Muniammal and Others vs R. Sundara Mahalingam

Govindasamy, J.—This civil revision petition is directed against the judgment dated 14.4.1988 in R.C.A.No.57 of 1.986 on the file of the

Sub Court, Madurai, the Appellate authority uner the Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as the Act,)

reversing the order dated 4.9.1986 in R.C.O.P.No. 5 of 1983 on the file of the Rent Controller (District Munsif,), Thirumangalam on an

application u/s 10(3)(a)(iii) of the Act filed by the respondent herein.

The respondent - landlord filed R.C.O.P. No. 5 of 1983 on the file of the Rent. Controller Thirumangalam, u/s 10(3)(a)(iii) of the Act for

eviction of the petitioners herein. The case of the landlord is that the premises bearing Door No.19, Bazar Street, Peraiyur, village Thirumangalam

Taluk is a non-residential one, that the respondent herein purchased the property from his predeceassor for the purpose of starting a jewellery

shop and money lending business at that building, that the respondent herein did not own or possess any other building of his own, that he made all

arrangements to start the business and as such he instituted the proceedings u/s 10(3)(a)(iii) of the Act for eviction of the revision petitioners herein.

The revision petitioners resisted the petition of the landlord stating that they became tenants under the predecessor-in-title of the landlord on a

monthly rental of Rs.40. They would state that the landlord had not taken any step whatsoever for commencing a jewellery shop and money-

lending business, that the landlord owned other buildings in East Street, Bazaar Street and Church Street, that those buildings became vacant and

that the landlord had not chosen to occupy the said buildings.

The learned Rent Controller, on a consideration of the entire evidence on record, came to the conclusion that there is no bonafide on the part of

the landlord in so far as his requirement of the demised premises for his business is concerned, and that there is no satisfactory evidence to

establish that the landlord did not own any other house. However, in the absence of any evidence on the part of the tenants that the landlord

owned any other building, the learned Rent Controller came to the conclusion that the landlord did not own any other house. He further held that as

it was the case of the landlord that he could start the business only after getting possession of the demised buildings, it was very clear that the

landlord was not carrying on any business on the date of the filing of the petition for eviction under the Act, that there was no evidence that the

landlord took steps for the purpose of commencing the business, and that the landlord did no make any application to the authorities concerned

that he intended to carry on the jewellery business in the demised premises. According to the learned Rent Controller, there was no provision in the

Gold Control Act that the premises in which the jewellery shop was intended to be parried on must be kept vacant on the date of the filing of the

application for licence. Considering all the materials on record, the learned Rent Controller came to the conclusion that the landlord had not even

taken any step for the purpose of obtaining a licence under the Gold Control Act in order to carry on the jewellery shop. Ultimately, he held that

the requirement of the demised premises by the landlord was not established by him. With the result, he dismissed the petition for eviction, by

order dated 4.9.1986.

Aggrieved by the said order, the landlord filed an appeal, R.C.A. No. 57 of 1986 on the file of the Court of the Subordinate Judge, Madurai the

appellate authority under the Act. The appellate authority observed that though our High Court laid down that at the time when the landlord

required the non-residential premises for the purpose of carrying on his own business, he should establish that he had been carrying on business on

the date when the petition for eviction on that ground was filed. The landlord in the instant case could not take any step for the purpose of carrying

on business, because under the Gold Control Act, unless the landlord obtained possession of the building in which he intended to carry on the

jewellery shop, the landlord could not apply for licence to carry on the said business. The appellate authority had completely adopted a different

approach stating that unless the landlord obtained vacant possession of the premises in question, he could not apply for and obtain licence.

Secondly, the appellate authority observed that the landlord had enough funds for the purpose of carrying on business and that he had enough

experience to carry on the jewellery shop Meanwhile, the landlord had given up the plea of requirement of the demised premises for money-

lending business. Having regard to the above circumstances, the appellate authority by order dated 14,4.1988 Same to the conclusion that the

requirement of the landlord was bona fide for the propose of carrying on his business in jewellery and as such set aside the order of the Rent

Controller and allowed the petition for eviction filed by the landlord. Aggrieved by the said decision the tenants have filed the above revision

petition.

Mr. A. Ramanathan, learned Counsel appearing on behalf of the revision petition contended that in order to obtain the benefit u/s 10(3)(a)(iii) of

tine Act, it is for the landlord to establish that he had been carrying on business on the date when the petition for eviction was filed. According to

him, in order to obtain the relief u/s 10(3)(a)(iii) of the Act, it is^not open to the landlord to seek the aid of the provisions of the Gold Control Act.

Learned Counsel submitted that there is evidence on the part of P.W. 1, the landlord that he was not carrying on business on the date when the

petition was filed, and it is only on obtaining vacant possession of the demised premises, he had to apply for licence. He further submitted that it is

in the evidence of P.W.2 that on the date when the petition for eviction was filed, the landlord was not doing any business, and even on the date

when the evidence was given, the landlord was not doing any business.

The learned Rent Controller, on appreciation of the evidence, came to the conclusion that the requirement of the landlord of the demised

premises was not bona fide that from the evidence on record, the landlord was not doing any business at the time of the filing on the petition for

eviction and that he wanted to do business only after obtaining vacant possession of the premises. The learned Rent Controller also observed that

there was no material to show that the landlord had taken any step for the purpose of carrying on jewellery shop. He also believed the evidence of

P.W. 1 which was to the effect that the landlord did not apply for licence for the purpose of running a jewellery shop It is not in dispute that the

landlord has not applied for any Scence for the purpose of running a jewellery shop. It is also not in dispute that the landlord had not been carrying

on business on the date when the petition was filed. Mr. A. Ramanathan, learned Counsel appearing for the revision petitioners, referred to the

decision in Raju Chettiar v. State of Tamil Nadu (1970) 1 M.LJ. 249 Where the bench, while considering the meaning of the phraseology ""carrying

on a business"", observed thus:

On a careful consideration of the language employed by the section and particularly the words we have extracted and also the view of the several

single Judges, we are of the view that while the literal construction placed by Basheer Ahmed Sayeed, J., does not with due respect, commend

itself to us, the other view appears to be reasonable. We think so because ""carrying on a business"" may consist of a series of steps, and, even if

one step is proved, we do not see why the requirement is not 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 within the phraseology of the statute. It follows, therefore, that the State Government was right in

proceeding upon the basis that the landlord was yet to commence the business and, therefore he could not have made use of Section 10(3)(c)(iii).

The exemption order was, therefore, competent and does not suffer from any infirmity.

It is clear from this decision that even if one step is proved, the requirement of Section 10(3)(c)(iii) would be satisfied. In the instant case, there is

no step at all whatever and the matter is only in the stage of intention, and hence it is difficult to bring such a case u/s 10(3)(c)(iii).

Learned Counsel for the revision petitioners also cited a decision in T.K. Krishna Iyer Vs. Karur Vysia Bank Ltd., , the head-note of which

reads as follows:

It may be that a person who has obtained the necessary licence or purchased the requisite machinery might be said in certain circumstances to be

carrying on business within the meaning of Section 7(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act so as to enable him to apply

under that provision for eviction of a tenant. But merely because a person had done certain business in the past and intends to do similar business in

future, he cannot be said to be ''carrying on a business'' within the meaning of the section.

Mr. A. Ramanathan, Learned Counsel appearing for the revision petitioner contended that the Act is a self-contained code, and in order to get

any relief under the provisions of the Act, it is not open to the landlord to invoke the provisions of the other acts, such as, the Gold Control Act,

For this, proposition, learned Counsel relies upon the decisions in Union of India v. Annam Ramalingam AIR S.C. 1013 and S.M. Gopalakrishna

Chetty Vs. Ganeshan and Others, . It is well settled that when a petition is filed to obtain a relief under the provisions of the Act, which is a self-

contained one, it is for the petitioners, to satisfy the requirements of the Act in order to get relief.

Repelling the arguments of the revision petitioners, Mr E. Padmanabhan, learned Counsel appearing on behalf of the landlord, contended that

the landlord has no other building of his own, that he has enough funds and experience to carry on the business in jewellery, and that his intention to

carry on the business is bona fide. Mr. Padhmanabhan would strenuously contend that in order to carry on the jewellery business, the landlord

must obtain a licence, and for the purpose of obtaining a licence, he must get vacant possession of the building in which he intended to carry on the

business. Hence according to him, unless the landlord gets possession 6f the building in which the jewellery shop is intended to be carried on, it is

not possible for the landlord to apply for and obtain a licence to carry on the jewellery shop. Mr. Padmanabhan would further contend that the

requirement of the landlord is bona fide in the sense that he is a person unemployed, that he has means, that he has training to carry on the

business, and that he has no other house of his own in the City of Madras even though he is a member of the joint family which owns a number of

houses and which carries on a number of business, as well. Learned Counsel for the landlord further submitted that if there is an intention on the

part of the landlord to carry on the business, which is a bona fide, one, that would suffice to satisfy the requirement of Section 10(3)(a)(iii) of the

Act in order to sustainable his claim. Mr. E. Padmanabhan cited a decision of this Court in Mari Ammal v. Kandaswamy (1977) T.L.NJ. 499. The

relevant passage is as follows:

Giving the fullest meaning to the expression, ""a business which he is carrying on,""it is not possible to interpret the expression in the same manner in

all cass irrespective of the nature of the business. Certain business may require elaborate preparation and certain other business may not require

any preparation at all. For instance, the business with which we are concerned, viz. a betel-nut business does not require any elaborate preparation

at all and all that is required is an intention to start the business and possession of capital, which, admittedly, will be very small, to start the business.

It is not as if, for the purpose of having recourse to the particular statutory provision, a landlord must take a building on lease from a third party and

commence his business in that building and thereafter apply u/s 10(3)(a)(iii) for getting possession of his own building for the purpose of carrying on

that business which bill then he was carrying on in a rented building. To construe Section 10(3)(a)(iii) in that manner will be against all notions of

commen-sense and will not be even in consonance with the object of the Act. Certainly it cannot be the intention of the Act to prevent a landlord,

who, for the purpose of eking out his livelihood, wants to carry on a business of his own in his own premises from doing so. That is the reason why

the learned Judge in (1) 1964 2 M.L.J. 89 expressly stated that there must be some activity in connection with the starting of the business and the

landlord, having the capital ready and the intention as well to do business, can be said to have recommenced his business. As I pointed out already,

what exactly is die preparation that is necessary and that would constitute commencement of the business will necessarily depend upon the nature

of the particular business which the person proposes to carry only. There are innumerable types of business such as a petty pawn shop or any

other petty shop for selling common articles for which no, elaborate preparation is necessary. It is enough for the person to buy the articles in

which he wants to do business and offer them for sale, keeping that same in a particular place. In such a context, it cannot be contended that the

landlord must take a building on lease from some other person and start the business and carry on the business there for some time and thereafter

alone have recourse to Section 10(3)(a)(iii) of the Act.

He also cited a decision reported in Chelliah Pandithan Thiru v. TMT. Anthoniammal, 98 L.W. 666 for the proposition that it would be

extremely hard to construe Section 10(3)(a)(iii) of the Act as to mean that if the landlords want to start their own business, they must first start the

business in rented premises, taken on rent from some-body else, and then they should take proceedings for eviction of the tenant on, the ground

that they require the premises for running their own business. The relevant portion of that decision runs thus:

The other ground on which the premises is asked for now really becomes academic. The decision, on which the learned Counsel has relied, is the

decision of Basheer Ahamed J., reported in Subramania Naicker v. Sivasubramania Chettiat (1955) M.LJ. 47 (S.N.) in which it was held that the

intention of the Legislature in enacting Section 7(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act 1949, which is analogous to

Section 10(3)(a)(iii) of the 1960 Act, was that the landlords must be actually carrying on business before they can claim possession of the premises

for non-residential purposes, namely, the business which they are carrying on. This position does not seem to have been accepted in the later

decision of this Court in Mariammal v. Kandaswami (1977) T.N.L.J. 499. In this decision, Ismail J., as he then was, has expressly referred to

some decisions which have differed from the view taken by Basheer Ahamed, J. It would be extremely hard to construe Section 10(3)(a)(iii) of

1960 Act, as to mean that if the landlords want to start their own business, they must first start the business in rented premises, taken on rent from

somebody else, and then they should take proceedings for eviction of the tenant on the ground that they require the premises for running their own

business. I would therefore agree with the view taken by Ismail J. It appears to me that having regard to the later decisions, the fact that the

landlords are not actually carrying on the business when they make an application for eviction of the tenant on the ground of requirement for their

business would not be fatal to their claim u/s 10(3)(a)(iii) of the Act.

He also cited a decision reported in Ruth Margaret Gonsalves v. K.T.H. Presses By its Proprietor, Kumar 100 L.W. 258 with reference to

the scope of Section 10(3)(a)(iii) and Section 10(3)(c)(iii) of the Act. The head-note reads thus;

Section 10(3)(c) clearly contemplates that if a part of the building is occupied for residential or non-residential purposes, and the landlord need the

premises in the occupation of the tenant for either residential or non-residential purposes as the case may be, eviction can be ordered. The

evidence of the landlord in the instant case undoubtedly shows that she had the word ''business'' for describing her activity of making home-made

condiments and pickles. But it has to be remembered that the said activity of making home made condiments and pickles in small quantities for

earning a living is which is being carried on in the same premises are predominantly used for residence. If she has no other premises to carry on this

activity and does it in her residential place, it cannot be said that any particular portion is being used for non-residential or business purposes. The

present claim, therefore, does not at all fall u/s 10(3)(c), but squarely fall within only Section 10(3)(c)(iii).

Having regard to the fact that in the instant case the landlord has not filed any application to obtain license at the time when the petition for

eviction was made before the Rent Controller and me fact that it is admitted by the landlord that he did not take steps to commence the business

and that he was not doing business on the day when the petition was filed, would make it clear that the landlord had not taken steps whatsoever for

commencing the business. Secondly, on the date when the petition was filed, the landlord was not carrying on any business at all nor had taken any

steps to commence the jewellery shop. In this context, the decision reported in Raju Chettiar v. State of Tamil Nadu (1970) 1 M.L.J. 249 is very

clear to the effect that the phraseology ""carrying on a business"" may consist of a series of steps, and, even if one step is proved, the requirement is

satisfied, and that 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 within the

phraseology of the statute. Applying the said ratio of this case, as the landlord has not either taken any step or is yet to take steps to commence the

business, it is not open to the landlord to make use of Section 10(3)(a)(iii). In other words, the landlord has not satisfied the requirement of Section

10(3)(a)(iii).

A similar view as taken in an earlier decision in T.K. Krishna Iyer Vs. Karur Vysia Bank Ltd., and in the decision in Raju Chettiar v. State of

Tamil Nadu (1970) 1 M.LJ. 249. by a Division Bench. The later decision referred by learned Counsel appearing on behalf of the landlord, viz.,

Chelliah Pandithan Thiru v. Tmt. Anthoniammal 98 L.W. 666 is to the effect that the fact that the landlords are not actually carrying on the business

When they made an application for eviction of the tenant would not be fatal to their claim u/s 10(3)(a)(iii) of the Act. Even assuming that the

landlord in the instant case was not carrying on business on the date when he filed the petition for eviction, there was no semblance of evidence to

show that he has taken steps to carry on the business. Even if the landlord has filed an application before the appropriate authority, and if that

authority has rejected that application, it can be taken note of that the landlord has taken steps for the purpose of carrying on business. In the

absence of any evidence to show that the landlord has taken any action by way of step-in-aid, it may be considered that his petition would not

satisfy the requirements u/s 10(3)(a)(iii) of the Act even on the basis of the dicta laid down in Chelliah Pandithan, Thiru v. Tmt. Anthoniammal 98

L.W.666 Having regard to the fact that no step was taken by the landlord on the date when the application was filed for eviction, it is hardly

possible to come to the conclusion that the landlord has satisfied the requirements of Section 10(3)(a)(iii) of the Act. It is in these circumstances it

has to be held that the judgment of the appellate authority is vitiated by illegality, and as such it is not sustainable. It may be that necessary

formalities have to be observed under the Gold Control Act for purpose of obtaining a licence, but that does not mean that he should keep quiet

without taking any step, and seek for eviction u/s 10(3)(a)(iii). As contended by learned Counsel for the revision petitioners, the Act is a self-

contained code, and it is for the landlord to satisfy the requirements of Section 10(3)(a)(iii) of the Act in order to obtain an order for eviction

against the tenants. In the instant case, the landlord has satisfied the requirements of Section 10(3)(a)(iii) of the Act. As such, the Judgment of the

appellate authority is vitiated for the reason that it has adopted a wrong approach in this case. In this view, the order of the appellate authority is

hereby set aside, and the revision petition is allowed. There will be no order as to costs.