Usage or purpose test is not the criteria for determination of building as residential or non-residential.

1. The petitioner is the landlord. He filed the eviction petition H.R.C.O.P.No.ll of 1990 on the file of the Rent Controller, Pattukottai to evict the respondent on the ground that the building is required for his personal occupation and the respondent has constructed a

new municipal office complex and the same is ready for occupation. The building do not require for the use of the respondent any more.

2. The respondent herein filed counter stating that the building has been leased out for non-residential purpose and the same cannot be converted for residential one and further the municipal office is a wing of State of Tamil Nadu and as per the notification, all the Departments of State Government are essential services and hence there cannot be any petition for eviction of the respondent. No office complex was constructed for Pattukkottai Municipality and only the godown was constructed and hence the building is required for the occupation of the respondent.

3. After elaborate discussion, the Rent Controller dismissed the eviction petition on the ground that the Municipality being an essential service notified by the Government, the eviction petition cannot be ordered.

4. Aggrieved by the same, the petitioner filed an appeal in H.R.A.No.2 of 1992 on the file of the Appellate Authority, Pattukkottai. The Appellate Authority also concurred with the finding of the Rent Controller and dismissed the appeal. While dismissing the appeal, the Appellate Authority further made an observation that the building had been let out for the non-residential purpose and the same cannot be sought for by the petitioner for his residential occupation. Aggrieved by the same, the present revision has been filed.

5. Mr. R. Muthukumaraswamy, the learned counsel for the petitioner contended that the notification relied upon by the respondent clearly mentions that various Government departments are notified as essential service. The Municipality, being a local authority, cannot be considered as a Department of the Government. The local authority, being a separate entity, it would not fall within the purview of the Government notification. He further contended that the Appellate Authority has made an observation that the building had been leased out for non-residential purpose and the same cannot be converted into residential purpose. Though the Rent Controller has not discussed this issue, it is not open to the Appellate Authority to go into that question. Even assuming that it is open to the Appellate Authority to consider the same, in view of the recent judgments, the finding has to be set aside. With regard to the maintainability of the petition, on this ground, it would depend upon the nature of the building and not the purpose of the user. Admittedly, in this case, the building is only suitable for residential purpose and it is only a house. The respondent is using it for their office purpose and hence the objection raised by the respondent cannot be countenanced.

6. On the contrary, the Government Pleader contended that the Municipality is also a wing of the Government and comes within the scope of the Government notification, wherein it has been declared as an essential service. Hence the petition is liable to be dismissed. Both the authorities have rightly dismissed the petition. Further the remedy available for the petitioner is only to get exemption from the Government.

7. I carefully considered the contention of both the counsel. Section 10(4) of the Tamil Nadu Buildings (Lease and Rent Control) Act, is as follows:

"(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

.(ii) in respect of any building which has been let for use as