Madras High Court
A. Khan Mohammed vs P. Narayanan Nambiar And Ors. on 14 August, 1986
Equivalent citations: (1987)1MLJ102
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT V. Ramaswami, J.
1. The landlord is the petitioner in both the petitions. He filed a petition for eviction of the respondents under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960)(hereinafter referred to as the Act) on the ground that the premises which is a non-residential building is needed for the purpose of carrying on his own business. The property is bearing door No. 79, Thulasinga Naicken St, Pudupet, Madras 2. It is stated that there are about six shops each measuring 10 ft. x 6 ft. The four respondents in C.R.P. No. 616 of 1983 and the sole respondent in C.R.P. No. 617 of 1983 are in occupation of shops Nos. A, B, C, D, E, F, respectively, and it is stated in the petition that shop No. B is in the occupation of the petitioner's vendor. The property itself was purchased by the landlord on 3rd November, 1980 and immediately thereafter the petition was filed for eviction.
2. Two interesting questions have been raised in these petitions. The first question was whether the landlord has to prove his bona fide requirement in order to establish his right to have an order of eviction in his favour under Section 10(3)(a)(iii) of the Act. The Learned Counsel for the petitioner apart from questioning the finding of the appellate authority on the question of bona fides, has also contended that in a case falling under Section 10(3)(a)(iii), the landlord need not prove strict bona fides and very little evidence relating to his entitlement for an order of eviction is needed.
Section 10(3)(a)(i) and Section 10(3)(a)(iii) may now be usefully quoted. Section 10(3)(a)(i) reads as follows:
Section 10(a)(i) "A landlord may, subject to the provisions of Clause (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the building -
(i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned.
Sec 10(3)(a)(iii) reads follows:
Section 10(a): "A landlord may, subject to the provisions of Clause (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the building -
(iii) In case it is any other non-residential building, if the landlord or any member of his family is not occupying for purposes of a business which he or any member of his family is carrying on, a non-residential building in the city, town or village concerned which is his own.
The Learned Counsel for the petitioner laid strong emphasis on the absence of the words 'landlord requires' in Clause (iii) and submitted that it clearly shows that the landlord need not show any bona fides for getting an order of eviction under Section 10(3)(a)(iii). There is great force in this argument of the Learned Counsel. The word 'requires' in Clause (i) brings - in the element of bona fides. 'Requires' there means that the landlord really required and in other words, bona fide requires. Whereas for the purpose of getting an order under Section 10(3)(a)(iii) the landlord has to prove only that he is not owning a building of his own for the purpose of carrying on his business. If he establishes that he is carrying on business in a rented building, then he is entitled to an order of eviction under Section 10(3)(a)(iii).
3. A similar argument was considered by Ramanujam, J., in AbdulRahman v. Sadasivam (1984) 1 H.L.J. 410 : 97 L.W. 516, In that decision, Ramanujam, J., following the earlier decision of this Court in Mabalakshmi Metal Industries v. K. Suseeladevi (1982) 2 M.L.J. 333, held that in respect of a claim made under Section 10(3)(a)(iii), the Rent Controller has no jurisdiction to go into the question whether the requirement of the landlord s bona fide or not. I am in entire agreement with the view expressed, by the learned Judge. The question of bona fides does not enter into the picture when we consider a case falling under Section 10(3)(a)(iii) of the Act.
4. The second point urged by the Learned Counsel for the petitioner is that the finding of the appellate authority that the provisions of Section 10(3)(a)(iii), are not applicable is not correct. The appellate authority differing from the Rent Controller held that the landlord has taken possession of shop B from his vendor after the sale deed. First of all, though this is a finding on a question of fact, I am unable to agree with the same as there is absolutely no evidence. As held by this Court in Madurai Mills Ltd. v. Guruvammal , a revisional authority can interfere with a finding of fact also if there is no other material on which such a finding could be based or, the finding has been reached by a consideration of irrelevant or inadmissible matter, or it is so perverse that no reasonable person could have reached that conclusion or the finding had been reached by an erroneous understanding of the law applicable to the particular matter.
5. In this case, there is absolutely no evidence that the landlord is in possession of B shop. It was his case that at the time he purchased the property, the vendor wanted to remain in possession of the same for about one year promising to vacate the same after that period. That was his consistent case. He also stated that the vendor was in possession even at the time when the eviction petition was filed. Ex. P10 sale deed also mentions that the vendor is in possession of that portion of the property and had not handed over possession of the same. In spite of his evidence, without any iota of any other evidence, in this case, simply on presumption and assumption that a purchaser should have taken possession of the property and would hot have allowed the vendor to remain in possession, the lower appellate Court has given a finding differing from the trial Court that the landlord had taken possession of that portion of the property. I have gone through the evidence of the landlord as P.W. 1. The Learned Counsel for the respondents was not able to rely on a single sentence suggesting that the purchaser had taken possession of the property. The respondents have given evidence as D.Ws. 2, 3, 4 and 5. But none of them have stated about possession of this portion by the landlord. Each one of them had stated one point, that is, that the landlord wanted higher rent. They were not willing to pay the sum claimed by the landlord and therefore he has filed this petition. In fact, the evidence of the five persons does not run even to two pages. Their evidence is either in one sentence or two sentences and that relates to the demand for higher rent. In the fall of this evidence, there could be no doubt that it has not been shown that the landlord is in occupation of that portion of the building which is said to be in the occupation of the vendor.
6. On an interpretation of Section 10(3)(a)(iii) also, I am unable to agree that even on the assumption that the landlord had taken possession of the B shop, he could not invoke the provisions of Section 10(3)(a)(iii) of the Act. What is to be proved for the purpose of disentitling the landlord when he states that he is not in possession of any property of his own for the purpose of carrying on his business is that he is actually occupying for the purpose of business a property of his own. Technically, even if it is assumed that he is in legal possession of that portion of the property which is claimed by the landlord to be in the possession of the vendor, still he cannot be considered as occupying for the purpose of his business a property of his own. As already stated, there is no evidence that the landlord is carrying on any business in that portion of the property. If only he is carrying on business in a portion of the property and he wants for the purpose of his business the rest of the property, then Section 10(3)(a)(iii) would apply and not to a case where he was not carrying on in any portion of the property a business of his own, though a portion of the property is kept by him as vacant and therefore he is entitled to rely on Section 10(3)(iii) of the Act.
7. I may also state that though on the question of bona fide requirement the lower appellate Court has given a finding that the landlord has not proved his bona fide requirement, I am of the view that finding is perverse. Actually, even on the question of bona fide requirement there is absolutely no evidence contrary to what the petitioner has stated in his evidence. The learned appellate authority seems to have simply proceeded on some assumptions and presumptions and had drawn inferences which are wild guesses. He had stated first that the petitioner is carrying on business in Harris Road, Pudupet, which is a popular place and that no one would like to shift the business from that road to any other place. This is a case where the landlord wanted to shift from that place and come to his own place for business. When a landlord requires his own property for the purpose of carrying on his business, especially when he is carrying on such business in a rented premises, such a requirement cannot be considered as not bona fide merely on the ground that the other place is better for carrying on the business than the present one which he seeks. It is for the landlord to decide which place is beneficial for him to carry on his business. It is also not correct to state factually that Harris Road is more popular than Thulasinga Naciken Street. Thulasinga Naicken Street runs perpendicular to Harris Road and there is evidence to show that the landlord's property is only about 100 yards from the place where he is now carrying on business in Harris Road.
8. It is also stated by the lower appellate authority that the landlord has not taken any step to alter the structure of the building or to convert, all the five shops as a single premises in support of its finding against the bona fide requirement of the landlord. I do not know how this reason could be put forward by the lower appellate Court because it is only after eviction of the tenants, the landlord could remodel the premises for the purpose of his business and he could not remodel the premises before the eviction itself. The lower appellate Court has also stated that the area now in the occupation of the landlord is forty sq. ft. more than the area that is now needed for his own occupation. As against 360 sq. ft. and 400 sq. ft. I do not think that there is any appreciable difference, especially when the petitioner wants to occupy his own premises instead of paying rent to a third party and carry on business in a rented place. The other reasons given by the lower appellate Court are also irrelevant for the purpose of finding out the bona fide requirement of the landlord. In the circumstances, even the finding of the lower appellate Court on the question of bona fide requirement of the landlord is perverse and could not be accepted.
9. In the result, both the civil revision petitions are allowed, the order of the lower appellate Court is set aside and that of the Rent Controller is restored and there will be no order as to costs in both the petitions.
10. Learned Counsel for the respondents prays for time to vacate the premises. On each of the respondents herein giving an unconditional undertaking on or before 21st August, 1986 to vacate the premises without driving the landlord to have recourse to execution proceedings, the respondents will have time to vacate the premises till 1st June, 1987. If undertaking is not filed in time the request will stand rejected.