a) is granted with reference to nature of building not with reference to purpose for which it is let-In respect of a composite lease for residential and non-residential purposes, eviction petition for personal occupation is maintainable.
       Held : A perusal of the definition of the term ‘building’ in Section 2(iii) shows that (a) any house or hut, or (b) part of a house or hut, let or to be let separately for residential or 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’. 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. (Paras 8, 9 & 10)
       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 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. (Para 23)
       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. (Para 24)
       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 the this Court in Busching Schmitz Private Limited v. P.T. Menghani & Anr., 1977(2) SCC 835, we are of the view 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. (Para 25)

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?

2. 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.

3. 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. 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.

4. 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.

5. 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 evicti

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Judicial Analysis

SupremeToday

1999 Supreme(SC) 1094

Important PointA petition by a landlord seeking eviction of a tenant under Section 10(3)(a)(i)(b) of the A.P. Rent Control Act from the demised building, let out under a composite lease for residential as well as non-residential purposes, is maintainable.

Cases Referred (6)

Judicial Analysis

Important Point
A petition by a landlord seeking eviction of a tenant under Section 10(3)(a)(i)(b) of the A.P. Rent Control Act from the demised building, let out under a composite lease for residential as well as non-residential purposes, is maintainable.