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Judgment
The landlord filed the Civil Revision Petition assailing the judgment of the learned Additional Chief Judge, City Small Causes Court, Hyderabad in RA No.29 of 1988, dated 24-4-1990, wherein the Order of eviction in RC No. 184 of 1981 on the file of Principal Rent Controller, Hyderabad, dated 16-11-1987 has been reversed and consequently his eviction petition has been dismissed.
The facts in brief are:
That the building known as Asthana buildings bearing Door Nos.5-8-268 to 271 originally belonged to one Suit. Shaher Banu. She sold the same under a registered sale-deed on 7-1-1969 to M/s. Haji Suleman Khan and Mahaboob Khan, Tobacco Exporters of Guntur, a registered firm of which one Athaur Rahman Khan was a partner. The firm was dissolved on 1-1-1980 and the above property fell to the share of Athaur Rahman Khan. He entered into partnership with M.D.K. Hotels Private Limited, Hyderabad under a partnership deed dated 26-8-1980, according to which he contributed the said Asthana buildings towards his capital investment. The revision petitioner herein is thus claiming ownership of the above building. The above landlord decided to construct a star Hotel in the premises of Asthana buildings and necessary permissions and licences were obtained from the authorities concerned. The respondent has been in occupation of the premises bearing No.5-8-270 and 271 as a tenant on a monthly rent of Rs.220/- under Shaher Banu. She attorned the tenancy to the vendee M/s. Haji Suleman Khan and Mahaboob Khan with effect from 7-1-1969 and consequent upon the dissolution of the firm and its allotment to Athaur Rahman, the tenant was attorned to him with effect from 1-1-1980. The landlord averred in the eviction petition that it requires the above premises for the immediate purpose of demolishing the same to construct a Two Star Hotel, that the tenant promised to vacate the premises, but, he failed to do so and hence the eviction petition is filed.
The tenant resisted the petition on several grounds. One ground is that the premises is used by a firm M/s. Gurumukh Das Brothers, but the petition is filed against the individual by name Gurumukh Das and hence it is not maintainable.
Next ground is that no title deeds are filed to show that the title and interest vested in revision petitioner. Denying that the petitioner requires the suit building for a bona fide purpose of setting up a Two Star Hotel, the tenant contended that the landlord has been in occupation of vast open area of Asthana building bearing No.5-8-268, that he has demolished that building in order to construct a Two Star Hotel and it is sufficient for his purpose. It is further asserted that the demised building is an independent building and that Asthana building bearing No.5-8-268 was a separate palatial building and so the provisions of Sections 10(3)(iii)(b) and 12(1)(b) of the Act have no application. It is finally averred that the tenant has been carrying on business in the suit premises for the last three decades with sufficient good will and popularity to attract the customers and it is his only source of income and there are no valid grounds to evict him.
During the enquiry, the landlord examined three witnesses on his" behalf. Athaur Rahman who stepped into the shoes of the original owner Shaker Banu and who contributed entire Asthana buildings as his capital investment examined himself as PW1. The Executive Director of the petitioner firm who is acquainted with day to day functioning is examined as PW2 and one Balaram is examined as PW3. The tenant examined himself as RW1 and a third party by name Guharmal as RW2. Exs.Pl to P18 arc marked for the landlord.
The learned Principal Rent Controller, Hyderabad, scrutinised the above evidence and held that the landlord has established the requirement of the premises as bona fide and accordingly he allowed the eviction petition. Aggrieved by that order, the tenant filed RA No.29 of 1988 in the Court of Chief Judge, City Small Causes Court, Hyderabad, where the learned Additional Chief Judge, City Small Causes Court, Hyderabad, on a reappraisal of the evidence reversed the eviction order byjudgment dated 7-7-1989. Thereupon the landlord filed CRP No.3162 of 1989 in this Court. Byjudgment dated 14-12-1989, this Court allowed the Civil Revision Petition and set aside the judgment of the Additional Chief Judge, dated 7-7-1989 and remanded the matter to the Appellate Court for fresh disposal. On remand, the learned Additional Chief Judge, City Small Causes Court, Hyderabad, heard both the sides and by the impugned judgment, reversed the eviction order passed by the Principal Rent Controller dated 16-11-1987. Hence, the landlord is again in this Court assailing the judgment of the learned Additional Chief Judge, City Small Causes Court, Hyderabad, and seeking eviction on the ground of bona fide requirement for personal use.
The learned Counsel for the Revision petitioner Sri Challa Poornaiah, assailed the approach of the lower Court in treating the demised premises as an independent building simply because it has a separate Municipal Number vis-a-vis main Asthana buildings and he argued that the demised premises and the main building are in one and the same compound and they have to be treated as one unit and he cited Shiv Narain Chaudhari v. Commissioner of Wealth Tax, Lucknow, 1977 ITR 104, in support of his contention. He then contended that a huge Two Star Hotel has come up in the place of old Asthana buildings and it badly requires sufficient parking space and hence there is imminent need for the demised premises so that it may also be demolished as originally proposed and it may be added to the present parking area. Sri Ch Poornaiah, highlighted the bona fide requirement in the above manner and reverted back to his earlier contention that the demised premises is part and parcel of Asthana buildings and that there is no other non-residential premises in occupation of the landlord and hence neither Full Bench decision in Vidya Bai and Another Vs. Shankerlal and Another, , nor D. Devaji v. Sudershan Rao, 1994 (1) APLJ 5 (SC), is a bar for seeking eviction of the tenant and distinguished Gangaram Vs. N. Shankar Reddy, . Finally Sri Ch. Poornaiah, learned Counsel pointed out that another shop in the same premises was offered to the tenant, but, he rejected the offer in an unreasonable manner.
On the other hand, Sri M.P. Ugle, learned Counsel for the respondent-tenant mainly contended that the area covered by Asthana buildings is as large as 5500 Sq.yards and the demised premises is a small shop of 40 x 20 and it is in a corner and it is separated by sufficient space from the main building where a Two Star Hotel has already been constructed after demolishing the old building and the Hotel business is in full swing with several shops in the ground floor and also sufficient parking area for scooters as well as cars. He strenuously argued that the lower Court has recorded valid reasons for its finding that the demised premises is an independent building and since the main building where a two star hotel is running is already in occupation of the landlord, the ratio in Vidya Bai ''s case (supra) and Devaji''s case (supra) have been rightly applied. In this context, he pointed out that there is no plea that the demised premises is required for car parking nor is it shown as car parking in Ex.P10, copy of the approved plan of the Hotel and it is not even pleaded that the existing space is not sufficient for parking. As regards the offer of another shop, Sri M.P. Ugle, learned Counsel, stated on instructions from the tenant that he was offered a smaller shop in the rear side of the hotel whereas the demised premises is on the main road and that there was a reasonable apprehension in the mind of tenant that he would loose his business if he shifts to rear side and hence the offer was rejected. He argued that the totality of circumstances are in favour of the tenant and hence there is no need to interfere with the well reasoned Order of the lower Court. Incidentally he pointed out that all xerox copies of the documents have been marked inspite of objection being raised on behalf of the tenant, but the said objection has not been answered by both the Court below.
I have applied my earnest consideration to all the above contentions and perused the evidence of PWs.1 to 3 and RWs.1 and 2 and also Exs.P1 to P18. The old building known as Asthana building except the demised shop has been demolished by the revision petitioner and a new multi-storied hotel complex has come up in its place. Some shops have been constructed and one of the tenants who was in occupation of a shop in the old building has been provided with a shop in the new building. The tenant has been offered a new shop during the pendency of this CRP and opportunity was given to the parties to hold negotiations. Some time later it was reported that the shop offered to the tenant is too small and it is on the rear side of the hotel, whereas the demised premises is facing the road and hence the offer was not accepted. The matter ended there.
The question is whether the hotel complex and the demised premises constitute one unit.
It is on record that the entire premises is 5500 Sq.yards in area while the demised shop is of 40. x 20 measurements, which works out to 88.8 Sq.yards. It is not in dispute that there are separate municipal numbers to the main building and the demised shop. Sri C. Poornaiah, learned senior Counsel contends that merely because separate municipal numbers are assigned, they need not be treated as separate units. It is true that merely because separate municipal numbers are assigned to these two buildings, they need not be held to be separate units. A test is provided for this purpose in Gangaram Vs. N. Shankar Reddy, .
In the judgment cited supra (Gangaram v. N. Shankar Reddy), it is held-
"A landlord cannot invoke Section 10(3)(c) of the Act to seek the eviction of a tenant who is not occupying a portion of the building occupied by the landlord himself but is occupying another adjoining building belonging lo the landlord. What Section 10(3)(c) envisages is the oneness of the building and not the oneness of ownership of two different buildings, one occupied by the landlord and the other by the tenant. The significant words used in Section 10(3)(c) are "the landlord who is occupying only a part of building" and "any tenant occupying the whole or any portion of the remaining part of the building. Surely no one can say that two adjoining buildings bearing different door numbers, one occupied by the landlord and the other by the tenant would make them one and the same building if they are owned by one person and separate buildings iF they are owned by two different persons. A practical test which can be applied to find out if two adjoining buildings form part of the same building or two different buildings would be to see whether one of the two buildings can be sold by the landlord and the purchaser inducted into possession of the premises sold without the landlord''s possession and enjoyment of the premises in his oecupation being affected".
The practical test envisaged by the Supreme Court in the above case may be applied to this case. It is not in dispute that there is a vast open space between these two buildings and the entire open space is appurtenant to the main building where hotel complex is constructed. It has two gates which open to the main road. The demised shop measuring 40 x 20 is at the north-west comer facing main road. The evidence does not disclose whether.there is any doorway which opens into the hotel premises. Evidently there is no such doorway and the only door appears to be towards the main road. From the point of view of enjoyment, the shop has been under separate enjoyment of the tenant while the hotel complex has been in possession and enjoyment of the landlord. If the sate test as indicated in Ganga Ram''s case (supra) is applied it is evident that any one of them can be sold and the purchaser can be inducted into possession without affecting the possession and enjoyment of the other. Thus, ! hold that the above ratio is applicable.
Sri Poornaiah placed strong reliance upon Shiv Narain Chaudhari v. C.I.T. 1977 ITR 104 and contended that Allahabad High Court considered this aspect in a pragmatic way and held that though different units bearing different municipal numbers were constructed in different years, they constitute one unit.
In the judgment cited supra (Shiv Narain), it is held-
"It is undisputed that both portions of the building bearing door Nos.92 and 92-A, Darbhanga Castle, are contiguous to each other and are within a common boundary and a common compound. Though there are four residential units wilhin that building, they are connected by a common passage and the building has unity of structure.
That one portion of the building bears one door number, while the other portion bears another door number and that these two portions are assessed separately by the Municipality, are no doubt relevant circumstances in considering whether these two portions constitute one house or two different houses, but these circumstances are not decisive. The Tribunal has, in our opinion, attached excessive importance to these two circumstances.
As these two portions of the building are contiguous and situate in the same compound and within common boundaries and have unity of structure there is no reason why they should not together be regarded as constituting one house."
That was a case of a Hindu Undivided Family being assessed for the wealth tax u/s 5 of the Wealth Tax Act, 1957. It is needless to point out that in the above case one building comprised of two portions which are contiguous and situate in the same compound and within the common boundaries and have unity of structure although they bear different door numbers. In the case on hand, the demised shop appears to be thrown apart so much so that it is in the north-west corner and it is separated by large open area from the hotel complex. Above all, there is no unity of structure. In the absence of these features, I am unable to apply the ratio in the above judgment. As regards the buildings carrying separate door numbers, it is held in the above case that it is a relevant circumstance though not decisive.
I am, thus, satisfied that these two buildings viz., the hotel complex on one hand and the demised shop on the other have to be treated as separate units. Evidently the landlord is in occupation of a large non-residential hotel complex and hence it is not open for him to seek eviction of tenant from another non-residential premises as held in Vidyavathi''s case and Devaji''s case (supra). This Court has been consistently holding that the bar in such cases is an absolute one as held in Bhagi Bai v. Swastik Roller Flour Mills, 1996 (4) ALD 95.
It is worthwhile to notice that the landlord is seeking eviction for demolition of the shop and to convert it into parking space. It is not as though there is no parking space for the hotel complex. It has come on record that there is parking space which is sufficient for about 20 cars and there is also separate parking space for scooters. Be it noted that it is not specifically averred in the petition that it is required for parking area. Even otherwise it is necessary to weigh the comparative inconvenience or loss that may be caused to the tenant in the event of the landlord''s plea being accepted. It is asserted by the tenant in his evidence that the shop is the only source of livelihood for him. Hence it would be too harsh to deprive him of his only source of livelihood for the sake of providing parking space for one or two cars. An argument is advanced on behalf of the landlord that there is no evidence regarding relative hardships and hence it cannot be a ground to be weighed against the landlord as held in Laxmi Bai v. Yeshoda Bai, 1997 (2) APLJ 69 (HC). I am unable to agree with the above contention for the reason that there is evidence of tenant on this aspect that expect the business in the suit premises, there is no other business for him. Such a ground is raised in para No.5 of the counter also. The intendment of the Legislature in passing the Act is to protect innocent tenants from the illegal acts of unscrupulous landlords. The hardships that may ensue will, therefore, outweigh the so called inconvenience of the landlord.
Viewing from any angle I am unable to find any merit in any of the contentions of the learned Counsel for the landlord and hence the revision petition is fit to be dismissed.
In the result, the revision petition is dismissed affirming the Judgment of the learned Additional Chief Judge, City Small Causes Court, Hyderabad in RA No.29 of 1988 dated 24-4-1990. There will be no order as to costs.