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TMI Blog1964 (12) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose ; 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. 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. On the other hand, Mr. Y. B. Tatarao, learned counsel for the respondent relied upon the decision in Appalaraju v. Samburatnamurthy, 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. Ekbote, J. This revision petition has been referred to the Bench by our learned brother, Chandrasekhara Sastry, J. , in view of the conflict between two decisions of this Court construing Sec. 10 (3) (c) of the Andhra Pradesh Buildings (Lease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 hut or part of a house or hut, let or to be separately for residential or non-residential purposes and includes ---------- (a) ........................................... (b) ............................................. Section 10 in so far as 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 ............................ (1) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icts 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 building' and the two other categories pertain to 'non-residential building', 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 building'. 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 'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued 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 mote. 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) (a). It clearly states notwithstanding anything in clause (a) . This must be understood in its liberal 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 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 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 clause which would prevail over the other clause. It does not however necessarily mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 of vice versa, does not appear to us sound. We se 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 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 residenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge. The learned Judge failed to make 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. (9) 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry or desirable in such weighing of the interests of the landlord as well as the tenant. 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 an 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 advantages 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 on the tenant from being evicted. That would destroy the very pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that in case he is asked to vacate, it would be fatal to his business . No evidence warrants any such conditions. Some hardship is 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 many 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. What was however contended was that the landlady had adopted this procedure to harass the tenant, but we see no reason fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equires 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 avowed purpose indicated by the landlord of requiring the additional accommodation is not found to be incorrect, or it cannot be characterised 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. 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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