S.C. Dhatchayani vs A. Sathar Essa

V. Ramasubramanian, J.—The petitioner in both the Civil Revision Petitions, is the owner of a property bearing Door No. 110, South Masi

Street, Madurai Town. The ground floor of the said property comprises of two portions, one measuring 390 sq.ft., and another measuring 48 sq.ft.

The portion measuring 390 sq.ft., is in the occupation of the respondents, in CRP (NPD)(MD) No. 736 of 2005. The portion measuring 48 sq.ft.,

is in the occupation of the respondent, in CRP (NPD)(MD) No. 124 of 2004.

The petitioner filed RCOP No. 463 of 1992 against the tenant of the portion measuring 48 sq.ft., for eviction u/s 10(3)(c) of the Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960. Similarly, the petitioner filed RCOP No. 471 of 1992 against the tenant in occupation of the other

portion, for eviction under Sections 10(2)(iii) and 10(3)(c) of the Act.

The Rent Controller, Madurai (Additional District Munsif, Madurai) allowed RCOP No. 463 of 1992, ordering the eviction of the tenant of the

portion measuring 48 sq.ft., and directing him to deliver vacant possession, within 2 months. However, the same Rent Controller dismissed RCOP

No. 471 of 1992 against the tenant in occupation of the bigger portion.

Therefore the tenant in respect of the smaller portion, filed RCA No. 39 of 2001, challenging the order of eviction dated 26.2.2001 passed in

RCOP No. 463 of 1992. Similarly, the petitioner (landlady) filed RCA No. 97 of 2000 against the dismissal of her Eviction Petition RCOP No.

471 of 1992 dated 25.7.2000 in respect of the tenant occupying the bigger portion.

By an order dated 24.3.2004, the Appellate Authority (Principal Sub Court), Madurai allowed RCA No. 39 of 2001 and set aside the order of

eviction passed in RCOP No. 463 of 1992. By another order dated 25.1.2005, the Appellate Authority dismissed RCA No. 97 of 2000, thereby

confirming the dismissal of the petition for eviction RCOP No. 471 of 1992 in respect of the tenant occupying the bigger portion. In effect, both

the eviction petitions were dismissed by the Appellate Authority.

Against the order passed in RCA No. 39 of 2001, the landlady has come up with CRP (NPD)(MD) No. 124 of 2004. Similarly, she has come

up with CRP (NPD)(MD) No. 736 of 2005 against the order in RCA No. 97 of 2000.

Since both the Civil Revision Petitions are by the same landlady and also since the issue raised in both the Civil Revision Petitions revolve

around the interpretation to Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, both the Civil Revision Petitions were

taken up together and I have heard the arguments of Mr.R.Subramanian, learned Counsel for the petitioner in both the Civil Revision Petitions and

Mr. M. Sridhar, learned Counsel for the respondent in CRP(NPD)(MD) No. 124 of 2004 and Mr. V. Ramakrishnan, learned Counsel for the

respondents in CRP (NPD)(MD) No. 736 of 2005.

The petitioner sought eviction of both the tenants on the ground of bona fide requirement of the building for additional accommodation u/s 10(3)

(c) of the Act. In order to bring the case within the parameters of Section 10(3)(c) of the Act, the petitioner pleaded in her Eviction Petition that

her husband was transferred to Madurai with effect from 1.6.1992 and that the upstairs portion in the aforesaid property was in their occupation,

but was only a shed, which was inadequate for her family consisting of 5 members to enjoy in comfort.

The respondents oppose the Eviction Petitions, primarily on two grounds viz.,:

(i) that the petitioner cannot seek eviction of non-residential tenants, for the purpose of additional accommodation for residential purposes; and

(ii) that the petitioner was not in occupation of a portion of the same premises so as to be entitled to make a claim for additional accommodation

u/s 10(3)(c) of the Act.

The question as to whether a landlord can seek the eviction of a non-residential tenant or residential tenant, for the purpose of additional

accommodation for residential use or non-residential use as the case may be, is no longer res integra, as the same is settled by the Supreme Court

in Shri Balaganesan Metals Vs. M.N. Shanmugham Chetty and Others, . Therefore the learned Counsel appearing for the respondents did not

press the first contention relating to the user of the building.

The second contention of the tenants that the landlady is not in occupation of the petition building, was accepted by the Appellate Authority on

the basis of the pleadings and evidence let in. In paragraph-6 of the petition for eviction in RCOP No. 463 of 1992, the petitioner has stated as

follows:

As the petitioner is in possession of the upstairs portion, which is only a shed, it is not possible to immediately occupy the same. Further the same

has to be modified as it is quite insufficient for the own use and occupation of the petitioner and her family consisting of 5 members, who are all

grown up. There is neither separate living room, nor study room, nor any dining room, nor a kitchen. Hence the other portions of the building are

also quite necessary for the occupation of the petitioner bona fide.

However, the tenant (respondent in CRP (NPD) (MD) No. 124 of 2004) also made an admission, during his chief-examination as RW.1,

wherein he had stated as follows:

The petition building viz., a shop measures 8 feet in length and 6 feet in breadth. In the upstairs portion, there is a small room. That is in the

possession of the petitioner''s husband. The petitioner is at present residing in Viswanathapuram.

Again in cross-examination, the respondent in CRP (NPD)(MD) No. 124 of 2004, stated as follows:

The portion, above my shop portion, is not sufficient for the petitioner. It is correct to say that this is why the petitioner filed a petition for eviction.

The pleadings, the evidence and the rival contentions, show that the petitioner is certainly in possession of the upstairs portion of the same

premises, in which the respondents are tenants. But, admittedly she is residing elsewhere and not in the petition building. Therefore the question as

to whether such possession tantamounts to ""occupation"" in terms of Section 10(3)(c) of the Act, is the question that falls for consideration in these

Civil Revision Petitions.

Unfortunately there are 2 lines of decisions on this issue, taking divergent views. While Justices Alagirisamy, K. Swamikkannu, V. Ratnam and

K.P. Siva-subramaniam have taken the view that actual physical habitation is a sine quo non for considering the landlord to be in occupation of the

building, Justices N. Rajagopala Ayyangar, K. Veerasamy, P.R. Gokulakrishnan, T. Ramaprasada Rao, S. Mohan, M.N. Chandurkar and K.

Venkatasamy have taken the other view.

In Abdul Rahim and Bros. and Another Vs. R.K. Selvan Bros. and Others, , N. Rajagopala Ayyangar, J., dealt with a case arising u/s 7(2)(v)

of the 1949 Rent Control Act, where a tenant was liable to be evicted if he ceased to occupy a building for a continuous period of 4 months. The

petition for eviction was dismissed by the Appellate Authority and the tenant was on revision to the High Court. While upholding the dismissal of

the eviction petition, Justice N. Rajagopala Ayyangar, J., observed as follows:

The Appellate Authority has found that neither of the conditions of the Section, namely (1) that the tenant has ceased to occupy the building and

(2) that there was no reasonable cause for the same, were satisfied. It is unnecessary to go into all the reasons given by the learned Appellate

Authority since I am satisfied that the one ground given, viz., that the tenant has not ceased to occupy the building is sufficient to dispose of the

case. He has found, and it is not disputed, that the tenant had left furniture in the premises and was thus ""occupying"" it. The Act does not require

that the tenant should carry on the business in order to prevent eviction. It is sufficient if he occupies it. Keeping his furniture in the premises is

sufficient occupation, in my opinion, within the meaning of Section 7(2)(v).

But in Rajammal v. V.T. Swami 1967 1 MLJ SNRC 46, Alagirisamy, J., took the view that the word ""occupation"" would mean ""living in it"".

The relevant portion of the decision reads as follows:

In the case of residential buildings occupation can only mean living in it. The fact that two rooms in a house are kept locked by the landlord will not

make it that he is in occupation of a part of a building within the meaning of Section 10(3)(c) of the Act.

But in The Accommodation Controller, Madras Vs. G. Rukmani Ammal, , a Division Bench of this Court, comprising of K. Veerasamy, C.J.,

and P.R. Gokulakrishnan, J., expressed disagreement with the above view taken by Alagirisamy, J. In paragraph-2 the Division Bench held as

follows:

Occupation may, no doubt, be physical, but it does not follow that the owner should actually reside in a portion of the house all the 24 hours a day.

It will be such occupation if, intending to reside in the house, the owner keeps a portion therein locked, so that when the opportunity or necessity

arises, the portion may be free for use by him or her.

Following this Division Bench decision, T. Ramaprasada Rao, C.J., held in P.M. Kuppa Sah Vs. Rajaram Sah, that the decision of

Alagirisamy, J. in Rajammal v. V.T. Swami, was no longer good law. The discussion relating to the same is found in paragraph-12 of the judgment

of T. Ramaprasada Rao, C.J., which is extracted as under:

In The Accommodation Controller, Madras Vs. G. Rukmani Ammal, , a Division Bench of this Court, approving of the view of Srinivasan, J.,

interpreted Section 3(10)(c) of the Act in a liberal fashion, and held that even ""occupation for purposes of Section 3(10)(c) of the Act may well be

occupation, where the owner resides in a portion of the house off and on and most of the time keeps it locked. The question is one of intention as

disclosed by the act of user of the portion of the house....

...

The view of Alagiriswami, J., that the owner should be in physical occupation of the building was thus not approved by the Division Bench. This

view of Alagiriswami, J., in Rajammal v. V.T. Swami (1967) 1 MLJ 46 (S.N.), is therefore no longer good law.

In the above case P.M. Kuppa Sah Vs. Rajaram Sah, , T. Ramaprasada Rao, C.J., was concerned with a case where the landlord gave

notice of termination of tenancy to all his three tenants. On receipt of the notice, one of the tenants vacated. Immediately, the landlord put his own

belongings in the portion and locked it up and kept it in his own possession and control. Finding that the other two tenants did not vacate, the

landlord filed a petition for eviction u/s 10(3)(c) of the Act. Though the Rent Controller ordered eviction, the Appellate Authority held that actual

physical possession is a sine quo non for invoking Section 10(3)(c) of the Act. Reversing the order of the Appellate Authority, T. Ramaprasada

Rao, C.J., held in paragraphs-13 and 14 as follows:

We have already expatiated on the difference in the text of Section 10(3)(a)(i) and Section 10(3)(c) of the Act. As jurisprudenc contemplates

juridical possession as the nearest equation of physical possession, I am of the view that, in a case where the landlord keeps his things in a portion

of the premises, which was vacated after he gave notice of termination of tenancy, and keeps it locked up and under his control, and is in legal

possession thereof, then it should be held that the intention of the landlord was to keep it in his physical possession, and this satisfies the

requirements u/s 10(3)(c) of the Act.

There may be a case where the landlord, after giving notice of determination of tenancy, and, finding that only one among the three tenants has

vacated, may out of necessity shift himself to that portion which has fallen vacant. In such a case the request of the landlord to evict the tenants may

also be considered u/s 10(3)(c). There is nothing in law which prohibits the invocation of Section 10(3)(c) in such circumstances.

The abovesaid decision of T. Ramaprasada Rao was followed by K. Venkatasamy, J., in Bengal Trading Co. v. G.M. Natarajan 1991 (2) LW

277.

However, in Mrs. Gori Devi Vs. Shama Rao (died) and Others, , K. Swamikkannu, J., took the opposite view and held as follows:

In the case of residential buildings, ""Occupation"" can only mean ''living in it''. The fact that some rooms in a house are kept locked by the

landlady will not lead to the conclusion that she is in occupation of a part of the building, within the meaning of Section 10(3)(c), especially when it

is beyond dispute that the landlady is living in a separate rented building with the other members of her family.

But in the light of the Division Bench decision in Accomodation Controller v. Rukmani Ammal and the decision of T. Ramaprasada Rao in P.M.

Kuppu Sah v. Rajaram Sah, the decision of K. Swamikkannu, J., does not appear to hold good, especially since those decisions were not referred

to there.

The Division Bench decision in The Accommodation Controller, Madras Vs. G. Rukmani Ammal, , was also followed by S. Mohan, J., in

C.S. Pillai Vs. Capt. M.A. Murugaraj, . In paragraph-9 of his judgment S. Mohan, J., held as follows:

If the landlord is in juridical possession that would be enough to non suit him concerning eviction u/s 10(3)(a)(i) of the Act. The remedy of the

petitioner would be only by filing an application u/s 10(3)(c) of the Act.

But again, the march of law took a different turn in Sundaram v. Jothi Bai 98 LW 281, when V. Ratnam, J., distinguished the Division Bench

decision in Accommodation Controller v. Rukmani Ammal while construing the provisions of Section 10(3)(a)(i) of the Act. In the said decision,

the learned Judge considered the distinction between ""occupation"" and ""possession"". In paragraph-7 of his judgment, the learned Judge also

examined the entire scheme of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, with a view to ascertain whether a distinction has

been maintained between the words ""occupying"" and ""possession"". After an extensive analysis, the learned Judge held as follows:

A careful consideration of the aforesaid provisions of the Act clearly points out that there is a recognition even thereunder of a well marked

distinction between ""occupation"" and ""possession"". ""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.

In Sundaram v. Jothi Bai 98 LW 281, V. Ratnam, J., referred and followed another Division Bench decision in Dr. Mohammad Ibrahim Vs.

Syed Ahmed Khan and Another, . In Dr. Mohammad Ibrahim Vs. Syed Ahmed Khan and Another, , the Division Bench comprising of

Rajamannar, C.J., and Somasundaram, J., was concerned with a case where eviction was sought for own occupation on the ground that the

landlord was not in occupation of a residential building of his own (under a provision in 1946 Act equivalent to the present 10(3)(a)(i) of the Act).

In that case, the landlord had two houses, one of which was vacant and the other occupied by his second wife. The landlord himself was residing in

a rented house with his first wife, though at times he stayed with the second wife also. Therefore the Division Bench went into the construction of

the word ""occupying"" appearing in Section 7(3)(a)(i) of the 1946 Act. After quoting Lush, J., in Rex. v. St. Pancras Assessment Committee

(1877) 2 QBD 581 that ""occupation includes possession as its primary element and also includes something more"" and that ""legal possession does

not of itself constitute an occupation"", the Division Bench held as follows:

In our opinion a person must be deemed to be occupying a residential building at the time of an application for eviction if any of the members of his

family including dependants reside in the building with his permission and on his account, though physically he himself might not be residing therein.

The test is whether if he desires he cannot at any time go to reside in it. Now, in the present case, the house in which his second wife is residing is

certainly a house which he can go to reside in at any time he chooses. His wife and his wife''s parents are residing there, because he has permitted

them to reside. If this construction were not to be accepted, and actual physical residence at the time of the application is the test, then, the

consequences are startling. A man may have five houses and four children. He can arrange for each of his children to reside in each of the four

houses without his residing in any of them and apply for eviction of the tenant occupying the fifth house. Such a contingency could not have been

contemplated by the Act. This is not a case in which there has been a separation between the landlord and any of his wives so that it can be said

that the wife is residing in a house on her own account and as of right, say, under a decree of Court.

(5) We, therefore, hold that the landlord in this case must be held to be occupying a residential house of his own in the City and, therefore his

application for eviction must fail.

Apart from the Division Bench decision referred to above, the learned Judge (V. Ratnam, J.) also referred to two decisions of the Supreme

Court, one in Babu Singh Chauhan Vs. Smt. Rajkumari Jain and Others, and Bimla Devi Vs. First Additional District Judge and Others, , wherein

the Supreme Court treated both the words as synonymous, in the light of the provisions of the Uttarpradesh Buildings (Regulation of Letting, Rent

and Eviction) Act, 1972. But the learned Judge distinguished the same on the facts and circumstances of the case.

Interestingly, the very same learned Judge (V. Ratnam, J.), with great respect, had taken a different view in A. Gulam Mohamed Vs. A.K.M.

Pichai Maracair, . In that case, the landlord sought eviction on the ground (apart from other grounds) that the tenant ceased to occupy the premises

for more than 4 months. Therefore a question arose as to whether the action of the tenant in keeping his furniture and other business articles in the

premises, would tantamount to occupation, though no business was actually carried on therein. V. Ratnam, J., followed the decision in Abdul

Rahim and Bros. and Another Vs. R.K. Selvan Bros. and Others, , of N. Rajagopala Ayyangar, J., and distinguished a Division Bench decision of

the Patna High Court in Firm Ram Kishun Shah Etwari Sahu Vs. Jamuna Prasad and Others, . He also distinguished the decisions of the Punjab

High Court and observed in the last paragraph of his judgment as follows:

It will thus be seen that consistently the Courts in Punjab have taken the view that occupation in Section 13(2)(v) of the East Punjab Urban Rent

Restriction Act means the actual user of the building. However, it is seen that the basis for this conclusion proceeds on the observations referred to

above in Rex v. St. Pancras (1877) 2 Q.B.D. 581 . It has been pointed out there that if the owner of a vacant house leaves it vacant, he is not in

occupation. But in the present case, on the evidence it has already been found that the premises has not been left vacant by the respondent, but the

articles of business have been kept and the business, according to the evidence of R.W.1 is also being carried on by his agents. These

considerations would suffice to include the present case within the scope of the decision in Amar Singh and Another Vs. Ram Rakha, . On the

other hand, the position in so far as this Court is concerned has been well settled since 1956 and it had remained unshaken as well. Rajagopala

Ayyangar, J., in Abdul Rahim and Bros. and Another Vs. R.K. Selvan Bros. and Others, , held that there is no requirement in the Act that the

tenant should actually carry out business in order to prevent his eviction, but that it would suffice if he occupies it and keeping the furniture in the

premises is sufficient occupation within the meaning of Section 7(2)(v) of the Tamil Nadu Buildings (Lease and Rent Control) Act XXV of 1949

comparable to Section 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960 as amended by Act XXIII of 1973.

M.N. Chandurkar, J., while construing the word ''occupation'' appearing in Section 10(2)(vi) of the Tamil Nadu Buildings (Lease and Rent

Control) Act, 1960 held in M.R.M. Duraiappa Nadar Vs. P. Thirupurasundariammal, as follows:

Occupation of any building and carrying on business in that building as really two different things. While carrying on of a business in a building will

clearly show that the building is in occupation of the tenant, the converse does not necessarily follow. Even though the business of the tenant has

been stopped, it will not mean that the tenant has ceased to occupy the building. It may mean that the tenant has ceased to use the building but the

building continue to be in occupation of the tenant as long as his articles and things are lying in the building. Both the authorities have equated

ceasing to carrying on business with ceasing to occupy the building which is not justified by the provisions of Section 10(2)(vi).

But again there was a twist when K.P. Sivasubramaniam, J., in P. Balambal v. Maj. Gen. L.K. Moorthy 2001 (2) CTC 609, followed the

view taken by Alagiriswami, J., in Rajammal v. V.T. Swami and held as follows:

In the present case, the findings of both the Courts below are that Valli Narayanan was not occupying the premises, but was residing at St.

Thomas Mount. One room in the ground floor was kept under lock and key. Therefore, in those circumstances, the more appropriate ruling would

be that of Mr. Alagiriswami, J., as he then was, in Rajammal v. V.T. Swami 1967 1 MLJ 46 (SN), relied on by the learned Counsel for the

respondents. It was held that though the rooms were kept under lock and key by the landlord, it cannot mean that the landlord is in possession of

the premises within the meaning of Section 10(3)(c).

I am inclined to agree with the interpretation of the provision by Alagiriswami, J., considering the natural meaning of the expressions contained

in Section 10(3)(c), namely, ""A landlord, who is occupying only a part of the building"" and ""if he requires additional accommodation.

But the disagreement expressed by the Division Bench in Accomodation Controller v. Rukmani Ammal, with the decision of Alagirisamy, J.,

was not brought to the notice of K.P. Sivasubramaniam, J., in the above decision.

The learned Counsel for the respondents also relied upon a judgment of the Allahabad High Court in Turab Ghosi v. Smt. Laxmi Agarwal AIR

1984 Allahabad 180, where a learned Judge of the Allahabad High Court held that ""mere occupation is not possession although every actual

physical possession is occupation.

Thus the law on the point appears to have swung between two extremes, in the past 50 years from 1956 with the decision of N. Rajagopala

Ayyangar, J. In the light of the conflict of views between various Benches, it is necessary to go to the fundamentals. Unfortunately, the word

occupation"" is not defined in Tamil Nadu Buildings (Lease and Rent Control) Act. However, there are many places in which the word ""occupy"" or

occupying"" or ""occupation"" is used both in relation to the landlord and in relation to the tenant. In some places, the stress is on the landlord or the

tenant ""ceasing to occupy"", as for instance Section 3 which mandates a notice of vacancy to be issued to the Officer authorised by the

Government. Section 10(2)(vi) is one more instance where the stress is on the tenant ceasing to occupy. In some places, the Act speaks about the

landlord not occupying any other building of his own"" as for instance Section 10(3)(a). In other places, the Act lays stress upon the ""landlord in

occupation"" as for instance Section 10(3)(c). There are some places where the Act speaks of the ""failure to occupy"", as for instance Section 10(5)

(a) and Section 33(1-A).

Therefore in the absence of the statute providing a definition for the word ""occupation"", one has to go only by its natural meaning. But natural

meaning of a word itself will vary from context to context. The natural meaning of a word, in a particular context, may differ from its natural

meaning in a different context. This can be said of the very word ""occupation."" In relation to property rights, the natural meaning of the word

connotes possession. In relation to a person''s status, the word connotes ""employment or avocation."" Black''s Law Dictionary contains both

meanings. It defines the word to mean ""an activity or pursuit in which a person is engaged"" and also as ""the possession, control or use of real

property.

P. Ramanatha Aiyer''s ""The Law Lexicon"" also defines ""occupation"" as ""the principal business of one''s life, vocation, calling, trade, business

etc."". It also defines occupation as ""actual holding or possession especially of a place or land"". The Law Lexicon also quotes from 31 MLT 114,

the following:

The word ""occupy"" is a word of uncertain meaning. Sometimes it indicates legal possession in the technical sense, as when occupation is made the

test of rateability; and it is in this sense that it is said that the occupation of premises by a servant if such occupation is subservient and necessary to

the service is the occupation of the master. At other times occupation denotes nothing more than physical presence in a place for a substantial

period of time. 31 MLT 114 : 4 UPLR 97

There is a presumption in law that when the legislature uses the same word in different parts of the same Section or Statute, the word is used in

the same sense throughout. But this presumption is said to be a weak presumption liable to be displaced by context. In Anand Nivas (Private) Ltd.

Vs. Anandji Kalyanji Pedhi and Others, , the Supreme Court construed the word ""tenant"" in different Sections and different Clauses, differently.

Similarly, the word ""person"" was construed to include the State in one particular Clause though not in respect of the other Clauses in Samatha Vs.

State of A.P. and Others, . This is why Lord Macdermott observed in Madras Electrics Supply Corporation Ltd. v. Boarland 1955 (1) All ER

753 as follows:

The presumption that the same word is used in the same sense throughout the same enactment acknowledges the virtues of an orderly and

consistent use of language, but it must yield to the requirements of the context and it is, perhaps, at its weakest when the word in question is of the

kind that readily draws its precise import, its range of meaning, from its immediate setting or the nature of the subject with regard to which it is

employed.

Since the word ""occupation"" is one which draws a wide range of meaning from the immediate setting, it is not possible to assign the same meaning

to the word in all places of the Statute.

This is why we have different learned Judges taking different views, with regard to the meaning to be assigned to the same word, depending

upon the context in which the word was used in those cases. To cite an example, V. Ratnam, J., himself interpreted the word ""occupation"" in a

broader sense, agreeing with the view expressed by N.Rajagopala Ayyangar, J., when construing Section 10(2)(vi), whereunder a tenant is liable

for eviction if he ceased to occupy the building for a continuous period of 4 months without reasonable cause. K. Veerasamy, C.J. and P.R.

Gokulakrishnan, J., as well as T. Ramaprasada Rao, C.J., and M.N. Chandurkar, C.J., also gave a broader meaning to the word while construing

Section 10(3)(a)(i) and 10(3)(c).

As a matter of fact, in my considered view, the legislature carefully omitted to define the word ""occupation"" in the Act, probably on account of

the fact that it cannot have an uniform meaning throughout the Act. Since the Act was a beneficial legislation for the tenant, the word ""occupation

was given a wider meaning so as to include a person, who was keeping his articles under lock and key in the premises, as a tenant in occupation.

Similarly, when the Act imposes a serious consequence u/s 10(5)(a) upon a landlord for his failure to occupy it after obtaining an order of eviction

u/s 10(3), a broader meaning for the word becomes a matter of necessity. Section 33(1-A) makes it a punishable offence if the landlord fails to

occupy the premises within one month after obtaining possession u/s 10(3) or 3(A). Since it is a penal provision, the word ""occupation"" appearing

therein should also be given a liberal meaning.

If the whole issue on hand is viewed in the above context, it is clear that the view taken by the Division Bench comprising of K. Veerasamy

C.J., and P.R. Gokulakrishnan J., in The Accommodation Controller, Madras Vs. G. Rukmani Ammal, , particularly with regard to Section 10(3)

(c) and followed by T. Ramaprasada Rao, C.J., K. Venkatasamy J., and S. Mohan, J., appear to reflect the correct interpretation to the word

occupation"" appearing in Section 10(3)(c). Since the view expressed by Alagirisamy J., was expressly overruled by the Division Bench in The

Accommodation Controller, Madras Vs. G. Rukmani Ammal, , I am unable to agree with the view taken by K. Swamikkannu J., and K.P.

Sivasubramaniam, J. The view expressed by V. Ratnam, J., in Sundaram v. Jothi Bai 98 LW 281, is with regard to Section 10(3)(a)(i). But even

there, the learned Judge held in paragraph-7 as follows:

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.

We have seen above that while construing the word ""occupation"" appearing in Section 10(2)(vi) for determining whether a tenant has ceased

to occupy, the Courts were liberal in holding that the tenant will be deemed to be in occupation, even if he was not carrying on business but was

only keeping his business articles in the premises under lock and key. Therefore, as a natural corollary, even for the purpose of Section 10(3)(c),

an application for eviction will be maintainable, against a tenant keeping the premises under lock and key with his business articles kept inside,

though he is not actually carrying on business there. After allowing such a benefit to a tenant in the very same Section where the word ""occupying

is used in the same sense both with regard to the tenant and with regard to the landlord, it may not be justified to assign a different meaning to the

word only in so far as the landlord is concerned. In other words, if we take a hypothetical case where a landlord is actually in physical occupation

of a portion of the same building and he files an application for eviction against a tenant who is not carrying on business but who is only keeping his

business articles under lock and key, the tenant may not be heard to contend that he is not occupying the remaining part of the building, within the

meaning of Section 10(3)(c). In such cases, the tenant will be construed to be in occupation of the remaining part of the building. Therefore what

applies to him should apply equally to the landlord while construing the word ""occupation"" in Section 10(3)(c). That the word is used in Section

10(3)(c) in the same sense with regard to both the tenant as well as the landlord is clear from a bare reading of the same. It is extracted as follows:

(c) A landlord who is occupying only a part of a building, whether residential or non-residential, may, notwithstanding anything contained in Clause

(a), apply to the Controller for an order directing any tenant occupying the whole or any portion of the remaining part of the building to put the

landlord in possession thereof, if he requires additional accommodation for residential purposes or for purposes of a business which he is carrying

on, as the case may be.

Therefore, in the result, I hold that the meaning to be assigned to the word ""occupation"" depends primarily upon the intention of the parties. In

today''s context, it is possible for a person, by virtue of his avocation, to be a resident of more than one place, town, city or even a country. A

person who has business interests in many places may occupy buildings in different places and different Towns, at the same time, but he may not

reside (it will be impossible to reside) in all places at all times. A person, who has a residence in a hill station, may reside there only for a part of the

year. All such persons will not be considered to be non-residents or non-occupants. Therefore it is only the intention of the parties that would

provide the right clue in every case as to the meaning to be assigned to the word ""occupation"". If the intention of a party is very clear that he wishes

to retain a property for his own enjoyment, he would certainly be deemed to be in occupation.

Applying the above principles to the case on hand, it is seen that the petitioner in the civil revision petitions has admittedly kept a portion in the

same building under her possession and control and has demonstrated a clear intention to occupy the whole building, immediately upon the

vacation of the portions in the occupation of the tenants. Today she is not actually residing there in view of the admitted averment that it is not

sufficient to accomodate her family. It does not mean that she is not in occupation. Therefore the case would squarely fall u/s 10(3)(c) and the

Appellate Authority erred in holding otherwise.

Hence the civil revision petitions are allowed and the order of the Appellate Authority under challenge are set aside. The eviction petitions shall

stand allowed and the tenants in both cases are granted 2 months time to vacate and hand over vacant possession to the petitioner. However, there

will be no order as to costs.