Dr. K. Gururaj vs The State of Tamil Nadu and Another

Sathiadev, J.—The Petitioner owned premises bearing door No. 16-A, Venkatachala Naieken Street, Triplicane, Madras-5. He got it under the registered deed of settlement dated 23rd October, 1976 executed by his mother in his favour At the time of filing of the petition, one Varadarajan, was occupying the ground floor except the front room Up-stairs portion was under Government tenancy on a monthly rent of Rs. 80. The front room in downstairs-measuring 14'' X 10'' was used by the Petitioner on his clinic. He was also having a clinic at No. 59, Singarachari Street, Triplicane in a rented premises. As he had to vacate the clinic, because of the demand made by the landlord, he required a large area for his clinic, and now that he had to vacate a portions on 6th December, 1978, he is in immediate need of the additional accommodation for the purpose of running his clinic as well as his laboratory for clinical and radio--logical purpose and also to shift his residence to his own house. He had filed House Rent Case No. 660 of 1977 against Varadarajan, and the matter is pending, disposal. Its was at that juncture, on 17th May, 1977, he applied to the second Respondent for the release of the portion in the first floor of the building stating that it would take several years, to secure possession through Govt. from the private tenant, and as he has no other house of his own in the City of Madras, he requires the entire premises both for his residential purpose as well as for running his clinic. After a lapse of more than a year, the second Respondent rejected his petition by order, dated 30th May, 1978 by holding that the accommodation available in premises No. 170/1, Lloyds Road, where he is residing with his father and brothers, is quite adequate and that when he claims to have roaring Practice, the location of the clinic would indeed be of very little consequence, in that, he is already having a clinic in another place at Singarachari Street, and that, when he is already having also a clinic in the ground floor of the promises he may not have the intention of locating the clinic in the first floor, and the present arrangement enjoyed by him are quite satisfactory, and if any further accommodation is necessary, he can very well occupy the ground floor which will be sufficient for the purposes after evicting the private tenant. While rejecting the appeal preferred by the Petitioner, the impugned order, dated 8th November, 1978 was passed on the ground that the landlord is now residing as a joint family with his parents in premises No. 170/1, Lloyds Road, Royapettah Madras, and he is already having possession of a portion in the ground floor of the petition mentioned premises, and therefore no relief can be granted in a petition of this nature for additional accommodation, and that if he wants his own building, he can evict the private tenant in the ground floor, Aggrieved against the impugned orders, this writ petition is filed.

Mr. V.R. Biksheswaran, Counsel for the Petitioner contends that the Statutory Authorities have overlooked the requirements of the Petitioners, who has been already thrown out of the place in Singarachari Street, where he has been running a clinic. Along with the clinic, he was having his laboratory and this itself would show that he requires a larger area for conducting his clinic He, being the owner of the house, wanted to reside in the same building, so that for his professional purposes, it would be conducive not only to himself, but also to members of the public, who come to him for medical aid. The approach made by the Authorities as, if the petition is for additional accommodation is not correct, when he had asked for the entire premises for residential and also for his non-residential purposes. He would also emphasis on the fact that the house in Lloyds Road, admittedly belongs to his father in which a large family is living, and the Petitioner requires his own premises for his residence, so that he may live with his wife and daughter and son separately, which is one of the essential factors, which should have been taken note of instead of stating that the Petitioner''s family consists of not only his wife and children, but also his parents, two brothers sister and brother''s wife, when the authorities themselves clearly held that the house belongs to his father, in which event, it can be only a family headed by his father of which the Petitioner is one among them. The Act itself having now provided for eviction of tenant for requirements of sons and daughters, to deny relief to Petitioner, who has no house of his own is unjustified.

The Government Pleader would state that the impugned order is correct, in that, the petition was couched asking for additional accommodation and when the Petitioner is presently living as a member of a joint family, he is occupying a premises of his own u/s 3-A of the Act, because in every sense, he is only a co-owner and further-more, during the pendency of the writ petition, the private tenant having been evicted which was anticipated to happen, the requirements of the Petitioner having been fully satisfied, there is no illegality in the impugned order.

It is not in dispute that the Petitioner was having clinics in two places, one in Singarachari street and the other in the front portion of the ground floor of the petition premises. Petitioner claims that he has built up considerable practice over the years and he requires a larger area for locating his clinic. It is not also disputable that he had to vacate the rented premises in or about December 1978. If a person was practicing in two places and compelled to vacate one of the premises, it stands to reason to hold that he required a larger area and that his practice was flourishing.

As for the house in Lloyds Road, here again it is admitted that it belongs to Petitioner''s father. Apart from the Petitioner and his family there are several other members of the family, who live in the said house. It is not for the authorities to state as to how far the present arrangement is adequate on suitable for the Petitioner. The first Respondent holds that the Petitioner is residing as a joint family with his parents in Lloyds Road and his family consists of himself, wife, daughter, sons, father, mother, two brothers, sister and brother''s wife. It is not known as to how it held that, when the father is alive, it is the Petitioners who is the landlord of the said premises, and further as if, he is the Manager of the joint family. The impugned order firmly states that the house belongs to Petitioner''s father. Hence it is not a joint family property. If it is a joint family, his father alone is the Manager of the joint family, of which the Petitioner would be one among them. There can be a joint family living in a property belonging exclusively to one of its, members. When such is the legal incident, which is well-known to the first Respondent merely, for the purpose of rejecting the petition, it cannot hold that the Petitioners family consists of his parents and other relations. A property belonging to joint family is different from to families living jointly even accordingly to the Respondents, the premises in which the landlord at present living is owned by his father. When there is nothing to show that the property in Lloyds Road, does not belong to the Petitioner and when what has been made out is that several members of a joint family are living together, it would not be correct to hold that the Petitioner is occupying a premises of his own as contemplated u/s 3-A of the Act. It is this error committed by both the Respondents, that has strengthened the Counsel for the Petitioner to contend that there has been a deliberate avoidance to apply a principle of law which is well-known to the Respondents and of which they cannot plead ignorance. Under these circumstances, what is required to find out is, whether within the scope of Section 3-A of the Act, it can be held that the Petitioner is occupying a house of his own, in the City. The simple answer is that the petition premises is the only building he owns, and at present he is living as a member of a joint family in a house belonging to his father, and in which he cannot claim a right to live to the exclusion of other members of the family. Undoubtedly he has the right to live along with the members of the family.

When the intention behind the Act is to enable the owner of a house to occupy his own house, in respect of those cases where joint families are involved, as and when a member of the joint family decides to leave the joint family fold and occupy a house of his own, it has to treated as a bona fide requirement, and it is not for the Authorities to state as to how far the present arrangement is satisfactory or convenient for the landlord. The sufficiency of accommodation is for the landlord to determine. If it be made out that the request is made for oblique purposes, then it may be a ground for refusing it.

On the other aspect as to whether the Petitioner has asked for additional accommodation or for the entire building, he has stated that because of the imminent requirement due to his landlord evicting him from the clinic, he intends to occupy the entire first floor for the purposes of the clinic but at the same time, he had also stated that his intention is to have the clinic and laboratory in down-stairs and reside in the up-stair portion. Therefore it was not a petition filed only for additional accommodation, but what he has sought for is for the release of the up-stairs portion, which he can use for his residential purposes, and after the private tenant is evicted from the ground floor, the satire area would be used for his clinic and in the meanwhile occupy upstairs portion as a transitional arrangement.

It is stated that the private tenant has been evicted and the entire ground floor has been occupied by the Petitioner, and he is in immediate need of the up-stairs portion for residing with his wife and, children. It is entirely for a member of a joint family to decide to live away from the joint family, and it is not for the Authority to state that he can continue to live in the same manner in which he is presently living. In these days when the joint family concept is disappearing and professionals requiring larger area for their non-residential purposes, it has to be held that in the present matter, the Petitioner has established that the premises is bona fide required for his own occupation.

Therefore when impugned order had taken into account irrelevant factors and erroneously held that a joint family member cannot seek for occupation of 4 of his own this petition has to be, allowed.

In Writ Petition No. 3863 of 1978, the Manage, of a joint family himself came forward to claim that he wants to live separately with his wife and children in a building, which absolutely belongs to him and this Court held that such a person would be entitled to ask for release of the buildings which belongs to him absolutely because the premises in which he is living jointly with other members of the family, cannot be treated as one in which he is entitled to occupy the entire premises to the exclusion of other members of the family. In the present case, the building in which joint family is living, belongs only to the father, and it is not the case of the Respondents that it is a joint family property. All the more, it is a fit case where it has to be held that the Petitioner is not in occupation of a building of his own in the city of Madras, and the petition premises being the only one which belongs to him, he is entitled to the relief as prayed for. Hence rule nisi is made absolute. No costs.