A.R. Subbaraj vs Chandra Bai

Padmini Jesudurai, J.—The tenant who has suffered orders of eviction from both the authorities below, on the ground of the landlady requiring the premises, for her husband''s business, has filed the present revision. The Facts briefly are:�Proceedings relate to two adjacent shops in the building bearing door No. 289. Erukkancheri High Road, Vyasarpadi, Madras. On 13-7-1983, the respondent had purchased the petition premises as also a room in the rear portion. Subsequent to the purchase, the petitioner, who was having a grocery shop and also a rice wholesale shop in the petition premises attorned to the respondent herein. The husband of the respondent was having jewellery business in rented premises in door No. 295 in the same High Road, and the purchase was for the purpose of shifting the jewellery business from the rented premises to the petition premises, and also for constructing a first floor over it for the residence of the respondent and her family members. The room in the rear portion had no access either from the road or from the petition premises and by leave and licence of the vendors, the respondent was permitted to use the passage belonging to the vendors. The above room was locked and kept vacant, since it was not capable of being put to any use. Since the petitioner, despite notice by the respondent that the premises were required for the business of her husband, refused to surrender possession, the respondent filed R.C.O.P. 71 of 1985 in the Small Causes Court, Madras, under S.10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act 18 of 1960) (herein referred to as the Act).

The petitioner resisted the action, mainly on the ground that though later a consolidated sum came to be paid as rent for both the shops, the tenancy in respect of the two shops was different and a single petition for eviction would not lie and also that when the respondent purchased the premises, the petitioner had also the rear room in his possession, but that at the request of the respondent and on the assurance of the respondent, that, if the rear room was handed over to him, he would not take eviction proceedings against the petitioner in respect of the petition premises, the petitioner, had surrendered possession of the rear room to the respondent and that, therefore, the respondent was estopped from seeking eviction of the petition premises. In a general way, it was also contended that the respondent was put to strict proof of the averment, that her husband was having jewellery shop and that too in a rented building and that she could shift the above business to the rear portion and also put up any construction above it.

Before the learned Rent Controller, the husband of the respondent was examined as P.W.1 and Exs.P1 to P12 were marked on her side. The petitioner examined himself as P.W.1, and a corroborating witness as R.W.2 and has Ex.R1 to R10 were marked on his side.

Learned Rent Controller (VII Judge, Court of Small Causes) Madras on the materials placed before him, found that the husband of the respondent was carrying on jewellery business in rented premises and they did not own any other premises and that the requirement of the petition premises was bona fide and ordered eviction. He also found that the plea of estoppel put forward by the petitioner, based on an oral agreement was not acceptable, factually or legally. Aggrieved by the above order of eviction, the petitioner preferred R.C.A. 45 of 1987 before the appellate authority- IX Judge Court of Small Causes, Madras, who concurred with all the findings of the learned Rent Controller and dismissed the appeal. Before the appellate authority, however, an additional point was raised by the petitioner that since the room in the rear portion was in the occupation of the respondent, the application for eviction should have been filed under S.10(3)(c) of the Act and the application under S. 10(3)(a)(ii) of the Act was not maintainable. The appellate authority relying on certain decisions, referred to by the respective parties negatived this contention. Aggrieved with the order of the learned appellate authority, the tenant has preferred the present revision.

The only point that was urged before me by Mr. A.L. Somayaji, learned counsel for the petitioner, is that, in view of the fact that the respondent was admittedly in possession of a room in the rear portion of the same building, the present application under S.10(3)(a)(iii) of the Act was misconceived. According to the learned counsel, the respondent, being already in possession of a portion of the building, could, if she needed additional accommodation, apply only under S.10(3)(c) of the Act. The fact that the rear room was kept vacant and locked as contended by the respondent would make no difference, since the rear room was available to the respondent and she could, if she so desired, at any time, put it into any use. Learned counsel relied upon a decision of this Court rendered by Mohan, J. C.S. Pillai v. Capt. M.A. Murugaraj 1983-2-M.L.J. 310, for the proposition that even mere juridical possession, was to be taken as occupation and keeping the premises locked intending to reside therein, if opportunity or necessity arose, would be construed as, being in occupation as contemplated under S.10(3)(a)(i) of the Act. Learned counsel also contended that contrary to the view expressed in the above decision, there were several decisions of this Court, which have taken the view that mere possession would not constitute occupation but should also be coupled with actual user and that, therefore, in the light of the conflicting opinion expressed in this matter, in the different decisions of this Court, the matter should be referred to a larger Bench for resolving the conflict.

Per contra, Mr. V.R. Gopalan, learned counsel for the respondent, contended that two different Division Benches of this Court had already expressed their views in Dr. Mohamed Ibrahim v. Syed Ahmed Khan 63 L.W. 410= AIR 1950 Mad. 556, and in The Accommodation Controller, Madras Vs. G. Rukmani Ammal, and those decisions and also the decision of the Supreme Court in Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, and certain other decisions referred to by him, indicated a consistent view and that view ought to be followed and there was no opportunity to refer the matter to a Bench. Learned counsel also contended that the facts of the instant case bore no analogy to the facts of any one of the cases, referred to by the learned counsel for the petitioner, in that, the rear room was kept vacant, locked since it was incapable of being used for the business for when the petition shops were sought for and the question of the respondent being in occupation of the rear room for the purpose of carrying on the business did not therefore arise. Eviction was, therefore, rightly sought for under S.10(3)(a)(iii) of the Act and not under S.10(3)(c) of the Act.

The question that arise for consideration is whether in the circumstances of the case, eviction ordered under S.10(3)(a)(iii) of the Act is legally sustainable?

The landlord in an application under S.10(3)(a)(iii) of the Act has to establish the following requirements�

(i) the building should be non-residential in character;

(ii) the landlord should be carrying on a business;

(iii) he should not be occupying any other non-residential building of his own, in the city concerned, for the purpose of his business; and

(iv) the landlord must satisfy that his claim is bona fide.

Both the authorities below have found, and it is not seriously controverted here, that requirements (i) (ii) and (iv) are satisfied. The respondent''s husband is carrying on business in jewellery and in rented premises bearing door No. 295, in the same High Road. Both the authorities below have also found that the claim of the respondent is bona fide. The only question that remains to be considered, is whether the requirement (iii) stands fulfilled. Learned counsel for the petitioner contends that the respondent is in occupation of a room in the rear portion, whereas the learned counsel for the respondent contends that though the room in the rear portion is in his custody, such custody does not amount to occupation under S. 10(3)(a)(iii) of the Act. The question, therefore, arises as to what amounts to occupation as contemplated in S.10(3)(a)(iii) of the Act.

S. 10(3)(a)(iii) of the Act is as follows-

In case it is any other non-residential building, of the landlord or (any member of his family) is not occupying for purpose 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.

I shall first refer to the facts put forward in the pleadings. The respondent has stated in his petition for eviction that out of the total area of 765 sq.ft. purchased by her, the room in the rear portion covering an area of 225 sq ft. is behind the petition premises and that there is no direct access to this room from the main road and by leave and licence of the vendors she has been permitted to use a passage belonging to the vendor, which had not been sold to her, and, since it is not possible to use the room in the rear portion, the same is kept under lock and key. In the counter filed by the petitioner, this aspect has not been challenged. P.W.1 in his evidence, has also stated that this room is vacant and is kept under lock and key and there is no access to that room. There has been no cross-examination in this part of the evidence. Even the petitioner as R.W.1 has not controverted those facts. Though in the cross-examination, when questioned as to whether the room was vacant, he has stated that the pledged articles of the respondent are kept there. It is obvious that this is an after thought, since it was never the case of the petitioner that the rear room was not kept vacant or that the respondent was using it for any purpose. Even in Ex.P12 the reply notice that preceded the commencement of eviction proceedings, it is not stated that the pledged articles were kept in the rear room. In the sale deed Ex.P11, it is mentioned that the respondent is permitted to use the passage belonging to the vendors to reach the rear room and that, after the tenants in the petition shops vacated, the respondent should close the doorway leading to the rear room the passage and put up a wall there. This clearly indicates that the leave and licence granted to use the passage to reach the rear room is only temporary and is restricted to the respondent alone. It appears that there was a doorway between the petition shops and the rear room, which had been closed by the petitioner, thereby shutting out all access to the rear room from the main road. It is not the case of the petitioner that the respondent has any of his articles there or is doing any kind of jewellery business there. On these facts, both the authorities below rightly found that the rear room had no access from the main road and had no access from the petition shops and was not used and was kept vacant under lock and key. The above findings, rendered on a proper appreciation of the evidence, have to be maintained.

It has next to be seen whether the possession of a room kept vacant and locked in the rear portion of this building and which is not used for the business of the respondent''s husband could be construed as occupation of the room for the purpose of the business.

I shall first refer to the two Division Bench decisions of this Court, placed before me. In Dr. Mohammad Ibrahim Vs. Syed Ahmed Khan and Another, , Rajamannar, C.J., and Somasundaram, J., in an action under S. 7(3)(a) of the Buildings (Lease and Rent Control) Act Madras Act 15 of 1946 (equivalent to the present S.10(3)(a)(i), held that the real test to be applied in such a case was whether the landlord, if he so desired, could at any time reside in the portion which was said to be in his occupation. In that case, the landlord sought eviction of the tenant on the ground that he required the premises for his residence. The landlord was residing with his first wife in a rented house and the second wife was living in a house belonging to the landlord, along with her parents. The landlord would at times, stay with his first wife, and at times reside with his second wife. Under these circumstances, the question arose whether the landlord could be said to be in occupation of the house wherein his second wife was residing and in which he would stay periodically. This Court held that if the building was occupied by any member of the family of the landlord, with his permission and on his account then, even though the landlord might not physically be residing therein, he would still be deemed to be occupying the building, since if the landlord desired he could, at any time, go to reside in it. The landlord''s application, therefore, failed.

In a later Division Bench decision of this Court in Accommodation Controller v. Rukmaniammal 84 L.W. 90- AIR 1971 Mad. 342, Veeraswami, C.J. and Gokulakrishnan, J,) (as he then was) while interpreting the meaning of the term ''occupation'' occurring in S.10(3)(c) of the Madras Buildings (Lease and Rent Control) Act 18 of 1960 held that the question was ultimately to be determined with reference to the intention disclosed by the parties from the act of user of that portion of that house, which was said to be in occupation of the landlord. In that case, a room was kept locked and the landlady used to occupy that room periodically. The court held that the landlady should be deemed to be in occupation of that room, though it was kept locked most of the time.

Learned counsel for the respondent placed reliance upon a decision of the Supreme Court in Phiroze Bamanji Desai Vs. Chandrakant N. Patel and Others, That was landlord''s action against the tenant for possession of the premises on the ground of reasonable and bona fide requirement for personal use and occupation under the Bombay Rents, Hotel and Lodging House Rates Control Act 57 of 1947. Eviction was sought for of a bungalow named ''Hill Bungalow''. The tenants contended that the landlord owned another bungalow named ''Truth Bungalow'' which was being occupied by a doctor, on a leave and licence and that therefore, requirement of the landlord of the ''Truth Bungalow'' was not bona fide. The Bombay Act is different from our Act in that, therein the Court had to consider the question of occupation of ''Truth Bungalow'' only for the limited purpose of deciding the reasonableness and bona fides of the requirement of the landlord of the Hill Bungalow. The High Court of Bombay held against the landlord, on the ground that when the premises are given on leave and licence, the licensor from a judicial point of view is deemed to be in possession of the premises and the license is merely given occupation and that, therefore, the ''Truth Bungalow'' was in possession of the appellant. The Supreme Court, while upholding the above possession of law, however laid down, that for the purpose of determining whether the requirement of the landlord was reasonable and bona fide, what was necessary to be considered was not whether the landlord was juridically in possession of the ''Truth Bungalow'' but whether the Truth Bungalow'' was available to the landlord for occupation, so that the landlord could not be said to be in need of the petition premises. Since the truth Bungalow'' was in occupation of the licence, it was obviously not available to the landlord for occupation. The Supreme Court, therefore, held that the need of the landlord for the petition premises could not be negatived on that ground.

I shall now refer to the two decisions of this court wherein the implications of the term ''occupy'' came to be interpreted, while considering the question as to whether, the tenant had ceased to occupy certain premises. In both the cases, the action was under S.10(2)(iv) of the Act landlord seeking eviction on the ground that the tenant had ceased to occupy the premises. In Abdul Rahim and Bros. and Another Vs. R.K. Selvan Bros. and Others, Rajagopala Ayyangar, J. held that the tenant who had taken the premises for carrying on business in wine and who, after the introduction of the Prohibition in the State, had ceased to do that business, but had kept all his furniture in the premises, had not ceased to occupy the premises. Similarly, in Gulam Mohammed v. Pichai Maraicair 94 L.W. 181= 1981-1-MLJ 99, Ratnam, J. held that where the tenant kept his stocks, equipment and furniture necessary for the business inside the premises and me business was carried on by his manager, the tenant had nut ceased to occupy the premises, though the tenant had come over to Madras for residence.

As to what can be construed as occupation, has been considered in some of the decisions of this Court rendered under S.10(3)(i) of the Act. In Mrs. Gowridevi v. Shamarao 96 L.W. 516= 1983-2-MLJ. 223, Swamikkannu, J. held that the landlady, who kept the second floor covered with asbestos sheets vacant, empty and locked without physically residing in it or without even keeping any of the materials to it, could not be deemed to be occupying the second floor, so as to disentitle her to get possession of the first floor from her tenants. Learned Judge has also held that under S.10(3)(a)(i) of the Act, occupation of a residential building, could only mean living in it.

A decision strongly relied upon by the learned counsel for the petitioner for contending that there are conflicting views on this matter and that therefore the case should be referred to a larger Bench, is the decision on this court in C.S. Pillai v. Capt. M.A. Murugaraj 1983-2-MLJ 310, rendered by Mohan, J. In that case, the landlord sought the first floor of the premises for his personal use and the occupation under S. 10(3)(a)(i) of the Act. Eviction was ordered by the Rent Controller. While the landlord was examined before the Rent Controller, he had admitted that the ground floor which at one time had been occupied by a tenant, had fallen vacant, the tenant having vacated the same. On the basis of this admission, the Appellate Authority held that, since even on the date of the eviction petition, the ground floor was vacant and in the possession of the landlord, the latter had to seek remedy only under S. 10(3)(c) of the Act and not under S. 10(3)(a)(i) of the Act. The appeal was, therefore, allowed and the order of eviction was set aside. In the landlord''s revision, this Court, relying upon the admissions of the landlord while giving evidence as well as the concession of the learned counsel for the landlord before the appellate authority and also relying upon certain other circumstances in the case, found that the tenant of the ground floor had vacated prior to the commencement of the eviction proceedings. While trying to uphold the maintainability of the action under S. 10(3)(a)(i) of the Act, in the face of the above finding, a faint attempt was made by the learned counsel for the landlord to contend that the landlord had not yet occupied the ground floor. It was under these circumstances, that the learned Judge, extracted certain passages from the Division Bench of this Court in Accommodation Controller v. Rukmaniammal 84 L.W. 90 - AIR 1971 Mad. 342, and finally held that the remedy of the landlord was to file an application under S.10(3)(c) of the Act and juridical possession of the landlord of the ground floor would be enough to non-suit him in an action under S.10(3)(a)(i) of the Act, for the first floor. The revision petition was dismissed.

This decision had been referred to in a later decision of this Court, rendered by Ratnam, J., in Sundaram v. Jothibai 98 L.W. 281- 1985-2-M.L.J. 89. In that case, the landlady needed her building, rented out to four different tenants, for her personal use and occupation. She issued a notice to the tenants and three of them vacated. One tenant refused to do so. She therefore, maintained an action against that tenant under S.10(3)(a)(i) of the Act, besides S.10(3)(i). She had specifically averred that the other three portions had fallen vacant, and that she could not occupy the same since the respondent-tenant had not vacated his portion. It was admitted by the respondent-tenant that the other three tenants had vacated their portions and the same were kept vacant and idle. The Rent Controller, holding that the vacant portion of the building was sufficient for the landlady''s occupation, dismissed the eviction petition. The appellate Authority, however, reversed the same and also held that since the three portions were kept vacant, locked and unused, the same did not amount to occupation and, that therefore the landlady was entitled to succeed even under S. 10(3)(c)(i) of the Act. The tenant preferred a revision to this Court. The learned Judge referred to a catena of decisions of this Court, us well as those of the Supreme Court. In particular, a detailed reference was made of Krishnalal Iswarlal Desai v. Boi Vijikar A.I.R. 1964 S.C. 1676 and Mst. Bega Begum and Others Vs. Abdul Ahad Khan (Dead) by Lrs. and Others, and Babu Singh Chauhan Vs. Smt. Rajkumari Jain and Others, and Bimla Devi Vs. First Additional District Judge and Others, The decision rendered by Mohan, J., in C.S. Pillai v. Capt M.A. Murugaraj 1955-2-M.L.J. 310, has been also considered by the learned Judge, who has felt that the above decision, without reference to the Bench decisions and the other decisions referred to by him in his judgment, could not apply to the facts of his case. The concept of ''occupation'' occurring in S. 10(3)(a)(i) of the Act, was finally explained as hereunder:

''Occupation'' means the act of occupying and connotes either actual presence in the building with an intention to do so and would comprehend a case where with such an intention, the building is made ready or kept in readiness, for such use, with all the essential requirements either for residence or for carrying on business, as the case may be, or manifested at least by some overt act in that behalf, in other words, occupation of a premises undoubtedly would include possession of it, though mere possession of it alone may not be sufficient to constitute occupation.

On the basis of the above principles, learned Judge held that the landlord in his case, had neither locked on the premises with household effects nor even had put a servant or an agent in charge of the vacant premises, thereby indicating the intention to retain control over the entire property or a portion of the property with a view to live therein and could not, therefore, be held to be in occupation of the portion which had already fallen vacant. The landlady''s action under S.10(3)(a)(i) of the Act was upheld.

I am in respectful agreement with the law laid down by Ratnam J. in Sundaram v. Jothibai 98 L.W. 281- 983-2-M.L.J. 89.

The learned Judge has considered the judgment of Mohan J. in C.S. Pillai v. Capt. M.A. Murugaraj 1983-2-M.L.J. 310, and has also referred to several decisions of the Supreme Court on the subject. Further, I do not think that there is really any conflict between the above two decisions which requires to be resolved by reference to a larger Bench. The facts of the above two cases are basically different. In C.S. Pillai v. Capt. M.A. Murugaraj 1983-2-M.L.J. 310, the landlord sought possession of the first floor for his residence, suppressing the fact that even on the date when the eviction petition was filed, the ground floor used for residential purposes, was already vacant. The question, therefore, as to whether the ground floor was kept locked or whether the landlord had kept any of his belongings in the ground floor, so as to make the possession ''occupation'', did not arise, for consideration. The final contention was that the landlord had not yet physically occupied the ground floor. It was under these circumstances, that the learned Judge observed that the landlord was in juridical possession of the ground floor and had to be non-suited. In the case before Ratnam, J. viz., Sundarom v. Jothibai, as well as in the case before Swamikkannu, J. viz. Mrs. Goridevi v. Shamarao 96 L.W. 516- 1983-2-M.L.J. 223, it was the case of the landlord that a portion of the building was already vacant, but was kept locked without anything being kept inside and was also kept vacant. Under these circumstances, both the learned Judges have held that ''occupation'' is something more than mere possession. Some overt acts indicating intention to occupy was necessary.

It, therefore, follows that occupation in S.10(3)(a)(iii) of the Act would connote either (i) actual physical occupation with an intention to do so or (ii) keeping the building ready for use with all the essential requirements for carrying on business, with an intention to occupy it, manifested at least by some overt act in that behalf.

Reverting back to the facts of the instant case, the respondent has come forward with a straight case that the rear room is vacant and is kept under lock and key and is so kept, since it is incapable of being used for want of access from the main road. Factually, it has been found that the rear room is kept vacant, empty and under lock and key. There is no direct access to the rear room from the main road. Under these circumstances, it could not be said that the respondent is either physically occupying the rear room for the jewellery business of the husband, or that either she or her husband is keeping the rear room ready with the requirements needed for the jewellery business with an intention to occupy it. Hence it cannot be said that the respondent is in occupation of the rear room. The action under S.10(3)(a)(iii) of the Act, therefore, is maintainable.

In the result, the revision petition fails and is dismissed. No costs. Thiru A.L. Somayaji, learned counsel for the petitioner, requests that some time may be given to the petitioner to hand over vacant possession of the premises to the respondent. Heard learned counsel for the respondent as well. The petitioner is given time till 27-9-1988 to hand over peaceful possession of the premises to the respondent, on condition that he tiles an affidavit on or before 18-7-1988 undertaking to hand over peaceful possession on or before 27-9-1988, and also on condition that he continues to pay the rent without arrears.