THE HONOURABLE SRI JUSTICE M.S. RAMACHANDRA RAO
Civil Revision Petition Nos.2269 and 2271 of 2019
COMMON ORDER :
These two Civil Revision Petitions arise under Section 22 of the
Andhra Pradesh (Buildings, Lease, Rent and Eviction Control) Act, 1960.
2. The respondent in both these Civil Revision Petitions is a Firm which
is the landlord, while the petitioners are its tenants in respect of two non-
residential premises bearing Municipal Nos.5-4-455/2 and 5-5-455/4 and 5
situate at Nampally Station Road, Hyderabad.
3. Since the ground in the eviction petitions filed by the respondent
against the respective petitioners is one and the same, the Civil Revision
Petitions are being disposed of by this common order.
4. The respondent is a partnership firm carrying on business under the
name and style ‘Hotel Paradise’ in the ground floor and five upper floors
forming part of a single composite Door No.5-4-455/1 to 6 at Nampally
Station Road, Hyderabad. It runs a lodge business with 45 rooms with
attached bathrooms.
5. The respective petitioners were inducted as tenants in the year 1970.
6. While the 1st petitioner in Civil Revision Petition No.2269 of 2019 is
doing business in surgical instruments in the premises bearing Municipal
No.5-4-455/2; the petitioner in Civil Revision Petition No.2271 of 2019 is in
the adjoining shop having Municipal Nos.5-4-455/4 and 5 and is carrying on
business in steel.
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7. These premises which are let-out to the petitioners are in the ground
floor but over and above the said shops, there are lodging rooms and behind
the shops there is a reception area of the respondent.
The plea of the Respondent in the Eviction Petitions
8. According to respondent, on an application made by it for renewal of
the police license, on 21.08.2007, the Office of the Deputy Commissioner of
Police issued notice to petitioner referring to G.O.No.423 Municipal
Administration Urban Department dt.31.07.1998, and rejected the request
made by the respondent for renewal of licence stating that there is no
adequate parking space available to the hotel building.
9. The respondent therefore filed the R.C.No.390 of 2010 against the
petitioners in Civil Revision Petition No.2269 of 2019 and R.C.No.389 of
2010 against the petitioners in Civil Revision Petition No.2271 of 2019
before the II Additional Rent Controller, at Hyderabad for their eviction
invoking Section 10(3)(c) and Section 10(2)(v) of the Act.
10. It was the contention of the respondent in both the eviction petitions
that it requires the shops in the occupation of the respective petitioners for
additional accommodation for the proposed parking to be provided to the
hotel premises. It proposed to shift its reception area from ground floor to a
portion of the 1st floor by making suitable additions and alterations and use
the entire ground floor area for additional accommodation for the parking of
vehicles.
11. The respondent contended in the eviction petitions that unless and
until the requirement of G.O. is fulfilled by it, its license will not be renewed
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by the police authorities, and it is mandatory to provide space for parking of
vehicles in order to obtain license to run it’s lodge business. It also
contended that it received the notice dt.21.08.2007 from the Police
department. It contended that all the shops in the occupation of petitioners
have to be altered by removing the partition walls to provide parking area
including the area behind the shops, and the said shops have to be
demolished. It contended that lack of adequate parking has caused it a lot of
inconvenience and the police are pressurizing the respondent to close down
the hotel. It also contended that though notice has been issued to the
respective petitioners on 15.03.2008 to vacate the premises in their
occupation, they have not chosen to give a reply having received the
notices.
12. It is contended by the respondent that the Nampally Station Road is a
one-way road and it has to provide parking to its customers and at the time
of filing of the eviction petition, the customers were parking vehicles on the
road and thus causing inconvenience to the traffic.
13. It is also alleged that hardship caused to the respondent far outweighs
the hardship caused to the respective petitioners.
14. It is further contended that the petitioner in Civil Revision Petition
No.2271 of 2019 had secured alternative accommodation after sub-letting
the premises to the 2nd respondent in Civil Revision Petition No.2271 of
2019, and so the petitioner in Civil Revision Petition No.2271 of 2019 had
no right to continue in the premises bearing No.5-4-455/4 and 5 and is liable
to be evicted therefrom.
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The stand of the petitioners/tenants in the eviction petitions
15. Counter-affidavit is filed by the respective petitioners in both the
eviction petitions.
16. The petitioner in Civil Revision Petition No.2269 of 2019 / 1st
respondent in R.C.No.390 of 2010 filed a counter-affidavit stating that
Section 10(3)(c) of the Act has no application, and that the respondent had
filed R.C.No.390 of 2010 for his eviction with ulterior motive and dishonest
intention.
17. He contended that having obtained the R.C. Schedule shop in the
year 1974 for doing business in surgical and medical equipments he is doing
business therein and that his business is an essential service covered under
the Essential Services Maintenance Act category.
18. While admitting that there are lodging rooms on the upper floors, it is
contended that there is a huge area behind the shops used as a reception area
and for parking purpose.
19. He also denied that the Deputy Commissioner issued a notice to the
respondent on 21.08.2007 or on any other date for application of renewal of
police license referring to G.O.423 or that the police department rejected the
request of the respondent for renewal for want of parking space for the
respondent’s hotel. He also contended that the hotel of the respondent was
in existence since long time but no amenities are provided to the tenants.
20. According to the petitioner in Civil Revision Petition No.2269 of
2019, there are no customers as the hotel of the respondent is a low-budget
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hotel and is always scantily occupied by persons requiring dormitory within
the space for using the amenities. It is also pointed out that the respondent’s
hotel is not having a restaurant of its own to cater to the needs of the
persons intending to stay during day and night, and most of the time the
hotel rooms are occupied and utilized by labourers, servants and employees
of the owners of the building having several businesses.
21. He denied that the respondent would shift its reception from the
ground floor to portion of the 1st floor by making suitable additions and
alterations.
22. It is also denied that the license of the respondent will not be renewed
by the Police in view of the non-fulfillment of the parking requirement.
23. It is contended that the respondent intended to evict the petitioners by
hook or crook and there is adequate parking for about 25 cars.
24. He stated that the Greater Hyderabad Municipal Corporation had
provided parking on one-side of the road on the entire stretch starting from
the Office of the Collector, Hyderabad to Hotel Kamat, Nampally and the
respondent is utilizing the said space for parking apart from its own parking
space available.
25. It is stated that the hardship caused to the petitioner in Civil Revision
Petition No.2269 of 2019 is greater than that which the respondent would
suffer. It is further alleged that there are other properties owned and
belonging to the respondent in the surrounding area which could be used as a
parking space. He therefore prayed that the R.C.No.390 of 2010 be
dismissed.
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26. The petitioner in Civil Revision Petition No.2271 of 2020 / 1st
respondent in R.C.No.389 of 2010 also filed a counter-affidavit opposing the
prayer for his eviction sought by the 1st respondent in the Civil Revision
Petition.
27. He denied the plea of the 1st respondent in the Civil Revision Petition
that the entire building has a composite Municipal No.5-4-455/1 to 6.
According to him, there is an entrance to the upper floor from the western
side of the property, and there was no inconvenience to the 1st respondent at
any point of time.
28. He also contended that the two shops in his occupation are not part of
the building which is in the occupation of the 1st respondent and other
tenants, and that the proviso to Section 10(3)(c) is not applicable, and the 1st
respondent cannot invoke it to seek his eviction.
29. He however admitted that the adjoining mulgi is also in occupation of
the other tenants who are carrying on surgical business.
30. According to the petitioner in Civil Revision Petition No.2271 of
2019, the police department did not reject the request of the 1st respondent
for renewal of his business for want of parking space, and that it had
renewed such license and the 1st respondent was uninterruptedly carrying on
its business prior to and after 2007.
31. He denied that there is any bona fide requirement of all the shops
including the shops in his occupation for additional accommodation of the
1st respondent towards parking.
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32. He denied that parking space is mandatory for renewing the police
license, and that the respondent has created and fabricated a notice in
collusion with the Greater Hyderabad Municipal Corporation and the Police
Department.
33. He alleged that he was doing business in steel articles and had a large
number of customers who are mostly Muslims coming from far off place
and that he had established his business and got good reputation in the
market.
34. According to him, more than five families are dependent on the
business of the petitioner and they would come on the roads if the petitioner
is evicted from the R.C. Schedule premises.
35. According to him, the 1st respondent had not approached the Greater
Hyderabad Municipal Corporation to convert the commercial shops into
parking space and had not applied or obtained any sanction plan.
36. It is also stated that the customers of the 1st respondent only come by
train or bus from outside the city and there is no necessity to park vehicles
for them. It is also alleged that by the date of filing of the eviction petition,
thirteen years have elapsed after issuance of the above G.O. and the 1st
respondent is conveniently carrying on business without any hindrance or
disturbance.
37. He also denied that he had obtained another shop on rent close-by
and that he did not know who the
2nd respondent in the Civil Revision Petition was and that there was no sub-
tenancy of the property.
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38. Before the II Additional Rent Controller, Hyderabad, the respondent
in Civil Revision Petition No.2269 of 2019 examined P.W.1 and marked
Exs.P.1 to P.19 while the petitioner in Civil Revision Petition No.2269 of
2019 examined R.W.1 and marked Exs.R.1 to R.3. CWs.1 and 2 were also
examined and Exs.X.1 to X.9 were marked on their behalf.
39. Likewise, in R.C.No.398 of 2010, the respondent examined RW.1 and
marked Ex.P.1 to P.12, while the 1st petitioner examined himself as R.W.1
and marked Exs.R.1 to R.12. CWs.1 and 2 were also examined and Exs.X.1
to X9 were marked therein.
The order of the Rent Controller
40. On 18.01.2018, the II Additional Rent Controller passed separate
orders allowing R.C.No.390 of 2010 and R.C.No.389 of 2010.
41. After considering the contentions of the parties, the Rent Controller
held that there is jural relationship of landlord and tenant between the
respondent in Civil Revision Petition No.2269 of 2019 / 1st respondent in
Civil Revision Petition No.2271 of 2019, and the respective petitioners.
42. The Rent Controller also held that the shops of respondents are under
one single roof and the same was not denied during the course of cross-
examination of the respective petitioners. He recorded a finding that the
shops in the occupation of respective petitioners are part of the main
structure in which the hotel itself is being run by the respondent though there
are separate municipal numbers for the same. It accordingly held that
Section 10(3)(c) of the Act is applicable.
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43. It then considered the question whether there is a bona fide
requirement of the respective shops of the petitioners by the respondent. It
considered the evidence of CWs.1 and 2 who are police officers and Exs.X.1
to X.9 marked through them, and held that the said witnesses categorically
stated that the police department rejected renewal of police license in 2007
to the respondent on the ground that sufficient parking space was not
provided as per norms of the Greater Hyderabad Municipal Corporation.
44. It held that parking space is required for lodging business also and
that the respondent should have exclusive parking for running its lodging
business; and several notices issued by the Greater Hyderabad Municipal
Corporation and the Police Department to the respondent clearly show that
adequate parking space should be provided for renewal of the license.
45. It held that the respondent, through oral and documentary evidence,
established that there is a genuine and pressing need for parking space and
that the requirement of providing adequate parking is a requirement of law
and the respondent cannot be exempted from the operation of the G.O.423.
It held that the respondent was forced to use the parking space provided by
the Greater Hyderabad Municipal Corporation because the parking space
available was not adequate. It emphasized the requirement of having
exclusive parking and held that availability of Municipal parking does not
mean that the respondent cannot insist on having exclusive parking for its
business.
46. It also noted that new constructions have come up in the locality
where the R.C. Schedule shops were located and the business of petitioner in
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the C.R.P.No.2269 of 2019 can even be done through telephone, since he is
involved in supplying medical equipment to institutions.
47. Identical findings were also recorded in R.C.No.389 of 2010, and in
addition, it was also held that the allegation made by the 1st respondent of
sub-letting by the petitioner in Civil Revision Petition No.2271 of 2019 to
the 2nd respondent was not proved.
48. It also held that the space on the western side is a common passage
and is not a private parking facility and the 1st respondent was not the owner
of the western side common passage. It also held that the admissions of the
petitioner in Civil Revision Petition No.2271 of 2019 as R.W.1 indicate that
he is involved in construction business and is not dependent on the R.C.
Schedule property alone and that new malls have come up in the vicinity
where it is possible to get alternative accommodation.
The orders of the Appellate authority
49. Challenging these orders, the petitioners in Civil Revision Petition
No.2269 of 2019 filed R.C.A.No.22 of 2018 before the Chief Judge, City
Small Causes Court, at Hyderabad, and the petitioner in Civil Revision
Petition No.2271 of 2019 filed R.C.A. No.24 of 2018 before the same Court.
50. By separate orders dt.26.07.2019, both the Appeals were dismissed.
51. The Appellate Authority re-appreciated the evidence on record and
took note of the evidence of C.W.1 who was the Circle Inspector of Police,
Abids, Hyderabad who had given evidence and his statement that the lodge
business being run by the respondent requires sufficient parking space as per
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G.O.Ms.No.423 dt.31.07.1998 and also subsequent G.O.No.129
dt.02.07.2005 and G.O.No.86 dt.03.03.2006, viz., Exs.X4 to X.6. It held
that as per the last G.O., the parking space should be 40% in the Municipal
Corporation areas.
52. It also confirmed the findings of the Rent Controller that the entire
building including the respective R.C. Schedule premises was assessed
under a composite Door No.5-4-455/ 1 to 6.
53. It also took note of Ex.P.4 Notice dt.21.8.2007 given by the Office of
the Deputy Commissioner of Police, Central Zone, Abids, Hyderabad which
stated that the request of the respondent for renewal of police license is
rejected on the ground that the respondent is not maintaining required
parking space.
54. It took note of the evidence of the petitioner in Civil Revision Petition
No.2269 of 2019 that after filing of the eviction petition his father acquired a
property at Fateh Sultan Lane, Nampally, Hyderabad and recorded a finding
that sufficient buildings and shopping malls have come up in the locality and
even if eviction is ordered, the petitioner would be able to secure alternative
accommodation in the same locality very easily. It therefore held that the
hardship caused to the petitioner is not much, but the respondent would
suffer extreme hardship if he is not able to provide sufficient parking space
to his customers because his license to run the lodge cannot be renewed, and
it would perpetuate to illegality.
55. It also gave a finding that the petitioner admitted that there are 45
rooms in the lodge being run by the respondent, but the hotel of the
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respondent is having only parking space for two cars and eight two-wheelers
and there is a dire necessity to the respondent to seek eviction of the
petitioner on the ground of additional accommodation.
56. Identical findings were also recorded in R.C.A.No.24 of 2018 filed by
the petitioner in Civil Revision Petition No.2271 of 2019 challenging the
order dt.18.01.2018 in R.C.No.389 of 2010. It held that the location of the
building entrance, composite municipal number, nature of construction,
indicates that the four shop rooms in the ground floor are part of the same
building, and the rest of the building is in possession of the 1st respondent.
57. It held that it has become necessary for the 1st respondent to obtain
eviction of the petitioner from the R.C. Schedule property since it needs it
for additional accommodation to provide more parking space since the
Police department had rejected renewal of its license to run lodge business
on the ground that the provision for parking space is not adequate.
58. It recorded a finding that the petitioner in Civil Revision Petition
No.2271 of 2019 is doing construction business, but he was not filing
income tax returns after 2009, and so even if eviction is ordered there is no
hardship caused to the petitioner since he is not doing any business in the
R.C. Schedule property.
The CRPs
59. Challenging the order dt.26-07-2019 in R.C.A.No.22 of 2018, the
petitioners filed C.R.P.No.2269 of 2019. Likewise, challenging the order
dt.26-07-2019 in R.C.A.No.24 of 2018, the petitioners filed C.R.P.No.2271
of 2019 was filed by the petitioners therein.
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60. Heard Sri Raj Kumar Grandhi, learned counsel for the petitioners and
Sri R.A.Atchutanand, learned counsel for respondents.
61. Learned counsel for petitioners contended that the findings recorded
by the Rent Controller in both the R.C.No.390 of 2010 and 389 of 2010
which are confirmed by the appellate authority in R.C.A.Nos.22 of 2018 and
24 of 2018 are erroneous; that both the said Courts failed to appreciate that
the Hotel/Lodge of the respondent and the shops of the petitioners had two
separate Door Numbers and therefore they have to be construed as two
separate and distinct properties and therefore the respondent cannot invoke
Section 10(3)(c) of the Act. He also contended that even otherwise, the
respondent had sufficient parking place; that the respondent cannot place
reliance on Ex.X-2/Ex.P-4 notice dt.21-08-2007 and the same was a created
one; that the Police never refused any permission to the respondent to run
the lodge/Hotel; that forcing the petitioners to shift to other premises would
cause greater hardship to the petitioners which outweighs the hardship
caused to the respondent; and since the respondent continued to run the
Lodge notwithstanding the lack of parking provision, the Rent Controller as
well as the Appellate Authority could not have granted any relief to the
respondent.
62. Learned counsel for respondent refuted the said contentions and
supported the orders passed by the Rent Controller and the Appellate
Authority.
The consideration by the Court
63. I have noted the contentions of both sides.
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64. The respondent has filed R.C.Nos.389 and 390 of 2010 against the
petitioners in both the cases on the ground that it requires the premises in the
occupation of the petitioners as "additional accommodation" invoking
Section 10(3)(c) of the Act contending that it had received a notice Ex.P-
4/Ex.X-2 on 21-08-2007 from the Office of the Deputy Commissioner of
Police in response to its application for a police licence referring to
G.O.Ms.No.423 Municipal Administration and Urban Development
Department dt.31-07-1998 rejecting respondent's application for such
licence on the ground that there is no adequate parking facility to its
Lodge/Hotel building. The respondent contended that it bona fidely required
all the shops which are part of the premises bearing M.No.5-4-455/2 to 5 for
'additional accommodation' for the proposed parking to be provided by it
for its Hotel/Lodge business.
65. Section 10(3)(c) of the Act states:
"10(3)(c) : A landlord who is occupying only a part of a building, whether
residential or non-residential may, notwithstanding anything in clause (a),
apply to the Controller for an order directing any tenant occupying the
whole or any portion of the remaining part of the building to put the
landlord in possession thereof, if he requires additional accommodation for
residential purposes or for the purpose of a business which he is carrying
on, as the case may be."
66. There is a proviso to Section 10(3) of the Act which states that in the
case of an application under Clause (c) of Section 10(3) of the Act, the
Controller shall reject the application if he is satisfied that the hardship
which may be caused to the tenant by granting it will outweigh the
advantage to the landlord.
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67. Therefore it has to be examined as to whether the premises in the
occupation of the respondent is sufficiently proximate to the premises in the
occupation of the petitioners so that the premises in the occupation of the
petitioners, could be treated as part of the premises of the respondent and as
additional accommodation.
68. In Shri Balaganesan Metals vs. M.N. Shanmugham Chetty and
Ors1., a landlord living in a upstairs portion of a building sought eviction of
a tenant living in the down stairs portion of the said building on the ground
that he requires additional accommodation under S. 10(3)(c) of the
Tamilnadu Buildings (Lease, Rent and Eviction) Control Act, 1960 (which
is in pari materia with S. 10(3)(c) of the Act). The Supreme Court held that
Section 2(2) of the said Act defines a "building" to mean "any building or
hut or part of a building or hut, let or to be let separately for residential or
non-residential purposes and includes....." unless the context otherwise
requires; a part of a building which has been let out can also be construed as
a separate and independent building without reference to the other portion or
portions of the building where it is not necessary to treat the entire building
as one whole and inseparable unit; but, if the context otherwise requires and
warrants, the entire building can be construed as one integral unit; it would
be inappropriate to view the building in question as consisting of several
disintegrated units and not as one integrated structure; there is a vast
difference between the words "residential building" and "non-residential
building" used in Section 10(3)(a)(i) and (iii) on the one hand and Section
10(3)(c) on the other; that the former refers to the building only as a
residential or non-residential but the latter refers to the landlord occupying a
1
AIR 1987 SC 1668
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part of a building, whether residential or non-residential; that Section
10(3)(c) states that a landlord may apply to the Controller for an order of
eviction being passed against a tenant "occupying the whole or any portion
of the remaining part of the building"; if as contended by the tenant, each
portion of the building let out separately should always be construed as an
independent unit by itself, then there is no scope for a landlord occupying "a
part of a building" seeking eviction of a tenant occupying "the whole or any
portion of the remaining part of the building"; and that such a construction
would render the provisions of Section 10(3)(c) otiose because a landlord
can never then ask for additional accommodation since section 10(3)(a) does
not provide for eviction of tenants on the ground of additional
accommodation for the landlord either for residential or non-residential
purposes. It observed:
" It is, therefore, obvious that insofar as Section 10(3)(c) is
concerned the legislature has intended that the entire building,
irrespective of one portion being occupied by the landlord and the
other portion or portions being occupied by a tenant or tenants
should be viewed as one whole and integrated unit and not as
different entities. To import the expansive definition of the word
"building: in Section 2(2) into Section 10(3)(c) would result in
rendering meaningless the words "part of a building" occupied by
the landlord and a tenant "occupying the whole or any portion of
the remaining part of the building".
69. A Division Bench of this Court in Bollabha Artho Thyadi and Ors.
vs. Grandhi Kamaraju2 held that a reading of sections 10(3)(a)(i), (ii) and
(iii) and Section 2(iii) do not lead to an inference that a building which is
structurally one and the same ceases to be a building when it is leased out in
2
AIR 1989 AP 220 (DB)
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portions to more than one tenant. It held that if the building is such that it
can be conveniently divided into different portions, it can be leased out in
portions. But the unit as a whole does not cease to be a building on that
count. Every premises let, or to be let, is a building within the meaning of
the Act. Therefore, even if each portion of a house is let out and is a building
for the purposes of the Act, the entire building as an integrated unit is also a
building and if the requirement is for the integrated unit, there is no
prohibition in law, subject of course to the restrictions or conditions
mentioned in the 10(3)(a)(i) or Section 10(3)(a)(iii). The Bench held that
there is nothing in Section 10(3)(a)(i) or Section 10(3)(a)(iii) which
precludes a landlord seeking possession of the entire building let out to
different tenants if his requirement is bona fide; If the context in a particular
provision requires that the word "building" should not be understood as
defined in Section 2(iii) of the Act, certainly it is open to the Court to give
the normal, natural and ordinary meaning which it is capable of; a landlord
can seek possession of the entire building or any one or more portions of the
building depending on his requirements and if the competent authority is
satisfied that the requirement is bonafide, he can be put in possession of the
integrated unit. The Bench also referred to Shri Bala Nageshan Metals
(1 supra) and held that the definition of the term "building" depends on the
context and that if the context warrants the entire building to be taken as a
single unit, it should be so taken and the issue of additional accommodation
requirement of the landlord should be adjudicated.
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70. In T. Venkatakrishna Reddy v. T.K. Sreedhar and Others3 this
Court held that where a portion let out to a tenant is structurally part of the
main building though it was given a separate municipal number, the landlord
is entitled to seek eviction of the tenant on the ground of requiring additional
accommodation by invoking Section 10(3)(c) of the Act.
71. In K.C. Kanniyappan v. Y. Venkataramana Rao4 this Court held
that Section 10(3)(c) of the Act is an enabling provision to a landlord to seek
eviction of a tenant from a portion of the building, which has been rented out
for a non-residential purpose, so as to expand the business which he is
already carrying on in a portion of that building.
72. In Sri Srinvasa Enterprises and Ors. vs. Narayandas and Ors5 this
Court held:
"It is clearly a situation where the petitioner is in possession of a part
of a non-residential building and it is seeking eviction of 1st
respondent from another part of the same building on the ground that
it requires additional accommodation for it's business. Though 1st
respondent can be said to be a tenant of a portion of the premises
which by itself is a building within the meaning of Section 2(iii), yet,
the portion in occupation of 1st respondent is not to be considered as a
separate building when the petitioners admittedly are in possession of
the remaining portion of the composite building. Merely because
separate municipal members have been given to the premises in
occupation of the 1st respondent, or that it was sold under a different
sale deed on a different date to the petitioners, it does not become a
separate building."
73. Coming to the facts of the instant case, both the Rent Controller as
well as the Appellate Authority considered the oral and documentary
3
1979 (2) APLJ 141
4
1988 (1) ALT 414
5
(2012) 3 ALD 777
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evidence on record and gave findings that the shops in the occupation of the
petitioners and the Lodge/Hotel being run by the respondent are under one
single roof; and though there are separate Municipal numbers allotted to the
shops of the petitioners and the Lodge/Hotel of the respondent, that by itself
cannot mean that they are separate properties. These concurrent findings of
fact are based on appreciation of evidence on record and cannot be said to be
perverse or based on no evidence.
74. Construing Section 22 of the Act, the Supreme Court in Vallampati
Kalavathi v. Haji Ismail6 held:
"13. As the language of the section suggests, the revisional power vested
in the High Court is to be used for the purpose of satisfying itself as to
the legality, regularity or propriety of such order or proceeding, and if
satisfied that the order/orders suffer from any such vice the High Court
may pass such order in reference to the proceeding as it thinks fit. The
expressions "legality", "regularity" or "propriety" are undoubtedly
wider than mere correction of jurisdictional error. But even such
revisional power cannot be exercised to upset the concurrent findings of
fact recorded by the forums below merely on the ground that the High
Court is inclined to take a different view on the materials on record in
the case. We should not be understood to be saying that the concurrent
findings of fact can in no case be interfered with in revision. For such
interference it has to be shown that the findings recorded by the forums
below suffer from any inherent defect or are based on inadmissible or
irrelevant materials or are so perverse that no reasonable person will
come to such conclusion on the materials."
75. In view of the above legal position, I am not inclined to interfere with
the said finding of fact that the premises of the respondent and the shops of
the petitioners are under one single roof and that the provisions of Section
10(3)(c) of the Act are attracted.
6
(2001) 4 SCC 426
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76. Admittedly, the Lodge is located very close to the Nampally Railway
Station in a busy locality and there are 45 rooms in the Lodge/Hotel run by
the respondent and there would be need to provide adequate parking for
customers who visit or stay in the said Lodge/Hotel.
77. R.W.1/petitioner in R.C.No.389 of 2010 admitted that behind the
Lodge/Hotel building, the respondent is having parking for only two cars
and 8 two wheelers and the respondent is availing the parking space
provided by the Municipal Corporation to park 10 to 12 cars.
78. The business of the respondent would be difficult to carry on without
adequate parking and there would be constant harassment of the respondent
as well as his customers by the Police.
79. The evidence of P.W.1 that the Dy.Commissioner of Police has
refused to renew the police licence to the respondent premises vide Ex.P-4
dt.21-08-2007 on the ground of inadequacy of parking facility for the
Lodge/Hotel business being run by the respondent is corroborated by C.W.1,
the Circle Inspector of Police, Abids, Hyderabad. The latter also reiterated
that as per G.O.Ms.No.423 dt.31-07-1998 and also subsequent Government
Orders in G.O.Ms.No.129 dt.02-07-2005 and G.O.Ms.No.86 dt.03-03-2006,
marked as Exs.X-4 to X-6, there ought to be 40% space for Hotels,
Restaurants and Lodges in the Municipal Corporation areas. C.W.2, the
Assistant Commissioner of Police, Abids Division, Hyderabad also
reiterated the same.
80. The petitioners cannot insist that the respondent should avail parking
provided outside the Lodge/Hotel by the Municipal Corporation of
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Hyderabad because such a parking would not be the exclusive parking for
the respondent's business.
81. It is the contention of the respondent that he would like to demolish
the shops in the occupation of the petitioners, shift its reception area from
ground floor to a portion of the 1st floor by making suitable additions and
alterations and use the entire ground floor area for purpose of parking of
vehicles. It is the respondent's pleading that he would remove the partition
walls dividing the shops in occupation of the petitioners to create more
parking area.
82. As rightly held by the Rent Controller as well as the Appellate
Authority, the petitioner in C.R.P.No.2269 of 2019 is doing business in
surgical items and he has a godown 400 meters from the shop in his
occupation; after filing of the R.C., he admitted that his father acquired
another property at Fathe Sultan lane, Nampally, Hyderabad; several new
constructions have come up in the neighbourhood and the petitioner can
obtain other accommodation and the hardship caused to him would not be
much.
83. Even with regard to the petitioner in C.R.P.No.2271 of 2019, who is
doing business in steel, he admitted that he is doing property development
business but he was not filing income tax returns after 2009 and he is not
running the said business due to financial disputes. Therefore it was rightly
held by both the Courts that the hardship suffered by him would not
outweigh the hardship suffered by the respondent.
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84. Therefore I do not find any error in the orders passed by the Rent
Controller or the Appellate Authority warranting interference by this Court
under Section 22 of the Act.
85. Accordingly, the Revisions fail and are dismissed. No costs.
86. However, the petitioners in both the Revisions are granted time till
30-06-2020 to handover vacant physical possession of the RC schedule
shops in their possession; they shall pay the rent up to the said date without
fail on or before 10th of every month and the arrears of rent, if any, from
August, 2019 till date shall be deposited on or before 05-03-2020 before the
II Additional Rent Controller, at Hyderabad; and an undertaking shall be
filed by the petitioners that they would not only vacate and handover vacant
physical possession of the shops in their occupation by the said date, but also
pay the rents up to the said date, within two weeks from the date of receipt
of copy of this order.
87. Pending miscellaneous petitions, if any, shall also stand dismissed.
_
JUSTICE M.S.RAMACHANDRA RAO
Date: 10.02.2020
Ndr/Vsv
