B. Vinod Kumar v. D. Ravindernath

(1) The question for consideration involved in these revisions is in respect of g. O. Ms. No. 4, dated 3 - 1 - 1966, published in a. P. Gazette extraordinary dated 5 - 1 - 1966. The question is, as to whether this g. O. Is applicable to the courts that were in existence on the date when the g. O. Came into force, or whether it would apply to the courts which came into existence or established after the g. O. Was notified. In view of the importance of the question, the revisions are referred to a bench, for consideration. These cases coming on for further hearing before the bench the court deliverd the following judgment: judgment (judgment of the bench delivered by ramachandra raju, j.)

(2) These eight revisions filed under sec. 22 of the a. P. Buildings (lease, rent and eviction) control act, 1960 (hereinafter called 'the act') involve common questions and arise out of the individual judgments dated 29 - 10 - 1983 of the pri. Subordinate judge, vijayawada, the appellate authority under the act, in r c. A. Nos. 117, 118, 119 and 120 of 1982 and cross objections filed in each of those appeals. The land lord is common but the four tenants are different. For purpose of convenience, the parties are referred to in the respect of the judgment as landlord and tenant.

(3) The aforesaid four appeals and the cross objections before the appellate authority were directed against the eviction ordered or rejected on 31 - 8 - 1982 by the rent controller, jaggayyapet, in r. C. C nos. 3, 4, 5 and 6 of 1982 on his file which eviction petitions were earlier filed before the rent controller, vijayawada; as r. C. C. Nos. 50, 51, 55 and 56 of 1980 and were transferred to the rent controller, jaggayyapet, on applications filed before the appellate authority, seeking such transfer. The district munsif's court jaggayyapet, was constituted by virtue of g. O. Ms. No. 481, home (courtsa) department, dated 29 - 3 - 1976. The rent controller, jaggayyapet, ordered eviction of the individual tenants on the ground of alleged wilful default in the payment of rents in r. C. C. Nos. 3, 5 and 6 of 1982. R. C. C. No 4/82 was, however, dismissed as wilful default was found against. The appellate authority while upholding those findings, howver, dismimissed the eviction petitions on the ground that the district munsif, jaggayyapet cannot exercise the powers of a rent controller unless he is appointed as rent controller by notification under sec. 2 (iv) of the act and g. O. Ms. No. 4, dated 3 - 1 - 1966 published in the a. P. Gazette, dated 5 - 1 - 1966 would apply only to courts of district munsiffs which were in existence on the date the said notification came into forced but not to the courts of district munsiffs which came into existence subsequent to the date of the said notification.

(4) C. R. P. No 3132/83, filed by the landlord and c. R. P. No. 881/84 filed by the tenant arise out of r. C. A. No. 117/82, relating to r. C. C. No. 3/82. C. R. P. No. 313/83, filed by the landlord and c. R p. No. 885/84, filed by the tenant arise out of r. C. A. No. 118/82, relating to r. C. C. No. 4/82. C. R. P. No. 3135/83, filed by the landlord and r. C p. No. 851/84, filed by the tenant arise out of r. C. A. No. 119/82, relating to r. C. C. No. 5/82. C. R. P. No. 3133/83, filed by the landlord and c r. P. No. 882/84, filed by the tenant arise out of r. C. A. No. 120/82, relating to r. C. C, no. 6/82.

(5) C. R. P. Nos. 3132, 3133, 3134, and 3135/83 came up for hearing before muktadar, j. , who by order dated 20 - 3 - 1984 referred for consideration by bench the question as to whether the notification is applicable to courts which were in existence on the date the g. O. Came into force or whether it would apply even to courts which came into existence after the notification.

(6) Mr. P. L. Narasimha sarma, learned counsel who appeared for the landlord and mr. C. Poornaiah, learned counsel who appeared for the tenant expressed a desire for the final disposal of the revisions on all the points arising in these individual revisions this judgment accordingly disposes of the revisions not only on the point referred to the bench but also on the various other submissions made before us.

(7) On the question referred to the bench, the following provisions of the act become material. 'controller' as defined under section 2 (iv) of the act means :

"any person not below the rank of a tahsildar appointed by the government to perform the functions of a controller under the act"

.

G. O. Ms. No. 4, dated 3 - 1 - 1966 gazette (extraordinary dated 5 - 1 - 1966 issued under section 2 clause (iv) of the act, appointed certain persons to perform the functions of a controller under the said act in their respective jurisdictions, omitting certain material which is not relevant for the purposes of the present discussion, the said g. O. In its material terms, reads :

"the government of andhra pradesh hereby appoints the following persons to perform the functions of a controller under the said act in their respective jurisdictions (i). (ii). (lii) the district munsif or where there are more than one district munsif, the principal district munsif in the other areas of the state"

.

By g. O. Ms. No. 311, dated 27 - 5 - 1983 :

"the district munsifs in the order areas of the state are substituted in the place of clause (lii) of the aforesaid g. O. Ms no. 4"

.

R50 by another g. O. Ms. No. 312, dated 27th may, 1983. Provision was made for the presentation of application before the principal rent controller who shall, subject to the supervision of the appellate authority either conduct inquiry and dispose of the application himself or assign the application to any of the other controllers having jurisdiction for inquiry and disposal.

(8) The argument which found favour with the appellate authority is that the functions of a controller under the act could be exercised only by the district munsif in such courts existing by january, 1966 and that the munisifs presiding over courts established subsequent to the date of g. O. Ms. No. 4, are not empowered to function as a controller under the act. According to this reasoning adop'ed by the appellate authority there should be separate notification issued under sec. 2 clause (iv) of the act as and when a new district munisifs court is constituted for any area. The appellate authority, in expressing that view, had followed r. Purushothaman vs. K. B. Vijayalakshmi a decision of a single judge of the madras high court.

(9) Mr. P. L. N. Sarma, learned counsel appearing for the landlord has firstly submitted that g. O. Ms. No. 4, appointed a class of officers to discharge the functions of a controller and once the district munsif s court at japgayyapet is constituted, the district munisif of jaggayyapet is empowered to discharge the functions of a controller irrespective of the dale on which the said court was constituted according to the learned counsel, purushothaman's case (supra) was wrongly decided. Even otherwise, it is distinguishable. The appellate authority should have, in the circumstances, directed re - transfer of the cases from the district munsif's court, jaggayyapet, to the prl district munisifs court, vijayawada, and out not to have dismissed the eviction petitions. Mr. Poornaiah, learned counsel appearing for the tenant, however, maintained that the district munisifs court, jaggayyapet, which court is constituted subsequent to the date of go. Ms. No. 4, cannot discharge the functions of a controller in the absence of a separate notification issued to that effect under sec. 2 (iv) of the act. Alternate submissions invoking principles of estoppel, consent de facto doctrine were also advanced.

(10) The facts in purushothaman's case (supra) and the reasoning given therein in support of the conclusion require careful scrutiny. The landlady filed an eviction petition before the kuzhithurai munsif who was the controller. Till 1977 the subordinate judge at kanyakumari was the appellate authority. Kuzhithurai sub - court was constituted by notification dated 7 - 4 - 1977 and threafter, the territorial jurisdiction of the subordinate judge, kuzhithurai extended over the area which lies within the jurisdiction of the kuzhithurai munsif. The government notification which constituted the sub - court, kuzhithurai, inter alia observed :

"orders empowering the subordinate judge, kuzhithurai, to try cases under the tamil nadu buildings lease and rent control act will be issued separately"

.

It was common ground that no notification was subsequently issued conferring the appellate powers under the act on the subordinate judge, kuzhithurai. The eviction petition was dismissed by the rent controller. The landlady preferred the appeal before the subordinate judge, kuzhithurai, who without considering the question raised before him that he was not empowered to function as the appellate authority, allowed the appeal and directed eviction. The tenant then carried the matter in revision and the question arose whether the subordinate judge, kuzhithurai could exercise the appellate powers in terms of the earlier notification issued by the government empowering the subordinate judges to exercise appellate powers. Thai notification empowered all subordinate judges in kanyakumari district to exercise their appellate powers within their respective jurisdictions. The learned judge held that such a notification should be construed as conferring the appellate powers only on those officers and authorities who were actually in existence at the time of the notification and would exclude officers and authorities who were not in existence or who were only in contemplation.

(11) We have carefully gone into the various reasons given by the learned judge and we are unabie to agree with any one of those reasons. The first reason given by the learned judge proceeds on the notification issued under section 23 of the tamil nadu buildings (lease and rent control) act, 1960 which empowered the government to confer the powers of appellate authorities for the purposes of the act on such officers and authorities as they think fit and with reference to such areas of sucn classes as may be specified in the order. The notification issued under section 23 of the tamil nadu act was general in its terms. It conferred the appellate powers on all subordinate judges within their respective jurisdictions as a class. The learned judge had reasoned that the government's power under section 23 relates to 'decision making' and the state government should therefore have before it a panel of officers and authorities from out of whom the government may pick and choose and confer the appellate jurisdiction under the act on only such of them as the government thinks fit the learned judge, therefore, concluded that the notification should be restricted to only such authorities who were existing as on the date of the notification on whom such power could be conferred and cannot be interpreted to have vested appellate powers on persons who were not in existence on the date of the notification or on authorities which were in contemplation at that time. We fail to see why when the government took a policy decision in conferring appellate powers on subordinate judges as a class in their respective jurisdictions, the exercise of power should be restricted duly to those appellate authorities which were in existence on the date of the notification and the power is not available to authorities answering the same class which had come into existence at a subsequent point of time.

(12) As part of the government policy, various courts are being established, from time to time, at different places to suit the needs and conveniences of the litigant pubic. As part of that policy, the district munsifs courts were being established at each taluk head quarters. The district munsifs court at jaggayyapet was constituted as one such court pursuant to that policy. The officers posted to preside over such newly constituted district munsifs courts exercise either civil or criminal judicial powers, as the case may be. We cannot visualise a situation where the district munsifs forum is available to litigants of that taluk in matters, civil or criminal, but the same forum is not available for cases arising under the act merely because a separate notification under sec. 2 (iv) of the act empowering that particular district munsif to exercise the powers of a controller under the act was not issued. In our view when the government issued g. O. Ms. No 4, they have taken a decision as to the class of officers who should thenceforth exercise the powers of a controller. If the authority answers the description of the class of officers specified in that g o. , he becomes competent, in our view, to exercise the powers of a rent controller in cases arising under his jurisdiction. One cannot restrict that power to only district munsifs existing by the date of the g o. The said g o also empowers the distict munsif who have come into existtence subsequently. When once the power is conferred on a class of officers, there is no need again for the state government to have before it a panel of officers and authorities from out of whom the government may pick and choose and confer on them the power to act as a controller under the act, or to have issued a separate notification under the act as and when a new district munsifs court is constituted.

(13) In abdul hussain vs. State of gujarat there was general notification made under the land acquisition act that all the special land acquisition officers in the state appointed not only before the date of section 4 notification but also who would be appointed in future should perform the functions of a collector. The supreme court held that the said notification means that whenever a person would be appointed as a special land acquisition officer for a particular area, the notification would in effect invest him at the same time with the authority to perform the collector's functions. True, in that case the notification also declared that such of the special land acquisition officers who may be appointed in future are also, authorised to perform the collector's functions. In our view, the ratio of the supreme court case would apply mutatis mutandis to the notification issued under g. O ms. No. 4 though there is no specific mention that district munsifs who may be appomed in future also come within the sweep of clause (iii) of the g 6. Extracted above.

(14) The law is settled that the district munsifs empowered to perform the functions of a controller function as courts and not as persona designata. In public prosecutor vs. L. Ramayya a full bench of this court had occasion to consider an analogous provision under sec. 6 - c of the essential commodities act. The full bench observed.

"from what was discussed above, the following conclusions would follow (1) where, bv stature, matters are referred to the determination of a court with no further provision, the necessary implication is that the court will determine the matters as a court. Its jurisdiction is enlarged with all the incidents of such jurisdiction.

(2) where a person is indicated not by name but by official designation, the question always arises whether ihe indention was to single him out as a persona designata, i. E. , as an individual, the designation being merely his further description. The question whether such a person is a persona designata or not depends upon the intention to be gathered from the words used, nature of the functions to be performed and object and purpose to be achieved.

(3) when a reference is made to an officer presiding over a court and not the court itself it does not necessarily follow that such a person is intended to act as a 'persona designata and not as a court because it is quite an ordinary practice for a reference to be made to the officer presiding over the court even when the intention is to refer to the court the mention of the officer presiding over the court instead of the court does not by itself imply that he is intended to act as a persona dasignata and not as a court.

(4) when a statute confers authority on a judicial officer one should be slow in saying that the leeislalure confers such authority on the said officer as a persona designata.

(5) where a judicial officer who presides over a court is appointed to perform a function under any statute and he is intended by the statute to act not otherwise than in a judicial capacity, in the absence of any other indication to ihe contrary, he cannot come within the expression "persona dasignata" and he acts as a court only.

(6) when a judicial authority, like an officer, who presides over a court, is appointed io perform a function, that is to judge in accordance with law and nothing has be mentioned about the finality or otherwise of the decisions nude by that authority, it ,s an indication that the authority is to act as a court in which case only it is not necessary to mention whether they are final or not as all the incidents of exercising jurisdiction of a court would necessarily follow.

(7) whether the authority functions as a persona designata or as a court does not necessarily depend on the question whether it is acting against the decisions of designated persons or tribunals or not. Statutes are full of instances where appeals or revisions to courts are provided even as against the decisions of designated persons and tribunals".

(15) Lakshmana rao. J. , in a more recent case muvvala jagannadham vs. Nidamanuri rangaiah has considered all the relevant decisions and came to the conclusion that district munsifs appointed as controller under the act are courts and not as persona designata. We affirm that view with respect. It is not however necessary to express ourselves as to what power under the c. P. C. Such courts can exercise.

(16) When, therefore, the position is established that the district munsif is designated as a person to perform the functions of a controller under the act, district munsifs are acting not as persona designata but only as courts. When once it is the court of the district munsif that exercises the powers of a controller, the notification made under g. O. Ms. No. 4 would take in not only the courts existing on the date of the said notification but any court which may have been constituted subsequently, from time to time. We are clear in our opinion that purushothaman's case (supra) does not lay down the correct legal position and we express our dissent thereto.

(17) The eviction petitions were instituted before the rent controller, vijayawada, who was the authority under the act. It was only after certain applications were filed before the appellate authority that these petitions were transferred to jaggayyapeta munsifs court. If the appellate authority felt that the district munsifs court, jaggayyapeta was not empowered to exercise the functions to a controller, it was not right to have dismissed the eviction petitions. The appellate authority, in the circumstances, should have directed transfer of the petitions back to the rent controller, vijayawada. The dismissal of the eviction petitions by the appellate authority is clearly unsupportable.

(18) The alternate submissions made by mr. Narasimha sarmaon this point do not strictly arise as, in our view, the district munsifs court, jaggayyapet, had the necessary jurisdiction to have entertained and disposed of the eviction petitions. As, however, these alternate submissions have been argued at some length before us, we have given our findings regarding those alternate submissions as well. The first alternate submission invoking the principle of defacto doctrine is based upon gokaraju rangaraju vs. State of a. P. The appellant therein was involved in proceeding under sec, 6 - a of the essential commodities act. Against in order of confiscation, he preferred an appeal to the court of session, west godavari. The appeal was heard by sri g. Anjappa, addl. Sessions judge, guntur, who convicted some accused in a sessions case and the appeals preferred by the convicted accused were also pending before the high court. Meanwhile, the appointments of sri g. Anjappa and sri raman raj saxena were quashed on the ground that their appointment was in violation of the provisions of art. 233 of the constitution. It was argued before the high court that as the judgments impugned in the criminal revision as also in the criminal appeals were rendered by persons whose appointment was found to be invalid, the judgments should be set aside. This court rejected that contention holding that they were not mere usurpers but had held office under lawful authority and, therefore, the judgments rendered by them were valid and could not be questioned in collateral proceedings. It was on these basic facts and speaking for the bench, chinnappa reddy, j. Observed :

"an answer, on first impression, may be 'a judgment by a judge who is not a judge is no judgment,' a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed? what is to hanpen to sentence imposed? are convicted offenders to be set at liberty and to be tried again? are acquitted accused to be arrested and tried again? public policy is clearly involved. And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented in th de facto doctrine, which we shall presently exam need de facto doctrine is thus a doctrine of necessity and public policy."

And

"the doctrine is now well established that 'the acts of the officers de facto performed by them within he scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding, as it" they were the acts of officers de jure".

And ''the doctrine is founded on good sense , sound policy and practical experience it is aimed as the prevention of public and private muschief and the protection of public and private interest. It avoids endless confus on and needless chaos an illegal appointment may be set aside and a proper appoint ment made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence, the de facto doctrine. " at the same time it was observed :

"it would be a different matter if the constitution of the court itself is under, challenge. We are not concerned with such a situation in the instant cases."

Mr. Poornaiah's submission is that rangaraju's case (supra) has no relevance. According to him, the tenant is questioning the decision of the rent controller on the specific ground that he is not duly empowered to exercise the functions of a controller and if there is no such empowerment, the principles of de facto doctrine would not come into play. We are in agreement with this submission made by mr. Poornaiah. To hold otherwise would result in compelling the parries to be bound by the decisions rendered by persons not empowered to decide their cases and conferring jurisdiction on persons to decide disputes which they are otherwise not entitled to adjudicate upon. The principles of de facto doctrine have, therefore, to be restricted only to cases of invalid appointments but not to cases which required a prior notification under the specified act before the officer begins to exercise any functions under the act. We accordingly reject this alternate submission of mr. Narasimha sarma.

(19) The other alternate submission mde by mr. Narasimha sarma is that the tenant participated in the enquiry before the district munsif, jaggayyapeta and without questioning his jurisdiction to entertain the application and having so consented, the tenant is estopped from now questioning the jurisdiction of the district munsif, jaggayyapeta, to exercise the powers of a controller under the act. Tf the district munsf, jaggayyapeta, cannot exercise the functions of a controller under the art in terms of g. O. Ms. 4, no principle of estoppel based on consent can either be invoked against the tenant. The law is clear that consent doe not by itself confer any jurisdiction on a person not otherwise empoweret to adjudicate upon the disputes. Reference can be conveniently made tc the following observation of the supreme court made in kiran sing vs. Chaman paswan.

"it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity, and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject - matter of the action, strikes at the very authority of the court to pass any deeiee, and such a detect cannot pe cured even by consent of parties."

We accordingly reject this alternate submission made,, by mr. Narasimha sarma.

(20) Each of the eviction petitions was filed by boddepati vinod kumar, an advocate. In a family partition, the premises in question fell to the share of his younger brother mallikarjuna rao who is working as an employee at bombay. Vinod kumar was, however, collecting rents from these tenants on behalf of his younger brother, but admittedly there was no power of attorney executed in his favour nor was there a previous written consent of the landlord entitling vinod kumar to apply for the eviction of the tenant an objection was taken that under section 10 subsection (8) of the act, vinod kumar is not entitled to apply for the eviction of the tenant, though he answers the description of 'land lord' as made in section 2 (vi) of the act. The appellate authority rejected this objection and held the eviction petitions to be maintainable at the instance of vinod kumar. Mr. Poorniah, learned counsel for the tenant, assails the correctness of this finding.

(21) 'land lord' as defined under section 2 (vi) of the act means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian of who would so receive the rent or be entitled to receive the rent, if the building were let to tenant. There is no difficulty in reaching the conclusion that vinod kumar who is receiving the rents on behalf of his younger brother answers the description of 'landlord' as defined in the act. Section 10 (8) of the act, however, provides :

"notwithstanding anything in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a " tenant. "

(22) Sec. 10 (8) of the act appears as a non - obstante clause. The definition of landlord as made under sec. 2 (vi) of the act has to be read along with and subject to sec. 10 (8) of the act. Making an analysis of the aforesaid two provisions, the following position, emerges. The owner of a building can himself apply for eviction. A building may be owned by two or more persons one such co - owner may be receiving rents. When a co - owner so receives rents, he does so on behalf of himself and the other co - owners. The co - owner receiving such rents answers the description of landlord and is, therefore, entitled to apply under sec. 10 for the eviction of a tenant. Such was in fact the case in abdul rahman vs. G. Chandra sekharan. The learned judge after merely expressing a doubt whether a co - owner applying for eviction need obtain at all the previous written consent of the other two co - owners, however, preferred to rest his decision on a written consent of the other two co - owners though such consent was obtained after the eviction petition was filed. We fail to see why a co - owner should obtain the previous written consent of the other coowners. A co - owner who receives such rent, does so in his own right and not as a mere agent of the other co - owners.

(23) A trustee, executor administrator, receiver or guardian are all persons who more or less represent the estate which they are managing. In receiving rents, they do not merely act as agents. They perform other factions as well with reference to the property which they may be managing. All such categories of persons, therefore, do not come within the sweep of sec. 10 (8) of the act.

(24) Difficulty, however, arises when the eviction petition is filed by a person who is receiving the rents or is entit'ed to receive the rent of a building on behalf another merely as an agent. Such a person, however, answers the description of landlord as defined under sec. 2 (vi) of the act. He can apply for fixation of fair rent. He also has an obligation to notify the vacancy to the prescribed authority. What also sec. 10 (8) of the act provides is that before he applied for eviction, he should also equip himself with the previous written consent of the landlord. The difficulty has arisen because of the appearance of the word 'landlord' at two places in section 10 (8) of the act. Such a person who is entitled to receive the rents or is entitled to receive the rents on behalf of another cannot, at the same time, be a landlord under section 2 (vi) of the act and still obtain the previous written consent of the landlord. How then is such a situation to be met. The answer lies in the proper construction to be placed on the words 'agent of the landlord' and 'landlord' that occur in sec. 10 (8) of the act. In our view, the word 'landlord' that occurs in sec. 10 (8) of the act should be construed as having reference to the general definition of the 'landlord as made under section 2 (vi) of the act other than a person who is receiving the rents or is entitled to receive the rents on behalf of another merely as an agent. Such a construction, if placed in sec. 10 (8) of the act would, in our riew, removes the anomaly and give effect to the true intention of the legislature.

(25) In d. Seshagiri rao vs. M. V. Sastry the house in respect of which the eviction was sought, belonged to the sons of mr. M. V. Sastry who was managing the same under general power of attorney executed in his favour by his elder son, a major, and as a guardian of his other minor sons. In his capacity as a guardian of his minor sons, mr. M. V. Sastry was answering the description of 'landlord' as defined under sec. 2 (vi) of the act. The general power of attorney executed by his major son empowered mr. M v; sastry not only to collect the rent but also to look after the interests of the major son in the property in other respects as well. Mr. M. V. Sastry who was, therefore, acting as a mere agent of his major son who executed the general power of attorney in his favour. It was sought to be argued that mr. Sastry who was acting as a mere agent could not have applied for eviction describing himself as a landlord. In repelling that submission, vaidya, j. , held :

"as the sub - section stands, it clearly means that only that agent who receives the rent or who is entitled to receive the rent, of the building has to obtain the previous consent of the landlord, for filing the petition in his own name. It is not applicable to other agents who are not merely receiving the rent or who are merely entitled to receive rent. In the instant case the petitioner is the general power of attorney of his elder son and has been authorised to take all proceedings in regard to management of the property. Admittedly, therefore, he is not mere agent who receives or who is entitled to receive the rent of the building within sub - section (8) of section 10 of the rent control act. Further, he is the guardian of the other owners of the suit house who were minors at the time of the application. 'guardian' who receives the rent on behalf of the minors is included in the definition of 'landlord' in the rent control act."

(26) The rent controller as well as the appellate authority purported to follow the decision of this court in ch. Balaji singh vs. Nagamani. There the house in question fell to the share of a son (pw - 2) in a family partition. The father who was receiving the rents on behalf of the son applied for eviction of balaji singh, the tenant. During the pendency of the proceedings, the father died and his legal representatives including pw - 2 came on record, representing the landlords. Muktadar, j. , construing sec. 2 (vi) and sec. 10 (8) of the act, however observed :

"it is only when a person is merely receiving the rent as an agent of the landlord, then sub - section (8) of section 10 would apply. But where a person who is receiving the rent on behalf of another person as pointed out in clause (vi) of section 2, he comes within the ambit of the definition 'landlord'; and as such, he is entitled to file an eviction petition without obtaining any written permission of the principal or the person who is the owner of the property."

The learned judge, in our vsew, is not giving any weight at all to the provisions contained in sec. 10 (8) of the act. The learned judge, in our view, is not correct in laying down that if as agent a person answers the description of a landlord he can maintain an eviction petition e'ven without the written consent of the landlord. The conclusion to which the learned judge had arrived at on the facts, is, however correct, as during the pendency of the eviction proceedings, the owner of the building himself has come on record as one of the landlords, seeking eviction of the tenant. We are clearly of the opinion that the view expressed by the learned judge that no previous written consent of the landlord need be obtained by a person who is acting as a mere agent of the landlord does not lay down the law correctly.

(27) The appellate authority observed that an agent is different from a person who is receiving rents on behalf of another and that because the tenant did not plead that vinod kumar is an agent of his younger brother mallikhurjuna rao, it was competent for vinod kumar in his capacity as a person receiving the rents to have applied for the eviction of the tenant. In the eviction petition vinod kumar described himself as the landlord. He has not specified as to in what capacity he has qualified himself to be the landlord. Under the definition of 'landlord' as made under section 2 (vi) of the act a person who is receiving or is entitled to receive the rent of a building on behalf of another person or as an agent who would so receive the rent or entitled to receive the rent would become a landlord. A person who is receiving or is entitiled to receive the rent of a building on behalf of another person acts as mere agent to reveive such rents. The word 'agent' as appears in sec. 2 (vi) of the act has necessarily to be construed as referring to a person who is constituted as an agent under some power of attorney executed by the owner in favour of such person. As admittedly there is no power of attorney executed in favour of vinod kumar, he does not answer the description of 'an agent' under sec. 2 (vi) of the act. He has however been collecting rents as an elder divided brother of mallikarjuna rao. As such divided brother, vinod kumar is not entitled to receive the rent of the building. As, however, he has been receiving the rents, he answers the description of a person who is receiving the rent on behalf of mallikarjuna rao'. The non - obstante clause would take in both a person who is receiving the rent of a building on behalf of another as also the person who has been receiving such rents merely as an agent of the owner when such right to collect given to an agent is restricted to the mere collection of rents. We are, therefore, clearly of the opinion that vinod kumar is not entitled to apply for eviction without obtaining the previous written permission of mallikarjuna rao. It is not suggested that mallikharjuna rao, had subsequently given any such written permission in favour of vinod kumar. We accordingly hold that each of the eviction petitions as was filed by vinod kumar is not maintainable.

(28) Vijayawada was a municipality till it became a corporation in june, 1981. The act was applicable to vijayawada as a municipality. One of the points raised before the appellate authority was that after vijayawada was constituted a corporation, there was no further notification made by the state government applying the provisions of the act to the corporation as such and that, therefore, the act is no longer applicable, even in respet of buildings which by the date the eviction petitions were filed, were admittedly governed by the provisions of the act. The appellate authority rejected this submission. Mr. Poornaiah has informed us that several other revisions and writ petitions raising the same controversy are pending in this court and that it is not necessary for this bench to express itself on this controversy and that he would leave the matter to be argued and decided in those other revisions and writ petitions. We have accordingly not expressed ourselves on the merits or demerits of this controversy one way or the other and it is left open for consideration in the revisions and writ petitions which are now pending in this court.

(29) In r. C. C. Nos. 5 and 6 of 1982 related to c. R. P. Nos. 3135, 3133 of 1983, the eviction of the tenant was sought also on the ground of personal bonafide requirement of the landlord. Both the rent controller and the appellate authority held that the requirement of vmod kumar to locate his advocate's office in those two premises was bonafide but they disallowed eviction on the ground that the requirement to be made out is for a requirement of mallikharjuna rao, the owner of the premises, but not that of vinod kumar, his divided elder brother. Mr. Narsimha sarma has tried to persuade us to hold that vinod kumar answers the description of a landlord and eviction ought to have been ordered even for the personal requirement of vinod kumar. In the alternative, mr. Sarma submitted that courts have taken a liberal view regarding various types of cases which come under the requirement of the owner even when eviction was sought for the purpose of accommodating other members of his family and even of persons economically dependent on him or otherwise.

(30) Mr. Poornaiah on the other hand submitted that vinod kumar, the petitioning landlord, cannot seek eviction of the tenants for his own personal requirement which is unconnected in any manner with the requirement of mallikharjuna rao. He also submitted that taking an overall view of the evidence, the requirement of vinod kumar is not bona fide and the authorities below have taken a grossly perverse view of the evidence that has been adduced in the case.

(31) We have earlier noticed the definition of landlord as made under the act. The premises in question are admittedly non - residential buildings. Omitting material which is not relevant, sec. 10 (3) among other things reads :

"a landlord may apply to the controller for an order directing the tenants to put the landlord in possession of the building. (iii). ,. In case it is any other nonresidential building, if the landlord is not occupying a non - residetial 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 : (e) the controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the controller and if the controller is not so satisfied, he shall make an order rejecting the application."

(32) What then is the interpretation we have to give to the word "landlord" which appears in this sub - section. Are we to construe the expression 'landlord' used in the sub - section as meaning all persons who come under the definition of landlord as made under sec. 2 (vi) of the act? if this interpretation is to be put, it would result in the eviction of tenants for the purpose of a person who is receiving or is entitled to receive the rent of a building or a person who is acting as an agent, trustee, executor, administrator, receiver or guardian for his private needs unconnected with the needs of the owner of the building. The protection which the act sought to give to the tenants can be effectively defeated if such an interpretation is to be given to the word 'landlord'. We are, therefore, clearly of the opinion that the expression 'landlord' used in sec. 10 (3) of the act should be restricted only to the owners of buildings who come under the definition of 'landlord' as made under sec. 2 (vi) of the act, and his needs. Both the authorities below are, therefore, correct in the view they have taken that through vinod kumar, as a person receiving the rent answers the description of a landlord, he does not come within the meaning of the landlord under sec. 10 (3) of the act.

(33) We may now notice the various decisions relied upon by mr. Sarma in justification of the alternative submission made by him that a liberal view should be taken regarding the requirement for the personal occupation of the premises by the landlord. The cases which have been cited before us have considered not only the provisions of the act governing this state, but also provisions obtaining under analogus laws in other states or countries.

(34) Ram pershad vs. Mukand lal was considering the analogous provision of sec. 9 (1) (e) of the delhi and ajmer - marwara rent control act which enabled the landlord to apply for eviction for the occupation of members of the landlord's family as well. The question arose whether one chandulal and nandu lal who are sons of a deceased divided brother of the owner are to be included in the word 'family' as used in the act. Adopting the following observation made in puspalata devi vs. Dinesh chandra.

"in determining what is family or a dependent or a person essential and necessary for occupation, it is not only permissible but is proper and desirable for the court to bear in mind the context of social order, the habits and ideas of living and the religious and socio - religious custom of the community to which the individual concerned belongs and then come to a conclusion on the facts of each case."

The learned judge observad :

"in this particular case the two nephews for whom the landlord wishes to get this house are his only heirs. He set them up in business in lahore and also got them married, and one of them is actually living with the plaintiff and the accommodation, it is submitted on the evidence of chandu lai is insufficient for the purpose of the landlord and his nephews, which evidence i am prepared to accept. In these circumstances my opinion is that the nephews are members of the family of the landlord and he is entitled to evict the tenant for the purpose of these nephews"

.

(35) In balabhadra vs. Premchand, the need of a widowed daughter and her children were held to be" the need of the landlord. The learned judges observed :

"no doubt, after marriage the daughter passes out of the father's family and goes into that of the husband. But the fact of marriage does not severe the blood relationship which exists between a father and his daughter. The existence of this relationship does give rise to certain moral obligations. Where, in pursuance of such moral obligations, a father affords support to his daughter and her children, their needs become his needs. " referring to the word "his" that appears in the central provinces and berar letting houses and rent control order, 1949, the learned judges held that it should be interpreted liberally and not in a narrow way, and that so interpreted, it would include not only the members of the landlord's family but also all those persons who were dependent on him and whose responsibilities he has accepted".

(36) Interpreting the expression "his own occupation" occurring in the bihar buidings (lease, rents and eviction) conlrol act, 1947, a division bench of the patna high court in bidhubhusan vs. Commissioner, patna after considering the various other decisions referred to therein, held :

"it is manifest that there is a consensus of judicial opinion that the expression "his own occupation", or his own business", or 'family' should be given a wider and liberal connotation so as to include persons who, though not members of the joint family of the landlord, are living with him and dependent upon him. "

The finding of fact recorded in that case was that the landlord required the room for setting up his nephew (sister's son) in business which nephew has been living with and was being maintained by and a dependent of his uncle.

(37) In kolandaivelu chettiar vs. Koolayana chettiar the requirement of a father for setting up a separate family for his second son who was living joint with his father was held to come under the expression "for his own occupation". A division bench of this court in balaiah vs. Lachaiah likewise considered the requirement of landlord for a nonresidential building to enable his son to start a new business. After making reference to various cases referred to therein, the division bench concluded :

"it is thus quite plain that the expression 'landlord' or 'his' must include all normal emanations of the landlord, for instance, if the landlord is a married man, he must be entitled to include with himself his wife and children. It is clear, that one cannot construe the said expressions strictly as applying physically only to the landlord himself ; it must ; as we have said, include any normal emanations of the landlord."

The bench also observed :

"it seems to be now beyond any doubt that these expressions need not necessarily be confined to the physical requirement of the landlord himself. These and similar other expressions ought to be liberally construed and not in a narrow way. They are susceptible of a wide meaning. They include, the landlord's "family and dependents and such person or persons who may be essential and necessary for occupation. " in order to find out who are such persons "it is not only permissible, but it is proper and desirable for the court to bear in mind the context of the social order, the habits and ideal of living and the social and religious customs of the community to which the individual concerned belongs. " whether the need of a particular person is the need of the landlord will naturally have to be decided in view of the circumstances of each case. Broadly stated, however, these phrases not only include the members of the landlord's family but also all these persons who are socially or econmically dependent on him and whose responsibilities he has accepted. This is based on the necessity of realising that the family in india whether joint or separate is the social unit of indian civilisation ami it is of greater public importance to keep it together. "

(38) In mttthukumaraswamy vs. Devaraj the landlord sought eviction of a tenant of two shops in the ground floor of a building in which the landlord was himself residing with his family and the wife and daughter of the landlord were running saraswathi nursery school in a part of the same premises. The ground urged was that the accomodatiou for running the said school is not sufficient and eviction was sought on the ground of bona fide requirement of additional accommodation. The learned judge after considering the effect of an amendment brought about in the tamil nadu buildings (lease and rent control) act, 1960, held:

"the petitioner - landlord cannot on the ground that the accommodation with the tenant is required for expanding a nursery school conducted by his wife and daughter, ask for such accommodation under sec. 10 (3) (c) of the act and seek for eviction of the tenant."

A similar view was expressed by another single judge of the madras high court in ramalingam vs. Kothandaraman. In that case both the controller and the appellate authority found that the requirement was not bonafide. While refusing to interfere, the learned judge purported to follow the earlier decision muthukumaraswamy vs. Devaraj (supra). In r. V. Dharmalinga mudaliar vs. K. Annamalai, another learned judge of the madras high court differed from the view expressed in muthukumara swamy's case (supra) and ramalingam's case (supra) and held a liberal view which was taken in some earlier decisions of the madras high court and other high courts ought to prevail. It is unnecessary to further consider a few other decisions cited before us as, in our view, each case depends on its own special facts,

(39) So far as the facts iu these two revisions are concerned, vinod kumar is an advocate and a divided elder brother of mallikharjuna rao, who has been working at bombay. Vinod kumar is not in any manner economically dependent upon mallikharjuna rao. Besides the legal profession which vinod kumar has been exercising, he has got his own properties which are considerable in value. It is not the case of vinod kumar that he requires these premises for the purpose of supervising the administration of the properties of mallikharjuna rao. He seeks eviction of these tenants on the specific ground that he intends to open his advocate's office in these premises. He, therefore, wants the premises to exercise his own occupation which is unconnected with the occupation or needs of mallikharjuna rao. The requirement ot vinod kumar does not, in our view, come within the expression "his own occupation" of mallikharjuna rao even taking the liberal view as propounded by the various decisions referred supra. We accordingly reject this alternate submission made by mr. Sarma.

(40) The rent controller held the requirement of vinod kumar to be bonafide. The appellate authority did not record any finding about the bona fides of vinod kumar but it proceeded to dispose of this question on this short ground that vinod kumar's requirement cannot be the requirement of the landlord for the purpose of this section. As matters stand, we do not have the benefit of a finding of fact recorded by the appellate authority. As these eviction proceedings are pending since over four years, we consider it desirable to evaluate the evidence ourselves and see whether the finding recorded by the rent controller regarding the bonafide requirement of vinod kumar is correct. A perusal of the evidence of vinod kumar would highlight the following facts. The partition in the family took place during the time of his father who subsequent to the partition died on 19 - 3 - 1977. Vinod kumar acquired his law degree in 1980. In the family partition some properties were also allotted to the share of vinod kumar. It is in his evidence that he made some new constructions and let them out to tenants and even as late as november, 1979, he let out one of his buildings to a tenant. The fact remains that vinod kumar is not seeking the eviction of any tenant of a premises of which vinod kumar is himself the owner. Thus, by the date these eviction petitions were filed vinod kumar in fact acquired his law degrse, but it is common ground that the court can lake into consideration the subsequent event that during the pendency of these proceedings vinod kumar in fact acquired his law degree and became eligible to practice as an advocate. The landlord has no doubt the choice of the premises which he requires for his occupation, but then he must establish by positive evidence ps to why a premises otherwise available to him and in his occupation is not sufficient to meet his requirements and why the two premises in respect of which the eviction is now sought is more suitable or convenient to him. The rent controller, in subscribing to the view that vinod kumar can seek eviction of the tenant at the choice, has relied upon the decisions of this court in ampro food products vs. K. L. Narasanna and pattan khan vs. Syed pasha. But the view expressed therein that the choice of the landlord is not curtailed or inhibited nor could it be at the dictates of the tenant is no longer good law in view of the supreme court decision in m. M. Quasim vs. Manoher lal. In the absence any evidence justifying the choice of vinod kumar to evict these tenants only to suit his requirements and more so when vinod kumar is in admitted possession of several buildings and he has even constructed some buildings and let them out to tenants, the rent controller is not justified in holding the requirement of vinod kumar to be bona fide. In this view of the matter it is unnecessary to consider the further questions whether the necessary pleading in this regard is presenter whether even without a specific pleading the finding regarding the bona fides or otherwise can be recorded on the evidence adduced by the parties. We accordingly hold that vinod kumar has not established his bona fide requirement.

(41) In r. C. C. Nos. 3 and 4 of 1982 corresponding to c. R. P. Nos. 3132 and 3134/83, the landlord alleged certain acts of waste and damage to the property as an additional ground for eviction. Both the rent controller and the appellate authority, on a proper appreciation of the evidence, found against the landlord. We do not see any reason to interfere with the finding of fact recorded in both those applications.

(42) In each of the eviction petitions, wilful default in the payment of rent was alleged. So far as r. C. C. No. 4/82 is concerned, the delay that had occurred is only 14 days. Both the rent controller and the appellate authority found that this slight delay was not wilful. Mr. Sarma has tried to persuade us to hold that even the delay of one day which is not properly explained would amount to wilful default and the eviction of the tenant ought to be ordered. We do not feel persuaded to accept this submission. In the view we have expressed on the other points arising in c. R. P. Nos. 3134/83 and 885/84, the former is dismissed and the latter is allowed, directing the parties to bear their respective casts in both these revisions.

(43) Both the rent controller and appellate authority found in the other three eviction cases wilfuldefault in the payment of rents. Thetenants pleaded payment of rents to have been made to the mother of vinod kumar and that receipts were not given pending settlement of payment of a higher rent through the good offices of one mr. Bose, an advocate, practising at vijayawada. The payment pleaded by the individual tenants as also the evidence let in by the tenant regarding the mediation by mr. Bose have not been accepted by both the rent controller and appellate authority. Mr. Poornaiah has tried persuade us to hold that there was no wilful default. According to him. These three tenants have been in possession of the premises over some years, carrying on their business activity and they would not have committed any default in the payment of rents except on the hypothesis that there was some dispute pending mediation of mr. Bose. The rent controller and the appellate authority have considered all these circumstances and probabilities and have, on an appreciation of the evidence, come to the conclusion that the wilful defaults alleged against the tenants involved in these cases have been made out. Sitting in revision, we do not feel ourselves persuaded to interfere with those findings of fact recorded on an appreciation of the evidence made by them. However, in the view we have taken that vinnd kumar cannot maintain the eviction petition without the prior written permission of mallikharjuna rao, crp nos. 3132/83, 3135/83 and 3133/83 filed by the landlord are dismissed. Crp nos. 881/84, 851/84 and 882/84 filed by the individual tenants are in consequence allowed, directing the landlord and the tenants in these respective cases to bear their respective costs throughout.