*HON’BLE SRI JUSTICE A.GOPAL REDDY +CRP Nos.1902 and 1903 of 2009 % Date: 25-9-2009 CRP No.1902 of 2009 Between: # 1. Mathukumilli Adinarayana and another … Revision Petitioners and $ Nidasanametla Venkata Kameswara Rao, … Respondent ! Counsel for appellants: Sri E. Manohar, Senior Counsel for Sri P.Kamalakar. ^ Counsel for respondent: Sri M.V. R. Narasimhacharya < GIST: >HEAD NOTE: ? Cases referred: 1.(2008) 5 SCC 176 2. (2007) 6 SCC 236 3. (2005) 2 SCC 271=AIR 2005 SC 648 4. (2004) 1 SCC 656 5. 2002(7) Supreme 574 6. AIR 1997 SC 533 7. 1995 Supp (3) SCC 81=1995(3) J.T (SC) 42 8. 2000(4) ALT 426 9. 2008(4) ALD 254 (FB) 10. 2009(2) ALT 15 11. 1998 (6) ALT 26 12. 1975-I An.W.R.133 13. 1971(1) An.W.R.321 14. 1983(1) ALT 107 (Notes on Recent Cases) 15. AIR 1975 AP 13=1974(2) An.W.R.189 16. 1995(3) ALT 726 17.(1994) 6 scc 731 18.1992 Supp.(2) SCC 651 19. (2004) 1 SCC 656 20. (2009) 7 SCC 658 21. (2005) 2 SCC 271 THE HONOURABLE SRI JUSTICE A.GOPAL REDDY C.R.P.Nos.1902 and 1903 of 2009 Common Order: These two revisions by the tenant are directed against the common order of the Rent Appellate Controller-cum-Principal Senior Civil Judge, Kakinada dt. 2-3-2009 passed in RCA Nos.9/2008 and 10/2008 whereby the appeal filed by the tenant against the order of eviction passed in RCC No.15/2007 and appeal filed against dismissal of RCC No.32/2007 were dismissed confirming the common order of the Rent Controller-cum-Principal Junior Civil Judge, Kakinada dt. 18-7-2008 passed in RCC Nos.15 and 32 of 2007. It is relevant to note here that 2nd petitioner is the Society represented by its Secretary and Correspondent, 1st petitioner. For the sake of convenience, the parties herein ie., revision petitioners will be referred to as “the tenant” and the respondent will be referred to as “the landlord”. The facts in nutshell, not in dispute, are as under: The landlord filed RCC No.15/2007 for eviction of the tenant under Secs. 10, 10-B (1) and 10-C (c) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, as amended by Act 17 of 2005 (for short “the Rent Control Act”) from the petition schedule property. It is not in dispute, the landlord is the owner of petition schedule premises in Plot No.A-36 admeasuring 1087 sq.yards in S.No.169, Block No.65, Old Ward No.29 (new Ward No.29) site within house bearing Door No.65-2-16 in Kakinada Municipal Corporation area, Kakinada Mandal. It was leased out in the year 1977 to the tenant on a monthly rent of Rs.2200/- per month. According to the landlord, the tenant took the building on lease for residential purpose but later started an elementary school without his permission. The landlord who was working in the State Government retired form service on attaining the age of superannuation on 31-10-1988 and got issued a notice on 4-8-2006 (Ex.A-2) informing the tenant that he requires the petition schedule premises for his personal occupation since he has no other building at Kakinada. The tenant, after taking the petition schedule premises, constructed a house of his own near the petition schedule property. The tenant altered the premises without his permission. The landlord granted permission only to construct bath rooms and toilet but the tenant taking advantage of it altered the structure of the building. The tenant’s claim of spending Rs.7,50,000/- for construction of the petition schedule premises is untenable. Hence, the landlord filed the above eviction petition seeking eviction as per the benefits conferred on a landlord under Section 10-A, 10-B and 10- C inserted by amended Rent Control Act No.17/2005. The second respondent-Society filed a counter, which was adopted by the first respondent stating that the tenant started an elementary school in the year 1971 and it was upgraded to High School in the year 1974. In the year 1975, the tenant (first respondent) constructed his own residential building and there is no need to take the petition schedule property in the year 1977 for residential purpose. The petition schedule property was taken on lease for a specific purpose of running the school and the main object of the Society is to impart education without any distinction of caste and creed. The tenant-society was registered under the provisions of Societies Registration Act in 1971. The first respondent in his individual capacity is nothing to do with the petition schedule premises. The tenant is running various schools like (1) Nehru Convent High School.; (2) Nehru Convent UP School, Ramaraopet and UP school in Ganjamvari Street; (3) M.S.N. English Medium School and (4) M.S.N. Junior Colleges at various places in Kakinada. The initial rent was Rs.200/- per month and it was gradually enhanced to Rs.2200/- per month and the tenant is running High School in the petition schedule premises and monthly rent was being paid without any default. The school was recognized by the Government of Andhra Pradesh and getting aid from the Government. The petition schedule premises was taken by the tenant in 1977 for running the school. The landlord executed an agreement of sale relating to the petition schedule property in favour of one Datla Subbaraju during subsistence of lease. The said Subbaraju filed OS No.288/1982 on the file of 2nd Additional Senior Civil Judge, Kakinada and the litigation was ended on 17-4- 2006 in SLP No.26049/2005. In the said litigation the tenant was also a party. Due to heavy rains in September, 2001, the old dilapidated building in the petition schedule property was collapsed. The tenant after taking permission from the landlord under letter dt. 18-9-2001 re- constructed the building by spending Rs.5 lakhs and also spent huge amount for structures in the petition schedule premises. Prior to collapse in September, 2001, the tenant spent Rs.2.5 lakhs from time to time for repairs with the knowledge, consent and permission of the landlord who agreed to reimburse the same. After ending litigation between the landlord and Datla Subba Raju, the present eviction petition was filed with false allegations to avoid his financial liability. To the quit notice issued on 4-8-2006 under Ex.A-2 a suitable reply was given by the tenant on 21-8-2006 under Ex.A-3. The landlord in August.2002 informed the tenant to credit the monthly rent in his Andhra Bank Account No.70762 in Ramaraopeta Branch, Kakinada. Since then, the tenant is crediting the amount into his account. Surprisingly, cheques sent relating to October and November, 2006 were returned by the Bank on 12-12-2006 stating that the landlord closed the account. The landlord closed the account without intimation to the tenant so as to evict the tenant on the ground of default. To avoid eviction, the tenant sent a letter dt. 13-12-2006 covered under Ex.B-6 along with returned cheques requesting the landlord to inform the name of any other Bank enabling the tenant to deposit the rent. Since there is no response, the tenant opened an account in Allahabad Bank being A/c. No.9771 at Kakinda and deposited both the returned cheques and thereafter the rent for the month of December, 2006 onwards. The tenant informed through a letter dt. 22-12-2006 covered under Ex.B-8 about deposit of the amount. Hence, the tenant constrained to file OS No.17/2007 on the file of 2nd Additional Junior Civil Judge, Kakinada seeking permanent injunction and obtained interim injunction in IA No.34/2007. On filing the above suit, the present eviction petition has been filed, therefore the landlord is not entitled for eviction. On landlord filing RCC 15/2007 for eviction and filing counter on 9-10-2007 in RCC No.15/2007, the tenant filed RC No.32/2007 under Sec.8(5) of the Rent Control Act seeking permission to deposit the rent into court with the same averments as stated in the counter filed in RCC No.15/2007, to which the landlord filed a counter with the same averments as stated in his eviction petition ie., RCC No.15/2007. The Rent Controller-cum-Principal Junior Civil Judge, Kakinada framed the following points for consideration: 1. Whether the petitioner in RCC No.15/2007 is entitled for eviction of the respondents from the petition schedule property? 2. Whether the petitioner in RCC No.32/2007 is entitled for permission to deposit rents into the Court as prayed for? 3. To what relief? On behalf of the landlord, P.W. 1 was examined and Exs.A-1 to A-18 were marked. On behalf of the tenant, R.W.1 was examined and Exs.B-1 to B-10 were marked. The learned Rent Controller after meticulously analyzing the oral and documentary evidence in the light of the statutory provisions answered issue No.2 first holding that Ex.B-6-office copy of letter dt. 13-12-2006 sent by the tenant through registered post under Ex.B-7 cover and endorsement on the overleaf of Ex.B-7, shows that it is not reached the addressee, tenant has to follow the procedure prescribed under Rule 16 (1) of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 (for short “the Rent Control Rules”) by personally delivering or tendering to the landlord or to some other adult member of his family or by sending by registered post with acknowledgement due, which procedure has not been followed by the tenant. In stead he opened a bank account in Allahabad Bank in school’s name and intimated the landlord through a letter under Ex.B- 8 dt. 22-12-2006 by sending it through City Courier Service under Ex.B-9 and certificate of posting under Ex.B-10, which are not the proper modes of service as contemplated under Rule 16 of the Rent Control Rules. As the mode of tendering rents by tenant does not come within the purview of Section 8 (4) and 8 (5) of the Rent Control Act and Rule 16 of the Rent Control Rules, the Rent Controller answered the point No.2 in favour of the landlord and against the tenant. On point No.1, the Rent Controller held that since the landlord is seeking eviction of the tenant under sections 10, 10-B (1) and 10-C (c) of the Amended Act No. 17 of 2005, the embargo for seeking eviction under sub-section (3) has not been accepted in IA No.4194/2007, therefore the bar for passing eviction under sub-section (3) of Section 10 of the Rent Control Act has no application as per the findings recorded in IA No.4194/2007. R.W.1 who admitted in his cross-examination that he owns four storied building apart from the building in question. In addition to the same, they are running various schools like Nehru Convent School, Nehru Convent U.P. School and M.S.N. English Medium School and M.S.N. Junior College and out of which Nehru Convent School is running in the petition schedule premises. The tenant made structural alterations without express consent of the landlord and committed willful default in payment of rent from October, 2006. Even if the landlord closes the bank account without intimation to the tenant, in the absence of any evidence adduced by the tenant that he tendered the rent as per the procedure laid down under the Rent Act and the Rules made thereunder as aforementioned, and by opening a bank account in the name of the school and depositing the rent shows that the tenant committed default in payment of rent to the landlord. Mere opening of the account in their name will not help to escape from the consequences. Therefore, the landlord is able to establish that the tenant committed default in payment of rent. Further the landlord is able to establish that he is aged about 76 years and is entitled to the benefits of seeking eviction under Sec. 10-C (c) of the Amended Act No.17 of 2005 since the landlord requires the petition schedule premises for his personal occupation, and holding so allowed RCC No.15/2007 directing eviction of the tenant from the petition schedule property within two months from the date of order and dismissed RCC No.32/207 filed by the tenant for deposit of the amount. Aggrieved by the common order of the Rent Controller passed in RCC Nos.15 and 32 of 2007, the tenant filed RCA Nos.9 and 10 of 2008 respectively before the Rent Appellate Controller-cum- Principal Senior Civil Judge, Kakinada. The learned Rent Appellate Controller after re-appreciating the evidence available on record confirmed the common order of the Rent Controller. Sri E.Manohar, learned Senior Counsel appearing for the tenant contended that under Sec. 10-C ( c ), landlord is entitled to immediate possession by instituting the proceedings in a court but not before the Rent Controller. The court as defined under Civil Courts Act under Section 2-a is only a civil court having jurisdiction over the area but not the Rent controller. The Controller has been defined under the Rent Control Act cannot be equated with that of court as defined under Sec.2-a of the Civil Courts Act, proviso to Sec.10 (1) makes it clear. In the absence of any non-obstante clause to seek eviction under Sections 10-A, 10-B, 10-C, landlord is not entitled to seek eviction of the tenant except the grounds specified under Section 10, where secs.10-A, 10-B and 10-C have not been included. There is no corresponding amendment to sec. 10(1) permitting eviction under 10- A, 10-B and 10-C. Section 15 of the Rent Control Act also provides execution of orders wherein it has not been included the execution of the eviction order passed under Sections 10-A, 10-B and 10-C. Similarly under Sec. 20 also no appeal is provided against the orders passed under the above amended Sections ie., 10-A, 10-B and 10-C, the necessary implication the Legislature intended that it is only a civil court which has been conferred jurisdiction to order eviction and delivery of immediate possession as provided under the provisions inserted by the Amended Act No. 17/2005. To buttress the said submission, reliance is placed on paragraphs 23,29,31,34,36,37,42,43 of the Apex Court’s judgment in KARNATAKA STATE FINANCIAL CORPORATION V. N. NARASIMHAIAH[1]; GREATER BOMBAY COOP BANK LTD V. UNITED YARD TEX (P) LTD[2]; NATHI DEVI V. RADHA DEVI GUPTA[3]; and N.D. THANDANI V. ARNAVAZ RUSTOM PRINTER[4]. He also argued that there is no willful default on the part of the tenant, and alterations or constructions, if any, will not impair the value of the petition schedule premises and the said alterations are made with the permission of the landlord and the landlord is not required the petition schedule property for his own occupation which will be dealt with separately on answering maintainability of the eviction order passed under Sec. 10-C (c ) of the Rent Control Act. Sri V. R. Narasimhacharya, learned counsel for the respondents-landlord while refuting the contentions advanced by the learned Senior Counsel contended that the “court” includes Rent Controller under G.O.Ms.No.4. G.A.D.(Acc-A) dt. 3-1-66 and the first Assistant Judge, City Civil Court, sitting at Hyderabad in the cities of Secunderabad and Hyderabad appointed as Controller was conferred jurisdiction to perform the functions of a Controller, and since it is not a persona designata he can maintain the applications filed under Secs. 10-A, 10-B and 10-C. Rule 17 of the Rent Control Rules specifies that an every application filed in the court of Rent Controller notice is directed to be served through court only. There is no dispute with regard to landlord not having any residential accommodation, the Rent Controller can entertain the application filed under Sec. 10-C for immediate possession of the petition schedule premises. Once both the courts concurrently held that the landlord committed willful default in payment of rent, mere deposit of the rent to the account opened by the tenant in its name do not amount to payment of rent. Since the tenant seeks to avail the benefits, he has to follow the procedure and not following the procedure will amount to willful default. For the said proposition, reliance is placed on the judgment of the Apex Court in E. PALANISAMY V. PALANISAMY (D) BY LRs & Ors[5]. He further contended that since the tenant secured alternate accommodation, the landlord can seek possession, therefore eviction order passed by the Rent Controller as confirmed by the Rent Appellate Controller do not call for any interference. In support of the above contentions, he placed strong reliance on the following judgments: 1. M/S.FAIR AIR ENGINEERS PRT.LTD V. N.K. MODI[6] 2. CANARA BANK V. NUCLEAR POWER CORPN. OF INDIA LTD[7] 3. SHANTHI TARACHAND V. C.S.NARASIMHA RAO[8] 4. MOHAMMED IZHAR ALI V. OLIVE FOUNSECA (DIED) PER LRs[9] 5. PODUGU APPA RAO (DIED) PER L.Rs V. GRANDHI SATHIRAJU (DIED) PER L.Rs.[10] 6. N. WILLIAMS V. H.PASHA[11] In the wake of above submissions, the points that arise for consideration are: 1. Whether the “Court” includes Rent Controller to have jurisdiction to entertain the application filed by the landlord seeking eviction under Sec. 10-C or not? 2. Whether the tenant committed willful default in payment of rent? 3. Whether the landlord can seek eviction of the tenant for his personal occupation in view of the bar contained under Sec. 10(4)(ii) of the Rent Control Act? Before we advert to the rival submissions, the statutory provisions which are relevant for resolving the lis is to be noticed. Section 10-C of the Rent Control Act reads thus: “10-C. 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: x x x Explanation II: x x x” Sec.2 (iv) of the Rent Control Act defines “Controller” as under: ' Controller' means any person not below the rank of a Tahsildar appointed by the Government to perform the functions of a Controller under this Act. Section 10 deals with eviction of the tenant as under: 10. Eviction of tenants: 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 Sections 12 and 13: Provided that where the tenant, denies the title of the landlord or claims right of permanent tenancy, the Controller shall decide whether the denial or claim is bona fide and if he records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of the grounds mentioned in the said sections, notwithstanding that the Court finds that such denial does not involve forfeiture of the lease or that the claim is unfounded. Sub-sections (2) and (3) of Section 10 provide grounds on which landlord can seek eviction of the tenant. Clause (ii) of Sub- section (4) of Section 10 prohibits passing of an eviction order under sub-section (3) in respect of any building, which has been left for use as an educational institution and is actually being used as such, provided that the institution has been recognized by the Government or any authority empowered by them in, so long as such recognition continues. Section 1 of the Rent Control Act provides short title and application of the Rent Control Act to the area covered by the Notification published in A.P.Gazette. Sec.1 2(b) reads as under: “(b) Sub-section (2) of Section 3 shall apply to the cities of Hyderabad and Secunderabad, Visakhapatnam and Vijayawada and to any Municipal Corporation or Municipality in the State of Andhra Pradesh, if the State Government, by notification in the Andhra Pradesh Gazette, so direct. The Government of Andhra Pradesh in G.O.Ms.No.4, General Administration Department (Acc-A) dt. 3-1-1966 in supercession of all the previous orders relating to the appointment of Controllers, whether made or continued under the Act, except those relating to the appointment of the authorized officers to perform the function of a Controller under Sections 4,5 and 6 of the Act, in relation to the buildings allotted by him under sub-section (6) of Section 3 of the Act and of the Deputy Secretary to Government (General Administration Department) to perform the functions of a Controller under Section 18 of the Act, in respect of the building in the cities of Hyderabad and Secunderabad, appointed the following persons to perform the functions of a Controller in their respective jurisdictions: (i) the first Assistant Judge, City Civil Court, sitting at Hyderabad in the cities of Secunderabad and Hyderabad, (ii) the Munsif-Magistrate or, where there are more than one Munsif-Magistrate, the Principal Munsif Magistrate in the Telangana area, (iii) the District Munsif or, where there are more than one District Munsif, the Principal District Munsif, in the other areas of the State. Point No.1: Learned Senior counsel placed a strong reliance on the judgment of the Supreme Court in KARNATAKA STATE FINANCIAL CORPORATION (1 supra) to buttress his submissions. In the above case, the Supreme Court while dealing with the interpretation of Section 29 vis-à-vis Section 31 of State Financial Corporations Act, 1951 held that none of the provisions control each other and the Parliament intended to provide an additional remedy for recovery of the amount in favour of the Corporation by proceeding against a surety only in terms of Section 31 of the Act and not under Sec.29 thereof. After interpreting the provisions of a statute, it was further held that the court employs different principles and canons and A statutory authority, thus, may have an implied power to effectuate exercise of substantive power, but the same never means that if a remedy is provided to take action against one in a particular manner, it may not only be exercised against him but also against the other in the same manner. It is a trite law that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. The jurisdiction of the Rent Controller in entertaining applications under Sections 10-B and 10-C of the Rent Control Act has not been raised either before the Rent Controller or before the Rent Appellate Controller. But it was urged in the Ground Nos.19 and 20 before the Rent Appellate Controller, read as under: “19. The lower court should have seen that the eviction petition was filed under Sec.10-B and Sec.10-C under Amended Act 17/2005 and hence, the alterations with permission or without permission has no bearing on the merits of the present case. 20. The lower court travelled beyond the scope of the eviction petition and alleged structural alterations or alleged willful default for not following the procedure under Sec. 8 of Rent Control Act are not the consideration in the eviction petition filed under Sec. 10-B and 10-C of Act 17/2005.” Contrary to the same, learned Senior Counsel in the present revisions raised the jurisdiction of the Rent Controller to entertain the application filed by the landlord under Sec. 10-C. A Full Bench of this court in PUBLIC PROSECUTOR (A.P) V. L. RAMAYYA[12] on reference of the following questions, namely, (1) Whether the District and Sessions judge who is the judicial authority under section 6-C of the Essential Commodities act is a persona designata or whether the district and Sessions Judge is an inferior criminal Court; and (2) if it is held to be an inferior criminal court, whether a revision is maintainable under sections 435 or section 439, Criminal procedure Code, against the order of the appellate authority under section 6-C of the Essential Commodities Act in spite of the fact that such proceedings are not held under the Code of Criminal Procedure; answered the reference in the following terms: (1) Where, by statute,