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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVA THURSDAY ,THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL REVISION PETITION NO: 53fi OF 9017 Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to Set aside the order dated: 26-07-2010 in R.C.C. No. 13 of 2008 on the file of The Rent Controller-Cum-Principal Junior Civil Judge, Guntur and the orders dated 31-05-2.016 in R.C.A. No. 11 of 2011 Rent Control Appellate Authority-Cum- Principal Senior Civil Judge, Guntur. Between: on the file of the Nune Ranganayakulu, S/o. Late Mahabaleshwer Rao, Aged Doctor, r/o. 5-37-14, Ranga Complex, 4/1, Brodipet, Guntur. 71 years, occ: ...PETITIONER(S) AND Chandolu Siva Rama Krishna Kumar, s/o. Jaganmohana Rao years aged 35 occ; Business, r/o. 5-37-14, Ranga Complex, 4/1, Brodipet, Guntur. ...RESPONDENTS Counsel for the Petitioners: Sri. G V S MEHAR KUMAR Counsel for the Respondents: Sri. SRINIVASA RAO KURAPATI The Court made the following Order:
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) THURSDAY ,THE SEVENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FOUR PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL REVISION PETITION NO: 536/2017 APHC010309632017 [3460] Between: Nune Ranganayakulu, Guntur Dist AND ...PETITIONER ...RESPONDENT Chandolu Siva Rama Krishna Kumar Guntur Dist Counsel for the Petitioner: 1.GVSMEHAR KUMAR Counsel for the Respondent: 1.SRINIVASA RAO KURAPATl The Court made the following:
HON’BLE SRI JUSTICE NYAPATHY VIJAY CIVIL REVISION PETITION No.536/2017 ORDER: The present Civil Revision Petition is filed under Section 22 of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short “Rent Control Act”) questioning the Order dated 31.05.2016 passed in R.C.A.No.11 of 2011 by the Rent Control Appellate Authority-cum-Principal Senior Civil Judge, Guntur, confirming the Order dated 26.07.2010 passed in R.C.C.No.13 of 2008 by the Rent Controller-cum-Principal Junior Civil Judge, Guntur. 2. The facts in brief leading to the filing of the present revision are as follows; The Petitioner is the landlord. R.C.C.No.13 of 2008 was filed by the landlord seeking to evict the tenant/respondent. It is the plea of the landlord that the tenant joined in the schedule premises under lease agreement dated 02.08.2005 for a period from 01.07.2005 to 30.06.2008 on a monthly rent of Rs.2,344 /-. As the tenant was irregular in payment of rents and had paid rents up to 29.02.2008 and thereafter committed defaulted
2 payment of rents since March 2008, the lease was terminated on 30.6.2008. Though the petitioner demanded the Respondent/tenant to vacate the scheduled premises and for the arrears of rent, the respondent/tenant was postponing the on one pretext or the other. same 3. A legal notice was issued on 17.06.2008 demanding the respondent/tenant to vacate the scheduled premises and it also the plea of the petitioner that the enhanced rent @ 25% per the agreement for the months of March, 2008 to June, 2008 was not paid. The petitioner/landlord further pleaded that he is a retired Government Doctor and the petition scheduled property is required for his personal occupation i.e., to run a clinic as he is unable to climb steps due to his old age. was as 4. In response, the respondent/tenant filed a counter affidavit admitting the jural relationship of landlord and tenant, quantum of rent and that the lease is on oral understanding and the same does not have any fixed time schedule. It was further pleaded that there never was any default in payment of rent. As regards the plea of bona fide requirement, it was contended that the same is an afterthought, as the petitioner mentioned the same in handwriting rather than typing in the legal notice. It was the plea
3 of the tenant that he took petition scheduled property on rent in the year 1999 and had paid an advance of Rs. 15,000/- and 85,000/- to the landlord on 30.07.1999 and 01.08.2001 respectivelytowards advance. It was pleaded that the respondent/tenant had issued reply notice on 26.06.2008 and also paid rent for the month of June, 2008 by way of pay order, but said notice was returned for the 5. reasons known to the petitioner/landlord. It was further pleaded that again the respondent sent the rent for the months of June, 2008 and July, 2008 on 05.08.2008 along with a notice and also asked the petitioner/landlord to inform his bank account to deposit the rent regularly. The pay orders of the rent of the months of June, 2008 and July, 2008 were received and acknowledged by the petitioner, but he did not choose to issue rent receipt or inform his bank account as requested by the respondent/tenant. The respondent has also sent the rent for the month of August, 2008 by way of account payee cheque drawn in the name of the petitioner along with a notice. The said notice was acknowledged by the petitioner and encashed the pay order, but failed to issue rent receipt. It is the contention of the respondent that he had taken all steps to pay the rent to the
4 petitioner/landlord and the alleged ground of willful default is not there on the part of the petitioner. 6. In the course of enquiry, the landlord examined himself as P.W.1 and another person as P.W.2 and Exs.A.1 to A.4 were marked. The respondent himself was examined as R.W.1 and another person by name Goli Subha Mukerjee was examined as R.W.2. The respondent got marked Exs.B.1 to B.42 to establish the payment of rents to the landlord. The Rent Controller framed a solitary issue for consideration and did not frame issues specifically with regard to willful default of payment of rents by the respondent. 7. On the aspect of willful default, the Courts below taking into consideration the Ex.B.4 to B.7 and Ex.B.16 to Ex.B.42 held that willful default is not established. This issue was discussed in detail by the Courts below and this Court does not find any glaring error into the said aspect. 8. As regards bona fide requirement, this issue was considered by the Rent Controller at Paras 27, 28 and 29 of the order and was of the opinion that as the petitioner is not doing any practice as Doctor in Guntur Town, though the respondent tenant admitted to the fact that petitioner used to stay for 10 days
5 in a month in the third floor of the premises. The reason for disbelieving is that the petitioner did not produce a certificate to show continuance of practice as Doctor and that in the legal notice sent, the personal requirement was written by hand and not in typewriting and as such, the same is an afterthought and not bona fide. 9. The further reason given by the Courts below is that the scheduled premises consist of ground floor, first floor and second floor. The ground floor has six shops and since the petitioner requires for personal requirement, he should have filed the same against all the tenants in the six shops but filed only two petitions i.e against respondent and another, but no petition was filed against other tenants. The plea of eviction on the ground of acts of waste was also negatived. On the above reasoning, the Rent Controller dismissed the R.C.C.No.13 of 2008 on 26.07.2010. 10. Aggrieved by the said order, the petitioner filed R.C.A.11 of 2011 before the Rent Control Appellate Authority- Principal Senior Civil Judge, Guntur. In the Appeal, the Rent Control Appellate Authority had formulated three issues for consideration, which read as under:-
6 1) Whether the Respondent committed default in payment of monthly rent? 2) Whether the Petition Schedule Property is required for personal occupation of the Appellant/Petitioner? 3) Whether there are reasons to interfere with the orders passed by the learned Rent Controller-cum-Principal Junior Civil Judge, Guntur in RCC.No.13/2008 Dt.26.07.2010? 11. The Rent Control Appellate Authority had considered issues 1 and 2 jointly and held both the issues against the petitioner. Issue No.3 as a consequence was also held in favour of the respondent and the order of R.C.A was dismissed. Hence the Revision Petition is filed. 12. Heard Sri G.V.S.Mehar Kumar, learned counsel for the petitioner and Sri Srinivasa Rao Kurapati, learned counsel for the respondent. 13. In the light of the arguments of the respective counsel, the following issues fall for consideration in this revision. a. Whether the findings of the courts below on the aspect of willful default and acts of waste can be sustained.? b. Whether the reasoning of the courts below with regard to the bona fide requirement of the landlord is sustainable.?
7 Apart from the above mentioned conventional issues, the 14. Section IOC as introduced vide Amending Act, 17 of 2005 was not considered by the Courts below. Therefore, an additional issue that falls for consideration is;- c) Whether the orders of the Courts below without referring to amended Section IOC of the Act can be sustained? Issue No.(a): This issue is regarding the finding on the 15. aspect of willful default and acts of waste. The rent controller considered this aspect at length and after referring to Ex.B.4- Ex.B.7 and Ex.B.16 to Ex.B.42 i.e rent receipts, courier receipts office of letters and bank statement of respondent came to a conclusion that there is no willful default. Similarly, on the aspect of acts of waste, the rent controller was of the opinion that there is absolutely no proof of acts of waste, except the self-serving statement of the petitioner and merely because smoke is emanating from the premises, the same cannot be termed to be acts of waste. These findings were affirmed by the appellate Court. Considering the scope of revision under Section 22 of the Act, this Court is of the opinion that as these issues were decided on evidence on record after discussing them at length, they do
8 not warrant interference. Therefore, this issue is held in favour of the respondent. 16. Issue No.(c): The issue No.(b) is in a way dependent on this issue. Therefore, this issue is being considered first. The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 was amended vide Act No. 17 of 2005. As per the amendment. Sections 10A, 10B and IOC were introduced among other provisions. The provision that is relevant for the purpose of this case is Section 10-C and the same reads as under:- “10C. Right to recover immediate possession of premises to accrue to a widow: (1) Where the landlord is: (a) a widow and the premises let out by her, or by her husband; (b)a handicapped person and the premises let out by him; (c) a person who is of the age of sixty-five years or more and the premises let out by him; or her; is required for use by him or her or for his or her family or for any one ordinarily living with him or her as the case may be for use he or she may apply to the Court for recovery of Immediate possession of such premises. (2) Where the landlord referred to In sub-section (1) has let out more than one premises, it shall be open to him to make an application under that sub-section in respect of any one residential and one non-residential premises each chosen by him. Explanation I: For the purpose of this section, "handicapped person" shall mean a person who is as if being an assessee entitled for the time being to the benefits of deduction under Section 80-U of the Income-tax Act, 1961 (Central Act 48 of 1961).
'> 9 Explanation II: The right to recover possession under this section shall be exercisable only once in respect of each for residential and for non-residential use.]” As per the above provision i.e. Section 10 C(1)(c) , a 17. person aged 65 years or more seeks for recovery of possession for self or for members of his family, a right is provided for immediate possession. The Section 10 C(2) also makes it clear that, it is the prerogative of the landlord to decide as to which of the premises is required and the suitability/choice of the landlord is not open to be questioned by the tenant. 18. In this case, the petitioner was admittedly a retired Government employee and aged 62 years as on the date of institution of the R.C.C. By passage of time, this Court can safely presume that the petitioner would now be aged nearly 80 years. Though Section 10-C enables the senior citizen landlord to apply for immediate possession, this Court is of the opinion that no separate application is required to be filed and very filing of a Rent Control Case for eviction on bona fide requirement and attaining the age of 65 years, obligates the Rent Controller to take steps for immediate possession of the schedule premises. The Rent Controller is bound to take steps as per statutory mandate.
10 19. In this case, the above provision was not noted by the Courts below. Therefore, the orders of the Courts below passed in ignorance of Section IOC are required to be interfered with. The point is answered in favor of the landlord/petitioner. 20. Issue No.(b): It is well known that as regards the suitability of premises, it should be left to the best judgment of the landlord and it is not for the tenant to keep dictating terms to the landlord as to which of the shops is suitable or not suitable. The Courts below went on to discuss at great length as to what the landlord ought to have done to establish a bona fide requirement. The reasoning from lack of sufficiency of space for clinic in scheduled premises, not taking steps for eviction against other 6 tenants in the ground floor to establish bona tides appear to be perverse it is not for the Rent Controller to determine the suitability for the landlord. as 21. The fact that in the legal notice, the petitioner mentioned personal requirement in his handwriting and not in typing was held to be an act of afterthought by the Rent Controller. Such a reasoning is beyond perversity. It is perplexing as to how the mentioning of personal requirement in a typed notice for eviction in handwriting is considered to be an afterthought.
11 22. It is not the case of the tenant that there are any mala tides on the part of the petitioner in seeking eviction. The requirement of premises on the ground floor due advancing age of the petitioner and to make it easy for visiting elderly patients, makes the requirement all the more plausible. It is not the case of the respondent that the premises has any lift facility and to expect senior citizens to go all the way to the third floor for treatment would not be realistic. 23. In Sarla Ahuja v. United India Insurance Company^ the Hon’ble Supreme Court while considering the provisions of the Delhi Rent Control Act, held at paragraph 14 as under; “ When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona ifde. When other conditions of the clause are satisifed and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona ifdes of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself." 1 (1998) 8 see 119
12 24. This freedom to choose for the landlord tenanted premises from any of his was incorporated into statute also. The Section 10C(2) of the Act, introduced vide Amendment Act 17 of 2005 as extracted above also provides discretion to that effect. to the landlord 25. The bona fides of the landlord which are required to be established in eviction under Section 10(3) of the Act fide requirement is not required to be , such bona established in eviction under Section IOC. The language employed under Section is distinctly different from the language used or 10(3)(c) of the Act. This Hon’ble Court 10C Section 10(3)(a) in speaking through Justice Vilas Afzulpurkar in S.Lachman Singh Vs S.Satnam Singh^ considered this provision and interpreted the same at Paragraph 23 as under; “Para 23. Insofar as the second question is concerned, Section 10-C of the Act already extracted above shows that what all is necessary for a landlord to seek eviction under the aforesaid provision is to specify that he falls in either of the categories "a" "b" or "c" and that he requires the premises for his or his family's use. It could be immediately noticed that on the aforesaid amended provisions, right to recover 'immediate' possession is conferred on special category of requirement for use' cannot be equated to the language used in the provisions of Section 10(3)(a) or 10(3)(c) of the Act as a bona fide personal landlords. Further, the wording used 'being the ^ 2012 (2) ALD (NOC 14)
1 13 requirement. The 'requirement' contemplated under the amended provisions, therefore, needs to be shown by the landlord as reasonable and not extenuated by mala tides. The group of persons entitled to such immediate possession, therefore, are special category persons and, as such, when they satisfy the requirements falling in one of the categories and as to reasonableness of the requirement hardly any defence is available to the tenant except saying that they do not fall in one of the categories under Section 10(C)(c) of the Act. Thus, the special right created in a specified category of landlords for immediate possession keeping in view the objects and reasons behind introduction of such amendment, clearly points out that the defences of the tenant, on the other hand, in such cases, are in a very narrow compass and, in order to give effect to the intention of the Legislature to confer immediate possession, unlike the provisions under Section 10(3) (a) or 10(3)(c) of the Act, relief to such special category landlords is required to be given expeditiously. The interpretation as suggested by the learned Counsel for the tenant would clearly defeat the purpose of the said provision which is intended to confer a right on specified categories of landlords to recover 'immediate' possession of the premises from the tenant. Further, the said right coupled with Explanation-2 providing for one time availability of such right reinforces that the words "required for use" employed in this provision cannot be equated to the words "bona fide required for use", in contradiction to the other provisions of Section 10 of the Act. If really, the requirement was to be on par with bona fide requirement as contemplated under the other general provisions of Section 10 of the Act, it was not necessary to provide a ceiling under Explanation-2 as one-time measure. The Legislature, therefore, was conscious of providing a special right to the specified category of landlords and It is for that purpose the amendment was to advance the housing policies with regard to the specified group of persons." ) 26. Therefore, the findings of the Courts below on this aspect cannot be sustained. The Point No.(b) is held in favor of the landlord/petitioner.
14 27. In view of the findings on issue (b) and (c), the orders of the Courts below are set aside and the tenant is liable for eviction. Result: The Civil Revision Petition is therefore allowed by setting aside the Order in R.C.C.No.13 of 2008 dated 26.7.2010 passed by the Rent Controller-Cum-Principal Junior Civil Judge, Guntur and confirmed in R.C.A.No.11 of 2011 dated 31.05.2016 passed by Rent Control Appellate Authority-Cum-Principal Senior civil Judge, Guntur. The tenant is granted six (6) months time from today to vacate the scheduled premises subject to payment of admitted rent. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed. 28. SD/- P VINOD KUMAR ASSISTANT REGISTRAR I //TRUE COPY// /^SECTION OFFICER To, 1. The Rent Control Appellate Authority-Cum- Principal Senior Civii Judge, Guntur 2. The Rent Controller-Cum-Principal Junior Civil Judge, Guntur 3. One CC to Sri G V S Mehar Kumar, Advocate [OPUC] 4. One CC to Sri Srinivasa Rao Kurapati, Advocate [OPUC] 5. Three CD Copies YM TF
HIGH COURT DATED:07/11/2024 ORDER OF CRP.No.536 of 2017 OX'i 5 0 ^ DEC 2C2'» m Co, ^ Current Section ^ pat c THE CIVIL REVISION PETITION IS ALLOWED, WITHOUT COSTS