Mr. Sha Ukchand v. Mr. Yogesh

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.01.2008CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALC.R.P.(NPD).No.1849 of 20031.Mr.Sha Ukchand2.Mrs. Shanthi Devi3.U.Ashok Kumar(Petitioners 2 and 3 brought on record as legal representativesof 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/TenantVs.Mr.Yogesh... Respondent/LandlordPrayer: Petition filed under Section 25 of the Tamil Nadu BuildingsLease and Rent Control Act 18 of 1960 as amended by Tamil Nadu Act 23of 1973 against the decree and judgment of the learned Rent ControlAppellate Authority Sub Court Coimbatore in R.C.A.No.9 of 2003 dated05.09.2003 confirming the decree and judgment of the learned RentController, Principal District Munsif, Coimbatore in R.C.O.P.No.199 of2000 dated 10.01.2003.For Petitioners: M/s.P.K.SivasubramanianFor Respondent: Ms.P.Veena for Mr.T.R.RajaramanO R D E RThe civil revision petitioner is the respondent/tenant inR.C.O.P.No.199 of 2000 on the file of the learned Rent Controller viz.,the District Munsif, Coimbatore.

The civil revision petitioner/tenant is the appellant in RCANo.9 of 2003 on the file of the learned Rent Control AppellateAuthority viz., the Principal Subordinate Judge, Coimbatore. Therespondent/landlord/petitioner filed R.C.O.P.No.199 of 2000 on the filelearned Rent Controller, Coimbatore under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act of 1960 praying for an https://hcservices.ecourts.gov.in/hcservices/ order of eviction directing the tenant/appellant/revision petitioner tovacate the petition mentioned property and hand over vacant possessionof the same. The respondent/landlord/petitioner filed the aforesaidRCOP petition claiming the petition mentioned property for his ownoccupation, for a non residential purpose. The revisionpetitioner/appellant/tenant filed a counter inter alia stating that thepetition lacks merits and that the respondent/landlord is alreadyrunning a shop dealing in Electrical in the same premises and number ofshops are vacant in the premises and that therespondent/landlord/petitioner is having two shops on the first floorand kept under lock and key and further that the landlord in occupationof a non residential area is not entitled for possession of thepremises and that the respondent/landlord is having a shop in the firstfloor and is not visible and that the work done by the landlord is onlyservicing which requires no visibility but only skilled persons andequipments to work and that the petition has been filed with anulterior motive, with a hidden trick of making the revisionpetitioner/appellant/tenant to vacate the premises.

The learned Rent Controller by his order dated 10.01.2003 hasallowed the petition RCOP No.199 of 2000 directing the revisionpetitioner/appellant/tenant to vacate the petition mentioned propertyand hand over vacant possession of the same to the respondent/landlordwithin two months from 10.01.2003.

Before the learned Appellate Authority viz., the Principal SubJudge, Coimbatore, the revision petitioner/appellant/tenant preferredRCA No.9 of 2003.

The learned Appellate Authority viz., the Principal Sub Judge, Coimbatore, has dismissed RCA No.9 of 2003 on 05.09.2003 confirming theorders passed by the learned Rent Controller in RCOP No.199 of 2000dated 10.01.2003.

Aggrieved against the orders passed by the learned AppellateAuthority viz., the Principal Sub Judge, Coimbatore in RCA No.9 of 2003dated 05.09.2003 the civil revision petitioner/appellant/tenant hasfiled the present revision petition CRP (NPD) No.1849 of 2003 beforethis Court.

The learned counsel for the revision petitioner/appellant/tenanturges that the learned Appellate Authority as well as the learned RentController understood the claim of the respondent/landlord/petitioneras one for additional accommodation for the business carried on by himin the petition premises and that the learned Appellate AuthorityAuthority has not referred to the statutory provision mentioned in theRCOP petition and simply confirmed the order of the learned RentController and that the learned Appellate Authority has not taken intoconsideration the decision of the Hon’ble Supreme Court reported in https://hcservices.ecourts.gov.in/hcservices/ (2002) 4 Supreme Court Cases 627 (Kanniammal v. Chellaram) and thatthere is a bar for the landlord from making an application for therequirements of the business for owner’s occupation if he is alreadycarrying on business in a portion of the building in which the tenantis also carrying on the business and therefore RCOP No.199 of 2000filed by the respondent/landlord under Section 10(3)(a)(iii) of the ofthe Tamil Nadu Buildings [Lease and Rent Control] Act of 1960 is notmaintainable per se in law.

It is the further stand of the revisionpetitioner/appellant/tenant that the claim for additional accommodationcan be maintained only under Section 10(3)(c) of the Act and that therespondent/landlord is having sufficient accommodation both in theground floor and also in the first floor, vacant non residentialportion for his purported business requirements by means of additionalaccommodation and that the learned Appellate Authority should have cometo the conclusion that the requirement is not bona fide.

The pith and substance of the plea of the revisionpetitioner/appellant/tenant is that the respondent/landlord/petitionercannot lay a claim under Sec.10(3)(a)(iii) of the Act in view of thefacts mentioned in the RCOP petition and the nature of evidence let inin the case and therefore, both the authorities have come to theerroneous conclusion.

The demised property is situated in an area of 160 sq.feet (16feet x 10 ½ feet) as averred in the petition. It is not in dispute thatthe demised property is situated in a prime locality in Coimbatore. Therevision petitioner/appellant/tenant is a wholesale cloth merchant. Therevision petitioner/landlord is the tenant in the demised property forthe last 37 years. The revision petitioner/appellant was inducted as atenant in the demised property under the respondent/landlord’s fatherPappaji Rao, who died on 11.09.1999. Thereafter, the revisionpetitioner/appellant is paying the monthly rent to therespondent/landlord regularly.

As a matter of fact, the respondent/landlord/petitionerrequires petition mentioned property for starting his business inservicing of Electronic equipment and it is the claim of therespondent/landlord that he is not in occupation of any other nonresidential building in the city and further, that he is doing businessin a small way at his residence and not in a non residential buildingand therefore, he requires the building for his own occupation for anon residential purpose.

The learned counsel for the revision petitioner/tenant for theproposition that the respondent/landlord is prevented from making anapplication for the requirement of the business for owner’s occupationif he is already carrying on business in a portion of the building in https://hcservices.ecourts.gov.in/hcservices/ which the tenant is also carrying on the business, relied on thedecision (2002) 4 Supreme Court Cases 627 (Kanniammal v. Chellaram)wherein it is observed as follows:-“Rent Control and Eviction – Bona fide need oflandlord – Requirement of non-residential premises inoccupation of tenant for purpose of starting son’sbusiness where residence of landlord located in a portionof same building – T.N. Buildings (Lease and RentControl) Act, 1960, Ss.10(3)(c)-Held, appropriate sectionfor labndlord to seek eviction of tenant would be S.10(3)(a)(iii) and not S.10(3)(c), which only permits landlordto recover premises if he requires “additionalaccommodation” for the same purpose for which he is usingthe portion already in his occupation – On facts, held, appellant landlady rightly sought eviction under S.10(3)(a)(iii) – High Court erred in allowing respondenttenant’s revision petition, dismissing appellant’s reviewpetition and setting aside concurrent decree of evictionagainst respondent – T.N.10(3)(a)(iii) – Statute Law –Non obstante clause – Role of.”

He also relied on 2003 (2) TLNJ 449 (Dr.Anthony Sheik Shib Pongvs. 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) – Evictionpetition – non residential own occupation should not bein occupation of his own premises – need not proved tobe genuine – eviction cannot be ordered. "

P.W.1-Yogesh in his evidence has deposed that the revisionpetitioner/tenant is paying rent to him after the demise of his fatheron 11.09.1999 and that he issued receipts towards the monthly rent paidby the revision petitioner and that the revision petitioner’s shop isthe third one from the 5 corner and that he has studied Diploma in TVand Radio repairs and Ex.P.1 is the Diploma Certificate and that hejoined as ‘Technician’ in UMS Company in the year 1994 and he servedfor 5 ½ years and for running his own shop, he resigned the job.

P.W.1-Yogesh has further deposed that temporarily, he isrunning the shop near the stair case climbing portion TV, VCR will comefor works to him and the length of the portion is 6 x 6 feet in lengthand breath and in the upstairs for running the service centre, it isnot convenient and apart from the petition mentioned property, he hasno other building.

P.W.1-Yogesh in his cross examination has deposed that in theshop run by him, there is no name and address and there is no https://hcservices.ecourts.gov.in/hcservices/ Registration Certificate and TNGST and in the upper portion of hisbuilding, there is one room which is vacant and another one is used byhim.

P.W.2-Loganathan, the Advocate-Commissioner in his evidence hasdeposed that the respondent/landlord/petitioner at the time of hisinspection was keeping the electrical items beneath the stair case andfor keeping the electrical items, there is no enough space in the staircase and that the respondent/landlord was keeping the TV and TapeRecorders in his house and for the two rooms in the stair case, thereis only one way for reaching it and his report is Ex.C.1 dated17.11.2000 and the sketch is Ex.C.2 dated 17.11.2000.

P.W.2-Thiru. Loganathan, Commissioner in his cross examinationhas stated that the respondent/landlrod/petitioner has kept hisbelongings and the belongings are kept in the bed room about which hehas mentioned in his Ex.C.1 report and he has not inspected the KothariFurniture Godown in the first floor, which was locked and that therespondent/landlord/petitioner for his job is not keeping the nameboard and that he has not mentioned about the articles being kept inthe bed room specifically.

R.W.1-the revision petitioner/tenant in his evidence hasdeposed that the respondent/landlord has let out a portion to KothariFurniture in the South of the petition property and that it is notcorrect to state that the respondent/landlord is requiring the petitionbuilding for his own occupation.

R.W.2-Premchand in his evidence has deposed that he has notseen the respondent/land lord running his business in the stair case ofthe petition building and in that place there is no name board and whenKothari Furniture handed over one room, there was no panchayat and nearthe rental portion of the Kothari Furniture, for entering into therespondent/landlord in the respondent/landlord’s house, for gettinginto upstairs there are steps and that he has climbed the said stepsand seen it.

The learned counsel for the respondent/landlord contends thatthe respondent/landlord is residing at Door No.219 and that the doornumber of the petition mentioned property is 217 and that therespondent/landlord has resigned his job from UMS Service Limited forthe purpose of starting his own business in servicing and that thelandlord requires petition premises for his own occupation for a nonresidential purpose and therefore, RCOP No.199 of 2000 is maintainablein law.

The learned counsel for the respondent/landlord relied on the https://hcservices.ecourts.gov.in/hcservices/ 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 oughtto have applied under S.10(3)(c) and not under S.10(3)(a)(iii), not accepted – In view of the distinctive anddivisible nature of the property there can be no doubtthat two portions can be enjoyed and sold separatelywithout causing hindrance to each other – Failure toraise objection in the counter and before the AppellateAuthority is another ground not to allow tenant to raisethe point in revisional stage. An instance of welfare legislation causing graveinconvenience and hardship to poor people who are soughtto be described as landlords.

Further, reliance was placed on the decision in (2005) 8Supreme Court Cases 252 (Sait Nagjee Purushotham & Co. Ltd., v.Vimalabaiprabhulal) wherein it is held as follows:-"A.Rent Control and Eviction – Bona fiderequirement of landlord- Premises required for expansionof existing business – Eviction suit on ground of –Maintainability – Held, it is always the prerogative ofthe landlord to decide for what purpose he requirespremises in question, in this case for his bano fide useof expanding his business – It cannot be a ground to saythat landlord is already having his business in othercities and therefore such need is not a genuine need –It is not tenant who can dictate terms to landlord andadvise him what he should do and what he should not – Itis always the privilege of landlord to choose the natureand place of business – Kerala Buildings (Lease and RentControl) Act, 1965 (2 of 1965) – S.11(3) –Applicability.”

On the side of the respondent/landlord, the decision in AIR1985 MADRAS 95 (M/s.Shelat Bros. v. Lodd Narendradas) wherein it isobserved as follows:-"(B)....- Mere user of a room in residentialpremises for non-residential purposes – Landlords notdeprived from availing benefit of S.10(3)(a)(iii) onthat account – Landlords’ applications weremaintainable.” https://hcservices.ecourts.gov.in/hcservices/

In regard to the plea that the respondent/landlord is residingat Door No.219 and the Petition Door No. is 217, it is a new pointtaken before this Court, in the considered opinion of this Court.

It is useful to refer to Sec.10(3)(a)(iii) of the Tamil NaduBuildings [Lease & Rent Control] Act, 1960 which runs as follows:-

(3)(a) A landlord may, subject to the provisionsof clause (d), apply to the Controller for an orderdirecting the tenant to put the landlord in possessionof the building-(iii)in case it is any other non-residentialbuilding, 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 villageconcerned which is his own:

Under Sec.10(3)(a)(iii) of the Act, the conditions forobtaining 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 ofapplication for eviction. (iii)The landlord should not be occupying any building belongingto him in respect of the business and claim is bona fide for hisbusiness need and is not found to be indirect or oblique motive forevicting the tenant either with a view to obtaining more rent than thepremises already fetched or with a view to harass the tenant inpossession, 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. MahendraDada and two others) and 1995 (2) MLJ 649 (Sankaranarayanan vs. Palaniswami).

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 beattached to ‘carrying on business’, to be gathered from judicialpronouncement. 3. He should not be occupying any non-residential building of hisown in the city of Madras. 4. The landlord must satisfy that his claim is bona fide as perdecision 1984 (1) MLJ 22 at 23 (Krishna Reddy and others vs.S.Vasudevayya).

In 1994 (1) MLJ 657 (T.Anandan vs. Noor Jahan) it is held that https://hcservices.ecourts.gov.in/hcservices/ “Carrying on business” is a mixed question of fact and law. Each casewill have to be decided on facts and no general proposition can beevolved as to what constitutes “Carrying on business”.

In 1998 (2) MLJ 261 (Jayaram Metal Works vs. Jagannathan), itis observed that “A petition is maintainable if the business is beingcarried on in a premises which is not the landlord’s own”.

In 1995 (2) MLJ 67 (Mohambaram, N. vs. CKCM Kader Shan and Brothers, represented by its partner) it is held that “The fact thatthe landlord was storing his business materials in his residence andhas prior experience would not help him to contend that he was carryingon business on the date of filing of the petition”.

In 2001 (1) MLJ 241 (Sankar.K vs. G.L.Vijayan) it is observedthat “When it is found that the landlord is running a differentindustrial unit in a non-residential premises of his own, he is notentitled to seek eviction invoking Section 10(3)(a)(iii)”.

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 atenant which is a distinct and separate from the non-residentialbuilding in the occupation of the landlord, under Sec.10(3)(c) bothlandlord and the tenant are in the same building and the landlordrequires it for additional accommodation resultantly seeking eviction, as per decision 83 LW 696 at 700 (Easwaran Chettiar vs. Subbarayan). Itis to be noted that the scope of Sec.10(3)(c) of the Act is differentfrom Sec.10(3)(a)(iii) of the Act. Each sub Sec. will come intooperative play under different circumstances. As a matter of fact, ifSec.10(3)(c) of the Act is invoked for additional accommodation, thelandlord must be in occupation.

In 1994 (2) LW 661 (A.P.Swamy vs. V.Kunjithapatham) it is heldthat “The landlord, occupying the first floor of the premises forresidential purposes seeks eviction of tenant, who is carrying onbusiness 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) isnot maintainable".

As far as the present case is concerned, the learned AppellateAuthority has observed that the respondent/landlord/petitioner is doingTV, VCR repair works in the stair case portion. Furthermore, thelearned Appellate Authority has also observed in RCA No.9 of 2003 orderdated 05.09.2003 that the requirement of respondent/landlord forconducting his business is bona fide and for conducting the landlord’sbusiness additional accommodation is required and therefore, orderedeviction of the civil revision petitioner/appellant. https://hcservices.ecourts.gov.in/hcservices/

It is not out of place to point out that the learned AppellateAuthority in paragraph 13 of the order passed in RCA No.9 of 2003 dated05.09.2003 has specifically adverted to the requirement of landlord asone of additional accommodation. Even the learned Rent Controller inhis order passed in RCOP No.199 of 2000 dated 10.01.2003 in paragraphNo.17 has observed that “in the stair case carrying of items like TVetc., in a big way, it will be an hindrance”. In fact, it is thecategorical evidence of P.W.1-Yogesh (in cross examination) that out oftwo rooms, one is vacant and the other one is used by him.

In fine, CRP (NPD) No.1849 of 2003 is allowed. Resultantly, theorders passed by the learned Rent Controller in RCOP No.199 of 2000dated 10.01.2003 and the learned Appellate Authority in RCA No.9 of2003 dated 05.09.2003 are set aside. RCOP No.199 of 2000 on the file ofthe learned Rent Controller viz., the Principal District Munsif isdismissed. It is open to the respondent/landlord to file a freshpetition as per the relevant provisions of the Tamil Nadu Buildings(Lease & Rent Control) Act, 1960 for seeking appropriate relief againstthe revision petitioner/tenant in the manner known to law. In the facts https://hcservices.ecourts.gov.in/hcservices/ and circumstances of the case, the parties are directed to bear theirown costs. Consequently, connected miscellaneous petitionC.M.P.No.13645 of 2004 is closed. Sd/Asst. Registrar/true copy/Sub Asst. Registrar jbmTo1.The Rent Control Appellate AuthoritySubordinate Judge, Coimbatore. 2. The Rent Controller, Principal District Munsif, Coimbatore. 3. The Section Officer, VR Section, High Court, Madras.+1cc to Mr.P.K.Sivasubramanian, Advocate Sr 3149+1cc to Mr.T.R.Rajaraman, Advocate Sr 2848RS (CO)km/22.2.C.R.P.(NPD).No.1849 of 2003