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S.K. Azimudeen Sahib Vs. K.V. Rangaswami Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1958)2MLJ389
AppellantS.K. Azimudeen Sahib
RespondentK.V. Rangaswami Pillai
Cases ReferredNatesan v. Surya Bahadur Shah
Excerpt:
- - the appeal, which the petitioner filed before the subordinate judge and the revision petition which he filed before the district judge both failed. the wording of the relevant provision is no doubt somewhat unhappy and it would have been better if the words 'for purposes of a business 'had been used instead of the words 'for purposes:.....respondent would lead to this result that a wholesale dealer in cloth who wants to carry on retail cloth business in another shop as required by the rules would have to take out a shop on rent for some time, stock his goods there and sell them in the rented premises before he can claim to get possession of his own premises for the retail business. this is hardly a result which could have been contemplated by the legislature. if there is no bona fide preparation for running the business, then of course it is open to the court to say that the demand for eviction is unjustified apart of the business of retail cloth sale consisted in obtaining the licenses on payment of the requisite fee and getting the quotas and that part of the business had already been completed. what remained was to get.....
Judgment:

Balakrishna Ayyar, J.

1. The petitioner is the owner of premises in Bazaar Street, Salem Town, in which two shops bearing Nos. 368 and 369 are located. These two shops are in the possession of the respondent. The petitioner sought to evict the respondent from the premises on the ground that he wanted them to carry on a business, of his own. The accommodation controller dismissed the application. The appeal, which the petitioner filed before the Subordinate Judge and the revision petition which he filed before the District Judge both failed. He has therefore come to this Court.

2. The petitioner stated that he wanted the premises in order that he might trade in mill cloth in Salem. He also stated that he has obtained a licence for the purpose from the appropriate authorities. The case of the respondent was that the petitioner was not carrying on any business and that his application was not bona fide, since he had alternative accommodation in another part of the building, access to which could be had from a lane taking off from the Bazaar Road. Mr. Ramaswami Ayyangar, the learned advocate for the respondent, contended that as the petitioner has only obtained a licence for trading in cloth, he cannot be said to be carrying on a business, and that it is only if he is carrying on a business that he can call to his aid Section 7(3)(a)(iii) of Madras Act XXV of 1949. On this point there are three decisions: In Kesavan Nair v. Babu Naidu (1954) 2 M.L.J. 149, Ramaswami, J. held that where a person has erected a building for a factory, shifted machinery to the place and applied for licence to the concerned authorities, he can be deemed to be a person carrying on business and that it would not be correct to say that he only intends to carry on business. In Nataraja Achari v. Balasubramaniam : (1957)2MLJ492 , Panchapakesa Ayyar, J. observed:

It is also settled now that carrying on a business need not necessarily mean that he has begun the trade vigorously ; it is enough if he had made all the preparations. Just as swimming requires water, carrying on business requires suitable premises. As it is clear that there are no adequate premises for the respondent to carry on his grain-trade, unless he gets both the halves of these tiny premises it is enough for him to prove that he has got a licence for the grain-trade and has made other necessary preparations for carrying on the grain-trade.

3. The question has been comprehensively examined by Viswanatha Sastri, J., in Venkataswami & Sons v. Virabadraswami (1955) An. W.R. 695. He observed:

The phrase 'carrying on business' has no fixed connotation and its meaning and effect have to be ascertained from the context in which it is used, the nature of the business and the transaction incidental to it. If a dealer carrying on wholesale business in cloth has also obtairted the necessary license and quota for carrying on a retail business in cloth and all that remains for him is to-remove the cloth from his wholesale shop into the retail shop and begin to sell the cloth, he has started his business operations. There is no yardstick by which we can measure the range of activities necessary to constitute the carrying on of a business. A business may take some time for its being organised and set on foot as a trading venture. When companies are formed for the purpose of carrying on business, there is often a considerable interval of time between the formation and the registration of the company and the actual commencement of the business for which it was formed. In business as in professions, there are initial stages and periods when there is very little activity visible to out-siders but nevertheless, the business or profession is regarded as being carried on. The contention of the respondent would lead to this result that a wholesale dealer in cloth who wants to carry on retail cloth business in another shop as required by the rules would have to take out a shop on rent for some time, stock his goods there and sell them in the rented premises before he can claim to get possession of his own premises for the retail business. This is hardly a result which could have been contemplated by the Legislature. If there is no bona fide preparation for running the business, then of course it is open to the Court to say that the demand for eviction is unjustified Apart of the business of retail cloth sale consisted in obtaining the licenses on payment of the requisite fee and getting the quotas and that part of the business had already been completed. What remained was to get a place to carry on the retail trade, carry the goods to that place and start selling the goods. For this purpose the premises now in question were required by the dealer and it cannot be said he did not require the premises for carrying on his business. The wording of the relevant provision is no doubt somewhat unhappy and it would have been better if the words 'for purposes of a business ' had been used instead of the words ' for purposes: of a business which he is carrying on'. Even on the language of the clause as it stands, it can be said that the petitioner requires his building for a business which he is carrying on.

4. With this reasoning I am in respectful agreement.

5. The next point put against the petitioner is that he could carry on a business in cloth in a portion of the premises behind these shops, to which access can be had by a lane. It is contended that the petitioner cannot pick and choose and insist that he should be given vacant possession of any particular property of his and in support of this argument reference was made to the observations of Pancha-pakesa Ayyar, J., in Natesan v. Surya Bahadur Shah : (1957)2MLJ586 . But the facts here are entirely different. The petitioner says he wants the premises for a retail trade in cloth ; to tell him that he should carry on the business in a shop to which there is access only through a lane is to impose on him a handicap for which there is no justification.

6. In order to come within the scope of Section 7(3)(a)(iii) it is enough if the landlord satisfies the following requirements : (1) The building must be non-residential falling outside the scope of Sub-clause (2) ; (2) on the date of the application the landlord must be carrying on a business ; (3) if he is occupying another building which is either his own or to the possession of which he is entitled, he will be disqualified. Then there is Sub-clause (e) which requires the landlord to satisfy the Controller that his claim is bona fide. In other words, the position is this. On the one hand the landlord cannot insist that he must be given a particular building which he has set his mind upon. On the other hand the tenant cannot say that the landlord has got some otljier building however unsatisfactory it may be from the point of view of the landlord. Where the landlord makes a claim, the Controller will consider whether it is bona fide and in doing so he must take into consideration all the relevant circumstances into account. The landlord cannot be compelled to accept that which the tenant says he can get into.

7. In this particular case the respondent is in possession of two shops. I do not think that his insistance that the petitioner should occupy premises behind the building to which custom cannot be readily drawn or attracted can be acquiesced in. He must give one of the two shops to the petitioner. Petitioner's counsel suys that he would prefer No. 369. There will be an order directing the respondent to surrender possession of No. 369 to the petitioner. Time to do so is three months. The petitioner will get half his costs right through.


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