Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
BODDU NARAYANAMMA
Vs.
RESPONDENT:
SRI VENKATARAMA ALUMINIUM CO. & ORS.
DATE OF JUDGMENT: 21/09/1999
BENCH:
V.N.Khare, Syed Shah Mohammed Quadri
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?
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.
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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 11
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.
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.
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 eviction can be ordered even in respect of
residential part of the building; the High Court is,
therefore, right in holding that the eviction petition is
not maintainable.
To appreciate the rival contentions of the learned
counsel, it would be necessary to notice the relevant
provisions of the A.P. Act.
Section 2(iii) defines the term ’building’ as follows
:
"2(iii). "Building" means any house or hut or part of
a house or hut, let or to be let separately for residential
or non-residential purposes and includes :-
(a) the gardens, grounds, garages and out-houses if
any, appurtenant to such house, hut or part of such house or
hut and let or to be let along with such house or hut or
part of such house or hut;
(b) any furniture supplied or any fittings affixed by
the landlord for use in such house or hut or part of a house
or hut, but does not include a room in a hotel or boarding
house."
Sections 10, 12 and 13 of the A.P. Act provide
grounds for eviction of tenants. We shall presently refer
to Section 10(3)(a) with which we are concerned in the
appeal.
A perusal of the definition of the term ’building’
shows that (a) any house or hut, or (b) part of a house or
hut, let or to be let separately for residential or
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
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’.
Section 1(2)(a)(b) of the A.P. Act says that it
applies to the cities of Hyderabad, Secunderabad,
Visakhapatnam, Vijayawada and to all Municipal Corporations
and municipalities in the State of Andhra Pradesh and
Section 32 says that the A.P. Act shall not apply to any
building owned by the Government. Under Section 26 of that
Act, the Governor of Andhra Pradesh has exempted, with
effect from October 26, 1983, - (1) all buildings for a
period of ten years from the date on which their
construction is completed and (2) buildings the monthly rent
of which exceeds Rs.1,000/-. The building in question is
within the limits of Municipality of Rajahmundry, thus it
satisfies the requirement of Section 1(2)(a)(b) and neither
Section 32 excludes it from the purview of the Act nor does
it fall under any of the exemptions granted under Section 26
of the A.P. Act. Now, 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.
With regard to the question of maintainability of
eviction petition under Section 10(3)(a)(i) of the A.P.
Act, there is no controversy that when a building having a
residential and non- residential portions is let separately
to a person, a petition for eviction of the tenant from the
residential or non-residential portion or both on the plea
of personal requirement of residence or business of a
landlord, as the case may be, is maintainable but there is a
conflict of opinion among various High Courts as to the
maintainability of a suit/petition for eviction filed by a
landlord, on the ground of his personal requirement of
residence, against a tenant who is occupying both
residential and non-residential portions of a building under
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 11
a composite lease.
Now, we shall refer to the views expressed by various
High Courts on the question of maintainability of a
suit/petition filed on the ground of bona fide personal
requirement of residence of the landlord for eviction of a
tenant holding residential and non-residential portions of a
building under a composite lease.
The High Court of Andhra Pradesh in Ghan Shyam vs.
Laxmi Narayana [1990 (1) ALT 43]; the High Court of
Rajasthan in Om Prakash vs. Smt.Chand Devi [1973 RCR 562];
the High Court of Madras in Moinuddin Khan Sahib vs.
Rukmani Ammal [1973 All India RCJ 311] and Tikamchand
Mithalal Jain vs. M.R.Narasimhachari [AIR 1981 Madras 21];
the High Court of Madhya Pradesh in Jamna Prasad vs.
Nandkishore [1976 MPLJ 28], Panjumal Daulatram (Firm) vs
Sakhi Gopal Thakurdin Agrawal [1977 MPLJ 762] and Jagitkumar
vs. Jagdeeshchandra [AIR 1982 MP 144] took the views that a
suit/petition, under the respective Act, for eviction of the
tenant from a premises having residential and
non-residential accommodation held under a composite lease,
on the ground of personal requirement of residence of the
landlord, is maintainable. The reasoning is that there are
two kinds of accommodation viz., residential and
non-residential so if an accommodation is primarily used for
residential purposes it has to be classified as residential
although a part of it is used for non-residential purposes
and vice versa. There is also emphasis on the dominant
purpose of the lease. However, the contrary view is taken
in Dr.Madhusudan Mahuli vs. Lambu Indira Bai [1987 (2) ALT
504] by the High Court of Andhra Pradesh and in Gokulchand
vs. Krishnachandra & Anr. [1977 All India RCJ 376] by the
High Court of Madhya Pradesh on the ground of absence of
specific provision in the A.P. Act and the M.P. Act for
eviction of the tenant holding a building having residential
and non-residential portions under a composite lease.
Apropos the discussion, the following decisions of
this Court are apposite :
In Dr. Gopal Dass Verma Vs. Dr. S.K. Bhardwaj and
Anr. [1962 (2) SCR 678], the appellant was the landlord and
the respondent was the tenant of the premises which were let
for use as the residence of the tenant but from the
inception of the tenancy, the premises were being used for
commercial purposes also i.e. for his professional work as
E.N.T. Specialist. The appellant sued the respondent for
ejectment, inter alia, under Section 13(1)(e) of the Delhi
and Ajmer Rent Control Act, 1952 (for short ’the Delhi Act’)
for his personal requirement of residence. The trial court
decreed the suit but the Appellate and the High Court
dismissed it on the ground that from the beginning of the
tenancy, a substantial part of the premises was used by the
respondent for his professional work with the consent of the
appellant. On appeal, this Court held that the premises let
for residential purposes were being used by the respondent
with the consent of the appellant for commercial purposes
also so it ceased to be premises let for a residential
purpose alone and as such the appellant could not eject the
respondent under Section 13(1)(e) of the Delhi Act.
In S.Sanyal vs. Gian Chand [1968 (1) SCR 536], the
predecessor in title of the respondent let out the suit
premises to the appellant- tenant for her residence and for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 11
running a school. Thereafter, the respondent purchased the
house and filed a suit under Section 13(1)(e) of the Delhi
Act for eviction of the appellant on the ground that he
required the premises bona fide for his own residence. The
trial court dismissed the suit. On revision, the High Court
held that a decree for ejectment limited to that portion of
the house which was used for residential purposes by the
tenant could be granted and remanded the case for
demarcating that portion and passing a decree. On appeal to
this Court against the order of the High Court, it was held
that the contract of tenancy was a single and indivisible
contract and in the absence of any statutory provision to
that effect, it was not open to the Court to divide it into
two contracts - one of letting out for residential purposes
and the other for non-residential purposes for granting
relief under Section 13(1)(e) of the Delhi Act in respect of
the portion used for residential purposes. Following
Dr.Gopal Dass Verma’s case (supra), it was observed that if
in respect of premises originally let for residential
purposes, a decree for ejectment could not be passed on the
grounds mentioned in Section 13(1)(e), if subsequent to the
letting, with the consent of the landlord, the premises was
used both for residential and non-residential purposes, the
bar against the jurisdiction of the Court would be more
effective when the original letting was for purposes -
non-residential as well as residential. It may be recalled
that the condition for invoking Section 13(1)(e) of the
Delhi Act is that the premises be held by the tenant for
residential purposes.
In Motilal & Anr. vs. Nanak Chand & Ors. [1970 All
India RCJ 99], the suit-house was let out to the tenant for
residence and for running a school. The landlord’s suit for
ejectment against the tenant filed under Section 13(1)(e) of
the Delhi Act was dismissed by the trial court on the
preliminary issue of maintainability of the suit but the
District Judge reversed the decree and remanded the case to
the trial court. The revision against that order having
been dismissed by the High Court, an appeal by special leave
was filed in this Court. Relying on the judgment in
S.Sanyal’s case (supra), it was held that as the owner let
out the premises to the tenant for residence and for running
a school, the suit for ejectment on the ground of bona fide
personal requirement was not maintainable and it was not
open to the Court to demarcate the portions used for
residential and non-residential purposes as the contract of
tenancy was single and indivisible contract and in the
absence of a statutory provision, it was not open to the
Court to divide it into two contracts and grant eviction of
the portion which was used for residential purposes.
For appreciating the above noted decisions, it may be
pointed out here that though the A.P. Act, the Tamil Nadu
Act, the M.P. Act, the Rajasthan Act and the Delhi Act are
in pari materia, yet provisions of these Acts dealing with
grounds of eviction of a tenant for personal requirement of
residence of a landlord are not in haec verba.
Since the three cases decided by this Court, referred
to above, arose under Section 13(1)(e) of the Delhi Act, it
will be useful to quote that provision here :
"13(1)(e). Protection of a tenant against eviction -
(1) Notwithstanding anything to the contrary contained
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
in any other law or any control, no decree or order for the
recovery of possession of any premises shall be passed by
any court in favour of the landlord against any tenant
(including a tenant whose tenancy is terminated):
Provided that nothing in this sub-section shall apply
to any suit or other proceeding for such recovery of
possession if the court is satisfied -
(e) that the premises let for a residential purposes
are required bona fide by the landlord who is owner of such
premises for occupation as a residence for himself or his
family and that he has no other suitable accommodation:
Explanation - For the purposes of this clause,
"residential premises" include any premises which have been
let for use as a residence are, without the consent of the
landlord, used incidentally for commercial or other
purposes;
A perusal of this provision reveals that the ban
imposed by Section 13(1), that no decree or order for the
recovery of possession of any premises in favour of the
landlord against any tenant shall be passed, is lifted in
case of an owner-landlord of a premises who bona fide
requires it for occupation as a residence for himself or his
family, provided that the premises was let for a residential
purpose and the landlord has no other suitable
accommodation. The explanation makes it clear that if the
premises let for residential purposes is used for commercial
purposes without the consent of the landlord it will
continue to be a residential premises. In other words, if
the premises let for residential purposes is actually used
for commercial purposes but without the consent of the
landlord, the landlord can seek the eviction of the tenant
under Section 13(1)(e) as the character of the premises is
statutorily retained as a residential premises. This is so
because the Delhi Act does not provide for eviction of the
tenant from the premises other than residential premises on
the ground of bona fide requirement of the landlord,
(S.Sanyal’s case)(supra).
It may be noticed here that the provisions of Section
10(3)(a) of the A.P. Act and Section 13(1)(e) of the Delhi
Act are not in haec verba; whereas the former provides for
eviction of a tenant both from residential and
non-residential premises on the ground of bona fide
requirement of the landlord, the latter provides for
eviction of a tenant on that ground from a residential
premises only and not from a non-residential premises. For
this reason, the judgments in the aforementioned cases
decided under Section 13(1)(e) of the Delhi Act cannot be
applied to cases arising under Section 10(3)(a) of the A.P.
Act or Section 10(3)(a) of the T.N. Act which are in haec
verba. Section 12(e) and (f) of the M.P. Act is
substantially similar to the said provisions of the A.P.
Act and the T.N. Act but Section 13(1)(h) of the Rajasthan
Act is wider than the provisions of the A.P. Act and the
T.N. Act.
Mr.Sudhir Chandra has further urged that a residential
accommodation is one which is suitable for residence even
with necessary changes and as the tin shade (non-residential
portion) is not being used for more than a year pursuant to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
the orders of the Member Secretary, Andhra Pradesh Pollution
Control Board under Air (Prevention and Control of
Pollution) Act, 1981 and other authorities directing the
respondents not to carry on any manufacturing activity in
the residential area and to shift the same to any
non-residential area, so the non-residential portion can be
put to residential use with necessary changes and indeed,
for that purpose alone, the eviction of the tenant is
sought; therefore, the demised building has to be treated
as residential and if so, eviction can be ordered. In
support of his submission, he relied on the observations of
this Court in Busching Schmitz Private Limited vs.
P.T.Menghani & Anr. [1977 (2) SCC 835]. In that case, the
landlord was the Government servant. He let out the
building for purposes of residence and for business in a
portion thereof. He sought eviction of the tenant under
Section 14A(1) of the Delhi Rent Control Act, 1958 (59 of
1958). That application was opposed by the tenant on the
ground that what was let out to him was not for residential
purpose but for residential-cum-commercial purposes. The
tenant was, however, refused leave to contest the petition
under Section 25B(4) of the said Act. He challenged that
order in a writ petition before the High Court of Delhi but
it was dismissed. On appeal to this Court, the question
which arose for consideration was whether the building which
was let out for the residential-cum-commercial purposes
remained a residential building? It was held that whatever
was suitable or adaptable for residential use, even by
making some changes, could be designated as ’residential
premises’. Speaking for the Court Krishna Iyer,J., in his
inimitable style, observed :
"Residential premises are not only these which are let
out for residential purposes as the appellant would have it.
Nor do they cover all kinds of structures where humans may
manage to dwell. If a beautiful bungalow were let out to a
businessman to run a show-room or to a meditation group or
music society for meditational or musical uses, it remains
none- the-less a residential accommodation. Otherwise,
premises may one day be residential another day commercial
and, on yet a later day, religious. Use or purpose of the
letting is no conclusive test. Likewise, the fact that many
poor persons may sleep under bridges or live in large hume
pipes or crawl into verandahs of shops and bazars cannot
make them residential premises. That is a case of reductio
ad absurdum."
The learned counsel for the appellant has also placed
reliance on the following observations of this Court in
M/s.Maulavi Abdur Rub Firoze Ahmed & Co. vs. Jay Krishna
Arora [1976 (1) SCC 295] :
"The law does not require that the landlord must need
the premises for his own occupation only for the purpose to
which they were being put by the tenant. It may well be
that a tenant cannot put the demised premises to any other
use. But there is no bar in law in the way of the landlord
requiring the business premises for his residential
occupation and vice versa, provided the premises are capable
of being put to different uses, as they seem to be in this
case."
and contended that merely because the tenant was using
the portion of the building for non-residential purposes,
there was no bar in law for the landlord to use the same for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
residential purposes. That case arose under the West Bengal
Premises Tenancy Act, 1956 (12 of 1956).
It is true that under the A.P.Act, there is no bar to
convert a non-residential building into a residential one
though Section 18 mandates that no residential building
shall be converted into a non- residential building except
with the permission in writing of the Controller.
We shall now advert to Section 10(3)(a) of the A.P.
Act under which the instant case arises and it will be apt
to quote it here :
"10(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 :
Provided that a person who becomes a landlord after
the commencement of the tenancy by an instrument inter vivos
shall not be entitled to apply under this clause before the
expiry of three months from the date on which the instrument
was registered :
Provided further that, where a landlord has obtained
possession of a building under this clause he shall not be
entitled to apply again under this Clause -
(i) in case he has obtained possession of a
residential building, for possession of another residential
building of his own;
(ii) in case he has obtained possession of a
non-residential building, for possession of another non-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
residential building of his own."
The provisions, extracted above, specify the grounds
for eviction of a tenant from a residential building as well
as from a non- residential building. Sub-clause (i) of
clause (a) of sub-section (3) of Section 10 deals with
eviction of a tenant from a ’residential building’. It says
that a landlord may apply to the Rent Controller for an
order directing the tenant to put the landlord in possession
of a residential building on any of the two grounds, namely,
(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; and (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. Sub-clause (ii) thereof deals with the eviction
of a tenant from 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 provided 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.
Sub-clause (iii) thereof furnishes the ground for eviction
of a tenant from a non-residential building other than that
falling under sub-clause (ii); 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 under the Act or otherwise and he
requires it (a) for the purposes 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, he
may seek eviction of the tenant. These provisions are
subject to two restrictions: (i) a person who becomes a
landlord by an instrument inter vivos after the commencement
of the tenancy cannot apply under that clause before the
expiry of three months from the date of registration of the
instrument; and (ii) where the landlord has obtained
possession of a residential building under that clause, he
will not be entitled to apply again under it whether he has
obtained possession of a residential or a non- residential
building of his own.
It is not necessary to refer to the other provisions
of Section 10 for purposes of the present discussion.
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
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.
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.
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 this
Court in Busching Schmitz case (supra), we are of the view
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
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. We approve the ratio in the judgments of the High
Courts which are in accord with the view expressed
hereinabove by us and overrule the ratio of the judgments of
the High Courts which have held to the contra. Inasmuch as
the Appellate Authority as well as the High Court have held
that the requirement for residence of the appellant is bona
fide and as we have held that the petition of the appellant
filed under Section 10(3)(a)(i)(b) is maintainable, the
appellant is entitled to a direction to the respondents to
put the appellant-landlord in possession of the demised
building. The eviction petition, R.C.C.No.71 of 1981 on the
file of the Principal District Munsif-cum-Rent Controller,
Rajahmundry is ordered. We grant time to the respondents to
vacate the demised building and put the appellant-landlord
in vacant possession of the same till December 31, 1999.
The appeal is accordingly allowed but in the circumstances
of the case without costs.