ORDER
S.S. Subramani, J.
1. C.R.P. No. 1072 of 1996 arises from a proceeding initiated by first respondent herein as O.S. No. 680 of 1993, on the file of the District Munsif’s Court, Tindivananm. That suit was one for injunction to restrain respondents 2 to 4 herein and also the petitioner herein from getting electric connection to the building mentioned in the plaint.
3. Electricity Board as well as the petitioner herein filed counter statements to the injunction application filed along with the suit.
4. In the counter statement filed by the Electricity Board, they admitted that the service connection was disconnected and even the meter has been dismantled from the premises, and the petitioner herein has applied for reconnection in 1993. Since the plaintiff filed written objection, the Electricity Board wanted direction from court before proceeding with the matter. They said that without getting any direction, they will not provide any connection, and they have been unnecessarily impleaded in the suit.
5. In the counter-affidavit filed by the petitioner, he contended that he is a tenant entitled to the benefits of Rent Control Act, and the business conducted by late Singaram Pillai was his joint family business. He said that the business was never stopped as alleged in the plaint. It is also said that the tenancy arrangement was never terminated. He said that he has approached the Electricity Board for giving reconnection to the building.
6. The trial court, after hearing both parties, held that the petitioner herein was not a tenant and, there-lore, not entitled to get any service connection to the building belonging to the plaintiff. The injunction sought for, was granted. Against the said decision, petitioner herein filed C.M.A. No. 25 of 1994, on the file of the Subordinate Judge’s Court, Tindivananm, and the appeal was also dismissed. It is against the said decision, these civil revision petitions are filed.
7. In C.R.P. No. 1078 of 1996, petitioner is the fourth defendant in the connected suit. Respondent therein is the plaintiff. That arises from a rent control proceeding initiated by petitioner as R.C.O.P. No. 7 of 1994, for restoration of amenity under Section 17 of the Rent Control Act. In that petition, he said that his father was in occupation of the building, and, after his death, the petitioner is paying rent, and the landlord and tenant relationship is continuing. It is also said that he filed O.S. No. 848 of 1991, on the file of the Principal District Munsif’s Court, Tindivananm, for an injunction, to restrain the respondent (S.P. Charjdrasekaran) from interfering with his possession, or from evicting him forcibly. It is averred that originally there was service connection, and that is an amenity to the building. Since that amenity has now been withheld in view of the objection raised by the respondent, he is entitled to invoke the provisions of Section 17 of the Rent Control Act to compel the landlord to restore the amenity.
8. In the counter statement filed by the respondent, the averments in the plaint in the connected suit are reiterated. He says that since there is no landlord and tenant relationship between the parties, Section 17 of the Rent Control Act cannot be invoked, and that there is no legal obligation on his part to restore the amenity.
9. The Rent Controller allowed the application and directed restoration of the amenity.
10. The respondent herein filed R.C.A. No. 6 of 1995 before the Subordinate Judge, Tindivananm. The Appellate Authority reversed the finding, holding that the petitioner is not a tenant, and therefore. Section 17 of the Act cannot be applied. The petition was dismissed. It is against that Order, C.R.P. No. 1078 of 1996 is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act.
11. Since, in both these revisions, a common question of fact and law arises, it was decided to dispose of these revisions by this common Order, even though the proceedings are different.
12. At the time when the case-came for admission, I ordered notice of motion, and in response to that, the respondent (S.P. Chandrasekaran) entered appearance through counsel.
13. Heard learned Counsel on both sides in detail.
14. I will first deal with C.R.P. No. 1078 ofl996 which arises from rent control proceedings initiated by the petitioner in R.C.O.P. No. 7 of 1994. The case put forward by the petitioner is that he is a tennat entitled to the benefits of Rent Control Act. To invoke Section 17 of the Act, tenant/(petitioner) must show that it was the respondent who withheld the amenity and that there was an obligation on the part of the respondent to restore the same.
15. Let me first consider the question whether the petitioner can claim himself to be a tenant under the Rent Control Act.
16. Schedule building is a non-residential one. Section 2(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act defines a tenant thus:
“tenant” means any person by whom or on whose account rent is payable for a building and includes the surviving spouse, or any son, or daughter, or the legal representative of a deceased tenant who –
(i) xxx xxx xxx
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter,….
As per the said definition, in respect of a non-residential building, an enumerated relative cannot be said to be a tenant if such a person has not been in continuous association with the tenant for the purpose of carrying on business of the tenant upto the death of the tenant and continued to carry on such business thereafter.
17. The rights of a legal heir of a deceased tenant came for consideration in M.A.B. Mohd. Sultan Mohideen and Ors. v. Official Trustee, Madras and Anr. , wherein a Bench of this Court considered the scope and held thus:
…Clause (8) of Section 2 of the Act reads as follows: Tenant’ means any person by whom or on whose account rent is payable for a building and includes the surviving spouses, or any son or daughter, or the legal representatives of a deceased tenant who….
(i) in the case of a residential building, had been living with the tenant in the building as a member of the tenant’s family upto the death of the tenant, and
(ii) in the case of a non-residential building, had been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continues to carry on such business thereafter, and a person continuing in possession after the termination of the tenancy in his favour, etc., etc.
Due to such an amendment, the Legislature, according to us, again declared its intention by clarifying the position and by laying an emphasis upon such association of the heirs and legal representatives with the deceased tenant. On an examination of the two limbs of the definition of ‘tenant’ in Section 2(8) as amended in 1973, one gains the impression that in order to secure continuity in the tenancy the heirs should prove, as a fact, that they were, in the case of a residential building, residing with the deceased tenant as members of his family till his death and equally prove, in the case of a non-residential building, that they were in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continue to carry on such business thereafter. It is therefore fairly clear that such a commercial association with the deceased tenant in the business or non-residential activity which was carried on by the deceased tenant in the premises is an essential sine quo non to claim the benefits under Section 2(8)(ii) of the Act. It appears to us that even after the amendment of the definition of ‘tenant’ in Section 2(8), the legislature maintained its legislative intent to ensure that only heirs and legal representatives who were living with or associated with the deceased tenant in case of residential or non-residential buildings as the case may be, can claim the benefits of continuing as statutory tenants. This primordial requirement has to be complied with and if there is no proof of nexus in the matter of living or in the matter of the continued association in the quantum of mercantile activity of the deceased tenant, then the heirs or legal representatives, in each of those cases, would not be entitled to the benefits of Act XVIII of 1960….”
18. In Haji Abdullah Sait v. K.Sanjeevi Rao and 8 Ors. , this question was again considered, and in paragraph 55 of the judgment, it was held thus:
The following important features can be noticed with reference to this amended provisions:
(1) For the first time it makes a provision for a non-residential building.
(2) The provisions regarding a residential building are different from the provisions regarding a non-residential building.
(3) The sine quo non for a person enumerated in the definition to become a tenant under the Act in respect of a residential building is that such person should have been living with the tenant in the building as a member of the tenant’s family upto the death of the tenant. With regard to a non-residential building the sine qua non is that such a person should have been in continuous association with the tenant for the purpose of carrying on the business of the tenant upto the death of the tenant and continue to carry on such business thereafter.
19. In Jaithun Beevi and Ors. v. Begum Dustagir 94 L.W. 59, it was held thus:
In order to clothe the legal representatives of a deceased tenant with the rights as statutory tenant, they must be, in the case of a non-residential building, continuously associated with the original statutory tenant for the purpose of carrying on the business of the original tenant upto the death of the tenant and should have continued to carry on such business thereafter. Unless a finding is given one way or the other the authorities constituted under the Act cannot proceed further to pass orders under any one of the sections mentioned in the Act.
20. The same principle was again enunciated in B. Rama Subba Reddi and Ors. v. P. Subbayyamma and Ors. and also in Mrs. Kunhane and Ors. v. Jient Controller under the Act (Principal District Munsif) Coimbatore and Anr. (1984) 2 M.L.J. 185.
21. In the last case, i.e., Mrs. Kunhane v. Rent Controller under the Act (Principal District Munsif), Coimbatore (1984) 2 M.L.J. 185, the question that came for consideration was, how to execute a decree when a tenant died after an order of eviction. The matter arose at the execution stage, and the question raised was, whether the definition of Section 2(8) of Rent Control Act has to be applied. A learned Judge of this Court held that when the matter comes up before executing court, it is a civil court and, therefore, the definition for the word ‘legal representative’ under the ordinary law will have to be applied, but at the same time, learned Judge held that when a tenant died during the pendency of the proceedings for eviction, the definition under Section 2(8) of the Act will have to be applied and only those persons who satisfy the requirements of this section can claim the benefits of a tenant under the Act.
22. Finally, in S.G. Ponnambalam and Anr. v. T.A. Palanivelu (1993) 2 L.W. 217, a learned Judge of this Court has also considered the scope of Section 2(8) of the Act. At page 218 of the Reports, it was held thus:
So, according to this definition, in the case of a non-residential building, after the death of the original tenant, if the successor wants to claim as a tennat of the said non-residential building, he should have had been in continuous association with the original tenant, for the purpose of carrying on the business of the original tenant, upto his death, and should also have continued the said business in the said building after the said death also. But, in the present case, according to the petitioners’ counsel, the first of the abovesaid two requirements (namely, the abovesaid association upto the death of the original tenant), stipulated under Section 2(8)(ii) has not even been pleaded in the plaint in the suit.
23. As against the above decisions, learned Counsel for the petitioner relief on the following decisions of the Supreme Court: Gain Devi v. Jeevan Kumar , Tara Chand v. Ram Prasad , Gauri Shanker v. Union of India and Jagdish Chandra Sinha v. Eileen K. Patricia D Rozcirie , I will consider these decisions one by one.
24. In Gain Devi v. Jeevan Kumar , their Lordships said that in the case of a non-residential building, after the termination of tenancy, the tenant becomes a statutory tenant, and on his death, his right devolves on his legal heirs and, therefore, the legal heirs also will become tenants under the Act. Their Lordhsips were considering the Delhi Rent Control Act, more particularly, the scope of right of legal heirs insofar as a non-residential building was concerned. The definition for a tenant under the Delhi Rent Control Act was entirely different. It did not provide any restriction on the legal heirs as provided under the Tamil Nadu Act. Therefore, their Lordships held that so far as non-residential building is concerned, after the termination of tenancy, the right will devolve according to personal law. In the said decision, it was held thus:
…The Legislature could never have possibly intended that with the death of a tenant of the commercial premises, the business carried on by the tenant, however flourishing it may be and even if the same constituted the source of livelihood of the members of the family, must necessarily come to an end on the death of the tenant, only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention of the Legislature that the entire family of a tenant depending upon the business carried in by the tennat will be completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which the heirs of the deceased tenant must necessarily vacate, as they are afforded no protection under the Act. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding the determination of the contractual tenancies will devolve on the heirs in accordance with law and the heirs who step into the position of the deceased tenant will continue to enjoy the protection afforded by the Act.
25. In Tarachand v. Ram Prasad , their Lordships were considering the rights of a tenant under Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Under the original definition, a tenant was defined thus:
‘Tenant’ means the person by whom the rent is, or, but for a contract express or implied, would be payable for any premises and includes any person holding or occupying a premises or a sub tennat or any person after termination of a tenancy in his favour otherwise than under the provisions of this Act.
The Act was amended in 1976, and the amended definition read thus:
“tenant” means:
(a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and
(b) in the event of death of the person as is referred to in Sub-clause (a), his surviving spouse, son daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as members of his family upto his death.
While considering the scope of the amended Act, their Lordships held thus:
On determination of tenancy the appellants became trespassers. Thereby the appellants became disentitled to remain in possession of the demised premises. It is seen that Section 13(1) of the Act engrafts mm obstante clause, namely, “notwithstanding anything contained in any law or contract, no court shall pass any decree of eviction against the tenant so long as the tenant is ready and willing to pay rent therefor to the full extent allowable by the Act” unless one or other ground or grounds specified in Clauses (a) to (i) of Sub-section (1) of Section 13 are established. Admittedly, the settled legal position preceding the Amendment Act, prevailing in the State of Rajasthan was that the leasehold rights of the tenanted premises for ‘commercial or business purposes governed by the Act is not heritable. It is a personal right to the tenant. A reading of the amendment to definition of ‘tenant’ in Section 3, Sub-clause (vii)(b) makes the legislative intent manifest that from the date the Amendment Act came into force, on the death of the tenant, his surviving spouse, son, daughter and other heir, in accordance with personal law as applicable to him, who had been, in the case of the premises leased out of residential purposes, ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in sueti premises as members of his/her family upto his/her death would be the tenant. Therefore, under the demanded definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the1 satisfaction of the Court that the surviving spouse, son or daughter and other heir, in case of residential premises, he/she/ they – ordinarily had been residing in the premises along with the tenant and continued to do so till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying On the business during the lifetime of the tenant as members of the family in the demised premises and continued to do the business till date of death of the tenant. In other words to avail of the statutory right under Section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy.
On going though our Act, I feel that the amended Act of Rajasthan is similar, and if so, the petitioner herein has to establish that he has also been carrying on business in association with the deceased, and it should be such business as was being conducted by the deceased.
26. But in the above case, the Supreme Court held that the legal heirs will be entitled to the benefits of the Rent Control Act since the right was claimed before amendment, i.e., there was no restriction regarding the heritable right of a tenant as was held by the Supreme Court in the decision reported in Gain Devi v. Jeevan Kumar .
27. In Gowri Shankar v. Union of India , their Lordships were considering the constitutional validity of the provisions of Rent Control Act in so far as it made a distinction between residential and non-residential buildings. Their Lordships said that between residential and non-residential buildings, there is an intelligent differentia and, therefore, it is valid.
28. The last decision reported in Jagdish Chandra Sinha v. Eileen K. Patricia D Rozarie , their Lordships of the Supreme Court were considering the provisions of West Bengal Premises Tenancy Act, 1956. In that case, the definition of tenant only provided thus:
‘Tenant’ means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and also any person continuing in possession after the termination of the tenancy but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
In view of the said definition, their Lordships said that even after termination of tenancy, ordinarily law of succession will prevail, and all the legal heirs will be tenants under the Act.
29. I do not think the decisions cited by learned Counsel for the petitioner will be of any help to him. In all the cases cited, there was no restriction on the heritable right. When a statutory definition has been given, we have to decide rights of parties only in accordance with that definition, and the person coming to court has to satisfy that he comes within the ambit of that definition.
30. On the basis of the above settled position of law, Let us consider on the facts of this case, whether the petitioner satisfies that he is a tenant coming under the definition of the Rent Control Act. Petitioner admits that he is one of the sons of late Singaram Pillai. But, nowhere he has stated that he was associated with the business conducted by the deceased in the premises. We may note that the petitioner is conducting a plastic industry in the schedule premises, whereas the deceased was conducting ‘Raagi’ mundy business. It is also not disputed that Singaram Pillai died years back and the building was lying vacant for a long time. It is admitted even in the plaint that the service connection provided ‘to the shop was also got disconnected and even the meter was dismantled by the Authorities. No prima facie evidence has bene produced before Court to show that the petitioner was in any way associated with the business conducted by the deceased and he continued such business even thereafter. In fact, the pleadings are absolutely vague in this regard.
31. To invoke the provision of Section 17 of the Rent Control Act, the first ingredient that has to be satisfied is, that he must be a tenant under the Act and there must be a landlord and tenant relationship between the parties. In view of the law declared by this Court, I do not find that the petitioner can come within the ambit of the definition of ‘tenant’. That itself is sufficient to dismiss his revision, namely, C.R.P. No. 1078 of 1996. Apart from that, petitioner has invoked Section 17 of the Rent Control Act to restore emenitites. Section 17 of the Act says that ‘No landlord shall, without just or sufficient cause, cut off or withhold or cause to be cut off or withheld any of the amenities enjoyed by the tenant or were in existence during the tenancy.’ It is the act of withholding by the landlord that gives a cause of action to the tenant to invoke the powers under Section 17 of the Act. In this case, it is in evidence that the Electricity Board disconnected the service connection due to default in paying the dues and even the meter was dismantled by them. It is the default that had occasioned after the death of the original tenant was the cause for the disconnection and the petitioner cannot blame the 1st respondent for the disconnection. Naturally, Section 17 of the Act may not be invoked in such cases. It is also seen that it was late Singaram Pillai who obtained service connection to the building. If so, it is not an amenity that was provided by the owner to the building. For that reason also, the petitioner will not be entitled to any relief. For all these reasons, I hold that C.R.P. No. 1078 of 1996 is without any merits and that, therefore, the same is liable to be dismissed.
32. Insofar as C.R.P. No. 1072 of 1996 concerned, the fact that the petitioner is not a tenant cannot be doubted in view of the reasons stated above.
33. Once it is held that he is not a tenant he cannot interfere with the right of the landlord. So far as the first respondent is concerned, the petitioner is only a trespasser. There was no obligation on the part of the first respondent to provide service connection, since there is no privity of contract or any other legal relationship between them. Naturally the first respondent herein will be entitled to prevent any person including the petitioner who claims to be a legal heir of the deceased tenant, from misusing the building.
34. In the result, both the civil revision petitions are dismissed, however, without any order as to costs.