Pooludaiyar Chettiar vs Gani

K.P. Sivasubramaniam, J.—This revision is preferred by the tenant as against the order of the Rent Control Appellate Authority, Tirunelveli,

in R.C.A. No. 7 of 1994 reversing that of the learned Rent Controller, Tirunelveli, in R.C.O.P. No. 92 of 1992.

The respondent/land owner sought for eviction of the tenant u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

According to the petitioner he was doing business at Door No. 69, West Car Street, Tirunelveli Town and he was the owner of the premises in

question. As on the date of the petition, the tenant was paying monthly rent of Rs. 625/-. The land owner was doing business in sugarcane and

wanted to have his own building for the purpose of his business and he was not having any non-residential building of his own. It is only for that

purpose he purchased non-residential building with the sole idea of occupying the same for the purpose of his sugarcane business. Having

purchased the property on 23.3.1992 he expressed his desire through his notice dated 4.5.1992. However, the tenant sent a reply on 9.5.1992

containing false and frivolous allegations. One Samsudeen has nothing to do with the schedule mentioned property and the building had been

purchased by the petitioner only for the purpose of occupying it for his own business and the allegations contained in the reply notice dated

9.5.1992 were false. The petitioner was permanently residing at Palayamkottai. He was doing business in a rented building and he was not in

occupation of any non-residential building and therefore, entitled to have an order of eviction to be passed against the respondent. The requirement

was bona fide. Unless the eviction order is passed, the petitioner will be put to heavy loss and damages.

In the counter filed by the tenant while denying the allegations contained in the petition, the tenant would also contend that the petitioner was not

doing any business in sugarcane. It was equally false to say that he was not having any non-residential building. The requirement of the petitioner

was not bona fide and the nature of the alleged business does not require the premises. The accommodation sought for by the petitioner was not

suited for the alleged business.

The tenant further contended that one Samsudeen who was a close relative of the petitioner had entered into a sale agreement with the original

owner of the building. After entering into the sale agreement the said Samsudeen attempted to evict the respondent from building by force.

Thereupon the tenant immediately filed O.S. No. 118 of 1992 before the District Munsif, Tirunelveli, and had obtained an injunction against the

said Samsudeen. Only with a oblique motive for evicting the respondent from the schedule building, the said Samsudeen had purchased the same in

the name of the petitioner since he has many other shops within Palayamkottai Municipality. The petition has been filed only on the instigation of

Samsudeen. The tenant was doing grocery business at Door No. 170, Kottur Road, Palayamkottai, and the schedule premises was being used as

godown for the past 17 years and his family members are eking out their livelihood from the said business. The requirement of the petitioner was

not bona fide and only in order to get exorbitant rent from the respondent, the petitioner has come forward to file petition for eviction. There was

no necessity to shift the alleged business conducted by the petitioner from Tirunvelveli Town to Palayamkottai. The petitioner was also having many

buildings in his name within the Municipality of Tirunelveli and Palayamkottai. Therefore, the petition was liable to be dismissed.

The learned Rent Controller held that the property appears to have been purchased by the petitioner only at the instance and instigation of

Samsudeen and that the order of injunction obtained in O.S. No. 118 of 1992 on the file of the District Munsif, Tirunelveli, by the tenant was

correct and hence, there was no scope for the landlord to do any business in sugarcane in the petition premises. On appeal, the Appellate

Authority held that it was proved that the landlord had no other premises of his own in that town and that as his requirement was bona fide, he was

entitled to an order of eviction and the appeal was allowed.

Mr. M. Venkatachalapathy, learned Senior Counsel for the tenant contends that the Appellate Authority did not consider the issue of

maintainability of the petition itself as the landlord was doing business in Tirunelveli. The schedule properties being situated in Palayamkottai, he

could not have invoked Section 10(3)(a)(iii) of the Act. Mere intention to transfer the business from Tirunelveli to Palayamkottai was not sufficient.

He would further submit that a suit was pending against Samsudeen in respect of the same property and only due to the interim order obtained by

the tenant, the said Samsudeen had resorted to the present proceedings through a third party seeking eviction and hence the proceedings had been

initiated only due to mala fide reasons. The Appellate Authority did not at all consider the involvement of the said Samsudeen who was a very

close relative of the respondent. The Appellate Authority did not also consider that the premises was not suitable for the business to be conducted

as proclaimed by him and no steps had been taken by him to transfer the business from Tirunelveli to Palayamkottai. The mere running of the

business in some other area/town cannot automatically entitle the land owner to seek eviction. The Act was intended to protect the tenants from

harassment and there should be some strong and bona fide material to show that the respondent really intended to transfer his business and to

establish in the town in which the premises was situated.

Learned Senior Counsel also relied on the judgment of K.Srinivasan,J. in K.S.SUBRAMANIA NAIDU v. V.R.MOHAMMED ZYAUDDIN

81 LAW WEEKLY 34. The learned Judge had observed that on the facts of the case landlord had done nothing except to announce for the first

time in the present proceedings that he intended to open a business and that the said situation was not sufficient to attract Section 10(3)(a)(iii) of

the Act.

Per contra, learned counsel for the respondent/landlord contends that the tenant''s contention regarding the interest of Samsudeen was totally

irrelevant when it is clearly shown that this respondent is the title holder of the property. If the tenants are permitted to raise such contentions

against the real owner of the property, it would be totally unjust. It is further contended that Palayamkottai and Tirunelveli are located very closely

and for all practical purposes have become merged with the expansion of both towns in commercial activities. There was no dispute over the fact

that the landlord was already running a business in sugarcane in Tirunelveli and that in Palayamkottai there was no premises belonging to himself or

any of his members of his family. Therefore, his requirement was bona fide and there was no scope for interference in a revision petition with the

findings of the facts rendered by the Appellate Authority. Learned counsel also relied on rulings of this Court in support of the said contentions

which would be dealt with subsequently.

I have heard both sides and this is one of the few cases in which the scope of and the provisions of the Tamil Nadu Act 18 of 1960 are

misapplied by improper and perverted interpretation of the provisions as well as facts of the case on an erroneous assumption as though the Act is

intended to protect only the interests of the tenant notwithstanding the just cause of the landlord and the unjust defence of the tenant. The Supreme

Court had repeatedly pointed out that the Act has been enacted not only to protect the tenant from unjust eviction, but also equally to enforce the

lawful rights of the land owners to obtain a possession of their own property in the event of satisfying the grounds prescribed for eviction. Here is a

case where the land owner who is not possessed of any premises of his own at Palayamkottai, wants to do business in sugarcane in that place and

there is no dispute over the fact that he was already doing the same business in Tirunelveli. The defence which is mainly raised is two-fold namely,

that the real owner of the property is only Samsudeen who had entered into an agreement with the previous owner and not the petitioner in the

R.C.O.P. and that the provisions of the Act do not visualise asking for accommodation for any business activity in Palayamkottai whereas he was

not doing any business at that place. Both the defences are without any merit.

The fact that the petitioner had purchased the property and that he is the lawful owner of the property as per the revenue records cannot be

disputed by the tenant. In fact it is admitted by the tenant himself in his counter that the petitioner in the R.C.O.P. had purchased the property. The

fact that one Samsudeen had attempted to purchase the property earlier and that there was a tussle between Samsudeen and the tenant resulting in

tenant filing a suit against Samsudeen, can have no relevance or impediment for another party for purchasing the property and becoming lawful

owner subsequently. Reference to the said Civil Suit and the finding by the learned Rent Controller that Samsudeen had instigated the landlord to

file the present petition, is totally illegal and perverse. The title vests with the land owner/respondent herein and reference to Samsudeen is totally

unsustainable. If such defences have to be permitted then all that is required by the tenant is to file a suit against a fictitious person who is not the

owner of the property and who has nothing to do with the property and contend that the said fictitious person had set up the petitioner in the

R.C.O.P. to file the petition for eviction. Such pleadings cannot be permitted to be raised. The views expressed by the Rent Controller in this case,

would amount to holding that the transaction was benami, sham or nominal. There is neither such a finding much less is there any warrant or

justification for such a conclusion.

The further contention that the land owner was carrying on business only at Tirunelveli and not at Palayamkottai where the property was

situated, is also without any substance. Reliance placed on the judgment reported in 81 Law Weekly 34, is improper. The basis on which the said

judgment was rendered was that the business which was carried on already in that case was only by a family and not individually by the landlord.

The issue whether business activity carried on in another town can be relied upon, was incidentally considered. The said issue had been the subject

matter of consideration in later judgments and on interpretation of Section 10(3)(a)(iii) of the Act, this court has repeatedly held that what is

relevant is that the landlord should not be in possession of any of his own property in the town where the property is situated and that it was

sufficient to say that the landlord wants to run a business in the town where the property was situated. The section does not envisage any limited

applicability only in respect of the business being conducted in the same town. It is not even necessary that the land owner should run a business

even in the very same town. It is within the legal rights of the owner of the property to commence a business of his own and to make use of his own

property for the said purpose.

The provision itself is very clear and does not admit of any doubt that there is no requirement that any business should have been carried on by

the landlord much less that he should be carrying on the business only in the same City or Town. To appreciate the same, Section 10(3)(a)(iii) of

the Act will be usefully extracted below:-

S.10(3)(a) A landlord may, subject to the provisions of clause (d), apply to the Controller for an order directing the tenant to put the landlord in

possession of the building-

(i) ...

(ii) ....

(iii) in case it is any other non-residential building, 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 village concerned which is his own.

Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply

under this clause before the expiry of three months from the date on which the instrument was registered:

Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this

clause -

(i) in case he has obtained possession of a residential building, for possession of another residential building of own;

(ii) in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.

A reading of the above provision would make it clear that the requisite pre-condition is that the landlord should not be in occupation of any

building of his own in the City, Town or Village where he seeks to invoke the provision. There is no such requirement that the existing business

which is carried on should be only within the very same City, Town or village.

While interpreting this provision, S.S.Subramani,J. in M/s. Boston and others Vs. S.A. Akbar and etc., held that the law does not say that the

landlord should always continue to do business only in a rented premises even if he is entitled to get possession of his own building and nobody can

doubt the claim of the landlord especially when he has no other building of his own. What is required is the honest desire to do business in his own

premises. In this context, I may also add here that if the landlord does not himself occupy the premises within one month of the date of obtaining

possession or vacates it, then the tenant may apply for restoration, vide Section 10(v)(a) of the Act. The landlord would also be inviting action for

penalty u/s 33(1-A) of the Act. Therefore, there is no justification to presume that the object of the landlord was only to have the tenant evicted or

to view his request with distrust and suspicion. If he does not act bona fide, the relief of restoration is always available to the tenant. The right of the

tenant to squat over the property belonging to another person cannot be put above the right of the land owner to get possession of the property

bona fide for his own use.

In A. Emberumanar and Another Vs. K. Raghava, Ratnam,J. as he then was, held as follows:-

A careful consideration of the language employed in Section 10(3)(a)(iii) of the Act shows that before an order for eviction can be secured under

that section all that the landlord need establish is that he 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 village concerned, which is his own. In other words, the landlord

will not be entitled to secure an order for eviction against a tenant in occupation of a non-residential building, if he or any member of his family is in

occupation of a non-residential building of his own where he is carrying on business. The Section does not demand the fulfilment of any other

consideration. In cases falling u/s 10(3)(a)(iii) of the Act, when once the landlord establishes that he is carrying on business in a rented premises

and that he has no other non-residential building of his own except the building in respect of which eviction is sought, the Rent Controller has to

enquire whether the claim made by the landlord is true and not for any oblique or other purposes. The Rent Controller cannot be investigating into

questions like the convenience, suitability, expanding business, pressing need, etc.

In RENGAIYAN, M. v. A.M.NOORULLAH 1996 (2) L W 107 it was held that there was no restriction u/s 10(3)(a)(iii) that the building in

question must also be situate in the same City, Town or Village. The only restriction is that the landlord should not be in occupation of a non-

residential premises of his own.

Another aspect which would throw considerable light on this issue, namely, as to whether the business which is carried on should be only in the

very same Town or city is to see whether it is necessary at all that the landlord should be actually carrying on business. In CHELLIAH

PANDITHAN v. ANTONY AMAL, M.N.Chandurkar, Chief Justice, on analysis of the provisions of the Act held that it would be extremely

hard to construe the provisions so as to mean that if the landlords wanted to start their own business, they must first start the business in rented

business, taken on rent from somebody else, and then only they should take proceedings for eviction of the tenant on the ground that they require

the premises for running their own business.

The above decision implies that all that was necessary was to find out whether the request of the landlord was bona fide namely to see whether

he has taken sufficient and bona fide steps to do business, which has to be established on evidence such as registration before Sales Tax authorities

or obtaining or having applied for licence for running a shop or entering into a contract for any commercial activity etc. Such evidence should be

sufficient and actual running of the business will not be a necessary pre-requisite. In this case, the said situation does not arise considering that the

fact of landlord doing business in sugarcane in Tirunelveli, is amply substantiated. But I have referred to the above decision only to show that,

afortiori, there can be no requirement that the landlord should be already carrying on business only in that City or Town. The need of an individual

to expand his business cannot be restricted to one Town or city only. There can be no geographical limits for a businessman or an industrialist for

carrying on his business activities or to expand his business in another town or to open branches in different Cities and Towns. The only test is

whether he is in occupation of any premises of his own in the Town or City where the petition building is situated and whether the said requirement

is bona fide or not.

Therefore, it is untenable to contend that since the land owner was doing business only at Tirunelveli he cannot seek eviction for running or

starting a business at Palayamkottai. The further peculiar feature in this case is that Tirunelveli and Palayamkottai Towns are like twin cities which

are practically merged together except for different Municipal limitations for administrative purposes. Even in the order of Rent Controller the

distance between the two places is given as 5 K.Ms. The real fact is that three towns namely, Palayamkottai, Melapalayam, and Tirunelveli are

merged with each other due to the growth of the respective towns. The Tirunelveli Medical College Hospital is in fact situated at High Ground,

Palayamkottai. Therefore, for all practical purposes, all the three towns are merged together and their Municipal identity is maintained only for

administrative reasons. This is apart from the fact that the Act does not envisage that the land owner should be already doing business only in the

town where the property situated.

The further defence taken in the counter of the tenant, namely, that the landlord was possessed of other properties in Palayamkottai, has not

been substantiated in evidence and hence untenable. Therefore, I am inclined to conclude that the order of the Rent Controller is totally illegal and

unsustainable and I find no reason to interfere with the well considered judgment of the Appellate Authority.

In the result, the revision petition is dismissed with costs. Connected miscellaneous petition is closed as unnecessary.