Chandrasekhara Sastry, J.:— The question that arises for determination in this case is one under Sec. 10(3)(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control), Act, 1960 which is as follows:
“A landlord who is occupying only a part of a building whether residential or non-residential, may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be.”
1. On this point two decisions of this court are placed before me. One is the decision in Shajehan Saheb v. Yakub Khan Saheb, (1962) 1 Andh WR 205 at p. 210 in which it is held that:
“………. The landlord cannot evict a tenant from a residential building when he required it for a non-residential purpose; similarly, he could only evict a tenant from a portion of the building which is used for non-residential purpose by the tenant, only if he required that portion for non-residential purpose and not when he required for residential purpose.”
2. The learned Judge further held that:
“………… if the portion of the building in the occupation of the tenant is used for residential purpose, the landlord could evict him only if he required that portion for a residential purpose.”
3. On the other hand, Mr. Y.B Tatarao, learned counsel for the respondent relied upon the decision in Karumuri Appalaraju…Petitioner*; v. Challa Sambhuratnamurthy…., 1961-2 Andh WR 235 wherein another learned Judge took a contrary view. It may be mentioned here that in the former decision, this decision is not referred to, in view of this conflict, I direct that the Civil Revision Petition be posted before a Bench of two Judges under R. 1 of Appellate Side Rules.
JUDGMENT OF DIVISION BENCH
Ekbote, J.:— This revision petition has been referred to the Bench by our learned brother, Chandrasekhara Sastry, J. Sastry, J., in view of the conflict between two decisions of this Court construing Section 10(3)(c) of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 (hereinafter called the Act). The material facts are that the respondent-landlady filed an eviction petition against the petitioner-tenant mainly on the ground that she requires the premises for her additional accommodation in view of her two sons getting recently married. She lives in a portion of the same building in which the tenant has been given a portion on rent. The tenant's contention was that the landlady does not bona fide require the additional accommodation, that the tenant has been occupying the premises for over twenty years and that if he is now asked to vacate, his business of photography will suffer immeasurable loss. He also contended that Sec. 10(3)(c) of the Act is not applicable to the case.
4. The Rent Controller on an enquiry held that the landlady does not require the additional accommodation bona fide; she therefore cannot ask for the eviction of the tenant. The Rent Controller also found that the advantage which the landlady would gain is outweighed by the hardship that would be caused to the tenant. Consequently the petition was dismissed. Aggrieved by that decision the landlady preferred an appeal before the Subordinate Judge, Gudivada. The learned Subordinate Judge disagreeing with the conclusion of the Rent Controller held that Sec. 10(3)(c) is applicable to the case end that the advantage which the landlady gets because of eviction outweighs the hardship which the tenant is likely to suffer. He also held that the landlady in view of the increase in the number of members of her family bona fide requires the additional accommodation. It is against this order that the present revision petition was filed. When the matter was placed before our learned brother, the following two decisions were cited before him: (a) Karumuri Appalaraju…Petitioner*; v. Challa Sambhuratnamurthy…., (1961) 2 Andh WR 235, (b) (1962) 1 Andh WR 205, in view of the conflict in the construction of Section 10(3)(c) the learned Judge thought that the conflict between the two decisions should be resolved by a Division Bench, and that is how the revision has come before us.
5. The principal contention of Mr. Veera-bhadrayya, the learned Counsel for the petitioner, is that the petition for eviction was not maintainable because the portion of the building let out by the landlady was for non-residential purposes and that she cannot therefore ask for eviction on the ground that she requires it for her residential purposes even under Sec. 10(3)(c). In order to appreciate the merits of this contention, it is necessary to read some of the provisions of the Act. Section 2(iii) is as follows:
“2(iii) ‘building’ means any house or out or part of a house or hut, let or to be let separately for residential or non-residential purposes and includes—
(a) …………
(b) …………
6. Section 10 in so far a it is relevant is in the following terms:—
“10(1) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section or Secs. 12 and 13:
(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) 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;”
Proviso:…………
Proviso:…………
(i)…………
(ii)…………
(b)…………
(c) A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything in clause (a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the landlord in possession thereof, if he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on, as the case may be.
(d)…………
(e)…………
Proviso: Provided that, in the case of an application under clause (c) the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting it will outweigh the advantage to the landlord:
Proviso;…………”
7. Now it cannot be in doubt that Sec. 10 is so to say, the heart of the Act. This Section offers considerable security of tenure to all the tenants of buildings. It restricts the right of the: landlords to recover possession of their buildings on the grounds mentioned in that Section. A close and careful reading of the Section will indicate that the, Section puts the ‘buildings’ in three categories and makes provision for the grounds on which the landlords can ask for eviction of the tenants. The first category is that of ‘residential buildings’ and the two other categories pertain to ‘non-residential buildings’, the first of which relates to ‘non-residential buildings’ which are used for the purposes of keeping a vehicle or adapted for such purpose, and the second concerns ‘any other non-residential buildings’. A careful reading of the provisions extracted above would disclose that the definition of ‘building’ in the Act includes portion of a building as would be seen from Sec. 2(iii) of the Act. So that, Sec. 10(3)(a) of the Act under which, a landlord cannot evict a tenant from a non-residential building if he requires it for residential purposes and in case it is a residential building, he cannot evict the tenant if he requires it for non-residential purposes having regard to the definition of ‘building’, would prima facie apply to portions of residential and non-residential buildings. It is because of this that a separate provision had to be made in Sec. 10(3)(c).
8. The object clearly appears to be that where a portion of the same building is in the occupation of the landlord and another portion of the same building in the occupation of the tenant, the landlord can always readjust his requirements by asking the tenant to vacate the portion in his possession, if he bona fide requires that portion for I his additional accommodation whether for residential or non-residential purposes as the case may be. The principle underlying Sec. 10(3)(c) which is a departure from the principle adopted in Section 10(3)(a) appears to us to be that a landlord 4 should be permitted to readjust the requirements if he is occupying a portion of the same building, and it is for that reason that Sec. 10(3)(c) is not hedged with the restrictions found in Sec. 10(3)(a), as the Legislature wanted the landlord to have a A little freedom to re-adjust his needs if he is occupying the same building along with the tenants. While providing a little freedom to the landlord; in such cases the Legislature was not unmindful of the hardship which is likely to be caused to 4 the tenant, and in order therefore to balance requirements both of the landlord and the tenant, the proviso states that in such cases relative hard-f ship of the tenant and the comparative benefit accruing to the landlord should be weighed and if the balance tilts in favour of the tenant, the petition should be rejected.
9. It is thus clear that, while under Sec. 10(3)(a) of the Act the landlord cannot obtain the eviction of his tenant from a residential building unless he wants for his own residence and in case of a non-residential building unless he wants for purposes of his business, sub-clause (c) of Sec. 10(3) does not contain any such limitation. Under sub-cl. (e) if the landlord satisfies the Controller that he wants additional accommodation in the same - building, a portion of which is already under his occupation, it is open to him to re-adjust the additional accommodation in the manner convenient to him and it cannot be insisted that the additional ‘S’ accommodation sought for should be used by the landlord for the same purpose for which the tenant sought to be evicted was using it.
10. What is however argued by the learned counsel for the petitioner is that the non obstante clause appearing in Sec. 10(3)(c) must be confined, to finding out whether the landlord has any residential or non-residential building of his own in the city or town or village concerned, and nothing more. We are not persuaded to agree with this contention. The contention obviously overlooks the extent of the operation of the non obstante clause-appearing in Sec. 10(3)(c). It clearly states “notwithstanding anything in clause (a)”. This must be understood in its literal and normal sense. It clearly means that it operates upon the entire clause (a) of Sec. 10(3) and is not restricted in any sense to any portion of that provision. It must be understood that a non obstante clause is usually used in a provision to indicate that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency or a 4 departure between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante a clause which would prevail over the other clause, it does not however necessarily mean that there must be repugnancy between the two provisions in all such cases. In this case the limitations and requirements visualised by Sec. 10(3)(a) were considered unnecessary for the application coming within cl. (c) and the purpose of non-obstante, clause appears to us clearly that the entire cl. (a) would not apply to a case falling within the ambit of cl. (c). Any other meaning would amount to ignoring the express non-obstante clause appearing in cl. (c).
11. It was also contended that the words “whether residential or non-residential” appearing in the first limb of cl. (c) and the words “Residential purposes or for the purpose of a business-which he is carrying on, as the case may be” appearing in the second limb of cl. (c), indicate that the restriction which cl. (a) puts that the landlord who is occupying a residential building cannot ask for a non-residential building for his residential purposes and vice versa, is equally applicable to cl. (c). We find no force in this contention. Clause (c) makes it twice clear that a landlord who occupies a part of a building, whether residential or non-residential, can ask for eviction of a tenant occupying another portion whatever may be his requirements, whether residential or non-residential. The words ‘as the case may be’ to some extent, it could be argued, are superfluous. Even if they are removed cl. (c) will give the same meaning. The addition of these words, however, does not alter the situation. It relates to the situation explained immediately before and that is, that the landlord's requirements, whether for residential or non-residential purposes, do not make any difference for the purposes of cl. (c).
12. The words “as the case may be” only mean that whether the requirements of additional accommodation are for residential or for non-residential purposes. Thus the addition of these words in our opinion does not attract the restrictions contained in cl. (a) in regard to the character of building, which ought to be kept in view while deciding the cases of eviction falling under cl. (a). In so far as cl. (c) is concerned, if the interpretation suggested by the petitioner is to be accepted, then not only the non obstante clause will have to be completely ignored, but the very existence of this clause would become unnecessary. If cl (a) is to be applied to a situation contemplated by cl. (c) in all respects, there was no need to enact that provision, and if the intendment of the Legislature was to cut down certain limitations in cl. (c) as against cl. (a), it would not have been difficult to so clearly enact on the other hand, the intention of the Legislature seems to us to be manifestly clear that all the limitations and restrictions appearing in cl. (a) were not intended to apply to a case falling within the purview of cl. (c). The language employed in cl. (c) is plain and does not admit of any ambiguity.
13. The contention that the proviso gives an indication that it is necessary even for the purpose of cl. (c) to see that if the landlord wants a residential building for non-residential purposes or vice versa, does not appear to us sound. We see no ground for attributing that meaning to the proviso. The proviso does not expect the comparison for the purpose of determining the hardship and the benefit of residential buildings only with residential buildings or of non-residential buildings with only non-residential buildings. The comparison of hardship with that of advantage is in itself dissimilar, and therefore no point can be made out if comparison between residential and non-residential Building is required to be made by the proviso. In any case on that account it would not be correct to ignore the manifestly clear language of cl. (c). It would be wrong to undermine the force of the non obstante clause. We are therefore of the clear opinion that for the purposes of cl. (c) it is not necessary that the additional accommodation sought by the landlord should be for the same purpose for which the building was let out.
14. Sanjeeva Row Nayudu, J. in (1962) 1 Andh WR 205, however, construing that Section held that “even under Sec. 7(3)(c), (which is in pari materia with Sec. 10(3)(c)) the right of eviction of the landlord is restricted to the same conditions contained in sub-clauses (i) and (iii) of Sec. 7(3)(a) (which are in pari materia with Section 10(3)(a))”. After stating the purpose of this provision in the following words:
“………. apparently, the Legislature wanted to make a specific provision in the case of a building occupied in portions by the landlord and the tenant, and hence was and clause (c) which deals specifically with a case where a landlord is occupying only a part of a building and the rest of the building is in the occupation of the tenant. It is because a prima facie reading and application of Sec. 7(3)(a)(i) and (iii) would also apply to portions of building, in view of the definition of ‘building’, a separate provision had to be mad:, the object being that where a portion of the building is in the occupation of the landlord and another portion in the occupation of the tenant, he could ask for vacating the portion in the possession of the tenant, if he required that as additional accommodation for residential purpose or non-residential purpose, as the case may be.”
15. The learned Judge reaches the conclusion
“A reading of this sub-section, in my opinion, clearly indicates that the Legislature did not want to depart from the general principles contained in sub-clause (a)(i) of sub-section (3) of sec. 7……………”
16. He goes on to observe:
“Any doubt in the matter may be regarded 83 set at rest by the Legislature employing the words in the beginning of the clause “whether residential or non-residential” and later towards the end of the section if he requires additional accommodation for residential purposes or for the purposes of a business which he is carrying on, as the case may be:”
17. We do not share the view of the learned Judge. The learned Judge failed to take note of the non obstante clause, although the text of the Section, in his opinion, would have been, if the interpretation which we are now putting was to be accepted, on the lines of the draft he suggested, which includes that non obstante clause. No reasons are given as to why the words extracted in his judgment would remove any doubt. We have already dealt with this aspect of the case and we have no doubt that the construction put on the Section by the learned Judge cannot be accepted as the true construction in the background of the object of the Section which he himself has extracted in the judgment.
18. The second decision is that of our learned brother, Satyanarayana Raju, J. in (1961) 2 Andh WR 235 at p. 237. The learned Judge held:
“Under sub-clause (c) if the landlord could satisfy the Controller that he wants additional accommodation in the same building, a portion of which is already under his occupation, it is open to him to re-adjust the additional accommodation in a manner convenient to him, and it cannot be insisted that the additional accommodation sought for should be used by the landlord for the same purpose for which the tenant, sought to be evicted, was using. It is, no doubt, true that this is subject to the balance of convenience and relative hardship, which are set out in the proviso ……” We are in complete agreement with the construction which the learned Judge has put upon Section 10(3)(c).
19. Let us now turn to the second contention that eviction order would cause greater hardship to the tenant and it would outweigh the advantage which the landlady would get from such an order. The proviso to Sec. 10(3)(c) lays down in clear terms that the Controller shall reject the application if he is satisfied that the hardship which may be caused to the tenant by granting the application to evict him would outweigh the advantages to the landlord. Thus the hardship of the tenant was first to be found out in case eviction is to be directed. That hardship then has to be placed against the relative advantages which the landlord would stand to gain if an order of eviction is passed. The hardship and the advantage then have to be weighed and if the balance turns in favour of the tenant, it is obvious that the petition of the landlord must be rejected. In order to weigh such hardship of the tenant with the advantage of the landlord no hard and fast rules can be laid down. Its determination obviously depends upon the facts and circumstances of each case.
20. What is however clear is that while Sec. 10(3)(c) is a liberal provision made for the purposes of meeting the additional requirements of the land, lords in a situation falling under that clause, namely, where he is occupying the portion of the same building, the proviso makes it imperative to weigh the hardship of the tenant in such a case to obviate any injustice to the tenant which may be caused by his eviction. The proviso thus provides a safeguard against the possible abuse of the privilege which clause (c) of sub-sec. (3) of Sec. 10 confers on the landlord, which would necessarily affect adversely the interests of the tenant for whose benefit the Act itself is made. That is why two things mentioned in the proviso have to be carefully weighed. The equitable protection which, the proviso affords to the tenant particularly when he has been occupying the building since a long time compels the Court to keep in view all the relevant considerations which are necessary or desirable in such weighing of the interests of the landlord as well as the tenant.
21. Such a consideration it is obvious is not restricted merely to financial or physical advantages or disadvantages or any injury to the health of the person affected. It might take within itself consideration of the existence or availability of in alternative accommodation or the real efforts made by the tenant to seek an alternative building for his purposes and other such things. It is not possible, and perhaps, not desirable, to give the list of any such relevant considerations in weighing the relative hardship. It is obvious that these things cannot be weighed in golden scales. What is however required is a careful consideration of all the relevant factors in weighing the relative hardship which is likely to be caused to the tenant with the likely advantage of the landlord on the basis of the available material on record. If that is done, the exercise of the wide discretion which the proviso confers on the Rent Controller is not likely to go wrong. The proviso however should not be read as if it confers a practical Immunity of the tenant from being evicted. That would destroy the very purpose of Sec. 10(3)(c). Likewise the; requirement of the landlord in accordance With that provision alone cannot be given absolute value, because that would mean to underestimate the value of the proviso to that section. Keeping in view therefore the purpose of this provision and the necessity of balancing the various factors each Individual case has to be decided in the light of the facts and circumstances of that case.
22. It must also be remembered that when once the bona fide requirement of the landlord brings himself within that provision, then the onus is on the tenant to allege and prove the various factors which he wants the Rent Controller to take into account for weighing the relative hardship which may be caused to the tenant in case he is evicted, and establish that it outweighs the advantage which might accrue to the landlord. If he succeeds in establishing that, the rejection of the petition would naturally follow. In case he neither alleges nor proves the relevant factors the benefit of Sec. 10(3)(c) will naturally go to the landlord. Let us, in this light, therefore see what are the facts which are stated by the tenant for the purposes of determining his greater hardship. He stated that he has been occupying the portion since 22 years and that he has established during such a long course of time his business of photography and that better accommodation may not be available.
23. On these grounds he wants us to determine that greater hardship would be caused to the tenant outweighing the advantage of the landlady. Merely because the tenant has been occupying the premises since a long time, it does not necessarily mean that his eviction would cause irreparable loss to him. If he has really established his reputation as a good and reliable photographer, which building he occupies and in what locality would certainly be not much material. He does not seem to have made any real attempt to find out whether any alternative accommodation for his purpose is available in the same or any other near locality. His statement in his deposition that “My main objection to vacate is that I will not be able to get better accommodation”, does not in any manner disclose that real efforts were put in to find out any other accommodation. There is no evidence in that regard. The Rent Controller obviously went wrong in accepting the ready-made conclusion given by the tenant that in case he is asked to vacate, it would be fatal to his business. No evidence warrants any such conditions. Some hardship bound to be caused when a person is disturbed from the premises where he has been carrying on the business of photography for the last so may years apart from personal inconvenience, but this hardship which is inherent in the situation does not compare better with the disadvantage from which the landlady is suffering at the moment. She might have been compelled to be content with that limited accommodation under the circumstances prevailing previously. That does not however necessarily mean that she cannot subsequently have reasonable need for additional accommodation. It is not in doubt that her two sons have been recently married. When they were thus joined by their wives additional accommodation became necessary. The description of the building found in the judgment of the Court below discloses that the existing portion in the occupation of the landlady is entirely insufficient. That is not seriously disputed even before us.
24. What was however contended was that the landlady had adopted this procedure to harass the tenant, but we see no reason for any such allegation. It may be that she took some time to repair the verandah or she withdrew the previous petition in view of the compromise increasing the rent, but these things hardly affect the real consideration of the issue involved in this case. There are undoubtedly six members in the family, and they require a reasonable accommodation. Three couples will have therefore to be provided a reasonable accommodation to live a normal life. For that purpose it is not seriously doubted that the present premises occupied by the landlady are totally insufficient. She should not therefore be allowed to live in that inconvenient position merely because she tolerated it for some time. Her advantage in the circumstances of the case therefore must certainly outweigh the hardship which the tenant is likely to suffer because of his eviction. We are thus satisfied that the circumstances do not tilt the balance of convenience in favour of the tenant. On the other hand, it is clearly established that the advantge of the landlady certainly outweighs the hardship of the tenant. We cannot therefore allow the Revision on the ground of alleged hardship.
25. It was finally contended that the landlady does not require the premises bona fide. In support of this contention reliance was placed on the previous conduct of the landlady. It was alleged that although the verandah was in a dangerous condition, it was not repaired unless a complaint was lodged by the tenant with the Municipal authorities. It was alleged that the landlady had filed an application for eviction which was compromised because rent was increased. It was further contended that her purpose in asking the eviction is to harass the tenant. We do not see any substance in this contention. The expression ‘required bona fide’ has been considered by this Court on several occasions. Broadly stated, mere wish, convenience, whim or fancy of the landlord will not be enough to show that the landlord ‘requires’ the premises bona fide. The landlord must allege and prove certain circumstances or facts which go to prove his need. It is not necessary that such a need should be of an absolute character. The law does not require the landlord to establish absolute need or absolute requirement without which he shall have no shelter over his head. What is meant by bona fide requirement is that the landlord requires the premises for his reasonable needs and that he is not seeking eviction on the pretence of requiring additional accommodation with the oblique motive of realising some extraneous purpose. If the avewed purpose indicated by the landlord of requiring the additional accommodation is not found to be incorrect, or it cannot be characterized as a false pretence or a device to get the tenant evicted, there can be little doubt that the requirement of the landlord Would be bona fide.
26. Judged from this point of view, we have no hesitation in reaching the conclusion in the circumstances of the case that the landlady has established her bona fide requirements. It is found that she requires the additional accommodation, because her two sons were recently married. That requirement cannot be called as lacking in bona fides. No evidence is available to indicate that the landlady intends to let out the premises to some one else. The fact that recently some shop was vacated and was not occupied by the landlady but was let out, does not advance the case of the tenant because it is found that the shop could be used only for commercial purposes and was unfit for residential purposes. No other motive is attributed to the landlady. The Subordinate Judge has reached the conclusion on evidence that her requirements of additional accommodation are true and we see no reason to disagree with that conclusion. For all the aforesaid reasons the revision petition must fail and is dismissed with costs. The tenant will vacate the building within three months from the date of this judgment and in case he does not so vacate, it is open to the landlady to put the order in execution.
AI/BNP/D.V.C
27. Petition dismissed.