Madras High Court
M. Shanmughasundaram vs N.T.P. Subburaya Chettiar on 19 July, 1999
ORDER S. S. Subramani, J.
1. Tenant in R.C.O.P.No. 17 of 1985 on the file of District Munsif - cum - Rent Controller, Thiruvannamalai is the revision petitioner.
2. The parties herein are referred according to their rank before Rent Controller.
3. Landlord filed R.C.O.P.No. 17 of 1985 for eviction of the tenant on the ground that the building is required for the bona fide own occupation for one of his sons for running a shop in foodgrains. It is averred in the petition that the landlord's son is not owning any non - residential building of his own and schedule building is absolutely necessary for his use. Notice issued to the tenant to evict the premises. After receipt of notice, the tenant sent a sum of Rs. 3,600 representing advance rent upto 1.11.1985 which was refused to accept by the landlord. In view of the fact that they are interested in keeping tenancy not alive, suit notice was issued on 17.11.1984 calling upon the tenant to vacate the premises for the bona fide own occupation of the landlord's son, for which a reply was sent refusing to surrender vacant possession.
4. In the counter statement filed by the tenant, he contended that the landlord has agreed to have a rental arrangement for a period of three years from 1.11.1983 to 31.10.1986 on annual rent of Rs. 3,600 and since eviction petition was filed before the expiry of the term is not maintainable. It is further contended that schedule premises consists of two door Nos. and therefore two eviction petitions have to be filed and single petition for eviction of two buildings is not maintainable. Regarding the claim of bona fide own occupation, it is stated that the petitioner's son is not carrying any business nor he obtained any licence. Consequently, the claim is only a pretext for eviction. He prayed for dismissal of the eviction petition.
5. The Rent Controller as per order dated 26.7.1993 allowed the application and directed the tenant to surrender vacant possession within a period of two months. The Rent Controller further found that the son for whose requirement the building sought to be vacated is not in possession of any building of his own and he is carrying on business and therefore, has satisfied the legal requirement to get possession of the rented premises. It was further held that the petition is not bad since two door Nos. are clubbed together in a single petition. It took the said view for the reason that both these door Nos. are used by the tenant under single tenancy and therefore, a single petition alone is maintainable. The Rent Controller further held that there will be no difficulty for the petitioner to vacate the premises since he is in possession of eleven shops owned in a same locality.
6. Against the order of eviction, the tenant has filed R.C.A.No. 7 of 1993 on the file of the Subordinate Judge's Court, Thiruvannamalai. Before the appellate authority I.A.No. 71 of 1998 was filed to contend, landlord came into possession of two shops after eviction order passed and the same have been let out on hire rent. It is contended that subsequent events also have to be taken into consideration for moulding relief. It is also contended before the appellate authority after eviction petition was filed, the landlord obtained possession of other buildings which was also to let out to other tenants.
7. The appellate authority as per judgment dated 29.6.1999, confirmed the decision of the trial court and dismissed the appeal, declared that the claim of eviction on the ground of bona fide use is proved and the bona fides continues even on the date when the appeal was heard and decided. The alleged subsequent events were also found to no relevance in doubting the bona fides of the landlord. The appellate authority further found that the landlord's son is carrying on business and therefore satisfied the requirements to get the possession of the building. The appeal was dismissed.
8. The concurrent judgment is assailed in this revision under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
9. Since caveat was entered on behalf of the landlord, by consent of both sides, the entire revision was heard at the admission stage itself, Before going to the facts and merits of the case, this Court must remind itself about the scope of revisional jurisdiction. this Court is not expected to re - appreciate the evidence for the purpose of entering a different finding, even if such a finding is possible on such appreciation. Appreciation of evidence is permissible only to see, whether the authorities below have acted legally and whether they have taken into consideration a relevant piece of evidence. The jurisdiction being supervisory, this Court is expected only to verify whether the authorities below have taken into consideration irrelevant materials and have acted with material irregularity and illegality. It was so held in a recent decision of the Hon'ble Supreme Court reported in Rafat Ali v. Sugni Bai , their Lordships considered the scope of revisional powers under the A.P. Buildings (Lease, Rent Eviction) Control Act. The statute also similarly evaded and therefore I feel that the said decision will be helpful in this case. In para 7 of the judgment, their Lordships held thus:
The application given to the section makes it unmistakably clear that the power conferred thereunder is revisional which means, it is a power of supervision, It is well neigh settled that a revisional jurisdiction cannot be equated with appeal powers in all its parameters. The power to call for and examine the records is for the purpose of the High Court to satisfy itself as to the "legality, regularity or propriety" of the order of the lower authority. Even such a widely worded frame of the Section may at best indicate that the revisional powers are not so restricted as in the enactments wherein the words are not so widely framed. Nonetheless, they remain the realm of supervisory jurisdiction. In a recent decision we had occasion to consider the scope of revisional jurisdiction under certain rent control enactments vide: SarlaAhuja v. United India Insurance Company Limited . Reference was then made to a decision wherein similar words used under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 were considered (vide: Sri Raj Lakshmi Dyeing Works v. Rangaswamy ). A two Judge Bench has observed therein that, "despite wide language employed in the section, the High Court quite obviously should not interfere with the findings of fact merely because it does not agree with the finding of the subordinate authority." After adverting to it we have stated in Sarla Ahuja:
The High Court in the present case has reassessed and re - appraised the evidence afresh to reach a different finding as though it was exercising appellate jurisdiction. No doubt even while exercising revisional jurisdiction, a re - appraisal of evidence can be made, but that should be for the limited purpose to ascertain whether the conclusion arrived at by the fact finding court is wholly unreasonable.
10. Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads thus:
10(3)(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 said section came for interpretation before the Hon'ble Supreme Court in a case reported in V. Radhakrishnan v. S.N. Loganatha Mudaliar . Before the Hon'ble Supreme Court, an argument was taken i.e., if the landlord is in possession of any non - residential building, that will be a disqualification to get possession of another nonresidential building even if the requirement is for benefit of a member of the family. Differences of opinion rendered by the various judgments of this Hon'ble Court were also placed before the Hon'ble Supreme Court and finally in para. 12 of the judgment, Their Lordships have held thus:
12. On a plain reading of Section 10(3)(a)(iii) of the Act, it appears to us that the legislature intended that a landlord seeking eviction of the tenant could be disentitled from claiming possession of the non - residential premises where he requires those premises for his own use, if he is occupying a nonresidential building of his own. Similarly, the landlord would also be disentitled from claiming possession of non - residential premises for the benefit of a member of his family, if that member of the family was in occupation of a non - residential building of his own. Any other interpretation of this section would not only be doing violence to the plain language of the section but would result in absurdity inasmuch as the benefit of the provision would stand denied to the family members of the landlord, who do not occupy any premises of their own and for whose benefit eviction is sought, if the landlord himself is in occupation of a non - residential premises of his own. The fact that the landlord, who seeks eviction for the benefit of a member of his family, is himself occupying a building of his own cannot operate a bar to the landlord seeking eviction for the benefit of a member of his family, who does not occupy any premises of his own. Thus, it follows and we hold that the law laid down in Jagannatha Chettiar case, is not correct law. The learned single Judge in Chettiar case did not notice, let alone consider the three earlier judgments in Indian Plywood, K. Chettiar and Annamalai and Co. In our opinion, the judgments in Kannan case, Indian Plywood Manufacturing Co. Case, K. Chettiar Case and Annamalai and Co. case lay down the correct law, which we hereby approve.
11. In view of the above law declared by the Hon'ble Supreme Court, the possession of nonresidential building by the landlord may not be disqualification for the son to get possession of the premises if that son, is not having any nonresidential building of his own. In the petition, it is specifically averred by the landlord that son Venkatabalakrishnan is not in possession of any non - residential premises nor he is owning any such premises. In the counter as well as in the evidence, the only statement is that the landlord is in possession of other buildings and therefore, the petition is not maintainable. The law declared by the Hon'ble Supreme Court is an answer to the said contention of the tenant. I hold that the petition for eviction is maintainable.
12. Even if the eviction is sought for the members of the family, that member must be carrying on business before eviction petition could be filed. In this case, it is alleged by the landlord that his son has obtained a licence for running a shop in foodgrains and he has also applied for necessary registration from the Commercial Tax officer, Thiruvannamalai, Ex. A - 4 shows that the landlord's son has made arrangements for doing business. Ex. A - 5 shows that Venkatabalakrishnan is paying professional tax for the year 1984 - 85. An argument was taken by the learned Counsel for the revision petitioner that after eviction petition was filed, the same has not been renewed and therefore, as on date, the son is not carrying on business. I cannot accept the said contention. this Court take note of certain facts which are discussed in the orders of the courts below. It is be seen that the landlord filed an I.A.No. 100 of 1994 on the file of the appellate authority and produced nine documents to show that Ex. A - 4 has been renewed from time to time and even on the date when the appeal was heard, landlord's son was holding a valid licence. The licence has taken in the residential premises of the landlord which fact is not disputed by the tenant. What is carrying on business was decided by me in a decision reported in Thirunavukkarasu v. Vasantha Ammal (1997) 2 L.W. 607, I had an occasion to consider the entire case law on the point in the decision reported in Arumugha Chettiar v. Jayaraman , on the words carrying on business. I considered the entire law on the point and finally, I held that the landlord has proved his case if he has taken one step for carrying on business. The words "carrying on business", consists of series of steps and if one step is taken and the same is proved, that satisfies the requirement of the Act. Possession of funds, taking licence are all such steps for the purpose of carrying on business. The above decision again came up for interpretation in Thirunavukkarasu v. Vasantha Ammal (1997) 2 L. W. 607. In paras. 16 and 17 of the judgment it was held thus:
16. Regarding the words carrying on business' I had occasion to consider the entire case law on the point in the decision reported in Arumugha Chettiar v. Jayaraman . In that case, I have extracted the earlier view and how far the later judicial interpretation has given a liberal view. I have also referred to the various decisions of this Court wherein their Lordships have said that the words' carrying on business are to be understood in a more practical way than by giving a literal interpretation. The literal interpretation which was the earlier view has been given a go by in the later decision. The present trend seems to be that the word 'carrying on business' may consist of series of acts, and if one step is taken, that will be sufficient to come within the meaning of 'carrying on business'.
17.1 have followed the decision reported in Azimuddin Sahib v. Rangaswami Pillai , wherein the words are interpreted thus:
Though the wording of the sub - section is not quite happy the expression "for the purpose of the business which he is carrying on "has to be interpreted, from the context, having regard to the nature of the business and the transaction incidental to it. If bona fide preparation for a business may be regarded as being carried on in many cases.
Another decision which I referred to is, Saraswathi alias Sasikala v. Syed Ibrahim . In that case the only step that was taken was, the landlady was having funds and she wanted to start a hotel business. It was held that saving of necessary funds amounts to one step to start a business and, therefore, it will amount to "carrying on business". In T. Anandan v. Noorjahan (1994) 1 M.L.J. 657, it was held that carrying on business' does not mean "actually carrying on business', but only taking some steps for the purpose of "carrying on business.'
13. I hold that the landlord's son has also proved the statutory requirement that he is carrying on business and therefore, eligible to seek eviction.
14. The landlord's son Venkatabalakrishnan is a graduate who is having no other means in life. Landlord wanted him to do some business for which he has taken licence in dealing with food grains. When the father wants his son to get engaged in some business so as to earn for his own livelihood, that intention can never be said as not in good faith. The best interest of the son is being looked by the landlord and the son also is now aged and is in a position to earn his livelihood. He wants to do business of his own. The claim of bona fides in such case can never be doubted. The recent decision of the Hon'ble Supreme Court reported in Dattatraya Laxman Kamble v. Abdul Rasul Moulali Kotkunde their Lordships considered the question under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that case also, the landlord wanted eviction of the non - residential building. Their Lordships said in paragraph 13, that when a landlord comes to court with a plea that he wants the building bona fides for his own occupation, "the court ought not to take a uncharitable view" and in earlier portion of the judgment, their Lordships have further said in para 8 thus:
When a landlord says that he needs the building for his own occupation there is no doubt he has to prove it. But there is no warrant for presuming that his need is not bona fide. The statute enjoins that the court should be satisfied of his requirement. So the court would look into the broad aspects and if the court feels any doubt about the bona fides of the requirement it is for the landlord to clear such doubts. Even in a case where the tenant does not contest or dispute the claim of the landlord the court has to look into the claim independently albeit the landlord's burden gets lessened by such non - dispute. In appropriate cases it is open to the court to presume that the landlord's requirement is bona fide and put the contesting tenant to the burden to shop how the requirement is not bona fide.
In that case, their Lordships further went and said that in appropriate cases, it is open to the court to presume that the landlord's requirement is bona fide and put the contesting tenant to the burden to show that the requirement is not bona fide. Taken into consideration the facts and circumstances of the case and also going by the evidence as discussed by the courts below, I feel that the landlord has proved in this case that his requirement is bona fide. When the landlord's son is not having any other avocation in life and he is not in possession of any other building in his own and seeks eviction for his own occupation. I feel there should be presumption in favour of the landlord when the requirement is bona fide. Taking by the evidence, I am of the view de hors the presumption the landlord has also proved that the requirement is genuine.
15. An argument of the learned Counsel for the petitioner that after filing the eviction petition that the landlord come into possession of various buildings and the same has been let out on higher rent and that shows the lack of good faith in seeking eviction. Reliance was placed by the learned Counsel on the evidence of P.W.1, the landlord, It is true that in the cross examination, he had said that four shop rooms became vacant after eviction petition was filed and those shops belonged to him and his son. If that was the only statement, there would have been some force in the contention of the learned Counsel for the petitioner. The tenant himself produced Exs. B - 1 to B - 3 settlement deeds to prove that the landlord and his son has got other buildings. It has come out in evidence that even though the landlord and his son are owning the same, the same is subject to the life interest of their grandfather who was entitled to let out the building in his own way during his life time. During his life time, neither the landlord nor his son are entitled to claim any right over the same. The four tenants surrendered the possession to the grandfather and it was grandfather who let out the building to others. If the landlord or his son had a claim in getting possession of the building during the lifetime of grandfather, there would have been some bona fides in the contention of the tenant. The grandfather died only long thereafter. Merely because between during 1985 - 86 four shop buildings became vacant, that cannot be a ground to disbelieve the case of the landlord. That also cannot be taken into consideration in doubting the bona fides of the landlord.
16. Before the appellate authority, the tenant filed I.A.No. 71 of 1998 alleging that the landlord has come into possession of Door Nos. 116 - A and 117 - A of Big Bazaar Street and the same has been rented out to third parties. A counter - affidavit has been filed by the landlord stating that the said building does not belong to them and they have not let out the building to any person. No material was placed by the tenant to show that the landlord had any right over those buildings. The appellate court refused to take into consideration the affidavit since no prima facie evidence was adduced that Door Nos. 116 - A and 117 - A belonged to the landlord or to his son. Even before this Court, no materials where placed to come to a different conclusion.
17. The evidence of the authorities below are based on materials and they have considered the entire evidence and had come to the correct conclusion. A different view is also not possible on appreciation of such evidence.
18. learned Counsel for petitioner also submitted that possession of other buildings by the tenant may not be relevant consideration while considering a petition for eviction by the landlord, whose building he is in occupation as tenant. I do not think that the said submission could be accepted. In most of the Rent Control Legislations, coming into possession of other buildings by the tenant itself is a ground for eviction, though not under the Tamil Nadu Rent Control Act. All the Rent Control Legislations, came in the wake of increasing urban population, acute shortage of accommodation, high demand for accommodation, fake renting as well as unreasonable eviction of tenants and to facilitate proper letting at the same time protecting the tenants from un - reasonable eviction by the landlords. At that time, the tenants were considered to be weaker sections of the society and the various decisions also declared that it is a beneficial legislation to the tenant. But subsequently, the law changed and in Ganapthi Ram Sharma andothers v. Smt. Gayatri Devi , their Lordships said that the Rent Control Legislation is beneficial both to the landlord and tenant, in the sense that it has given certain rights from being unlawfully evicted and at the same time, so far as landlords were concerned, it enabled them to get eviction on proper of specified grounds. In Inder Mohan Lal v. Ramesh Khanna , their Lordships held that it cannot be declared that the tenants continue to be the weaker sections of the society. At least in respect of non - residential buildings, their Lordships took note that the tenants are more affluent than many of the landlords and the bargaining power is now mostly equal. In the recent decision by the Hon'ble Supreme Court reported in Malpe Viswanath Acharya v. State of Maharashtra (1998) 2 S.C.C. 12, their Lordships held that the Rent Control Legislation should be the larger interest of the society as a whole one should not any confer disproportionately larger benefit to the detriment of another. In paragraphs 29 and 30 of the judgment, their Lordships held thus:
29. Insofar as social legislation, like the Rent Control Act is concerned, the law must strike a balance between rival interests and it should try to be just to all. The law ought not to be unjust to one and give a disproportionate benefit or protection to another section of the society. When there is shortage of accommodation it is desirable, nay, necessary that some protection should be given to the tenants in order to ensure that they are not exploited. At the same time such a law has to be revised periodically so as to ensure that a disproportionately larger benefit than the one which was intended is not given to the tenants. It is not as if the Government does not take remedial measures to try and offset the effects or inflation. In order to provide fair wage to the salaried employees the Government provides for payment of dearness and other allowances from time to time. Surprisingly this principle is lost sight of while providing for increase in the standard rent - the increases made even in 1987 are not adequate, fair or just and the provisions continue to be arbitrary in today's context.
30. When enacting socially progressive legislation the need is greater to approach the problem from a holistic perspective and not to have a narrow or shot - sighted parochial approach. Giving a greater than due emphasis to a vocal section of society results not merely in the miscarriage of justice but in the abdication of responsibility of the legislative authority. Social legislation is treated with deference by the courts not merely because the legislature represents the people but also because in representing them the entire spectrum of views is expected to be taken into account. The legislature is not shackled by the same constraints as the courts of law. But its power is coupled with a responsibility. It is also the responsibility of the courts to look at legislation from the altar of Article 14 of the Constitution. This article is intended, as is obvious from its words, to check this tendency; giving undue preference to some over others.
19. In view of this decision of the Hon'ble Supreme Court, the tenant's possession of other buildings cannot be said to be a irrelevant consideration while doing justice to the parties.
20. In the result, I do not find any merit in the revision and consequently the same is dismissed however without any order as to costs. C.M.P. No. 10440 of 1999 is closed.
21. After pronouncement of the order in this revision learned Counsel for the petitioner represented that time may be granted to his client to vacate the premises. The said request of learned Counsel for the petitioner is seriously opposed by learned Counsel for the respondent/landlord on the ground that even though the tenant/petitioner is in occupation of the premises, the other two rooms are lying vacant. Taking into consideration the arguments advanced by learned Counsel on either side and also the fact that the tenant/petitioner has been doing business in the premises for a long time, the tenant/petitioner is granted three months' time to vacate the premises on condition that he files an affidavit of undertaking before this Court within ten days from today undertaking that he will unconditionally vacate the premises on the expiry of the term without any further demand from the landlord and without causing any obstruction. The arrears of rent, if any will have to be paid by the tenant/petitioner to the landlord/respondent within the time specified above. The rent as and when becomes due shall also be paid by the tenant/petitioner to the landlord/respondent. Any violation of any of these conditions will entitle the landlord/respondent to take possession of the premises from the petitioner/tenant as if no time is granted.