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Judgment
Ramanujam, J.—This appeal is directed against the order of Mohan, J., in W.P. 983 of 1978 dismissing the same. The appellant herein is
the owner of premises No. 48, Sami Pandaram St. Chintadripet, Madras. The portions of the said premises are occupied by the tenants. There
was a tenant by name Mohan Naidu occupying the ground floor, right side, front portion of the said building. The appellant claims to have
approached the said tenant and somehow persuaded him to vacate the said portion of the premises so as to enable him to occupy the same. The
said tenant is said to have obliged the appellant by vacating the said portion After the tenant vacated that portion the appellant gave a notice of
vacancy to the Accommodation Controller and at the same time applied for the release of the said portion of the premises for his own use and
occupation. The Accommodation Controller after enquiry rejected the request of the appellant for the release of the said portion on the ground that
the appellant was residing comfortably along with his brother at No. 23, Rajagopal Naicken Street, Chintadripet, Madras, and that he is not under
threat of eviction. One other ground on the basis of which the request for release of the portion of the building was rejected was that there are ten
other private tenants in the same premises and if the appellant was actually in need of accommodation he could evict anyone of the other private
tenants and occupy the same. The said rejection of the appellant''s request for release of the said portion of the building by the Accommodating
Controller was challenged in an appeal filed before the Government. However, the Government relying on the same reasoning as has been
mentioned by the Accommodation Controller in his order dismissed the appeal. According to the Government, the appellate authority, the
appellant has been living with his brother for the last 40 years, that the Accommodation available for him in his brother''s house is quite sufficient,
that he is comfortably living there and that it is unlikely that the appellant will surrender more spacious accommodation available in his brother''s
house and reside in the portion in question which has got leased accommodation. As against the order of the Government, the appellant filed W.P.
3922 of 1976. The said writ petition was allowed and the matter was remitted to the Government for considering the matter afresh in the light of
the decision rendered by this Court in Dr. K. Ramanujam Vs. The Accommodation Controller and Another, and in Mullaikodiammal Vs. The
Government of Tamil Nadu and Another, . Then the matter went before the Government and the Government has again rejected the appellant''s
request for release by dismissing his appeal in G.O. Rt. No. 906 dated 7th March, 1978. The said order of the Government was again challenged
by the appellant in W.P. 983 of 1978. This time, however, the learned single Judge dismissed the (sic) Writ Petition holding that the Government
has held that the appellant''s request for release is not bona fide and that so long as that finding stands, the order of the Government cannot be set
aside. As against the said order of the learned single Judge the present appeal has been filed.
From the facts stated above it is clear that the question to be considered is whether the appellant has made out a case for release of the portion
of the premises in question. As already stated the Government relied on two circumstances for rejecting the request of the appellant for release of
the portion. In the original order the Government have said that the appellant has been residing along with his brother comfortably for 40 years at
No. 23, Rajagopala Naicken St. Chintadripet, Madras, that it is not likely the appellant will occupy the portion in question after vacating the larger
accommodation available to him in his brother''s house and that if the appellant really wants to occupy a portion in his own house he could evict the
other private tenants in the same building. After the remit order the Government has referred to the three circumstances for denying the relief to the
appellant; (1) that the appellant since used to occupy the premises; (2) that the appellant''s terms with his brother are cordial and therefore there is
no necessity for him to move out of the premises at No. 23, Rajagopala Naicken St., Madras, and (3) that there is no addition to his family
necessitating the additional accommodation. It is significant to note that though the order passed in W.P. 3922 of 1976 directed the Government to
dispose of the appeal in the light of the observations made in the judgment rendered by this court in Dr. K. Ramanujam Vs. The Accommodation
Controller and Another, and in Mullaikodiammal Vs. The Government of Tamil Nadu and Another, the Government has not chosen to refer to any
one of the said judgments and the principles laid down therein. Even otherwise, the reasons given by the Government in the impugned order cannot
justify their refusal to release the said portion of the building in favour of the appellant. Admittedly the appellant is not residing in his own house but
is living along with his brother in a house owned by his brother. The fact that the appellant has been residing in his brother''s house along with his
brother for the last 40 years does not mean that he must continue to live there against his will till the end of his life. Though the relationship between
the brothers are alleged to be cordial there is nothing wrong for the appellant deciding to reside in his own house. The fact that the accommodation
available to the appellant in his brother''s house is larger than the accommodation available in the portion now in dispute will not make the request
of the appellant for the release of the portion of the building a mala fide one. The fact that the appellant since was occupy in a the premises for
some time when the appellant''s application for release was pending consideration will not also in any way indicate that the appellant''s request of
release of the portion of the building is not bona fide. According to the appellant his niece was put in the premises as a care-taker since the portion
was vacant after the previous tenant vacated. Therefore, while the application for release was pending disposal the appellant''s niece was
occupying the premises for some time will not make the appellant''s request as not a bona fide one. The fact that the appellant''s terms with his
brother are cordial will not also stand in the way of the appellant seeking the release of the portion of his own building for his accommodation. As a
matter of fact the appellant''s case is that actually the terms between him and his brother are not cordial and therefore he is constrained to seek
release of the portion of his own building for occupation. Another ground set down by the Government in its order is that there had been no
addition to the family necessitating additional accommodation. This ground is not sustainable as it is not a request for additional accommodation. In
this case, the appellant is not residing in, his own house but is residing with his brother in his brother''s house and when a portion of his own building
fell vacant he naturally wanted to occupy the said portion. We do not see how the request for release, can be taken to be otherwise than bona fide
One of the reasons given both by the Rent Controller as well as by the Government in its original order is that if the appellant is really in need of
accommodation he should have applied for eviction of the other private tenants in the premises. We are at a loss to find any substance in this
ground. When actually there is a portion vacant the appellant naturally seeks to get release of that portion of the building for his own
accommodation, especially when the portion vacated is the front portion in the ground floor. When a portion has already been vacated by a tenant
and the appellant seeks for the release of that portion for his occupation, he cannot be asked to give up that portion and take eviction proceedings
against other tenants. The appellant''s conduct in seeking the release of the portion which has fallen vacant has to be taken as quite bona fide.
When actually a portion in the premises has fallen vacant the statute enables him to seek release of that portion for his own bona fide occupation.
In those circumstances appellant need not give up the vacant portion and take a chance of getting an eviction order against other private tenants. It
is not the case of the respondents that the appellant has got any oblique motive in seeking the release of the portion. Bona fide is a subjective
element and the word ''bona fide'' implies that it is more under the force of his personal circumstances than under the impulse of a desire that the
landlord needs the premises. In Dr. K. Ramanujam Vs. The Accommodation Controller and Another, which was rendered by one of us it has
been observed that it is for the landlord to decide as to what accommodation of that house he would have for purpose of his residence or for the
residence of the members of his family and that he or the members of his family cannot be forced to live in a portion of the premises against their
will. In this case, the view taken by the Government is that the appellant could have asked for eviction of the other private tenants in the same
building for his own occupation, ignoring the fact that if the appellant files an eviction petition against one of the tenants, that tenant will by the same
reasoning be entitled to say that the landlord can file eviction petition against other tenants but not against him. It is for the landlord to decide as to
which portion he wants to occupy in the premises in question. Thus the view taken by the Government in the impugned order cannot be sustained.
The appeal is therefore allowed and the impugned order of Government is set aside and the Government is directed to release the building in
question. There will be no order as to costs.