BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27/08/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(NPD)MD.No.410 of 2005
and
C.M.P.No.1589 of 2005
1.The Regional Manager,
Tamil Nadu Handloom Weavers
Cooperative Society Ltd.,
Thanjavur.
2.The Managing Director,
Tamil Nadu Handloom Weavers
Cooperative Society Ltd.,
Pantheon Road,
Egmore,
Chennai.
3.The Manager,
Tamil Nadu Handloom Weavers
Cooperative Society Ltd.,
Kumbakonam. ... Revision Petitioners/
Appellants/Tenants
vs.
V.Natarajan ... Respondent/Respondent/
Landlord
This civil revision petition has been filed under section 25 of the Tamil Nadu
Buildings (Lease & Rent Control)Act 18 of 1960 as amended by Tamil Nadu Act 23
of 1973 and Act 1 of 1980, to set aside the fair and decretal order passed in
RCA No.7 of 2001, dated 04.03.2004, on the file of the Rent Control Appellate
Authority (Principal Sub Court), Kumbakonam, confirming the fair and decretal
order passed in RCOP No.10 of 1997, dated 19.09.2001, on the file of the Rent
Controller (Principal District Munsif Court), Kumbakonam.
!For Petitioners ... Mr.K.Srinivasan
^For Respondent ... Mr.T.R.Subramanian
:ORDER
Heard both sides.
2.The unsuccessful tenants are the revision petitioners herein.
3.The respondent/landlord filed RCOP 10 of 1997, on the file of the
Principal Rent Controller, Kumbakonam, for eviction of the revision petitioners
on the ground of owner’s occupation under section 10(3)(a)(iii) of the Tamil
Nadu Buildings (Lease and Rent Control) Act.
4.The case of the respondent was that he is the owner of the building,
which is in the occupation of the revision petitioners and he was doing business
of brass- ware with his father and his brother and he has got good experience in
that business and after the death of his father on 08.12.1996, he wanted to
start his own business separately and for that purpose, he required the premises
in the occupation of the tenants/revision petitioners and in the upstairs
portion, one room is available and that can be used for other purpose and in the
underground floor, which is in the tenants occupation, he can have his business
of brass-ware and the place where the premises is situate is in a crowed
locality and therefore, he required the premises for his own occupation and he
does not own any other premises in Kumbakonam town and after the issuance of
notice, the tenants/revision petitioners refused to vacate the tenanted premises
and hence, he filed eviction petition.
5.The revision petitioners filed a counter stating that requirement of the
landlord is not bona fide and the tenants have renovated the building at the
cost of Rs.2,17,000/- and also provided air conditioning and electric fittings
at the cost of Rs.40,250/- and the tenants would be put to serious hardship if
the tenants are asked to vacate and the tenants are the Cooperative Stores and
the respondent/landlord is having some other buildings in the same town and he
has not done any preparation for doing business nor he is doing any business and
hence, there is bona fide on the part of the tenant.
6.The learned Rent Controller, on the basis of the evidence both oral and
documentary, accepted the case of the landlord and held that the requirement of
the landlord is bona fide and the landlord is entitled to an order for eviction
and passed an order of eviction. Aggrieved by the same, the revision
petitioners/tenants filed RCA No.7 of 2001, on the file of the Rent Control
Appellate Authority, Kumbakonam and the learned Rent Control Appellate
Authority, also concurred with the finding of the learned Rent Controller and
held that the landlord is not having any other buildings, except the premises in
the occupation of the tenants and the requirement of the landlord is also bona
fide. Aggrieved by the same, this civil revision petition is filed.
7.Mr.K.Srinivasan, the learned counsel appearing for the revision
petitioners, submitted that the essential ingredients of section 10(3)(a)(iii)
are not satisfied by the landlord and admittedly, the landlord is having
possession of one room in the upstairs of the building in the occupation of the
tenants and therefore, he is not entitled to file application under section
10(3)(a)(iii) and the landlord is also doing business in partnership with his
brother and owned other properties in the town and admittedly, the landlord has
not taken any steps to commence business and he is not doing business and
therefore, the requirement of the landlord is not bona fide.
8.The learned counsel appearing for the revision petitioners relied upon
the judgments reported in 1994-1-L.W. 24, in the case of S.Devaji vs.
K.Sudarshana Rao, 2004(1) CTC 94, in the case of Bata India Limited, Rep. by its
Manager vs. M.R.Manickam and 1995(1)MLJ 59 SC in the case of Super Forgining
and Steels (Sales) Private Limited vs. Thyabally Rasuljee (dead) through L.R.s
in support of his contention.
9.Mr.T.R.Subramanian, the learned counsel appearing for the
respondent/landlord, submitted that both the Courts below concurrently held that
the requirement of the landlord is bona fide and the landlord is not owning any
other property in the same town and no evidence was let in by the revision
petitioners to the effect that the landlord is owning any other property and is
in own occupation of that property and doing business in that property. He
further submitted that admittedly, the landlord/respondent was doing business in
partnership with his father and that was proved by various exhibits, Exs.P10 to
P16 and till the life time of his father, he was doing business with his father
and his brother and after death of his father, he wanted to start his business
individually and the business does not require any preparation and considering
the experience of the respondent/landlord, the bona fide of the landlord cannot
be doubted.
10.I have given my anxious consideration to the submission made by the
counsels.
11.As per section 10(3)(a)(iii) of the Act, the following ingredients are
necessary to maintain the petition for eviction:-
a.building should be non-residential in character.
b.landlord should be carrying on business on date of application for
eviction.
c.landlord should not be occupying any building belonging to him.
d.claim should be bona fide and not found to be indirect or false attempt
to evict tenant to obtain more rent or to harass tenant.
Therefore, we will have to see whether the landlord has proved the above
ingredients to sustain the order of eviction.
12.The contention of the learned counsel appearing for the revision
petitioners is that the landlord is admittedly, having possession of the
upstairs portion and hence, he cannot file application under section
10(3)(a)(iii) of the Act and he can only file application under section 10(3)(c)
and in that case relative hardship has to be pleaded and proved and in this
case, admittedly, it was not pleaded and no evidence was let in to the same
effect and hence, the petition is not maintainable under section 10(3)(a)(iii)
of the Act.
13.It is admitted that the respondent is the owner of the building and in
the upstairs portion, he got possession, but it is not a case of the revision
petitioners that the respondent/landlord has occupied that portion. As per
section 10(3)(a)(iii) only in case the landlord or any member of his family is
not occupying for his business a non residential building, he is entitled to
evict the tenant from other premises. The fact that the landlord is having
possession cannot be equated with occupation.
14.In this case, it is not disputed by the revision petitioners that the
landlord/respondent has occupied the upstairs portion and it is admitted by the
tenants that the landlord has not occupied the upstairs portion, but he is
having the possession of the same. According to me, the possession of the
premises cannot be equated to occupation and as per section 10(3(a)(iii),
occupation is the main criteria and not the possession.
15.Further, it is stated by the landlord that he is going to have the
office in the upstairs portion and business in the ground-floor where the
tenants are occupying and hence, it cannot be stated that the landlord is not
entitled to maintain the petition under section 10(3)(a)(iii) of the Act.
Further, considering that the tenant is occupying the ground floor and the
landlord is having possession of one room in the upstairs, in my opinion, both
the portions form one building and as the landlord is not occupying the room, he
is entitled to file petition under Section 10(3)(a)(iii) of the Act.
16.Further, as per section 10(3)(c), only in the case of landlord
occupying a part of the building and requiring the remaining part of the
building, he has to apply under section 10(3)of the Act. As stated supra, that
question does not arise as the landlord has not occupied the upstairs portion
though he has got possession of the same. Hence, section 10(3)(c) will not be
applicable to the facts of this case.
17.Admittedly, the building is a non-residential building. Therefore, the
first ingredient stated above is satisfied.
18.It is not in dispute that the respondent was doing brass-ware business
along with his father and brother and therefore, he has got good experience in
that business. Though, it has been stated that the landlord should be carrying
on business on the date of application, this Court has interpreted the same and
held that to satisfy the 2nd requirement, the business need not be carried on,
before filing of the eviction petition and the lower Court relied upon the
judgment reported in (1983)96 LW 128 at page 130 [Tamil Nadu Wakf Board, rep by
its Secretary K.T.Fakir Ahmed vs. S.Syed Inam Saheb and another] and (1985)98 LW
666 [Thiru Chelliah Pandithan vs. Tmt.Anthoniammal and two others]. Hence, from
the above judgments, it is made clear that it is not necessary for the landlord
to carry on business for filing eviction application under section 10(3)(a)(iii)
and it is sufficient if he has the bona fide intention to start the business.
19.Regarding the 3rd criteria, it has been stated supra that the
possession of upstairs portion cannot be equated to occupation and no proof has
been adduced by the tenants that the landlord is occupying any other building of
his own.
20.Regarding 4th criteria, as stated above, both the Courts below
concurrently held that the claim of the landlord is bona fide and a perusal of
the evidence would also make it clear that the requirement of the landlord is
bona fide and it was not an attempt to evict the tenants. Hence, the four
essential ingredients, as per section 10(3(a)(iii) are satisfied by the landlord
and the landlord is entitled to order of eviction.
21.In the judgment relied upon by the learned counsel appearing for the
revision petitioners reported in 1995(1) MLJ 59 (SC) in the case of Super
Forgings and Steels (Sales) Private Limited vs. Thyabally Rasuljee (dead)through
L.Rs., in case of co-owner, one co-owner is also recognised as a landlord and if
he owns any other building, as a co-owner, he is dis-entitled to claim the
premises from the tenant.
22.As stated supra, in this case, it is not proved by the tenants that the
landlord is owning any other property in that town, either on his own or as a
co-owner. In the judgment reported in 1994(1) LW 24, SC, in the case of
S.Devaji vs. K.Sudarshana Rao, the essential ingredients have been stated and
the facts of that case and the facts in the present case are different and that
judgment cannot be made applicable to this case.
23.In the judgment reported in 2004(1) CTC 94 in the case of Bata India
Limited, rep. by its Manager vs. M.R.Manickam, this Court has held that when a
landlord is a owner of a building and the partnership business, in which one of
the partners is doing business in that premises, he is not entitled to ask for
eviction of the premises from the tenants. In this case, it is not the
contention of the tenants that the landlord is owning some other property and in
that property, the partnership business in which the revision petitioner was a
partner doing business. Therefore, the above contentions relied upon by the
learned counsel appearing for the revision petitioners are not applicable to the
facts of this case.
24.As stated supra, considering the facts that the petition was filed
under section 10(3)(a)(iii), there is no need to plead about the relative
hardship. Nevertheless, the Courts below have considered the same and gave a
finding. Hence, it cannot be contended by the tenants that the tenants would be
put to hardship if they were asked to vacate the tenanted premises.
25.As rightly, held by the Courts below that every tenant will be put to
inconvenience when he is asked to vacate the demised premises, but that will not
deprive the landlord’s bona fide requirement of the premises for his own
occupation.
26.Considering, all these facts, I do not find any reason to interfere
with the order of the Courts below and hence, the civil revision petition is
dismissed. The revision petitioners/tenants are the Cooperative institutions and
considering the same, 12(twelve)months’ time is granted for vacating and handing
over the possession of the tenanted premises on condition of filing an
undertaking affidavit to the same effect before the learned Rent Controller.
Consequently, connected C.M.P. is closed. No costs.
er
To,
1.The Principal District Munsif,
Kumbakonam.
2.The Principal Sub Judge,
Kumbakonam.