P. Ramasamy vs Kerala Transport Co. and Others

Thanikkachalam, J.—The landlord is the petitioner herein. The petition for eviction was filed on the ground of owner''s occupation u/s 10(3)

(a)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960, as amended by Act 1 of 1973 (hereinafter referred to as ''the Act'',) The

landlord is the owner of the entire premises at No. 8, Lotus Ramasamy Street. Royapuram, Madras.13. The 1st respondent is a partnership firm

and respondents 2 to 4 are its partners. The tenant is paying a monthly rent of Rs. 7,000/-. The premises was originally owned by M/s. P.R

Soundarapandiyan and P.R. Selvaraj, sons of the present landlord. By a deed of release and settlement executed on 21.3.1986, they released and

settled the petition premises in the name of the landlord, who is none other than their father. The tenant also attorned the tenancy in favour of the

present landlord. The petitioner carries on trade and business in dhall manufacturing and he owns a dhall mill known as ""Sri Geetha Industries"" at

No. 1. Lotus Ramasamy Street, Madras. 13. The Petitioner in the rent control petition being a tenant in the said premises is paying a monthly rent

of Rs. 5,000/- to M/s P.R. Lithogruphers, owned by Mr. P.R. Selvaraj, son of the Petitioner in the rent Control petition. Thus the petitioner in the

rent Control Petition is carrying on business in a rented premises. Consequently, the petitioner''s son P.R. Selvaraj, pursuant to the family

arrangement and settlement, has communicated to the petitioner that he needs the portion occupied by the petitioner by way of additional

accommodation.. The petitioner has thus embarrased in continuing to be the tenant under his son. According to the Petitioner in the rent control

petition, the present rented premises measures about 3 grounds in extent and it is insufficient to run the business. Therefore, the Petitioner needs

more space and more accommodation for drying and hulling purposes. The petition premises measures about 51/2 grounds and ideally suitable for

installing the mill for the purpose of dhall manufacturing. The Petitioner therefore bona fide requires the premises under the occupation of the tenant

for doing his business. The Petitioner wrote a letter dated 6.9.1986 appraising the situation. The tenant sent a reply date 2.10.1986 indicating that

he would not vacate from the petition premises. Hence, the present petition for eviction was filed.

The tenant filed a counter, stating that the tenant is a partnership firm. The tenant is in occupation of the petition premises for several years. The

tenant is not only in occupation of the built-up portion, but also the vacant site. The land and building originally belonged to one Lotus Off-set

Printers, rep. by its partner P.R. Selvaraj. The alleged release and settlement deed said to have been executed on 29.3.1986 in favour of P.R.

Soundarapandy and P.R. Selvaraj cannot be true since the place in question originally to Mr P.R. Se!varai who has executed the tenancv

agreement in the year 1974 in favour of the respondent/tenant. The petitioner is carrying on his business in his own building situate at No. 1. Lotus

Ramasamy Street, Madras.13. The tenant was regular in payment of rent and other charges. A sum of Rs. 25.000/- has been paid as advance.

According to the tenant, it is not correct on the part of the landlord to say that he was a tenant under his sons and carrying on the business in the

premises of his sons on rental basis. It is also not correct to state that the petitioner''s sons need the portion under the occupation of their father by

way of additional accommodation. These allegations were made only with a view to evict the tenant. The requirement of the landlord is not bona

fide. The petition for eviction has been filed only to extract higher rent. Therefore, it was submitted that the requirement of the landlord of the

petition premises is not bona fide and, therefore, the petition is liable to be dismissed.

The landlord examined himself P.W.1. One Krishnan was examined as R.W.1. The landlord filed 13 documents. On considering the facts

arising the facts arising in this case, and after hearing the learned counsel appearing on both sides, the Rent Controller came to the conclusion that

the landlord established his bona fide in requiring the petition premises u/s 10(3)(a)(iii) of the Act. Accordingly, eviction was ordered. However, on

appeal, the Rent Control Appellate Authority, appraising the facts arising in this case, came to the conclusion that there is no bona fide on the part

of the landlord in requiring the petition premises u/s 10(3)(a)(iii) of the Act. Accordingly, the Rent Control Appellate Authority set aside the order

passed by the Rent Controller and dismissed the petition filed u/s 10(3)(a)(iii) of the Act. It is against the order, the present revision has been

preferred by the landlord.

Learned Counsel appearing for the petitioner/landlord submitted as under:-

The Rent Control Appellate Authority having come to the conclusion that the landlord was carrying on his business in the premises belonging to his

sons and having come to the conclusion that the landlord was carrying on his business in a rented premises and that the landlord bona fide require

the petition premises for his own accommodation had no justifiable reason4o reverse the order of eviction passed by the Rent Controller. R.W. 1.

accepted that the landlord was carrying on his business in a rented premises. paying the month rent of Rs. 5,000/- The tenant has not disputed the

fact of settlement of property by the sons of the landlord dated 21.3.1986, marked as Ex.A.1. The oral evidence given by the landlord was not

challenged. The landlord filed documents to prove that his dhall business is expanding day by day. The tenant failed to establish that the landlord is

having any other non-residential building of his own in the city of Madras. The Rent Control Appellate Authority was not correct in stating that the

settlement deed executed by the sons of the landlord in favour of their father is only for the purpose of evicting the tenant. It is not correct on the

part of the Rent Control Appellate Authority to state that the landlord was 76 years old and he used to come to the Court along with his assistant

and, therefore, the landlord was too old to run his business and, therefore, there is no bona fide on the part of the landlord in requiring the petition

premises for his own accommodation. Even according to the decision reported in Hameedia Hardware Stores, represented by its partner S. Peer

Mohammed Vs. B. Mohan Lal Sowcar, , the landlord established his bona fide in requiring the petition premises according to the provisions of

Section 10(3)(e) of the Act. The learned Rent Control Appellate Authority was not correct in depending upon extraneous circumstances like the

age of the landlord and ordering eviction. The tenant himself has not pleaded this factor as a defence in his counter. Learned Counsel appearing for

the tenant also relied upon the decision reported in 90 L.W.47. (Section Purushotham Chettiar v. S. Parasammal Sowcar) It was therefore

pleaded that the order of the learned Rent Control Appellate Authority is unsustainable.

On the other hand, learned Counsel appearing for the respondents/tenants submitted as under: -

The landlord is the owner of almost the entire premises situate at No. 1. Lotus Ramasamy Street, Madras. 13. Originally the respondents herein

were the tenant under one M/s. Lotus Off-set Printers, rep. by its Partner P.R. Selvaraj, who is the son of the landlord. The tenant-firm is carrying

on its transport business in the petition premises for the past many years. The landlord is carrying on his business at No.1. Lotus Ramasamy Street,

Madras. 13. According to the landlord, he is a tenant under his own sons and he is paying the rent to his sons for the occupation of premises No.1.

Lotus Ramasamy Street, Madras. 13. Though, the entire premises belong to the family of the landlord for the sake of various purposes, they

divided the property among themselves. Virtually premises No. 1. Lotus Ramasamy Street, Madras. 13. though stands in the name of his sons, the

landlord is having his own right to occupy the said premises. It is true that he is doing his dhall manufacturing business at No. 1. Lotus Ramasamy

Street, Madras. 13. The settlement deed dated 21.3.1986 was executed by transferring the petition premises in favour of the present landlord by

his sons is only for the purpose of evicting the tenant. The landlord is aged more than 80 years as on date and considering his old age, it is difficult

to believe that he needs the petition premises for the purpose of shifting his business from No. 1. Lotus Ramasamy Street to the petition premises.

Normally, a father will convey the property to his sons for the purpose of carrying on their business. But in the present the facts are different and

the motive is to evict the tenant from the petition premises. Therefore, there is no bona fide on the part of the landlord in requiring the petition

premises on the basis of the fact that the property in question was settled in his favour by settlement deed dated 21.3.1986. Even though such

transfer is valid under law, but the circumstances would go to show that there is male fide on the part of the landlord in obtaining the ownership of

the petition premises in favour of him. The facts that the landlord is doing his business as a tenant in the premises belonging to his sons and his

requirement of the petition premises by way of additional accommodation and the transfer of the petition premises in the name of the present

landlord by settlement deed dated 21.3.1986 are all done only for the purpose of seeking eviction of the tenant. In fact, the landlord is having a

major portion of the above said street in the name of his family and he could use a portion of the same for expanding his business. All these aspects

would go to show that the landlord does not deserve to be put in possession of the petition premises. Therefore, according to the tenant the

landlord failed to establish his bona fide in requiring the petition premises u/s 10(3)(a)(iii) of the Act.

I have heard the rival submissions.

The fact remains that the petition premises is situate at No. 8, Lotus Ramasamy Street, Madras. 13. The petitioner herein is the landlord and the

tenant-firm is the respondent. The landlord is carrying on his business in dhall manufacturing at No. 1, Lotus Ramasamy Street, Madras. 13, which

belongs to M/s Lithographer represented by his son P.R. Selvaraj and he is paying a monthly rent of Rs. 5,000/-. The tenant firm is running the

business of transport operations. Consequent to the family arrangement between the petitioner and his sons, the petitioner''s son P.R. Selvaraj,

required the portion now under the occupation of the petitioner for his own use and occupation of for additional accommodation. According to the

learned counsel appearing for the tenant, there is no threat of eviction for the petitioner as he is occupying the portion owned by his own son.

Normally, threat of eviction is not necessary for the landlord who is in occupation of a rented premises, while requiring his own premises under the

occupation of a tenant u/s 10(3)(a)(iii) of the Act. According to the landlord after the petition premises was transferred in his favour, he required

the same for the purpose of shifting his business from the rental building to the . petition premises, which he acquired under the settlement deed

dated 21.3.1986. The landlord is doing business in manufacturing dhalls, which involves hulling and drying of pulses. According to the landlord the

present premises in which he is carrying on his business is not sufficient to do his business and the petition premises is admeasuring 51/2 grounds

with a shed would be more suitable to accommodate his expanding business. It may be true that the landlord''s family is having properties in the

same street. But the fact remains that except the petition premises the landlord is not in occupation of any other non-residential premises of his own

in the city of Madras. The settlement deed dated 21.3.1986, is executed by way of family arrangement. The superstructure at No. 8, Lotus

Ramasamy Street already stands in the name of the landlord. The land admeasuring 6290 sq.ft. was assigned in favour of the landlord by his two

sons under the above said settlement deed. Therefore, the landlord has now become the owner of the said premises. The landlord required the

petition premises for the purpose of accommodating his own business, which he is now carrying on in a rented premises. The landlord sent a letter

dt. 6.9.1986. to the tenant appraising the situation and called upon the tenant to deliver vacant possession of the petition premises. The tenant has

sent a reply on 6.9.1986, alleging that the requirement of the landlord is not bona fide. The settlement deed executed between the father and sons

cannot be said to be illegal and they are perfectly justified in executing the above said settlement deed dated 21.3.1986.

The point for consideration is whether on the facts available on record can it be said that the requirement of the landlord of the petition premises

u/s 10(3)(a)(iii) of the Act is bona fide. In order to obtain eviction u/s 10(3)(a)(iii) of the Act. the landlord must establish his bona tide as

contemplated u/s 10(3)(a)(iii) and Section 10(3)(a) of the Act. According to the tenant (i) the execution of the settlement deed, transferring the

land in the petition premises in favour of the landlord by his two sons (ii) the fact that the landlord who is carrying on his business in the premises

belonging to his son on rental basis (iii) the advanced age of the landlord cumulatively go to show that there is no bona fide on the part of the

landlord in requiring the petition premises u/s 10(3)(a)(iii) of the Act.

u/s 10(3)(a)(iii) of the Act, the landlord should not be n occupation of any other-non-residential building of his own in the same city. The

landlord in the present case satisfies this condition. There is no evidence on the side of the tenant to show that the landlord is having any other non-

residential premises in his name in the city of Madras. The landlord should also establish that he is carrying on his business in a rented premises,

which fact was also satisfied by the landlord. The landlord has also alleged that his son now requires the portion under the occupation of his father,

who is landlord herein for his own additional accommodation. In a matter like this, there at of eviction is not necessary for filing a petition u/s 10(3)

(a)(iii) of the Act. According to the landlord the rented premises is not sufficient to carry on his business since the nature of his business involves

hulling and drying of dhalls in large quantities. The petition premises is admeasuring 51/2 grounds with a covered shed. The landlord can

accommodate his Mill in the shed. Therefore the petition premises would be ideally suitable for carrying on his business. Considering all these

aspects, the learned Rent Controller ordered eviction. However, on appeal the Rent Control Appellate Authority found that there is no bona fide

on the part of the landlord in requiring the petition premises u/s 10(3)(a)(iii) of the Act. because he is in advanced age of 70 years in 1986 and he

came to the court with the help of an assistant. In such circumstances, the learned Rent Control Appellate Authority doubted why the sons of the

landlord transferred the land at No. 8, Lotus Ramasamy Street in favour of their father. According to the learned Rent Control Appellate Authority

this would have been done only for the purpose of evicting the tenant or to extract higher rent. The fact remains that originally the superstructure

was transferred by the sons in favour of their father and thereafter by settlement deed dated 21.3.1986 the land was transferred in favour of their

father: After the settlement deed the tenant accepted the present petitioner as his landlord and paid the rent to him The petition was filed nine

months after the settlement deed was executed. The legality or validity of the settlement deed cannot be questioned. Similarly any arrangement

being made between the sons and their father in the matter of conduct of their Business cannot also be questioned. They are all private

arrangements of the patties concerned in order to run their business more effectively. He have to consider whether the settlement deed executed by

the sons in favour of their father would prove their mala fide intention to evict the tenant somehow or the other as alleged by the tenant. In fact, in

the business world, when the age of the businessmen advances, their experience in the business would also get increased. Therefore, doing

business in advanced age cannot be considered to be a minus point in the business world. And doing any acts in furtherance thereof also cannot be

considered to be as illegal or against the practice prevalent in the business world.

In this context, learned counsel appearing for the landlord submitted that in the counter the tenant has not pleaded this aspect of executing the

settlement deed by the sons in favour of their father who is aged 76 years, was with mala fide, intention of evicting the tenant. Another point is

whether the learned Rent Control Appellate Authority can consider the facts which are not pleaded in die pleadings for arriving at a conclusion

contrary to the one reached by the Rent Controller. In mis context, learned counsel appearing for the landlord relied upon a decision of this Court

reported in 1990 LW 47 (cited supra), wherein while considering the provisions of Section 10(3)(a)(i) and Section 25 of the Act and the

observations made by the District Judge, this Court held that, ""it is not for the District Judge to say so. It is for the landlord to decide that if that

decision is based on real and acceptable facts, then the landlord should be deemed to have satisfied the conscious of the Court about his bona

fide.

According to the facts arising in that case the landlord who had two wives and many children through each of those wives wanted to accommodate

the 2nd wife''s children in the other building. While considering these facts, the District Judge observed that ""It is very difficult to believe mat this

old man on the very wrong age of 80 wants to go out of his house wherein he has lived all along...."" While considering mis observation of the

District Judge this Court observed that it is for the landlord to decide and not for the District Judge to say so. In the present case also it is not for

the learned Rent Control Appellate Authority to say that the landlord is aged about 76 years in 1986 and therefore when the sons executed the

settlement deed in favour of their father that would postulate mala fide intention of the landlord in evicting the tenant. As already pointed out it is for

the landlord and his family members to make such arrangements and adjustments best suited in the conduct of their business in a more profitable

manner.

In the decision reported in Hameedia Hardware Stores, represented by its partner S. Peer Mohammed Vs. B. Mohan Lal Sowcar, , the

Supreme Court while considering the provisions of Section 10(3)(a)(iii) and Section 10(3)(a) of the Act held as under-

By merely proving that the premises in question is a non-residential building and that the landlord or any member of his family is not occupying for

the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is

his own, the landlord cannot in the context in which Section 10(3)(a)(iii) appears get a tenant evicted. He must show in view of Clause (e) or

Section 10(3) that his claim is bona fide. The word ''claim'' means ""a demand for something as due"" or ""to seek"" or ask for on the ground of right

etc., In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the

purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim is bona fide a

landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the

question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona

fides of the landlord''s requirement or need. The word ""claim"" in Clause (e) of Section 10(3) of the Act should, therefore, be construed as ""the

requirement"" of the landlord or his deservedness. ""Deserve"" means ""to have a rightful claim"" or a ""just claim"". Since Clause (e) of Section 10(3) of

the Act is also applicable to a petition filed under Sub-clause (iii) of Section 10(3)(a) of the Act it becomes necessary to examine whether the

requirement of the landlord is bona fide. Otherwise a landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients

mentioned in Section 10(3)(a)(iii) of the Act.

Thus, the facts on record in the present case would go to show that the landlord has proved his bona fide in requiring the petition not only u/s

10(3)(a)(iii) of the Act. but has also proved his bona fide as a contemplated u/s 10(3)(a) of the Act. Considering the facts arising in this case in the

light of the decisions cited supra, I am of the opinion that the Rent Control Appellate Authority was not correct in reversing the order of eviction

passed by the Rent Controller u/s 10(3)(a)(iii) of the Act. Accordingly, the order passed by the Rent Control Appellate Authority stands set aside,

and the order of eviction passed by the Rent Controller u/s 10(3)(a)(iii) of the Act Stands restored.

In this result, the revision is allowed. Time for eviction 2 months. No costs.