CORAMTHE HONOURABLE MR v. Shanthi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED ; 15-6-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMC.R.P.NPD No.1371 of 2006Balasubramanian.. Petitioner/Land LordvsShanthi.. Respondent/TenantCivil revision petition preferred under Sec.25 of the PondicherryBuildings (Lease and Rent Control) Act, 1969 against the judgment anddecree dated 21.7.2006 passed in RCA No.4/2005 on the file of theAppellate Authority (Principal District Judge), Pondicherry, confirmingthe fair order dated 31.1.2005 passed in HRCOP No.76/2002 on the file ofthe Rent Controller, Pondicherry.For Petitioner: Mr.R.SubramanianFor Respondent : No AppearanceORDERChallenge is made to an order of the Principal District Judge,Pondicherry, made in RCA No.4/2005 whereby the order of the learned RentController of that place in RCOP 76/2002 dismissing the application, wasaffirmed.2.The Court heard the learned Counsel for the revision petitioner.There is no representation on the side of the respondent despite serviceof notice by this Court.3.It was an application for eviction of the respondent-tenant underSec.10(2)(i) and 10(3(a)(iii) on the grounds of willful default personaloccupation. On enquiry, the Rent Controller was not prepared to acceptboth the grounds and dismissed the petition. Thereafter, the appealpreferred there from by the landlord was also dismissed. Hence, thisrevision before this Court. 4.At the time of enquiry of the revision, the learned Counsel for thepetitioner would submit that in the instant case, he is not pressing theground of willful default; that both the authorities below have given aconcurrent finding; that further, in respect of that part, he could notassail; that so far as the other ground for personal occupation wasconcerned, the petitioner-landlord was a physically handicapped person;that he was living in the back portion; that the front portion wasactually rented out to the respondent-tenant who was carrying on watchrepairing shop; that she was making a payment of rental originally; that a https://hcservices.ecourts.gov.in/hcservices/ lease deed was entered into in the year 1996; that the monthly rental wasRs.800/-; that the landlord received an advance of Rs.15,000/-; thatsubsequently, the rental was raised to Rs.1,290/- from May 2001; that inthe back portion, the landlord was living; that he was actually carryingon a business in a shop on rental basis in the name and style ofJayabarathy Stores situated in Solai Thandavankuppam; that sufficientproof was also produced before the lower authority in that regard; thatthe said shop is situated about 3 kms. away; that the petitioner-landlordwas a handicapped; that he actually applied for license to carry on thebusiness; that considering the circumstances, he wanted to carry on thebusiness in his own premises, and hence, it is required for his personaluse and occupation; but, both the authorities below have declined to grantthe relief stating that the license though received by him, was subsequentin point of time, and it was not mentioned in the lease deed entered intoby him with the other owner of the property or in the notice issued by himon 12.6.2002, and in view of the non-mention of the same in those documentand the fact that the license has also been subsequently obtained whichwas one created for the purpose of the case, the relief could not begranted; that it is pertinent to point out that the license was obtainedeven prior to the filing of the RCOP; that it was actually available forhim to show that he was carrying on business on the day of filing of theapplication; that under the circumstances, both the authorities belowshould have ordered eviction, but failed to do so both factually andlegally, and hence, it has got to be considered by this Court.5.After careful consideration of the submissions made by thepetitioner and also looking into the materials available, this Court is ofthe considered opinion that an order of eviction has got to be passed. Inthe instant case, the revision petitioner, admittedly, came forward withthe application on two grounds namely willful default and personal use andoccupation. So far as the first ground is concerned, the orders by thelower authorities were not challenged before this Court. As far as theother ground of personal use and occupation is concerned, both theauthorities below have found that there is lack of bona fide on the partof the petitioner-landlord. It is an admitted fact that the landlord wasactually occupying the back portion of the premises, and the front portionwas let out to the tenant for carrying on watch repairing shop from theyear 1996. It is also an admitted fact that the petitioner was aphysically handicapped, and he was carrying on his rice business calledJayabarathy Stores in the place situated about 3 kms. away. Thus, itwould be quite clear that he was also carrying on business in the rentedpremises. Now, an application has also been made by him to theCorporation seeking license for carrying on the business in the premisesin question, before the filing of the RCOP. Along with the RCOP, thatlicense has also been filed. It is true that the availability of licenseissued by the Corporation, was neither mentioned in the lease deed enteredinto by the landlord with the other owner of the property under whom he isa tenant, nor in the notice issued by the landlord to the present tenant.At the time when the RCOP has been filed, the license issued by theCorporation, Pondicherry, was very well available to carry on thebusiness. Needless to say that carrying on business what is found inSec.10(3)(c) has already been interpreted by this Court. When a personhas obtained a license to commence his business in a particular place, ithas got to be construed as carrying on business. In the instant case, heis already carrying on business in a different place in SolaiThandavankuppam, which is situated 3 kms. Away. In the back portion of https://hcservices.ecourts.gov.in/hcservices/ the property in question, he is living, and the front portion was let out.Apart from that, he is a physically handicapped. In such circumstances,once the license has been issued, there cannot be any legal impediment forordering eviction on the ground of personal use and occupation. Both theauthorities below have failed to consider these circumstances, but havenegatived the relief, which, in the opinion of this Court, has got to beset aside, since the order is found to be infirm. Accordingly, it is setaside, and now, eviction order is passed. Though the respondent is absent,this Court gives him 6 (six) months’ time to vacate and hand overpossession to the landlord. 6.In the result, this civil revision petition is allowed. No costs.nsv/Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo:1.The Principal District Judge Rent Control Appellate Authority Pondicherry2.The Rent Controller PondicherryNG(CO)dcp/3.7.07CRP NPD No.1371 of 2006