Madras High Court
Mr.Sha Ukchand vs Mr.Yogesh on 24 January, 2008
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.01.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.1849 of 2003 1.Mr.Sha Ukchand 2.Mrs.Shanthi Devi 3.U.Ashok Kumar (Petitioners 2 and 3 brought on record as legal representatives of the deceased (Mr.Sha Ukchand) sole petitioner vide order of Court dated 10.04.2007 and made in C.M.P.No.716 of 2007) ... Petitioners Vs. Mr.Yogesh ... Respondent Prayer: Petition filed under Section 25 of the Tamil Nadu Buildings Lease and Rent Control Act 18 of 1960 as amended by Tamil Nadu Act 23 of 1973 against the decree and judgment of the learned Rent Control Appellate Authority Sub Court Coimbatore in R.C.A.No.9 of 2003 dated 05.09.2003 confirming the decree and judgment of the learned Rent Controller, Principal District Munsif, Coimbatore in R.C.O.P.No.199 of 2000 dated 10.01.2003. For Petitioners : M/s.P.K.Sivasubramanian For Respondent : Ms.P.Veena for Mr.T.R.Rajaraman O R D E R
The civil revision petitioner is the respondent/tenant in R.C.O.P.No.199 of 2000 on the file of the learned Rent Controller viz., the District Munsif, Coimbatore.
2.The civil revision petitioner/tenant is the appellant in RCA No.9 of 2003 on the file of the learned Rent Control Appellate Authority viz., the Principal Subordinate Judge, Coimbatore. The respondent/landlord/petitioner filed R.C.O.P.No.199 of 2000 on the file learned Rent Controller, Coimbatore under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act of 1960 praying for an order of eviction directing the tenant/appellant/revision petitioner to vacate the petition mentioned property and hand over vacant possession of the same. The respondent/landlord/petitioner filed the aforesaid RCOP petition claiming the petition mentioned property for his own occupation, for a non residential purpose. The revision petitioner/appellant/tenant filed a counter inter alia stating that the petition lacks merits and that the respondent/landlord is already running a shop dealing in Electrical in the same premises and number of shops are vacant in the premises and that the respondent/landlord/petitioner is having two shops on the first floor and kept under lock and key and further that the landlord in occupation of a non residential area is not entitled for possession of the premises and that the respondent/landlord is having a shop in the first floor and is not visible and that the work done by the landlord is only servicing which requires no visibility but only skilled persons and equipments to work and that the petition has been filed with an ulterior motive, with a hidden trick of making the revision petitioner/appellant/tenant to vacate the premises.
3.The learned Rent Controller by his order dated 10.01.2003 has allowed the petition RCOP No.199 of 2000 directing the revision petitioner/appellant/tenant to vacate the petition mentioned property and hand over vacant possession of the same to the respondent/landlord within two months from 10.01.2003.
4.Before the learned Appellate Authority viz., the Principal Sub Judge, Coimbatore, the revision petitioner/appellant/tenant preferred RCA No.9 of 2003.
5.The learned Appellate Authority viz., the Principal Sub Judge, Coimbatore, has dismissed RCA No.9 of 2003 on 05.09.2003 confirming the orders passed by the learned Rent Controller in RCOP No.199 of 2000 dated 10.01.2003.
6.Aggrieved against the orders passed by the learned Appellate Authority viz., the Principal Sub Judge, Coimbatore in RCA No.9 of 2003 dated 05.09.2003 the civil revision petitioner/appellant/tenant has filed the present revision petition CRP (NPD) No.1849 of 2003 before this Court.
7.The learned counsel for the revision petitioner/appellant/tenant urges that the learned Appellate Authority as well as the learned Rent Controller understood the claim of the respondent/landlord/petitioner as one for additional accommodation for the business carried on by him in the petition premises and that the learned Appellate Authority Authority has not referred to the statutory provision mentioned in the RCOP petition and simply confirmed the order of the learned Rent Controller and that the learned Appellate Authority has not taken into consideration the decision of the Honble Supreme Court reported in (2002) 4 Supreme Court Cases 627 (Kanniammal v. Chellaram) and that there is a bar for the landlord from making an application for the requirements of the business for owners occupation if he is already carrying on business in a portion of the building in which the tenant is also carrying on the business and therefore RCOP No.199 of 2000 filed by the respondent/landlord under Section 10(3)(a)(iii) of the of the Tamil Nadu Buildings [Lease and Rent Control] Act of 1960 is not maintainable per se in law.
8.It is the further stand of the revision petitioner/appellant/tenant that the claim for additional accommodation can be maintained only under Section 10(3)(c) of the Act and that the respondent/landlord is having sufficient accommodation both in the ground floor and also in the first floor, vacant non residential portion for his purported business requirements by means of additional accommodation and that the learned Appellate Authority should have come to the conclusion that the requirement is not bona fide.
9.The pith and substance of the plea of the revision petitioner/appellant/tenant is that the respondent/landlord/petitioner cannot lay a claim under Sec.10(3)(a)(iii) of the Act in view of the facts mentioned in the RCOP petition and the nature of evidence let in in the case and therefore, both the authorities have come to the erroneous conclusion.
10.The demised property is situated in an area of 160 sq.feet (16 feet x 10 = feet) as averred in the petition. It is not in dispute that the demised property is situated in a prime locality in Coimbatore. The revision petitioner/appellant/tenant is a wholesale cloth merchant. The revision petitioner/landlord is the tenant in the demised property for the last 37 years. The revision petitioner/appellant was inducted as a tenant in the demised property under the respondent/landlords father Pappaji Rao, who died on 11.09.1999. Thereafter, the revision petitioner/appellant is paying the monthly rent to the respondent/landlord regularly.
11.As a matter of fact, the respondent/landlord/petitioner requires petition mentioned property for starting his business in servicing of Electronic equipment and it is the claim of the respondent/landlord that he is not in occupation of any other non residential building in the city and further, that he is doing business in a small way at his residence and not in a non residential building and therefore, he requires the building for his own occupation for a non residential purpose.
12.The learned counsel for the revision petitioner/tenant for the proposition that the respondent/landlord is prevented from making an application for the requirement of the business for owners occupation if he is already carrying on business in a portion of the building in which the tenant is also carrying on the business, relied on the decision (2002) 4 Supreme Court Cases 627 (Kanniammal v. Chellaram) wherein it is observed as follows:-
Rent Control and Eviction Bona fide need of landlord Requirement of non-residential premises in occupation of tenant for purpose of starting sons business where residence of landlord located in a portion of same building T.N. Buildings (Lease and Rent Control) Act, 1960, Ss.10(3)(c)-Held, appropriate section for labndlord to seek eviction of tenant would be S.10(3)(a)(iii) and not S.10(3)(c), which only permits landlord to recover premises if he requires additional accommodation for the same purpose for which he is using the portion already in his occupation On facts, held, appellant landlady rightly sought eviction under S.10(3)(a)(iii) High Court erred in allowing respondent tenants revision petition, dismissing appellants review petition and setting aside concurrent decree of eviction against respondent T.N.10(3)(a)(iii) Statute Law Non obstante clause Role of.
13.He also relied on 2003 (2) TLNJ 449 (Dr.Anthony Sheik Shib Pong vs. S.E.Mahboob Basha) wherein it is held that:-
"Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended S.10(3)(a)(iii) Eviction petition non residential own occupation should not be in occupation of his own premises need not proved to be genuine eviction cannot be ordered."
14.P.W.1-Yogesh in his evidence has deposed that the revision petitioner/tenant is paying rent to him after the demise of his father on 11.09.1999 and that he issued receipts towards the monthly rent paid by the revision petitioner and that the revision petitioners shop is the third one from the 5 corner and that he has studied Diploma in TV and Radio repairs and Ex.P.1 is the Diploma Certificate and that he joined as Technician in UMS Company in the year 1994 and he served for 5 = years and for running his own shop, he resigned the job.
15.P.W.1-Yogesh has further deposed that temporarily, he is running the shop near the stair case climbing portion TV, VCR will come for works to him and the length of the portion is 6 x 6 feet in length and breath and in the upstairs for running the service centre, it is not convenient and apart from the petition mentioned property, he has no other building.
16.P.W.1-Yogesh in his cross examination has deposed that in the shop run by him, there is no name and address and there is no Registration Certificate and TNGST and in the upper portion of his building, there is one room which is vacant and another one is used by him.
17.P.W.2-Loganathan, the Advocate-Commissioner in his evidence has deposed that the respondent/landlord/petitioner at the time of his inspection was keeping the electrical items beneath the stair case and for keeping the electrical items, there is no enough space in the stair case and that the respondent/landlord was keeping the TV and Tape Recorders in his house and for the two rooms in the stair case, there is only one way for reaching it and his report is Ex.C.1 dated 17.11.2000 and the sketch is Ex.C.2 dated 17.11.2000.
18.P.W.2-Thiru.Loganathan, Commissioner in his cross examination has stated that the respondent/landlrod/petitioner has kept his belongings and the belongings are kept in the bed room about which he has mentioned in his Ex.C.1 report and he has not inspected the Kothari Furniture Godown in the first floor, which was locked and that the respondent/landlord/petitioner for his job is not keeping the name board and that he has not mentioned about the articles being kept in the bed room specifically.
19.R.W.1-the revision petitioner/tenant in his evidence has deposed that the respondent/landlord has let out a portion to Kothari Furniture in the South of the petition property and that it is not correct to state that the respondent/landlord is requiring the petition building for his own occupation.
20.R.W.2-Premchand in his evidence has deposed that he has not seen the respondent/land lord running his business in the stair case of the petition building and in that place there is no name board and when Kothari Furniture handed over one room, there was no panchayat and near the rental portion of the Kothari Furniture, for entering into the respondent/landlord in the respondent/landlords house, for getting into upstairs there are steps and that he has climbed the said steps and seen it.
21.The learned counsel for the respondent/landlord contends that the respondent/landlord is residing at Door No.219 and that the door number of the petition mentioned property is 217 and that the respondent/landlord has resigned his job from UMS Service Limited for the purpose of starting his own business in servicing and that the landlord requires petition premises for his own occupation for a non residential purpose and therefore, RCOP No.199 of 2000 is maintainable in law.
22.The learned counsel for the respondent/landlord relied on the decision 2001 (2) L.W 596 and 597 (Khusid Begum & ors v. Basheer Alam) wherein it is held thus:-
Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), Ss.10(3)(c)(a)(iii), 10(2)(i), and 11 (4), wilful Default Objection by tenant that landlord ought to have applied under S.10(3)(c) and not under S.10(3)(a)(iii), not accepted In view of the distinctive and divisible nature of the property there can be no doubt that two portions can be enjoyed and sold separately without causing hindrance to each other Failure to raise objection in the counter and before the Appellate Authority is another ground not to allow tenant to raise the point in revisional stage.
An instance of welfare legislation causing grave inconvenience and hardship to poor people who are sought to be described as landlords.
23.Further, reliance was placed on the decision in (2005) 8 Supreme Court Cases 252 (Sait Nagjee Purushotham & Co. Ltd., v. Vimalabaiprabhulal) wherein it is held as follows:-
"A.Rent Control and Eviction Bona fide requirement of landlord- Premises required for expansion of existing business Eviction suit on ground of Maintainability Held, it is always the prerogative of the landlord to decide for what purpose he requires premises in question, in this case for his bano fide use of expanding his business It cannot be a ground to say that landlord is already having his business in other cities and therefore such need is not a genuine need It is not tenant who can dictate terms to landlord and advise him what he should do and what he should not It is always the privilege of landlord to choose the nature and place of business Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) S.11(3) Applicability.
24.On the side of the respondent/landlord, the decision in AIR 1985 MADRAS 95 (M/s.Shelat Bros. v. Lodd Narendradas) wherein it is observed as follows:-
"(B)....- Mere user of a room in residential premises for non-residential purposes Landlords not deprived from availing benefit of S.10(3)(a)(iii) on that account Landlords applications were maintainable.
25.In regard to the plea that the respondent/landlord is residing at Door No.219 and the Petition Door No. is 217, it is a new point taken before this Court, in the considered opinion of this Court.
26.It is useful to refer to Sec.10(3)(a)(iii) of the Tamil Nadu Buildings [Lease & Rent Control] Act, 1960 which runs as follows:-
(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:
27.Under Sec.10(3)(a)(iii) of the Act, the conditions for obtaining a non-residential building are
(i)The building should be non-residential in character
(ii)The landlord should be carrying on business on the date of application for eviction.
(iii)The landlord should not be occupying any building belonging to him in respect of the business and claim is bona fide for his business need and is not found to be indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than the premises already fetched or with a view to harass the tenant in possession, as per decision 1962 (2) MLJ 446 at 448 (J.Abdul Kader vs. Hussein Ali & Sons). The same is the tenor of the decisions in 1982 (2) MLJ 85 at 87 (Bank of Baroda represented by its Chairman vs. Mahendra Dada and two others) and 1995 (2) MLJ 649 (Sankaranarayanan vs. Palaniswami).
28.It is pertinent to point out that the essential requirements of Sec.10(3)(a)(iii) are:-
1.The building should be non-residential in character.
2.The landlord should be carrying on business, the meaning to be attached to carrying on business, to be gathered from judicial pronouncement.
3.He should not be occupying any non-residential building of his own in the city of Madras.
4.The landlord must satisfy that his claim is bona fide as per decision 1984 (1) MLJ 22 at 23 (Krishna Reddy and others vs. S.Vasudevayya).
29.In 1994 (1) MLJ 657 (T.Anandan vs. Noor Jahan) it is held that Carrying on business is a mixed question of fact and law. Each case will have to be decided on facts and no general proposition can be evolved as to what constitutes Carrying on business.
30.In 1998 (2) MLJ 261 (Jayaram Metal Works vs. Jagannathan), it is observed that A petition is maintainable if the business is being carried on in a premises which is not the landlords own.
31.In 1995 (2) MLJ 67 (Mohambaram, N. vs. CKCM Kader Shan and Brothers, represented by its partner) it is held that The fact that the landlord was storing his business materials in his residence and has prior experience would not help him to contend that he was carrying on business on the date of filing of the petition.
32.In 2001 (1) MLJ 241 (Sankar.K vs. G.L.Vijayan) it is observed that When it is found that the landlord is running a different industrial unit in a non-residential premises of his own, he is not entitled to seek eviction invoking Section 10(3)(a)(iii).
33.At this juncture, it is pertinent to point out that Sec.10(3)(a)(iii) of the Act concerns with the whole building in occupation of a tenant which is a distinct and separate from the non-residential building in the occupation of the landlord, under Sec.10(3)(c) both landlord and the tenant are in the same building and the landlord requires it for additional accommodation resultantly seeking eviction, as per decision 83 LW 696 at 700 (Easwaran Chettiar vs. Subbarayan). It is to be noted that the scope of Sec.10(3)(c) of the Act is different from Sec.10(3)(a)(iii) of the Act. Each sub Sec. will come into operative play under different circumstances. As a matter of fact, if Sec.10(3)(c) of the Act is invoked for additional accommodation, the landlord must be in occupation.
34.In 1994 (2) LW 661 (A.P.Swamy vs. V.Kunjithapatham) it is held that The landlord, occupying the first floor of the premises for residential purposes seeks eviction of tenant, who is carrying on business in the ground floor of the same premises under Sec.10(3)(a)(iii). Held, the landlord ought to have applied for eviction under Sec.10(3)(c) only and petition filed under Section 10 (3) (a) (iii) is not maintainable.
35.As far as the present case is concerned, the learned Appellate Authority has observed that the respondent/landlord/petitioner is doing TV, VCR repair works in the stair case portion. Furthermore, the learned Appellate Authority has also observed in RCA No.9 of 2003 order dated 05.09.2003 that the requirement of respondent/landlord for conducting his business is bona fide and for conducting the landlords business additional accommodation is required and therefore, ordered eviction of the civil revision petitioner/appellant.
36.It is not out of place to point out that the learned Appellate Authority in paragraph 13 of the order passed in RCA No.9 of 2003 dated 05.09.2003 has specifically adverted to the requirement of landlord as one of additional accommodation. Even the learned Rent Controller in his order passed in RCOP No.199 of 2000 dated 10.01.2003 in paragraph No.17 has observed that in the stair case carrying of items like TV etc., in a big way, it will be an hindrance. In fact, it is the categorical evidence of P.W.1-Yogesh (in cross examination) that out of two rooms, one is vacant and the other one is used by him.
37.P.W.2-Loganathan, the Advocate Commissioner in his cross examination has deposed that the Kothari Furniture godown is situated in first floor, which he has not inspected on account of its locking and that the respondent/landlord has mentioned that Bed room is allotted to his brother for his stay. Suffice it to state that both the learned Rent Controller and the learned Appellate Authority have not adverted to about the maintainability under Sec.10(3)(a)(iii) of the Act in RCOP No.199 of 2000 dated 10.01.2003 and RCA No.9 of 2003 dated 05.09.2003. Inasmuch as the respondent/landlord who seeks eviction of the revision petitioner/appellant/tenant for his own occupation should not be in occupation of his own premises as per Sec.10(3)(a)(iii) of the Act and since there is a bar under the Act for the respondent/landlord in making an application for the requirement of business for owners occupation if he is already carrying on business in a portion of the building in which the revision petitioner/tenant is also carrying on the business as far as the present case is concerned this Court comes to the conclusion that RCOP NO.199 of 2000 on the file of the learned Rent Controller, Coimbatore is not maintainable per se in law and in that view of the matter, the orders passed by the learned Rent Controller viz., the Principal District Munsif, Coimbatore in RCOP NO.199 of 2000 dated 10.01.2003 and the learned Appellate Authority viz., the Principal Subordinate Judge, Coimbatore in RCA No.9 of 2003 dated 05.09.2003 are set aside to prevent the aberration of justice and resultantly, the civil revision petition is allowed.
38.In fine, CRP (NPD) No.1849 of 2003 is allowed. Resultantly, the orders passed by the learned Rent Controller in RCOP No.199 of 2000 dated 10.01.2003 and the learned Appellate Authority in RCA No.9 of 2003 dated 05.09.2003 are set aside. RCOP No.199 of 2000 on the file of the learned Rent Controller viz., the Principal District Munsif is dismissed. It is open to the respondent/landlord to file a fresh petition as per the relevant provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 for seeking appropriate relief against the revision petitioner/tenant in the manner known to law. In the facts and circumstances of the case, the parties are directed to bear their own costs. Consequently, connected miscellaneous petition C.M.P.No.13645 of 2004 is closed.
jbm To
1.The Rent Control Appellate Authority Sub Court Coimbatore.
2.learned Rent Controller, Principal District Munsif, Coimbatore.