N.Jagadeesan v. K.Selvam

2000 and presently working as semiskilled in the Electrical Departmentof the Southern Railway Perambur Works and that his salary is verymeagre and on marriage he is desirous of starting an electrical businessfor chalking out a better career and in pursuance of which he expressedhis wish that the ground floor shops No.3 to 6 could be secured fordoing his own business etc. 8. The revision petitioner/landlord in his RCOP petition No.1156 of2001 in para 6 has categorically stated that his second son wouldrelinquish the Government employment when he sets up his own businessand that even on the ground of additional accommodation for establishingof a business for his second son Kirupakaran, no hardship will be causedto the respondent and that the balance of convenience is in favour ofthe revision petitioner. In short, the civil revision petitioner hasprayed for an order of eviction against the respondent/tenant on theground of revision petitioner's bonafide requirement for the purpose ofestablishing the business of the second son Kirupakaran under Section 10(3)(a)(iii) of the TN Buildings (Lease and Rent Control) Act, 1960 or inthe alternative as additional accommodation under Section 10(3)(c) ofthe Act in respect of shop No.4 and 5 of the petition premises.

9. The learned counsel for the revision petitioner contends that thevery fact that the revision petitioner has stated that his second son isready to resign his temporary job and start the business, which is afirst step in the right direction to carry on the business and thesecond step is that the undertaking given by the revision petitionerthat his second son is willing to resign his Khalasi temporary job, which will go to show the bonafide requirement to carry on the businessand in support of this proposition he relied on the decision 1997-2-L.W.607 Thirunavukkarasu V. Vasantha Ammal, wherein it is held asfollows: "Tamil Nadu Buildings (Lease and Rent Control) Act (18 of1960), Ss. 10(3)(iii)(b) and 25 – Requirement by landlady forher son to set up a clinic after his completing in six monthstime, the Medical Course – Need has already arisen and tenantcannot plead and insist that she should wait till her sonfinishes the course and then only file a petition.

"Carrying on business", measuring of – If a step is takenwith intent to do actual business in future, that will mean"carrying on business" and will be sufficient compliance ofthe Section – If such step is taken in contemplation of futureneed, it will tantamount to "carrying on business".Factum of bonafide need can be proved in any manner knownto law – Not necessary that son alone should come and giveevidence – Landlady's deposition is sufficient. https://hcservices.ecourts.gov.in/hcservices/ Rights of parties having to be decided as on date ofpetition will not prohibit landlady from taking intoconsideration the requirement which she is likely to face inthe near future".10.He relied on the decision 2001-2-L.W.-532 Subbiah Pandian V.C.Balasundaram, wherein it is observed as follows: "Tamil Nadu Buildings (Lease and Rent) Control Act (18 of1960), S.10(3)(iii) – bonafide requirement for the landlord'sbrother who is unemployed for starting a betel nut shop, pettybusiness which does not require elaborate arrangement beingmade – Finding of two authorities directing eviction not to beinterfered in revision'.11.The contention of the respondent/tenant is that the petitionpremises comprises of seven shops in the ground floor of which only shopNo.

4 and 5 are in occupation of the respondent/tenant and shop No.6 wasrent out to Srinivasan for running a Cycle Shop, and shop No.3 is letout to Sivanesan for Gas Welding and Painting and the Shop No.1, 2 and 7are kept vacant and it is now under lock and key of the revisionpetitioner and if really the revision petitioner is in requirement ofthe shops for establishing the business of his second son, he can verywell utilise these three shops even without vacating the tenant and ifthe respondent/tenant is asked to vacate, he will be put to severehardship and his coconut business running for the last 25 years will beaffected, since he has customers in and around the area and distributingtender coconuts in Triplicane, Mylapore and Royapettah areas. 12. It is also the plea of the respondent/tenant that the petitionfiled under Section 10(3)(a)(iii) of the Act as well as under Section 10(3)(c) cannot be clubbed together in law, since the same is notmaintainable and on this technicality the petition deserves to bedismissed.

13. The learned counsel for the respondent/tenant cited the decision2004 (1) CTC 94 Bata India Limited V. M.R.Manickam, whereunder it isheld as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(3)(a)(iii) – Owners occupation – Ingredients of –Ingredient necessary to maintain petition for eviction onground of owners occupation are (a) building should be non-residential in character (b)landlord should be carrying onbusiness on date of application for eviction (c)landlordshould not be occupying any building belonging to him and (d)claim should be bonafide and not found to be indirect or falseattempt to evict tenant to obtain more rent or to harasstenant. (para 7) https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Buildings (Lease and Rent Control), Act 1960,Section 10(3)(a)(iii) – Landlord found to be in occupation ofhis own building in same town carried on business – Landlordfound to be partner in firm which carried on business inaforesaid premises – Landlord shall be deemed to be inpossession of his own premises for non-residential purposes –Petition for eviction cannot be sustained.

(Para 17)Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(3)(a)(iii) – bonafide requirement – Landlordcarrying on business in partnership occupying non-residentialbuilding in same town – Landlord admitted such fact inevidence but omitted to state so in his petition for eviction– Requirement of landlord is not bonafide".14.Yet another decision 2002 (1) CTC 631 Irene V. V.S.Venkataramanand another, is relied on the side of respondent/tenant whereby it islaid down as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(2)(ii)(a) and (b) and 10(3)(c) – Eviction sought by Trust on ground of unauthorised sub-letting, change of userand requirement of landlord for additional accommodation –First floor of premises is in occupation of landlord – Groundfloor is in occupation of tenant who is a foreigner – Whiletenant goes out of country, tenanted premises is under thecare of representative of tenant, a care-taker, driver andwatchman who occupy premises during absence of tenant from thecountry – Rent Controller and Appellate Authority held thatpremises in occupation of employees tenant to look aftertenancy premises when tenant is away in foreign country do notamount to sub-letting – Authorities also negative the plea oflandlord regarding change of user since premises was used onlyfor residential purposes – Requirement on ground of additionalaccommodation was held against landlord as premises inoccupation of landlord was not proved or be inadequateinsufficient for requirement of landlord – Concurrent findingsof Rent Controller and Appellate Authority were set aside by High Court in revision and order of eviction was passedagainst tenant – On appeal held that High Court was wrong inholding that occupation of tenanted premises by servants oftenant when tenant was away in foreign country amounted tosub-letting – Such occupation does not amount to sub-letting –High Court was wrong in shifting the burden of proof regardingchange of user on to tenant – High Court without adverting torequirement of landlord for additional accommodation recordeda finding of comparative hardship in favour of landlord –Approach of High Court was causal and cursory – High Court re-appreciated evidence in revision – Approach adopted by High https://hcservices.ecourts.gov.in/hcservices/ Court is perverse as no such findings could be arrived at inreversal of concurrent findings of authorities – Power of HighCourt in revision under Rent Control Act is not as wide aspower of appellate court".15.The learned counsel for the respondent/tenant pressed intoservice the decision 2004 (1) CTC 668 Kathan V. Scaw Manak ChandShohaji, wherein it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(3)(a)(iii) – Eviction on the ground of owner'soccupation – Requirement of landlord for his own occupation –Mere desire is not equivalent to requirement – Requirementimplies greater urgency and need – Landlord has to prove thathe has no other premises in his occupation in same city, townor village – Landlord had not even pleaded that he is not inoccupation of residential building of his own – Basicrequirement of section not satisfied – Dismissal of EvictionPetition confirmed in revision".16.Ex.P.1 is the letter of the respondent/tenant addressed to therevision petitioner/landlord/petitioner wherein he has mentioned thathis father P.Kalidas expired on 04.07.2001 and that his father wasrunning tender coconut business in the two shops occupied by him on rentin premises No.20 Gajapathilala Street and after his death, he ismanaging the said shops and that he will hand over the two said shopsduring March 2002 to the landlord.

17. In 1998-2-L.W. Page 89 at 90 Mohammod Alias Bawa Sahib andanother V. B.Vimalchand, it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control), Act (18 of1960), S.10(3)(iii)(a)-Major share of the property belonging tothe joint family – Application for eviction on the ground ofrequirement for owner's occupation – Mere desire on the part ofthe landlord is not enough – Landlord has to prove more thandesire".18.In 1994-2-L.W.152 A.Sankaran and another V. S.K.Balasundaram andanother, it is observed as follows: "Madras Buildings (Lease and Rent Control) Act (18 of 1960),S.10(2)(i), 10(3)(a)(iii) and (e) – Landlord manipulatingcircumstances in order to evict tenant – No urgent need – Meredesire to use or occupy premises not enough – bonafide need forown use and occupation should be proved – Need should begenuine".19.In (2003) 1 M.L.J. Page 225 at 226 Kannika V. Krishnasamy, it islaid down as follows: "(D) Pondicherry Buildings (Lease and Rent Control) Act (V of1969), Sec.

10(3)(a)(iii) – The landlord and his son are https://hcservices.ecourts.gov.in/hcservices/ already in occupation of a shop of their own – The landlordhas no right to seek eviction on the ground of own andoccupation".20.In (2003) 2 M.L.J.627 at 628 T.Soundarapandian V. G.Rathinam, itis observed as follows: "(B)Tamil Nadu Buildings (Lease and Rent Control) Act (XVIIIof 1960 as amended by Act XXIII of 1973 and I of 1980), Sec.10(3)(a)(iii) – Requirement for own use and occupation –Necessary ingredients – Landlord has admitted that other shopsare also vacant – But has not occupied them – Landlord has notstated that the vacant shops are not suitable – Landlord lacksbonafide – Eviction cannot be ordered".21.In 1998 (2) M.L.J. 50 at 51 A.Perumal and others V. P.MohammedSarbuddeen, it is observed as follows: "Tamil Nadu Buildings Lease and Rent Control Act (XVIII of1960), Sec. 10(3)(a)(iii) – Landlord putting tenant on noticeto vacate for the purpose of carrying on business – Failing tomention in notice as well as in eviction petition that he isalready carrying on business and needs premises for thatpurpose – Landlord however stating in evidence that he iscarrying on business and needs premises for that purpose –Proving by means of oral and documentary evidence that he is inbusiness – Orders of court below evicting tenant confirmed".22.In 2000 T.L.N.J. 347 K.V.C.Pandithurai V. Samrath Bibi (Died)and Others, it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act 1960 asamended S.10(3)(a)(iii) – bonafide requirement – Landlord filespetition after petition- Requirement for son- prior to andpending proceedings other buildings owned by landlord becomevacant and let out to others – No explanation for not occupyingthem – Petition lacks bonafides -Tamil Nadu Buildings (Lease and Rent Control) Act 1960 asamended S 25 – Decision based on the evidence – availableevidence not taken note of – Power of Revisional court to setaside the order – made out -Tamil Nadu Buildings (Lease and Rent Control) Act 1960 asamended S.19 – Requirement for one son was sought – Petitiondismissed – Requirement for another son – Not hit by S.19 –Every limb of controversy should have been raised in theearlier petition to attract Sec.19 bar under S. 19".23.In (1974) 2 SCC at page 365 at 366 Mattulal V. Radhe Lal, it isobserved as follows: "(iii)The mere assertion on the part of the landlord that herequires the non-residential accommodation in the occupationof the tenant for the purpose of starting or continuing his https://hcservices.ecourts.gov.in/hcservices/ own business is not decisive.

It is for the court to determinethe truth of the assertion and also whether it is bonafide. The test which has to be applied is an objective test and nota subjective one and merely because a landlord asserts that hewants the non-residential accommodation for the purpose ofstarting or continuing his own business, that would not beenough to establish that he requires it for that purpose andthat his requirement is bonafide. The word "required"signifies that mere desire on the part of the landlord is notenough but there should be an element of need, and thelandlord must show – the burden being upon him – that hegenuinely requires the non-residential accommodation for thepurpose of starting or continuing his own business".24.P.W.1-Jagadeesan (landlord), in his evidence has deposed thatthe respondent/tenant occupying two shops in the petition mentionedpremises and the monthly rent for the two shops is Rs.700/- in all andthat the respondent's father was a tenant under him for 10 years and themonthly rent for the one shop is Rs.350/- and that respondent is doingbusiness in tender coconuts and that his second son Kirupakaran isemployed in Railways as Khalasi and the petition property is requiredfor doing electrical business and since his second son is doing thetemporary job, there are no chances for getting promotion and after thedeath of the respondent's father, the respondent came to him and askedfor time to vacate the portion occupied by him and the said letterwritten by the respondent is Ex.P.1 and the rent receipt is Ex.P.2.25.The specific case of the revision petitioner/landlord/petitioner is that for starting an electrical business for hisson the portion occupied by the respondent is required bonafide and thatthe petition property is also required for additional accommodation andif his son leaves the Khalasi job and start doing electrical business, then he will get good income.

26. It is the evidence of the P.W.1, the landlord that at the timeof filing of the present petition three shops were vacant and that noattempts were made to do business in the said vacant shops and sincethose vacant shops were not in same row, no business was started.27.R.W.1-Selvam (respondent/tenant), has deposed that he is doingwholesale business in tender coconuts and that this business isconducted from the days of his father for 25 years and that his fatherexpired on 04.07.2001 and in the petition premises there are totallyseven shops and three shops are vacant and two other shops are let outfor rent.28.R.W.1, the respondent/tenant in his cross examination hascategorically stated that three shops are kept locked by the revisionpetitioner/landlord and one shop is kept locked for 5 years and another https://hcservices.ecourts.gov.in/hcservices/ two shops are kept locked for 3 years and in another place he hasdeposed that the locked shops are kept locked for 10, 15 years.

29. The revision petitioner/landlord/petitioner has filed the RCOPpetition No.1156 of 2001 under Section 10(3)(a)(iii) and 10(3)(c) of the Act, 18 of 1960. However, the revision petitioner/landlord/petitioner inthe prayer portion of the petition has mentioned Section 10(3)(a)(iii)of the Act or Section 10(3)(c). The respondent/tenant in the counterhas taken a plea that the RCOP petition filed under Section 10(3)(a)(iii) of the Act as well as under Section 10(3)(c) is not at allmaintainable in law and both the Sections cannot be clubbed together andorder of eviction cannot be prayed for and on this technical aspect thepetition is to be dismissed. 30. It is to be pointed out that Section 10(3)(a)(iii) concerns withthe whole building in occupation of a tenant which is distinct andseparate from the non-residential building in the occupation of thelandlord. Whereas as per Section 10(3)(c) is concerned both the landlordand the tenant are in the same building and the landlord requires it foradditional accommodation thereby seeking eviction.

31. It cannot be gainsaid that Section 10(3)(c) will not governSection 10(3)(a)(iii). As a matter of fact, the landlord should be inoccupation if he invokes Section 10(3)(c) for additional accommodation. In fact, the scope of Section 10(3)(a)(iii) is different from that of Section 10(3)(c). Each Section will come into operative play underdifferent situations. 32. As long as the ingredients of Section 10(3)(c) are satisfied thelandlord is entitled to evict the tenant whether he is occupying thepremises for residential or non-residential premises. Moreover, theoccupation of landlord and tenant in one structure is visualised as perSection 10(3)(c). It is not out of place to point out that Section 10(3)(c) will apply only in case where the landlord is occupying a buildingwhich is his own. As per Section 10(3)(c) an exception is carved out ina case where the landlord is occupying a portion of the building, whichis also occupied by the tenant in another portion.

33. In 1991 L.W. Page 277 Bengal Trading Company V. G.M.Natarajan, it is observed that 'even if a room is occupied by the landlord, keptunder lock and key it is deemed that the landlord is in occupation of aportion of the building'. 34. At this juncture, it is pertinent to point out that theexpression 'not withstanding contained in clause (a)' indicates that alandlord can claim possession of a building which is in the occupationof a tenant, if he requires it for his own occupation either for hisresidential or non-residential purpose depending on the nature of thebuilding. Under Section 10(3)(c) if it is a non-residential building, https://hcservices.ecourts.gov.in/hcservices/ the landlord can obtain additional accommodation only for the purpose ofhis business which he is carrying on as per decision 1980 TLNJ page 145at 154 Tirupathi Nadar V. Kantha Rao. 35. In C.R.P.No.2436 of 1995 order dated 30.07.1999 S.MohammedIqubal V. M.Padmanabhan at para 8, it is inter alia observed that 'The argument of the learned senior counsel for thepetitioners that the petition under Section 10(3)(a)(iii) ofthe Act is not maintainable and only a petition under Section10(3)(c) of the Act is maintainable, as the landlord is inoccupation of a portion of the very same premises' does notappear to be correct, in view of the judgment of the Hon'bleSupreme Court of India V. Radhakrishnan V. S.N. LoganathaMudaliar, MANU/SC/0499/1998 referred to above.

Even if thisargument is correct, yet I am of the opinion that the order ofthe authorities below cannot be interfered with for more thanone reason. Mere quoting a wrong provision of law cannot be aground to deny the relief to the landlord, if the materialsotherwise available on record enables him to get the relief, is too well settled. It is no doubt true that in the rentcontrol petition, the provision of law quoted is only under Section 10(3)(a)(iii) of the Act and there is no pleading onthe ground of additional accommodation as well on the groundof relative hardship. In the counter affidavit of the firstrespondent, a point has been taken that the petition under Section 10(3)(c) alone is maintainable and in that event therelative hardship should be gone into. There is also nopleading by the respondent before the rent controller onrelative hardship. "36. In the aforesaid decision reported in 1999(3) CTC Page 116, itis held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960,Section 10(3)(c) – Quoting wrong provision of law – Petitionfiled for owner's occupation whereas requirement amounted onlyto additional accommodation – Mis-quoting of provision lawwould not disentitle relief to party if he is otherwiseentitled to such relief.

(Para20)Procedure Law – Misquoting of provision of Law – Quoting wrongprovision of law - Petition filed for owner's occupationwhereas requirement amounted only to additional accommodation– Mis-quoting of provision law would not disentitle relief toparty if he is otherwise entitled to such relief. (Para 20)".37.In 2003 (2) TLNJ at page 449 Dr.Anthony Sheik Shib Pong V.S.E.Mahboob Basha, wherein it is held that: https://hcservices.ecourts.gov.in/hcservices/ "Tamil Nadu Buildings (Lease and Rent Control) Act – 18 of 1960as amended S.10(3)(a)(iii) – Eviction petition – nonresidential building – main ingredient is land lord who seekseviction for his own occupation should not be in occupation ofhis own premises – need not proved to be genuine – evictioncannot be ordered".38.In (2001)1 T.L.N.J. 267 P.Sundaram V. R.Gangadharan and another, it is held as follows: "Tamil Nadu Buildings (Lease and Rent Control) Act, 1960as amended Sec.10 – Eviction – Failure to ask for additionalaccommodation instead of owners occupation – Effect of –settled law tenant cannot dictate which premises the landlordchooses"Tamil Nadu Buildings (Lease and Rent Control) Act 1960 asamended Sec.10(3)(a)(iii) – Part of the buildings occupied bylandlord – only relief of additional accommodation can be askedfor --"Tamil Nadu Buildings (Lease and Rent Control) Act 1960 asamended Sec.10(3)(c) – See Section 10(3)(a)(iii)".39.The legal issue about the maintainability of the petition under Section 10(3)(a)(iii) of the Act instead of as per Section 10(3)(c) ofthe Act can be raised by a party inasmuch as there is no estoppelagainst statute.

40. In 1994 L.W. Page 487 R.V.Dharmalinga Mudaliar V. K.Annamalai, it is held that "the landlord, who is in occupation of a part of abuilding, cannot maintain an application under Section 10(3)(a)(iii) ofthe Act, but only under Section 10(3)(c) of the Act".41.As far as the present case is concerned, the revisionpetitioner/landlord/petitioner is residing in upstairs portion, but therespondent/tenant is in occupation of the ground floor shop No.4 and 5. Originally the respondent/tenant's father was a tenant under the civilrevision petitioner/landlord and admittedly, he expired on 04.07.2001.Considering the fact that the civil revision petitioner/landlord is inneed of the shop No.4 and 5 of the petition premises, which is occupiedby the respondent/ tenant and inasmuch as the revisionpetitioner/landlord requires the same for commencing an electricalbusiness for his second son, the same can be construed only foradditional accommodation in the eye of law and therefore, this Courtopines that Section 10(3)(c) of the Act squarely applies and the RCOPpetition No.1156 of 2001 is perfectly maintainable under Section 10(3)(c) of the Act.

42. Admittedly, the revision petitioner/landlord/ petitioner secondson, Kirupakaran is employed as semiskilled in the Electrical Department https://hcservices.ecourts.gov.in/hcservices/ of the Southern Railway, Perambur Works. According to the revisionpetitioner/landlord/P.W.1, his second son if he leaves the Khalasi joband if he commence electrical business, then he will get good income. The shop No.4 and 5 in the petition premises which is in occupation ofthe respondent/tenant is required by the revision petitioner/landlordfor starting the electrical goods wholesale business of his second son, as per the evidence of P.W.

The learned Rent Control AppellateAuthority viz., VIII Judge, Court of Small Causes, Chennai in thejudgment in R.C.A.No.189 of 2003 dated 13.02.2004 has observed thatthere is no evidence whether any licence has been obtained forcommencement of electrical business of landlord's second son and furtherobserved that there is no evidence to the effect that whether any goodsfor the said electrical business have been acquired and stored etc. Itis also observed by the learned Appellate Authority in his Judgment inR.C.A.No.189 of 2003 dated 13.02.2004 that there is no evidence to showthat any endeavour has been made by the landlord's second sonKirupakaran to leave his job. Equally, the learned Appellate Authorityhas also further opined that there is no evidence let in to prove as tothe previous experience of the landlord second son Kirupakaran in doingthe electrical business. Moreover, the learned Appellate Authority hasalso taken the view that there is no evidence on the side of revisionpetitioner/landlord as to how much capital is required for commencementof the said electrical business and source from which the same is to beobtained.

The respondent/tenant has taken a plea in the counter that he isin occupation of shop No.6 and shop No.3 is in occupation of oneSivanesan and shop No.4 and 5 are in the occupation of Selvam and shopNo.1, 2 and 7 are vacant and shop No.2 is vacant for 8 years and shopNo.7 is vacant for 10 years and that entire electricity fitting fixturesand construction was done at his cost and that the landlord has notdisclosed what arrangements and preparations are made for commencing thebusiness and the term 'desire' is not a bonafide requirement and one ofthe sons of the revision petitioner/landlord Kirupakaran is onlydesirous of starting electrical business for which the revisionpetitioner/landlord wants ground floor shops 3, 4, 5 and 6 and so thereis no need for the landlord or his son and there is no absolutenecessity and as such the petition is not maintainable.

Another significant plea taken by the respondent/tenant in thecounter is that the revision petitioner/landlord has not disclosed aboutthe vacant shops available in the building and that he has not chosen tooccupy the vacant shops and therefore, the petition suffers from defect. The learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai has passed orders in R.C.O.P.No.1158 of 2001 on 22.11.2002dismissing the petition filed by the revision petitioner/landlord. As https://hcservices.ecourts.gov.in/hcservices/ against the said dismissal order, the landlord filed R.C.A.No.191 of2003 before the Appellate Authority viz., VIII Judge, Court of SmallCauses, Chennai and the learned Appellate Authority has passed orders on13.02.2004 dismissing the appeal.

Aggrieved against the orders passed by the learned AppellateAuthority viz., VIII Judge, Court of Small Causes, Chennai passed inR.C.A.No.191 of 2003 dated 13.02.2004, the landlord has filed this CivilRevision Petition before this Court.

The respondent/tenant harps on the aspect that the revisionpetitioner/landlord cannot ask for relief either in one or the otherprovisions and that he must come forward with specific provision andthat there is no question of any alternative relief. The citationsrelied on both sides and the decisions quoted in C.R.P.No.1095 of 2004are not repeated for the purpose of repetition but the principles areborne in mind by this Court.

P.W.1-Jagadeesan has deposed that the respondent is running cycleshop by keeping 30 cycles and apart from that the respondent is employedin legal department of the Secretariat and that the respondent owns ahouse at No.6, Canal Bank Road and that the petition premises isrequired for his sons electrical wholesale business.

R.W.1-Srinivasan in his evidence has stated that he is employedin the legal department of the Secretariat as Record Clerk and he is inemployment from in the year 1974 and that his father till his death in1996 was looking after the cycle shop and thereafter, his son is lookingafter the said shop and that he owns an Auto. R.W.1-Srinivasan in hisevidence has further stated that out of the three shops in one shop, oneMani was there and the landlord filed a case against the said Mani andevicted him.

In G.O.Ms.No.3440 Home dated 27th Oct. 1960, it is mentioned that'all departments of the State and Central Governments in the State shallbe deemed to be engaged in essential service for the purpose of Sub-Section (4) of Section 10 of the Act'. In this Connection, it is usefulto refer to relevant portion of Section 10(4) of TN Buildings (Lease and Rent Control) Act, 1960 which reads as follows: "(4)No order for eviction shall be passed under sub-section(3)-(i)against any tenant who is engaged in any employment orclass of employment notified by the Government as an essentialservice for the purpose of this sub-section, unless thelandlord is himself engaged in any employment or class ofemployment which has been so notified, or9.The learned Rent Controller viz., XVI Judge, Court of SmallCauses, Chennai in the orders passed in R.C.O.P.No.1158 of 2001 dated22.11.2002 has observed that in G.O.Ms.No.3440 dated 27.10.1960 theemployees of Central and State Government in essential service cannot be https://hcservices.ecourts.gov.in/hcservices/ evicted and accepted the argument of the respondent/tenant counsel inthis regard etc.

It is pertinent to refer that as per Rule 8(1)(a) of Tamil NaduGovernment Servants' Conduct Rules 'no employee shall engage himselfdirectly or indirectly in any trade or business except with the previoussanction of the Government'.

It is to be noted that employees should not involve themselvesin any business. But the wife/husband of the employee may be permittedto do business etc. - G.O.Ms.No.447, Public (Services-A) Dept.dt.24.02.72.

It is not out of place to make a mention that Rule 20 of the Tamil Nadu Government Servants' Conduct Rules enjoins that 'everyemployee shall maintain absolute integrity and devotion to duty andshall do nothing which is unbecoming of a member of the service'.

At this juncture, Section 2(8) defines 'tenant' meaning anyperson by whom or on whose account rent is payable for a building andincludes the surviving spouse, or any son, or daughter, or the legalrepresentative of a deceased tenant who -(i)in the case of a residential building, had been living with thetenant in the building as a member of the tenant's family up to thedeath of the tenant, and (ii)in the case of a non-residential building, had been incontinuous association with the tenant for the purpose of carrying onthe business of the tenant up to the death of the tenant and continuesto carry on such business thereafter, and a person continuing inpossession after the termination of the tenancy in his favour, but doesnot include a person placed in occupation of a building by its tenant ora person to whom the collection of rents or fees in a public market, cart-stand or slaughter-house or of rents for shops has been farmed outor leased by a Municipal Council or a Panchayat Union Council or the Municipal Corporation of Madras or the Municipal Corporation of Madras.

In 1971 (2) MLJ 164 at 165 Dr.Natesan V. Mrs. Santhalakshmi, itis held that 'the definition in Section 2(8) will only take in sons ordaughters or the legal representatives of the tenant only after thedeath of the tenant and not when the tenant himself is alive'.

In 1991 (1) MLJ 532 at 537 A.Madasami Nadar V. A.J.KhajaNizamudeen and another, it is observed that 'the term 'tenant' in Section 2(8) of the Act concerns not only heritable relationship thatmatters but also his association with the business carried on by thedeceased tenant in the petition mentioned premises till death'. https://hcservices.ecourts.gov.in/hcservices/

No wonder, a reading of the definition of the 'tenant' under Section 2(8) it is quite obvious that when the tenant, by whom rent ispayable, is alive, his spouse, son or daughter or other legalrepresentatives cannot claim rights as a tenant.

It is significant to point out that the learned AppellateAuthority viz., VIII Judge, Court of Small Causes, Chennai in the orderspassed in R.C.A.No.191 of 2003 on 13.02.2004 has observed that when therespondent/tenant is a government servant then he cannot run businessseparately in the petition mentioned property and if any shop is takenon rent for doing business separately without obtaining prior permissionfrom the Government then it is in violation of Government Servants'Conduct Rules and therefore, the benefit of Section 10(4) of TNBuildings (Lease and Rent Control) Act, 1960 and G.O.Ms.No.3440, Homedated 27th October 1960 and therefore, the contrary view taken by the Rent Controller viz., XVI Judge, Court of Small Causes, Chennai is notcorrect but however, held that the eviction sought for by the landlordis not based on bonafide reason and if eviction of tenant is orderedthen more hardship will be caused to the tenant etc.

R.W.1-Srinivasan, (employed in the Secretariat Law Department as Record Clerk) has stated that in his evidence that he is employed from1974 and his father after retirement, started cycle shop and till hisdeath in 1996 he was looking after the said shop and thereafter, out ofhis two sons, the younger son is looking after the said shop and that hetook the petition mentioned shop for the purpose of running cycle shopon monthly rent of Rs.60/- in 1980 and the present monthly rent isRs.350/- and that he has paid total advance of Rs.3,000/-. As a matterof fact, R.W.1/tenant nowhere in his evidence has stated that he hasobtained prior permission from the Government or his higher up forrunning the cycle shop in the petition premises. It is also not knownwhere he has obtained prior permission for the purpose of running cycleshop business and no documentary evidence has been placed in theR.C.O.P.No.1158 of 2001 proceedings before the leaned Rent Controllerviz., XVI Judge, Court of Small Causes, Chennai. Suffice it to point outthat running a business or private trade without prior permissionconstitute breach of Rule 20 of the TN Government Servants' ConductRules. It is to be pointed out that the learned Rent Controller viz.,XVI Judge, Court of Small Causes, Chennai has not dealt with anythingabout the obtaining of prior permission or otherwise by therespondent/tenant as to the running of cycle shop business from thecompetent authority. Equally, though the learned Appellate Authorityviz., VIII Judge, Court of Small Causes, Chennai in his orders passed inR.C.A.No.191 of 2003 dated 13.02.2004 has only generally observed abouta government servant running a separate business without obtaining priorpermission but has not specifically adverted to whether therespondent/tenant has obtained prior permission from the Government or Competent Authority. https://hcservices.ecourts.gov.in/hcservices/

In 1976 TLNJ106 at page 107 M.Govindarajan V. N.Jayaraman, wherein it is inter alia observed that 'when there is such a mandatorydirection prohibiting the Court to pass any eviction order against thatperson who comes squarely under Section 10(4) of the Act, the finding onother issues regarding the bonafides must be construed as abinitio void'.

In 1969 (2) S.C.J. at page 123 the Hon'ble Supreme Court hasheld that 'it is clear that before a Court can be held to havejurisdiction to decide a particular matter it must not only havejurisdiction to try the suit brought but must also have the authority topass the orders sought for. It is not sufficient that it has somejurisdiction in relation to the subject matter of the suit. It'sjurisdiction must include the power to hear and decide the question atissue, the authority to hear and decide the particular controversy thathas arisen between the parties.'

In AIR 1971 SC 442 (Gangappa Gurupadappa Gugwad V. Rachawwa) itis laid down as follows: "It is open to a Court not to decide all the issues which mayarise on the pleadings before it if it finds that the plainton the face of it is barred by any law. If, however, finaldecision in any matter at issue between the parties is basedby a Court on its decisions on more than one point – each ofwhich by itself would be sufficient for the ultimate decision– the decision on each of these points operates as resjudicata between the parties. "

In 1971 I MLJ page 488 (Sri Rajagopal Transports (P) Ltd.,Tiruchirapalli V. The Presiding Officer, Labour Court, Madurai andothers) it is observed that: "In industrial disputes, there is a specific interdict ontribunals to entertain and adjudicate upon disputes, to becautious in cases where the question of jurisdiction israised. If once such a tribunal comes to the conclusion thatit has no jurisdiction to entertain and a fortiori toadjudicate upon the subject before it, then the ban becomesoperative and it has no further right to deal with thesubject-matter. If however it considers further its findingcan be treated as an equation of non est. The want ofjurisdiction in matters tried by the quasi-judicial orjudicial tribunals, is one which goes to the core of thematter and if its absence is unchallenged, then there is nofoundation for such tribunals to proceed further, hear partiesand record findings on the so called merits of the case. " https://hcservices.ecourts.gov.in/hcservices/

It cannot be gainsaid where there is such a mandatory directionfettering the Court to pass any eviction against an individual who comeswithin the purview of Sec.10(4) of the Act, the finding on other issuesregarding bonafides should be construed ab initio void.

In view of the fact that there is a prohibition under Section 10(4)(i) of TN Buildings (Lease and Rent Control) Act, 1960, the findingon the point in regard to the bonafide requirement of the revisionpetitioner/landlord in R.C.O.P.No.1158 of 2001 dated 22.11.2002 shouldbe construed as ab initio void and inasmuch as the learned AppellateAuthority viz., VIII Judge, Court of Small Causes, Chennai has notspecifically adverted to as to whether the respondent/tenant hasobtained prior permission from the Government or competent authority torun cycle business in the petition mentioned premises and since evidenceof R.W.1 is lacking in this regard, this Court without going into themerits of the case, remits the matter back to the learned RentController viz., XVI Judge, Court of Small Causes, Chennai to go intothe issue of bonafide requirement of the revisionpetitioner/landlord/petitioner and deal with R.C.O.P.No.1158 of 2001,after giving due opportunity to both parties to adduce further oral anddocumentary evidence in the manner known to law and in that view of thematter, the Civil Revision Petition is allowed. Consequently, the orderof the learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai passed in R.C.O.P.No.1158 of 2001 dated 22.11.2002 and in theorders passed by the learned Appellate Authority in R.C.A.No.191 of 2003dated 13.02.2004 are hereby set aside in furtherance of substantialcause of justice.

Since the Rent Control proceedings is of the year 2001, thelearned Rent Controller viz., XVI Judge, Court of Small Causes, Chennaiis directed to dispose of the R.C.O.P.No.1158 of 2001 within a period offour months from the date of receipt of a copy of this order. Considering the facts and circumstances, the parties are directed tobear their own costs.C.R.P.NO.1097 OF 2004:-The revision petitioner/landlord/petitioner has filedR.C.O.P.No.1157 of 2001 on the file of learned Rent Controller viz., XVIJudge, Court of Small Causes, Chennai under Section 10(3)(a)(iii) and 10(3)(c) of Act 18 of 1960, praying for eviction of the respondent/tenanton the ground of revision petitioner/landlord's bonafide requirement forthe purpose of establishing the business of his second son Kirupakaranor in the alternative as additional accommodation as per Section 10(3(c)of the Act in respect of shop No.3 in premises No.20, GajapathilalaStreet, Triplicane, Chennai-5. https://hcservices.ecourts.gov.in/hcservices/

2. The respondent/tenant has taken the stand in the counter that heis in occupation of shop No.3 and that shop No.1, 2 and 7 are vacant andshop No.2 is vacant for 8 years and shop No.7 is vacant for 10 years andthat the entire electricity fitting, fixtures and constructions are doneby him. It is the further plea of the respondent/tenant that therevision petitioner/landlord filed a case against the tenant foreviction, for providing staircase but the same was not provided and therevision petitioner/landlord kept it vacant and nearly one ground isavailable in the backside of the building. 3. The learned Rent Controller viz., XVI Judge, Court of SmallCauses, Chennai has passed orders in R.C.O.P.No.1157 of 2001 dated22.11.2002 dismissing the petition filed by the revisionpetitioner/landlord. The learned Appellate Authority viz., VIII Judge, Court of Small Causes, Chennai has passed orders on 13.02.2004dismissing R.C.A.No.190 of 2003.4.The learned counsel for the revision petitioner/ landlord urgesthat the authorities below ought to have seen that the preparation tocommence business depends on the nature of the business and that forstarting an electrical business the essential requirement is the placefor storing and sale and that the revision petitioner/landlord has amplemeans to start the business and the electrical goods can be purchasedimmediately on getting possession of the petition premises and that thefact that the revision petitioner worked in Electrical Department as Shop Superintendent will be assisting his son in carrying on thebusiness was not taken note of by the authorities below and that theshops 3 to 6 required which are contiguous (roughly an extent of 350sq.ft.) and this fact was also not taken note of by the Courts below andthe fact that the petitioner's son is ready to resign his temporary joband start the business, has spoken to by P.W.1 in his evidence, is afirst step taken in the right direction to commence the business and theauthorities below have misunderstood the scope of proof of bonafide andthe fact that the petitioner's second son is temporarily employed in Southern Railway without any prospects of promotion and may beterminated at any time was not taken note of by the authorities belowand viewed in this perspective, the orders of both the authorities areliable to be set aside in law.5.P.W.1-Jagadeesan in his evidence has stated that therespondent/tenant is conducting spray painting business on a monthlyrent of Rs.350/- in the third shop, out of the four shops in thepetition premises and that the respondent is the tenant under him andthat the petition mentioned building is required for the purpose ofbusiness after vacating all the shops and that he has retired from Railways and he will looking after the business along with his son andthat his second son got married in the year 2000 and that his son's jobis not permanent. https://hcservices.ecourts.gov.in/hcservices/

6.R.W.1-Sivanesan in his evidence has deposed that he came as atenant in the petition shop in 1977 on a monthly rent of Rs.50/- and thepresent rent is Rs.350/- and he has paid an advance of Rs.500/-initially and later after electricity connection paid Rs.3,000/- and heis doing painting job and welding job. 7. It is the further evidence of R.W.1 that three shops are vacantand out of three shops, Krishnasamy has vacated the shop 10 years agoand Iyer vacated the shop 15 years ago and Mani was evicted after filingof the case and that he is doing business for the past 24 years and inthe three vacant shops the petitioner/P.W.1 is not doing any businessand for so many years, the three shops are under lock and they are notlet out for rent and he does not know that Khalasi job is Collie workand that he does not know what type of preparatory arrangements are madeby the petitioner. 8. It is significant to point out that R.W.1-Sivanesan has deposedthat the petition shop is near the place going to the upstairs and thatthe petitioner has not built up the staircase and he is using the oldstaircase.

9. The plea of the respondent/tenant is that the revisionpetitioner/landlord must come forward with a definite plea underspecific provision and he cannot pray for any alternative relief oravail one or other provision of the TN Buildings (Lease and RentControl) Act, 1960 and therefore, the petition is not maintainable inlaw. 10. The revision petitioner/landlord relied on 1997-2-L.W.607Thirunavukkarasu V. Vasantha Ammal and 2001-2-L.W. - 532 Subbiah PandianV. C.Balasundaram to show that factum of bona fide need can be proved inany manner known to law and not necessary that son alone should tenderevidence and for starting a petty business no elaborate arrangement isrequired. 11. The learned counsel for the respondent/tenant cited 2004 (1) CTC94 Bata India Limited V. M.R.Manickam, 2000 (1) CTC 631 Irene V.V.S.Venkataraman & another and another decision 2004 (1) CTC 668 KathanV. Scaw Manak Chand Shohaji, to bring it to the notice of this Courtthat the requirement of landlord is not bona fide, and that therequirement on the ground of additional accommodation was held againstthe landlord as premises in occupation of landlord was not proved or beinadequate, insufficient for requirement of the landlord and that thelandlord has not even pleaded that he is not in occupation ofresidential building of his own and therefore, the basic requirement of Section is not satisfied. https://hcservices.ecourts.gov.in/hcservices/

12. In 1998-2-L.W. Page 89 at 90 Mohammed Alias Bawa Sahib andanother V. B.Vimalchand, it is inter alia observed that 'mere desire onthe part of the landlord is not enough and that he has to prove morethan desire'.13.In 1994-2-L.W. 152 A.Sankaran and another V. S.K.Balasundaramand another, it is held that 'bona fide need for own use and occupationshould be proved and the need should be genuine'.14.In (2003) 2 M.L.J. 627 at 628 T.Soundarapandian V. G.Rathinam, it is among other things laid down that 'when the landlord has admittedthat other shops are also vacant and has not occupied them and notstated that the vacant shops are not suitable and that the landlordlacks bona fide and eviction cannot be ordered'.15.In (2003) 1 M.L.J. Page 225 at 226 Kannika V. Krishnasamy, it isheld that 'the landlord has no right to seek eviction on the ground ofown and occupation'.16.In 1998-(2)-M.L.J. 50 at 51 A.Perumal and others V. P.MohammedSarbuddeen, it is laid down that 'failing to mention in notice as wellas in eviction petition that the landlord is already carrying onbusiness and needs premises for that purpose, however stating inevidence that he is carrying on business and needs premises for thatpurpose and proving by means of oral and documentary evidence that heis in business, orders of court below evicting tenant confirmed'.17.In (1974) 2 SCC at page 565 at 366 Mattulal V. Radha Lal, it isinter alia observed that 'the word 'required' signifies that mere desireon the part of the landlord is not enough but there should be an elementof need, and the landlord must show and burden being upon him that hegenuinely requires the non-residential accommodation for the purpose ofstarting or continuing his own business'.18.In 2000 T.L.N.J. 347 K.V.C. Pandithurai V. Samrath Bibi (Died)and others, it is held on the bonafide requirement that 'the landlordfiles petition after petition for requirement of his son and prior toand pending proceedings other buildings owned by landlord become vacantand let out to others and no explanation for not occupying them, thepetition lacks bona fide'.19.It is to be pointed out that Section 10(3)(c) will not governSection 10(3)(a)(iii).

In fact, the landlord should be in occupation ifhe seeks the aid of Section 10(3)(c) for additional accommodation. Thescope of Section 10(3)(a)(iii) is different from that of Section 10(3)(c) each Section will come into play under different contexts. It cannotbe gainsaid that Section 10(3)(c) will apply only incase where thelandlord is occupying a building which is his own. As a matter of fact, https://hcservices.ecourts.gov.in/hcservices/ the occupation of landlord and tenant in one structure is seen as perSection 10(3)(c), an exception as per Section 10(3)(c) is made out in acase where the landlord is occupying a portion of the building, which isalso occupied by the tenant in another portion. Under Section 10(3)(c)if it is a non-residential building, the landlord can obtain additionalaccommodation only for the purpose of his business which he is carryingon as per decision 1980 T.L.N.J. 145 at 154 Tirupathi Nadar V. KanthaRao.

20. In 1999 (3) CTC page 116 it is held that 'petition filed forowners occupation, whereas requirement amounted only to additionalaccommodation and that misquoting of provision of law would notdisentitle the party to seek relief if he is otherwise entitled to'.21.The maintainability of the petition under Section 10(3)(a)(iii)of the Act instead of as per Section 10(3)(c) of the Act can be raisedby a litigant inasmuch as there is no estoppel against constitute. 22. It is to be noted that in 1994 L.W. Page 487 R.V.DharmalingaMudaliar V. K.Annamalai, it is laid down that 'the landlord, who is inoccupation of a part of a building, cannot maintain an application under Section 10(3)(a)(iii) of the Act, but only under Section 10(3)(c) of the Act'. 23. In the present case on hand, the revision petitioner/landlord isresiding in the upstairs portion. The respondent/tenant is occupyingshop No.3 in the ground floor.

According to the revisionpetitioner/landlord/P.W.1, his second son Kirupakaran if he leaves the Khalasi job and if he start electrical business, then he will get goodincome. At this juncture, it is to be noted that 'carrying on business'does not mean actually carrying on business. In fact, it will suffice ifthe landlord takes one significant forward step or has taken some stepsfor the purpose of carrying on business, in the considered opinion ofthis Court. Moreover, the term 'carrying on business' does not mean alsothat all steps required for carrying on business should have been takenand it is enough that if one step is taken and established as far as thepresent case is concerned, the commencement of electrical business bythe revision petitioner/landlord second son does not need elaboratepreparatory arrangements being made thereto. In fact, in the case onhand, the need for starting electrical business has arisen and it cannotbe said that the revision petitioner must wait till his second sonKirupakaran resigns his job in Railways and then only can file apetition and in that view of the matter, the contrary view taken by thelearned Rent Controller and the learned Appellate Authority are notcorrect, in the considered opinion of this Court.

It is not significantto point out that taking note of the fact that the revisionpetitioner/landlord is in need of the shop No.3 in the petitionpremises, which is occupied by the respondent/tenant and inasmuch as therevision petitioner/ landlord requires the sale for starting an https://hcservices.ecourts.gov.in/hcservices/ electrical business for his second son Kirupakaran working in SouthernRailway, the same shall be construed only for additional accommodationas per law and as such this Court is of the considered view that Section10(3)(c) of the Act squarely applies and that R.C.O.P.NO.1157 of 2001 isrightly maintainable under Section 10(3)(c) of the Act. 24. The main question that arises for rumination in the present caseon hand is that whether the landlord/civil revision petitioner has madeout a case for evicting the respondent/tenant in lieu of comparativehardship. In fact, the relative hardship or comparative hardship canwell be established by evidence, though there may not be a pleading tothis effect either by the landlord or tenant, in the opinion of this Court.

It cannot be gainsaid that unless the landlord deserves to getpossession, the eviction cannot be ordered. It is not for the tenant todictate as to requirement of the landlord and as to where he shall carryon the business or what is the nature of the business which the landlorddesires to do. 25. It is the specific evidence of R.W.1-Sivanesan/tenant that hisfather-in-law has purchased a house in the name of his wife, which is in4th floor and that he cannot do his painting and welding works. P.W.1-Jagadeesan/revision petitioner/landlord has clearly admitted in hiscross examination that he is in possession of three shops. Though on theside of revision petitioner/landlord, it is informed that shops No.3 to6 are contiguous and convenient for landlord's occupation, there is nosatisfactory explanation on the side of the revision petitioner as towhy he is not utilising the shop No.1 and 2 which are vacant andadjacent ones, wherein the revision petitioner/landlord can commence theelectrical business of his second son.

It is to be borne in mind that even if the bonafides of landlordhas been proved, the comparative hardship of the parties in the event ofeviction should also be considered by the Court, before orderingeviction and viewed in that angle, as far as the comparative hardship ofthe respondent is concerned, in the event of eviction, the hardship willbe more to him which will outweigh the advantage to the revisionpetitioner/landlord. There is also no pleading in regard to thehardships that are being undergone by the landlord in the present placewhich he occupies for his residential purpose, in the considered opinionof this Court.

From the foregoing discussions, this Court is of the consideredview that eviction of the respondent/tenant cannot be ordered in the eyeof law and resultantly, the Civil Revision Petition is dismissed. Considering the facts and circumstances of the case, the parties arebear their own costs. https://hcservices.ecourts.gov.in/hcservices/ In fine, C.R.P.Nos.1095 and 1097 of 2004 are dismissed andresultantly, the order passed by the authorities below are confirmed forthe reasons assigned in these two revisions. In fine, this Court without going into the merits of the case, remits the matter back to the learned Rent Controller viz., XVI Judge, Court of Small Causes, Chennai to go into the issue of bona fiderequirement of the revision petitioner/landlord and deal withR.C.O.P.No.1158 of 2001, after giving due opportunity to both parties toadduce further oral and documentary evidence in the manner known to lawand in that view of the matter, C.R.P.No.1096 of 2004 is allowed. Theorder of the learned Rent Controller viz., XVI Judge, Court of SmallCauses, Chennai passed in R.C.O.P.No.1158 of 2001 dated 22.11.2002 andthe orders passed by the learned Appellate Authority in R.C.A.No.191 of2003 dated 13.02.2004 are set aside and since the Rent Controlproceedings is of the year 2001, the learned Rent Controller viz., XVIJudge, Court of Small Causes, Chennai is directed to dispose ofR.C.O.P.No.1158 of 2001 within a period of four months from the date ofreceipt of a copy of this order. Having regarding to the facts and circumstances of the case, theparties are directed to bear their own costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarSglTo1.The Registrar, Court of Small Causes, Chennai.2. The Section Officer,V.R.Section, High Court, Madras3 cc To Mr.G.Kathirvelu, Advocate, SR.7096, 7197, 7198.C.R.P.(NPD).Nos.1095 to 1097 of 2004 MDR(CO)RVL 20.06.2008