Krishna Ready and Others vs S. Vasudevayya

S. Nainar Sundaram, J.—The landlords within the meaning of Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960,

hereinafter referred to as the Act, are the petitioners in this revision. The respondent herein is the tenant within the meaning of the Act. Now it has

been found as a finding of fact that the third petitioner alone is entitled to the premises in question by virtue of an arrangement inter se amongst the

petitioners. The petitioners sought the eviction of the respondent u/s 10(3) (a) (Hi) of the Act on the ground of requirement of the premises for the

business of the third petitioner. The said business is stated to be an engineering business. The respondent contested the move of the petitioners for

eviction and this contest was tested by the Controller and rejected by him, and the Controller ordered eviction of the respondent. The respondent

appealed and the appellate authority has chosen to take a different view and has allowed the appeal, setting aside the order of eviction passed by

the Controller and dismissed the petition for eviction. This revision is directed against the orders of the appellate authority.

Mr. R. Krishnamoorty, learned Advocate-General appearing for the petitioners, would submit that considerations totally irrelevant and

extraneous for the purpose of deciding the case u/s 10(3) (a) (Hi) of the Act have weighed with the appellate authority and would submit that the

evidence placed in the case amply bears out that the third petitioner did take, though not a series of steps but atleast sufficient steps to brine the

case within the meaning of ''carrying on business'' u/s 10(3) (a) (iii) of the Act. After having gone through the judgment of the appellate authority, I

am inclined to agree with the submissions of the learned Advocate-General appearing for the petitioners. To attract Section 10(3) (a) (iii) of the

Act. certain ingredients must be satisfied and they can be stated as follows:

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

(ii) The landlord should be carrying on a business, the meaning to be attached to the expression ""carrying on business"" to be gleanced from judicial

pronouncements of this Court in this behalf;

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

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

With regard to conditions (i) and (iii) the facts of the present case do not present any controversy. The building in question is a non-residential

one and the third petitioner is not occupying any other non-residential building of his own for the purpose of his business in the City in question.

Conditions (ft) and (iv) alone have presented certain difficulties. But, in my view, the law as laid down by this Court on these questions if properly

applied, does make even these difficulties get dissolved.

The expressions ''carrying on business'' are of certain legal import. We cannot attach to them the ordinary dictionary meaning. The provision

enables the landlord to obtain possession of his non-residential building rented out to a third party, if the landlord requires it for his own business

and if he is not already occupying a non-residential building of his own, for the purpose of the said business. ''Carrying on'' need not necessarily

mean, the landlord must be already actually and actively carrying on the business. If the matter has already passed the stage of a bare intention or

desire, and some steps towards its execution has been taken, that will suffice for the purpose of the pro-visions. It is not possible to lay down a

hard and fast rule as to what that step should be, it will depend upon the nature of the business and other relevant factors, which could enable the

carrying on of business.

This was the view which I have taken in M. Ramakrishnan Chettiar v. M. Perumal Serval C.R.P. no 728 of 1979, dated 4th September, 1980 and

I was obliged to take this view on an appraisal of the judicial pronouncements of this Court already rendered on this question. It will not be out of

place if I refer to the dictum of the Bench of this Court in P.N. Raju Chettiar Vs. The State of Tamil Nadu and Another, : where the Bench

consisting of Veeraswami, C.J. and K. N. Mudaliar, J., declined to accept the literal construction placed by Basheer Ahmed Sayeed, J., in C.R.P.

No. 137 of 1955 that the landlord must be actually ''carrying on business, and the relevant meaning is not in the report succinctly bringing out the

proposition countenanced by the Bench and the same stands extracted below:

carrying on business'' within the meaning of Section 10(3) (a) (Hi) may consist of a series of steps and even if one step is proved, the requirement

of the section would be satisfied. But if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a

case u/s 10(3) (a) (iii). Thus, short of any tangible concrete indication of commencement of a business, mere intention to carry on business will not

enable the landlord to resort to Section 10(3) (a) (iii).

Coming to the facts of this case, the petitioners relied on Exhibit A-6 to A-10 to substantiate their case that the third petitioner is ''carrying on

business'' within the meaning given to those expression by the judicial pronouncements. Exhibits A.6 and A-7 are orders received by the third

petitioner from third parties. The third petitioner, examined as P. W. 3, has referred to these documents. I find that there has been no impeachment

of the genuineness of these documents in the course of cross-examination of P.W. 3. When this is so, the appellate authority is not in order to

exclude these documents from consideration on the aspect in issue. Apparently, there is nothing wrong in a businessman canvassing and obtaining

orders for the business, which he has planned to carry on. Such steps do bear out the intense intention to carry on the trade. Exhibit A.8 is the

quotation received by the third petitioner from National Steel (India), Madras, with reference to certain items of machinery. This document has also

been referred to by P.W. 3 in the course of his evidence and nothing has been brought out to impeach the genuineness of this document in the

course of his. cross-examination. The appellate authority has chosen to eschew Exhibit A-8 by stating that the third petitioner has not accepted the

quotation and placed orders. The petitioners are yet to succeed and they are facing the vicissitudes of legal proceedings and their endeavours to

secure possession of the premises in question is yet to culminate in success and it is too much to expect that orders should have been placed

pursuant to the quotation received under Exhibit. A-8. If orders are to be placed and the items are '' to be received, what purpose they would

serve in the absence of the concerned premises being available to enable the third petitioner to carry on business is completely left in the vacuum by

the appellate authority. Are they to be received and allowed to rest?

Exhibit A.9 is a licence obtained from the Department of Industries and Commerce. It is true that this document stands in the name of Meena

Drilling Company, But, this has been explained by P.W. 3 by stating that Meena is the name of his mother as well as his daughter. There is nothing

wrong in the third petitioner adopting for his business such a name. It is true that the document has come into existence after the filing of the petition

for eviction. But, on that ground there is no warrant to eschew credibility that would be normally attachable to this document in the absence of any

clinching factor, which would point to the contrary position. No such factor has been brought out in the course of evidence. The steps not stop

anterior to the filing of the petition, but they could be a continuing processors. This document need not alone be taken but if it is taken along with

other documents, it has its own weight.

Exhibit A-10 is the letter written by the third petitioner to the Special Officer. Pallavaram Municipality, informing him that he intends opening an

Engineering firm. This has also been referred to by P.W. 3 and his evidence need not be excluded on the simple ground that acknowledgment has

not been obtained for Exhibit A-10. In my view, the evidence has to be assessed as a whole and not piecemeal. There is justification in the

submissions made by the learned Advocate-General appearing for the petitioners that considerations totally irrelevant and extraneous have

weighed with the appellate authority when it chose to differ from the Controller on the aspect in question. A factor that has been taken note of by

the appellate authority is that the third petitioner is yet to obtain a three phase power line. This will again be a futile process and will stand

unimplemented until and unless the premises is secured for the purpose of carrying on business. The solvency of the third petitioner to muster up

the finance to carry on business does not appear to have been put in issue; yet this has been put against the petitioner by the appellate authority on

the ground that on the date of his explanation he had only had cash of Rs. 5,000/. Yet an other aspect that has been counted by the appellate

authority against the third petitioner is that the third petitioner is a resident of Ashok Nagar, while the business to be carried on is at Pallavaram.

This is of no consequence at all and it cannot be disputed that the petitioner can, with the innumerable facilities of speedy conveyance available in

these days, definitely carry on business at Pallavaram having his residence at Ashok Nagar.

The appellate authority also points out that there is another new building available where a hotel is being carried on by a third party. It is a well

accepted proposition that it will not lie in the mouth of the tenant to dictate as to which of the premises the landlord should choose to meet his

requirements, if otherwise he satisfies the provisions of the Act. With regard to enhancement of rent stated to have been demanded of the

respondent, it has not gone past the stage of inferences. The enhancement of rent somewhere in 1970 is put against the petitioners by the appellate

authority and this is absolutely irrelevant to decide the matter in a petition filed in 1978. The appellate authority points out that in the original notice

the requirement of the third petitioner was not express ed. That was a simple notice of determination of tenancy without reference to the provisions

of the Act and it need not express the ground of eviction. But, subsequently it has been made clear in the rejoinder that the third petitioner requires

the premises for running the business. The appellate authority also points out that the third petitioner is only a graduate in Economics and is not

trained previously in engineering works. It can never be claimed as an universal pro-position that for the purpose of carrying on an engineering

works, the person himself must be trained in engineering works. Experience could always be gathered by carrying on business. It must also be

pointed out that business of this nature can always be carried on even by a layman with the assistance of other technical men and these things

normally happen. In these circumstances, I have to accept the submissions made by the learned Advocate-General appearing for the petitioners

that the appellate authority has assessed the materials on record not from the proper legal angle and the considerations that weighed with it are

totally irrelevant and extraneous to the question in issue, if we keep in mind the principles laid down by judicial pronouncements in this behalf. The

cumulative effect of the factual materials placed in this case do indicate without any ambiguity that steps have been taken by the third petitioner to

carry on business and they cannot be eschewed as lacking in bona fides and if this position is accepted, there is no difficulty in countenancing the

case of the petitioners for eviction of the respondent. It is true that concurrent findings, based on evidence, shall not be interfered with by this

Court, exercising jurisdiction u/s 25 of the Act. Here, we do not face concurrent findings on facts by the two forums below. Here we find a

transgression of the governing principles by the appellate authority when it considered the question. When there is a mis-construction of the

principles to be applied or when decisions have been rendered in ignorance of the said principles, taking into consideration extraneous and

irrelevant factors, certainly this Court shall not shirk its jurisdiction of revision to annul such improper, irregular and illegal decisions. This obliges me

to interfere in revision and accordingly, this revision is allowed, the orders of the appellate authority are set aside and those of the Controller are

restored. There is no order as to costs in this revision. At this stage, Mr. N.S. Raghavan, learned Counsel for the respondent, submits that

sufficient time may be granted for the respondent to vacate the premises in question. In answer to this request, learned Advocate-General

appearing for the petitioners, submits that the respondent is actually carrying on his business in a building of his own opposite to the premises in

question. Taking note of these submissions, 1 grant the respondent four months'' time from to-day to vacate the premises in question.