Madras High Court
T. Anandan vs Noorjahan on 24 December, 1993
Equivalent citations: (1994)1MLJ657
JUDGMENT Thanikkachalam, J.
1. The tenant is the petitioner. The petition for eviction was filed under Section 10(2)(ii)(b), 10(2)(iii) and 10(3)(a)(iii) of Act 18 of 1960 as amended by Act 23 of 1973. Ultimately, the only one ground that arises for consideration in this revision is the eviction sought for under Section 10(3)(a)(iii) of the Act.
2. The respondent herein is the owner of the entire premises at No. 7, Thayar Sahib Road, Mount Road, Madras-2 and the petitioner herein is the tenant under the landlady is respect of the petition premises on a monthly rent of Rs. 200. According to the landlady, though the petition premises was let out to the tenant for the purpose of his residence, the tenant is using the same for non-residential purpose. According to the landlady, the tenant installed in the petition premises a commercial banking even deliberately and thereby caused damage to the ceiling of the building. The landlady is residing at premises No. 34, Veerasami Pillai Street, Egmore, Madras-8, which is a rented premises. The landlady is also carrying on a business under the name and style of Asian Enterprices in the 2nd Floor of premise old No. 200/210, Triplicane High Road and present D. No. 75, Quide Millath Salai, Madras-5 on a monthly rent of Rs. 650. She vacated the said premises and is now carrying on the said business at No. 36, Veerasami Street, Madias-8. Therefore, the landlady requires the petition premises in the occupation of the tenant bona fide for her own use and occupation. The landlady further states that she is not having any other non-residential premises of her own in the City of Madras. Hence the petition.
3. In the counter, the tenant states as under: The back portion of the petition premises was let out by the original owner of the petition premises for non-residential purposes to erect a even to make bread, biscuits, cakes etc., and to carrying on business in such products as early as January, 1970. The respondent has put up a superstructure adjacent to the bakery with the permission of the original owner, to prepare the bakery products. The tenant has also obtained necessary license from the Corporation of Madras for conducting the business in bakery. The landlady never used to repair the petition premises. The tenant used carry on the repairs periodically. It is not correct to state that the tenant caused damage to the building and committed act of waste. The requirement of the petition premises by the landlady is not bona fide. The landlady cannot ask for the petition premises both for non-residential and residential purposes. The landlady know that the back portion of the petition premises was let out to the tenants for the non-residential purpose and the tenant is using the same for the said purpose from January, 1970 onwards. She never raised any objection prior to the issue of notice dated 25.4.1988. The landlady has already acquiesced in the use of the said portion for non-residential purpose by the tenant for the last 18 years. The landlady filed petition for eviction against the tenant several years back and she was not successful. The front portionof the premises measuringabout 300 sq.ft. is lying vacant since its roof fell down sometime back. If the landlady's requirement, is bona fide, she can put up a roof over the said front portion and use it for the business purpose. It was therefore pleaded that there is no bona fide on the part of the landlady in requiring the petition premises under Section 10(3)(a)(iii) of the Act.
4. One Abdul Basith Khan was examined as P.W. 1 and the tenant examined himself as P.W. 1. The landlady filed 57 documents, the tenant filed 12 documents. Considering the facts and circumstances in this case, the learned Rent Controller held that the requirement of the landlady is bona fide under Section 10(3)(a)(iii) of the Act and accordingly eviction was ordered. On appeal, the Rent Control Appellate Authority confirmed the order passed by the Rent Controller and dismissed the appeal filed by the tenant. It is against that order, the present revision has been preferred by the tenant.
5. The learned Counsel for the petitioner submitted as under: It is not correct to state that originally the petition premises was let out for residential purpose and the tenant was using the same for non-residential purpose. The tenant is using the petition premises for non-residential purposes in order to conduct his bakery business. Therefore, the landlady cannot ask the petition premises for her residential purpose. In fact, in the petition the landlady is requiring the petition premises for both residential and non-residential use. This is not permissible under law. The three shops in the front portion fell down and the vacant place is now available for the landlady and she can put up a superstructure and conduct her business if she really is requiring for the place for her business. The rear portion under the occupation of the tenant is fit for conducting only the bakery business. On the date of the filing of the petition, the landlady was not carrying on any business. There is no scrap of paper to prove that the landlady was engaged in any business activity on the date when the petition was filed. All the documents filed by the landlady relates to either four years prior to the date of the petition or subsequent to the filing of the eviction petition. Therefore, they are not relevant for the material period. The documents filed by the landlady would go to show that she did not carry on any business at that time when the petition was filed. The courts below erred in not considering the relative hardship which would be caused to the tenant who had modified the portion to suit his needs and had been carrying on his avocation for more than 20 years. The prior eviction petition filed by the landlady was dismissed. The oven was built up with the permission of the landlady. The present landlady knew that the tenant had put up the oven. She did not object for the same. The tenant is having licence to conduct the banking business. The landlady did not produce any accounts to show that between 1985-88 she was conducting any business. For all these reasons, it was stated that the courts below were not correct in holding that the landlady established her bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act.
6. On the other hand, the learned Counsel for the respondent/landlady submitted as under: The petition premises was originally let out to the defendant/tenant for residential purpose and without the permission of the landlady the tenant converted the petition premises for his non-residential purpose. In the front portion there were three shops. These three shops were fell down because of the damage caused by the tenant. The tenant did not allow the landlady to repair the building in the front portion. He gave a complaint against the landlady when she attempted to repair the front portion which was fell down. Therefore, the landlady was unable to occupy the said three shops in the front portion. The landlady is residing in a rented premises and she is also carrying on her business in a rented premises. Originally she was conducting her business at 208/210, Triplicane High Road, (present No. 75, Quide Millath Road), Triplicane and after vacating the said premises she is now carrying on her business at 36, Veerasamy Street, Madras where she is residing. The said premises also is rented premises. She is not having a premises of her own in the City of Madras. By erecting the oven, the tenant caused damage to the building. Ex. P-1 is the notice sent by the landlady dated 25.4.1988 and Ex. P-6 in the reply sent by the tenant dated 12.5.1988 and in the reply the tenant did not dispute with regard to the business being carried on by the landlady. Neither in the counter nor in the evidence the tenant did dispute the said fact. The documents filed by the landlady would go to show that she was conducting her business at the time when the petition for eviction was filed. No suggestion was made when P.W. 1 was in the witness box that the landlady was not carrying on any business at the time of filing the petition. For all these reasons the courts below were correct in coming to the conclusion that the landlady requires the petition premises bona fide for her own use and occupation. Since the authorities below concurrently held that the requirement of the petition premises by the landlady is bona fide under Section 10(3)(a)(iii) of the Act, it was submitted that no interference is called for.
7. I have heard the rival submissions. The fact remains that the petitioner herein is the tenant in respect of the petition premises on a monthly rent of Rs. 200 under the respondent. The tenant is conducting a bakery business. The petition for eviction was filed on the ground of owner's occupation. Acts of waste and using the premises for the purpose other than the purpose for which it was let out. Petition for eviction was dismissed by the authorities below on the ground of Act of waste and using the premises for the purpose or other than for which it was let out. Therefore the only one ground that survives for consideration in this revision is one relating to eviction sought for owner's occupation. According to the landlady, she is residing in a rented premises at 36, Veerasamy Street, Madras-8 which is a rented premises. She was also conducting business under the name and style of Asian Enterprises in the 2nd Floor of premises old No. 208/210, Triplicane High Road and present No. 72 Quide Millath Salai, Madras-5 by paying a monthly rent of Rs. 650. Since she vacated from the said premises, now she is carrying to business at 36, Veerasamy Street, Madras-8. She has also stated that she is not having or in occupation of a non-residential building of her own in the City of Madras.
8. According to the tenant, the original landlord let out the premises to the tenant for the purpose of going his business. After having obtained licence for conducting a bakery business, he is carrying on the said business from the year 1970 onwards. There is no written agreement between the landlady and the tenant to show that the petition premises was let out for non-residential purpose. The petition premises was originally belonged to one Ghouse Mohideen. Thereafter, the father-in-law and the brother-in-law of the landlady became the owner of the petition premises. No documents were also produced from Ghouse Mohideen or his brother to show that the premises was let out for residential purpose. No document from the brother-in-law of the landlady was also produced to show that the petition premises was let out for residential purpose. The abovesaid persons were not also examined to show that the petition premises was let out for the purpose of residence. Therefore, the authorities below came to the conclusion that the tenant has not used the petition premises for the purposes other than the purpose for which it was let out. The courts below also pointed out that the landlady visited the petition premises in the year 1982 and seen that the petition premises was being used as bakery. According to the landlady and sent a notice objecting to this conversion of the petition premises, but a copy of the notice was not filed. On the other hand, the tenant produced Ex. P-1, dated 25.1.1970which is a licence issued by the Corporation of Madras giving permission to the tenant to conduct a bakery. Ex. P-2, dated 24.2.1970 is the receipt for payment of amount to the Corporation. Exs.P-3 to P-5 also would gets show that the tenant was conducting bakery business in the petition premises. Ex. P-8 is the letter dated 16.4.1981 sent by Ahamed Bhai alias Abhu Khan. In view of all these documents, the authorities below concurrently came to the conclusion that the petition premises was let out for non-residential purposes. In view of the documentary evidence produced by the tenant, lam also of the opinion that the tenant was conducting bakery business from the year 1970 in the petition premises and the petition premises was let out only for non-residential purposes. The landlady requires the petition premises for her own use and occupation. She is residing at No. 21, Gangu Street, Egmore, Madras-8. That was disclosed under Ex. P-13 which is a receipt issued by the L.I.C. dated 27.11.1990. Exs. P-9 to P-12are the rental receipts showing that the said premises is a rented premises. According to the landlady, she was conducting her business under the name and style of Asian Enterprises at No. 75, Quide Millath Road, Triplicane, Madras-5. After vacating that premises, she shifted the business to No. 36, Veerasamy Street. At present it is stated that at No. 21, Gangu Street she is conducting her business. According to Exs.P-22, P-25, P-43 and P-46, the landlady is also conducting her business in the name and styleof United Corporation at 75, Triplicane High Road, she was a partner in the said business as per the document dated 3.2.1981 which is marked as Ex. P-26, Exs.P-25 to P-30 would show that the landlady is a partner in the business called United Corporation. The landlady shifted her timber business to the premises in which she is residing and. has conducted the business in the name and style Shrimathi Timber Corporation. This can be seen from the letter written by the Indian Bank, Commercial Branch, Egmore to the landlady. Therefore, the authorities below came to the conclusion that in a rented premises she is residing as a tenant, and she is also carrying on her business in the said premises.
9. In his evidence P.W. 1 the husband of the petitioner has stated that previously the landlady was residing at 39, Veerasamy Street and at present at No. 21, Gangu Street, Egmore, Madras-8. No further states that she started her business in 1978-79 which is a proprietrix concern at Veerasamy Pillai Street initially under the name and style of Asian Enterprises; She has not filed any account, but she filed her assessment orders. Her gross turn over for the year 1978-79 was Rs. 31 lakhs approximately. In 1989 she shifted her business to Gangu Street and she is still carrying on her business under the name and style of Asian Enterprises. Neither in the counter nor in the evidence, the tenant stated that the landlady is not carrying on her business on the date then the petition was filed. Even when P.W.I was in the witness box no suggestion was made to him that the business was not being continued. When the petition for eviction was filed. Therefore, there is no other option except to accept the contention put forth by the landlady that she was conductuing her business even during the time when the petition for eviction was filed.
10. According to the tenant, in the front portion of the petition premises, there were three shops and the roof of those shops fell down. If the landlady really require any premises for conducting her business. She could have repaired in front portion and occupied the same. According to the landlady, the three shops in the front portion fell down because of the damage caused by the tenant by constructing his oven and the chimney. The landlady submitted that whenever she attempted to repair the front portion, the tenant did not allow her to do so. According to the landlady, the tenant gave a criminal complaint against the landlady when she attempted to repair the said portion. Therefore, due to the unlawful conduct of the tenant, she was unable to occupy the front portion of the petition premises. The landlady even in the year 1983, attempted to repair the front portion, but that was prevented by the tenant by giving a complaint against her. Therefore, it remains to be seen that the landlady was unable to occupy the front portion.
11. According to the learned Counsel for the petitioner, on the date when the petition for eviction was filed, the landlady was not carrying on any business and therefore, she cannot ask for eviction under Section 10(3)(a)(iii) of the Act. In support of this contention reliance was placed upon a decision of this Court rendered in T.K. Krishna Iyer v. Karur Vysia Bank Limited Coimbatore (1959) 1 M.L.J. 215, wherein this Court while considering the provisions of Section 7(3)(a)(iii) of Madras Buildings (Lease and Rent Control) Act (XXV of 1949), held as under:
In the case before us, there is no allegation, except that the petitioner had purchased this building in 1957 for the purpose of that he describes as "accommodating the business" which he was then carrying on under the name of "Ranjitha Vilas" that he had done any Act in the way of carrying on or preparing for carrying on a business as hotel proprietor on the date on which he filed the application. He said expressly that he had to start a business of his own and that for that purpose he wanted the building. It is true that the avocation of hotel proprietor was with him and old avocation and that nothing was more natural than that he should want to become a hotel proprietor again. But that would not render him, on the date on which he made the application, a person who was carrying on a business as hotel proprietor. He was on that date a person who had done business in the past as a hotel proprietor and who was intending to do business in the future as a hotel proprietor. Such a person is not, in my opinion, a person who is carrying on a business. To held otherwise would be to delete from Section 7(3)(a)(iii) the words which he is carrying on", a function which the court is powerless to perform. It is true that the petitioner needed the building for the purpose of a business. But it is not correct to say that he needed it for the purpose of a business which he was carrying on. On the allegations made in the petition, the petitioner was not entitled to supply for relief under Section 7(3)(a)(iii) of the Act.
12. So also, the learned Counsel for the tenant relied upon another decision rendered by this Court in K. Gopalan Nair v. V. Kamalammal (1981) 1 M.L.J. 40, in support of his contention that the landlady is not entitled to possession under Section 10(3)(a)(iii) of the Act wherein this Court held as under:
It is not possible to sustain the order of the learned appellate authority. As already stated, the allegation in the eviction petition is that the non-residential buildings is required for the business of the respondent's husband who is a Government contractor. But the respondent's husband examined as P.W.I has admitted that he has ceased to be a Government contractor at present. But he added that he intends to start a textile business in the demised property, on the ground that he has previous experience in that kind of business. I am firmly of the opinion that the learned Appellate Authority should not have looked into this piece of evidence of P.W.I in the absence of any allegation that the non-residential building is required for any textile business of the respondent's husband, for no amount of evidence can be looked into on a plea which has not been put forward. The evidence P.W.I shows that he has merely an intention to start a textile has business because he claims to have previous experience in such kind of business and the respondent in, therefore, stated to require the non-residential building bona fides for that purpose. A Bench of this Court has in P.N. Raju Chettiar v. The State of Tamil Nadu, represented by the Secretary, Home Department (Accommodation controller) and Ors. , held, on a consideration of the language employed in Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 that while literal construction placed by the Honourable Judges of this Court does not commend itself to them the other view appears to be reasonable and that they think as because "carrying on a business" may consist of a series of steps, and even if one step is proved, they did not see why the requirement is not satisfied, but if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute, namely Section 10(3)(a)(iii) of the Act. This decision squarely applies to the facts of the present case.
13. Yet another decision relied upon by the learned Counsel for the tenant was not reported in K. Rangaswamy Naidu v. The Tamil Nadu Handloom Weavers Co-operative Society Limited (1982) 1 M.L.J. 130, wherein, while considering Section 10(3)(a)(iii) of the Act this Court held as under:
The facts of the above case are similar to the case under revision. Here also the landlord who was conducting a business as a hotel keeper had put an end to his business and delivered the entire hotel business as a going concern to his landlord Krishnaswamy Naicker as per Ex. A-4. On a reading of Ex. A-4 it shows that the entire business was handed over to Krishnaswamy Naicker on 14th June, 1978. After transferring the entire business to Krishnaswamy Naicker. The landlord had not done anything by which it can be said that he is carrying on the hotel business. In his evidence before the Rent Controller as P.W.2 the landlord who is the civil revision petitioner herein had not spoken to anything from which the landlord's carrying on a hotel business can be inferred. No doubt the civil revision petitioner had a rich previous experience in running the hotel but that will not help him in any way in getting the tenant evicted. Subrahmanyam, J. in T.K. Krishna Iyer v. Karur Vysya Bank Limited, Coimbatore (1959) 1 M.L.J. 215, observed as follows:
It is true that the avocation of hotel proprietor was with him on old avocation and that nothing more was natural than that he should want to become a hotel proprietor again. But that would not render him on the date of which he made the application a person who was carrying on business as a hotel proprietor.
6. On the same reasoning the civil revision petitioner herein cannot be said to be carrying on a hotel business for which he needed the premises. Since the requirement of the Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, that the landlord should be actually carrying on the business is not complied with in this case the appellate court acted rightly in allowing the appeal and dismissing the rent control application.
14. The learned Counsel for the tenant further relied upon a decision of this Court in the case of Gillanders Arbuthout and Co. Limited v. Radhrunnisa (1982) 1 M.L.J. 437, wherein while considering the provisions of Section 10(3)(a)(iii) of the Act, this Court held as under.
Firstly, there was nothing to show that the landlady's husband was actually carrying on any business at Madras. Secondly, the premises that fell vacant had not been occupied by the husband. Thirdly, there was no evidence at all to show that the landlady's husband had made any preparation for starting the business. These vital points had been ignored by the Appellate Authority which had come to an erroneous conclusion that the requirement must be bona fide.
15. What constitutes in the matter of carrying on business is essentially a question of fact or a mixed question of fact and law. Each case will have to be decided on facts and be general propositions can be evicted as to what constitutes carrying of business. The ingredient of Section 10(3)(a)(iii) are: (1) the building should be non-residential character, (2) the landlord should be carrying on business. The meaning put by to carry on business to be gathered from judicial pronouncement, (3) he should not be keeping any non residential building of his own in the City of Madras, and (4) the landlady must specify that her claim is bona fide.
16. According to the facts arising in the instant case, the landlady has stated that she was carrying, on her business under the name and style of Asian Enterprises in a rented premises. She is also carrying on business as a partner in the partnership firm under the name and style of United Corporation as per Ex. P-26 partnership deed. In her evidence, she has stated that she started her business in 1978-79 as a proprietrix concern under the name and style of Asian Enterprises. She has also filed her assessment order for the year 1978-79. She shifted the said business to Gangu Street and she is carrying on the said business in a rented premises in which she is now residing. Neither in the counter nor in the oral evidence, the tenant has denied the fact that the landlady was carrying on her business even on the date when the petition was filed. Even when P.W. 1 was in the witness box, no suggestion was made to him that the petitioner was not carrying on business on the date of filing the petition. Therefore, on facts, the landlady proved that she was carrying on business on the date of filing of the petition. Therefore, on facts, the decisions cited supra by the learned Counsel for the tenant are distinguishable and hence these decisions are not applicable to the facts of this case.
17. It must also be remembered that in order to obtain possession under Section 10(3)(a)(iii) of the Act, the landlady must not only show that she is not having a non-residential premises of her own in the City of Madras and she is carrying on her business in a rented premise but also proved her bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. According to the landlady she was originally carrying on the business in a rented premises situated at Triplicane High Road. Later on, she shifted non residence and accommodated her business in another rented premises at 36, Veerasamy Street. Again, according to the landlady, she shifted her business to Gangu Street, Egmore. Therefore, the landlady is badly in need of her premises for the purpose of accommodating her business. According to the landlady, she was paying a monthly rent of Rs. 650 for the premises at Triplicane High Road. According to the landlady if her business is accommodated in her own premises, then that would render great advantage to her. Ex. P-16, dated 22.1.1981 is certificate of registration. Ex. P-17 is a copy of the summon, Ex. P-18 is the telephone bill. Ex. P-19 dated 19.6.1975 is a letter from Reserve Bank of India, and Exs. P-26 to P-30 are documents relating to partnership firm. All these documents would go to show that the landlady was carrying on her business on the date when the petition was filed in the year 1988. All that we have to consider in a petition filed under Section 10(3)(a)(iii) of the Act is that the landlady should deserve to be put in possession and the possession should not be asked for by the landlady under an oblique active. This view was expressed by the Supreme Court in the case Hameedia Hardware Stores v. B. Mohan Lal Sowcar , in the following manner:
By merely proving that the premises in question is a non-residential building and that the landlord or any number of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3)(a)(iii) appears get a tenant evicted. He must show in view of Clause (e) of Section 10(3) that his claim is bona fide. The word "claim" means "a demand for something as due" or "to seek or ask for on the ground of right" etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against on reasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement or need. The word "claim" in Clause (e) of Section 10(3) of the Act should, therefore, as construed as "the requirement of the landlord of his deservedness. "Deserve" means "to have a rightful claim" or "a just claim". Since Clause (e) of Section 10(3) of the Act is also applicable to a petition filed under Sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Section 10(3)(a)(iii) of the Act. If the requirement of "claim' being "bona fide" as contained in Section 10(3)(c) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has nonresidential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of non-residential building will be occurs. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it could be against the very object of the Act itself. The need of the landlord should be genuine. That is the object of on acting Clause (e) of Section 10(3) of the Act. Therefore, it is not enugh that the landlord should merely desire to use or occupy the premises. What is necessary to that he should bona fide need them for his own use and occupation by any of the members of his family. Phiroze Bamanji Desai v. Chandrakant M. Patel and Mattulal v. Radhe Lal , foil.
18. In the present case, on the basis of the evidence both the authorities below concurrently case to the conclusion that the requirement of the landlady under Section 10(3)(a)(iii) of the Act is bona fide. If the finding is concurrent on the basis of the facts and the evidence on record, this Court cannot interfere with the same by exercising the revisional jurisdiction under Section 25 of the Act. On a careful consideration of the facts arising in this casein the light of the judicial pronouncements cited supra, I hold that the order passed by the Rent control Appellate Authority in ordering eviction under Section 10(3)(a)(iii) of the Act, is in order. Accordingly, I am not in claimed to interfere with the same. In the result, the revision is dismissed. However, there will be no order as to costs.
19. And this petition having been posted this day for being mentioned, the court delivered the following.
JUDGMENT
20. This case having come up for being mentioned today, the court makes the following order: After hearing the counsel for the petitioner, the tenant is granted three months time to vacate the petition premises from the date of the order passed in the abovesaid revision.