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Mahalakshmi Metal Industries Vs. K. Suseela Devi - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtChennai High Court
Decided On
Reported in(1982)2MLJ333
AppellantMahalakshmi Metal Industries
RespondentK. Suseela Devi
Cases ReferredSri Raja Lakshmi Dyeing Works v. Rangaswamy
Excerpt:
- .....this revision. the respondent-landlady filed the petition for eviction on the ground of bona fide requirement for own occupation of the non-residential premises bearing door no. 201, appa rao gardens, sydenhams road, madras-7. the monthly rent is rs. 1,000 for the non-residential purpose. the respondent's husband is carrying on timber business under the name and style of ashok timber corporation in a rented premises at no. 196, appa rao gardens, sydenhams road, madras-7. hence the requirement is bona fide. a notice was issued on 18th september, 1978, terminating the tenancy by the end of march, 1979, calling upon the revision petitioner to vacate and surrender possession, to which there has been neither a reply, nor compliance with the demand. thus, the petition for eviction.2. in.....
Judgment:

S. Mohan, J.

1. The revision, lies in a short compass. The tenant aggrieved about the concurrent orders has preferred this revision. The respondent-landlady filed the petition for eviction on the ground of bona fide requirement for own occupation of the non-residential premises bearing door No. 201, Appa Rao Gardens, Sydenhams Road, Madras-7. The monthly rent is Rs. 1,000 for the non-residential purpose. The respondent's husband is carrying on timber business under the name and style of Ashok Timber Corporation in a rented premises at No. 196, Appa Rao Gardens, Sydenhams Road, Madras-7. Hence the requirement is bona fide. A notice was issued on 18th September, 1978, terminating the tenancy by the end of March, 1979, calling upon the revision petitioner to vacate and surrender possession, to which there has been neither a reply, nor compliance with the demand. Thus, the petition for eviction.

2. In the counter of the revision petitioner, it was contended that the respondent owns a non-residential building in the City of Madras and, therefore, is not entitled to the relief asked for, for the purpose of her husband's business. The revision-petitioner has established his business in the petition-mentioned premises for the past several years and hence he will be put to great loss and hardships, should there be an order of eviction. The petition has been filed only with an oblique motive to coerce the revision petitioner to pay enhanced rent. The Rent Controller ordered eviction holding that the need of the respondent was bona fide. On appeal, the appellate authority was of the following view:

As usual the appellant (tenant) has also alleged in the counter that the petition is intended only to coerce the appellant to pay enhanced rent. But there is absolutely no evidence to hold that the respondent ever demanded enhanced rent or that the appellant refused to pay the same. On a consideration of all these circumstances, I find on this point that the requirement of the petition-premises by the respondent for the purpose of the business which her husband P.W. 1 is actually carrying on is true and bona fide.

Therefore, he confirmed the order.

3. It is argued now in the revision that the authorities below have held wrongly that the question of bona fides is immaterial. Notwithstanding the fact that the respondent's husband is carrying on business in a rented premises and that neither the respondent nor her husband owns a non-residential premises in the City of Madras, yet it was imperative on the part of the authorities below to have gone into the bona fides. In support of this submission, reliance is placed on Ramachandra Rao v. Krishnaswami Iyengar : (1976)1MLJ267 , as well as P.B. Desai v. C.M. Patel : [1974]3SCR267 . It is not correct on the part of the authorities below to have proceeded on the footing that once the conditions contemplated under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, hereinafter referred to as 'the Act' are established, an order of eviction should follow automatically. That certainly is not a correct approach. In Mohammed Jaffar v. Palaniappa Chettiar : (1964)1MLJ112 , which is a case that arose under Section 10(3)(e) of the Act, the Court had regard for Section 10(3)(e) whereunder the Controller is called upon to decide the bona fide need. Likewise, in Bega Begum v. Abdul Ahmad Khan : [1979]2SCR1 . If really those requirements alone are to be satisfied, there will be no scope for application of Section 10(3)(e). As to what is bona fide requirement has been laid down in Nanalal Goverdhandas and Co. v. Samratbai : AIR1981Bom1 . The word 'require' came up for interpretation holding that it must be bona fide. Therefore, the failure on the part of the authorities below to go into this important aspect of the matter vitiates the, orders which are liable to be set aside.

4. The learned Counsel for the respondent would rely upon N. Sampathu Chettiar v. S.V. Bapulal (1967) 1 M.L.J. 289, and contend that where the facts as established in. this case are to the effect that the landlady's husband is carrying on business in a rented premises, and he or his wife does not have a premises of his/her own, the need must be held to be, bona fide. In other words, what is required is to satisfy those conditions under Section 10(3)(a)(iii) of the Act. In establishing the same, the bona fides can be gone into. The bona fides relate only to the conditions stated therein and not unrelated to them. It is the quality and content of the bona fide that is important, as laid down in Selvaraj v. Narasimha Rao : (1969)1MLJ587 . Lastly, it is submitted that the finding relating to bona fide is purely a question of fact and this Court exercising revisional jurisdiction cannot interfere as stated in Sri Raja Lakshmi Dyeing Works v. Rangaswamy : AIR1980SC1253 .

5. Having regard to the above arguments, it is necessary on my part to find out the scope of Section 10(3)(a)(iii) of the Act, in conjunction with Section 10(3)(e). But, before I do that, it is necessary to utter one word of caution. The Tamil Nadu Buildings (Lease and Rent Control) Act of 1960, is a simple Act and the forerunner of it was the Act which was passed in the year 1949 as the Madras Buildings (Lease and Rent Control) Act. In the wake of World War II when there was acute scarcity of housing accommodation in various cities, an Act intended to be of a temporary duration was passed to relieve the undue hardship suffered by the tenants at the hands of the greedy landlords. But what was temporary, continued to be as temporary for long, getting revival after revival at the hands of Legislature. Ultimately, by Tamil Nadu Act XXIII of 1973, this Act became a permanent one. But in the working of the Act, it has been found that instead of trying to alleviate the hardships of the tenant it has come to perpetuate injustice as far as the landlords are concerned. May be the whirlgig of the time bings about strange revenges. It is no longer the tenant who is oppressed and the landlord the oppressor. It is the other way about. This is a simple Act under which both the landlords and the tenants could have worked out their rights without any complication whatever. Unfortunately, the Courts which should take a major portion of the. blame try to interpret this Act, in the light of various other Rent Control Legislations, tearing the provisions out of context. It is well-settled in law that unless there is some ambiguity it is the wisdom of the Legislature that should prevail. It is no function of the Court to add on to the Legislation. Even not a word or a comma could be added on. That is because it is the cardinal principle of interpretation of law to hold that the Legislature in its wisdom has chosen to adopt certain wordings in a section in an Act. In the guise of interpretation, if any attempt, is made by the Courts so as to introduce something which was never contemplated by the Legislature it would be doing great injustice to the spirit of the legislation. The Courts should not lean either in favour of the landlord or the tenant. It must interpret the law as it is and not bring into that interpretation its own pet theories or petty prejudices. If that were to be done, the Courts cease to be Courts and become partisans. Therefore, any tendency to lean either this way or that way should be altogether avoided. Then only the Courts reputation and the prestige will get enhanced. But what I find in most of the decisions is in disregard of the intention of the Legislature, some element or other is brought in depending upon the whims and fancies. That is why I would like to interpret the law as it stands and not saying one word more than is necessary. With this introduction, let me go on to the section. Section 10 forms the heart of this Act. That lays down the conditions under which tenants could be evicted. It should also be remembered that this is a special piece of legislation causing inroad into the general principles of law as enunciated by the Transfer of Property Act. A special legislation like this cannot be interpreted in a wide way so as to further infringe the general right available under the general law. If this background is kept in mind, most of the problems would not arise. But once there is a deviation or departure from this rule, the tendency of the Courts would be to bring in innovations. As a matter of fact, it is this which has made the Rent Control Legislation grow beyond all proportion and the Courts have almost crippled the working of the Act. This has enabled the erring parties to revel in this battle of law.

6. Section 10(3)(a)(iii) states:

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:

(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.

The provisos are not important and, there-fore, they are omitted. By a reading of this clause it is clear that a landlord may seek an order of eviction in the case of any other nonresidential building : (1) if the landlord or any member of his family is not occupying; (2) for purposes of a business which he or any member of his family is carrying on; (3) Any nonresidential building in the city, town or village concerned which is not his own. Therefore, a prima facie reading of this section clearly establishes that if these conditions are fulfilled, it should be enough to order eviction. However, the jurisdiction of the Controller arises under Clause (e). That says:

The Controller shall, if he is satisfied that the claim of the landlord is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not so satisfied he shall make an order rejecting the application.

The proviso is omitted as unnecessary. It is here in interpreting this clause, my observations become relevant. The Legislature has chosen to state that the enquiry by the Controller is to the effect that the claim (emphasis supplied) of the landlord is bona fide. Here again, the claim is as stated in Section 10(3)(a)(iii). I am not dealing with the other sub-sections, because I am concerned only with a non-residential building which admittedly falls under Section 10(3)(a)(iii). What is argued on behalf of the petitioner is that it is bona fide requirement that should be the subject-matter of enquiry. It is impossible to accept this argument because nowhere I find the word 'requirement' being used under this sub-section. Therefore it is argued to get over this obvious difficulty that Section 10(3)(a)(iii) by itself will not make the section work. Here again, the argument suffers from a fallacy. Section 10 (3)(a)(iii) is an enabling provision for the landlord to apply to the Controller and if he is satisfied that the conditions stated thereunder are fulfilled, an order of eviction would nomally ensue. The reason why I say 'normally ensue' is to have regard to Clause (e). The landlord comes with that claim before the Controller. Whether the claim of the landlord is in good faith or is actuated by bona fides is the only concern of the Controller. 'Claim' as is stated in the Concise Oxford Dictionary is 'demand for something as due; 'right, title to thing'; 'right to make demand on person; statement of novel features in patent; contention, assertion; (Mining etc.), piece of land allotted (stake)' etc. Therefore, the landlord makes assertions to the facts required under Section 10(3)(a)(iii), One point of distinction has to be noted here. Section 10(3)(a)(iii) states 'if the landlord requires'. But the language is not so in Section 10(3)(a)(iii). The reason why I am endeavouring to point out all these in great detail is because the cases that are relied on by the learned Counsel for the petitioner do not relate to this sub-section at all. The first of the rulings in Ramachandra Rao v. Krishnaswami Iyengar : (1976)1MLJ267 , is a case which has dealt with the interpretation of Section 14(1)(b). The wording under that section is that 'the building is bona fide required by the landlord for the immediate purpose of demolishing it....' This case cannot be of any use for interpreting the scope of Section 10(3)(a)(iii) for the very simple reason that there are no pre-conditions set out under Section 14(1)(b) of the Act and, therefore, the Court is at liberty to go into the question of bona fide as to the nature of the building including the acre, the necessity to demolish, the landlord's possession of funds for re-building etc. Merely because the word 'bona fide' occurs in this sub-section, one cannot bodily lift the same and interpret this sub-section. Further Section 14 which deals with recovery of possession by the landlord for repairs and reconstruction is a Code in itself. This is clear from the fact that it uses the nan obstante clause in Sub-section (1). Therefore, any attempt on the part of the learned Counsel for the petitioner to bring in those cases would be unhelpful to decide the nature of the enquiry to be conducted under Section 10(3)(e). Likewise P.B. Desai v. C.M. Patel : [1974]3SCR267 , arose out of the Bombay Rents, Hotel and Lodging House, Rates Control Act. In interpreting Section 10(1)(g) of that Act which stated 'a reasonable and bona fide requirement of the landlord' it was held at page 1064 as follows:

But for the purpose of determining whether the requirement of the appellant for the ground floor premises was reasonable and bona fide, what is necessary to be considered is not whether the appellant was juridically in possession of the Truth Bungalow, but whether the Truth Bungalow was available to the appellant, for occupation so that he could not be said to need the. ground floor premises. If the Truth Bungalow was in occupation of Dr. Bharucha on leave and licence, it was obviously not available to the appellant for occupation and it could not be taken into account for negativing the need of the appellant for the ground floor premises.

Here again, one cannot lose sight of the fact that what is to be decided by the Rent Controller, as bona fide is the claim or the assets of the landlord as spoken to under Section 10(3)(e). Mohammed Jaffar v. Palaniappa Chettiar : (1964)1MLJ112 , was a case which related to section 10(3)(e). At page 118 in dealing with the aspect of bona fide, it was held as under:

Next, it is contended that the landlord's application is not bona fide and has therefore to be rejected. Lack of bona fide is inferred because of the delay in filing the application after the issue of notice to quit and because of the fact that the landlord intends to use the premises in question not immediately but in the future. This argument is the result if misconception of the true meaning and import of the term bona fide in the context in which it appears. If the avowed purpose of requiring additional accommodation cannot be distrusted, or, characterised as a mere make-believe, shift, or device to put the tenant out of possession, there can be no want of bona fides. What is meant by bona fides is that the landlord should not seek eviction on the pretence of requiring additional accommodation with the oblique motive of achieving some other purpose. The learned District Judge was perfectly right in finding that the landlord has established the fact that he is in need of additional accommodation for his own residential purposes.

The emphasis here is that the order of eviction should not be actuated by an oblique motive of achieving some other purpose. It is clearly established in this case that there is absolutely no such oblique motive. The word 'requirement' is not used anywhere in the sub-section, namely, Section 10(3)(a)(iii) or Section 10(3)(e). That is why I hold it is not the function of the Courts to equate 'claim' occurring in Section 10(3)(e) with 'require'. As to the meaning of the same, I may usefully refer to the Concise Oxford Dictionary.

Require v.t. 1. Order (person), demand (of or from person), to do (they require me or of me to appear); demand or ask in words (person's: action, act of person, thing at person's hands, that, etc.) esp. as of right (they require my appearance, on oath of me, a gift at my hands or from me, that T should appear) 2. lay down as imperative (had done all that was required by the Act; Cray's 'Anatomy' is required reading for nurses). 3. Need, depend for success, fulfilment etc. on.... 4. Hence....

When the Legislature has avowedly used the word 'claim' in contradistinction to the word 'require', the cases which arose under the other sub-sections, even though they contain the word 'bona fide, cannot be applied here which will lead ultimately to a result riot contemplated by the Legislature. From the same point of view, I should hold that the case, reported in Bega Begum v. Abdul Ahmad Khan : [1979]2SCR1 , is also not relevant, because that case dealt with the phrase 'own occupation'. At page 277 in paragraph 14 it was held as under:

'In the case of Phiroza Bamanji Desai v. Chandrakant N. Patel : [1974]3SCR267 , Justice Bhagwati speaking for the Court observed as follows:

The District Judge did not misdirect himself in regard to the true meaning of the word 'requires' in Section 13(1)(g) and interpreted it correctly to mean that there must be an element of need before a landlord can be said to 'require' premises for his own use and occupation. It is not enough that the landlord should merely desire to use and occupy the premises. What is necessary is that he should need them for his own occupation.

Thus, this Court has held that in such cases the main test should be whether it was necessary for the landlords to need the premises for their use or occupation.

In Metalware & Co. v. Bansilal : [1979]3SCR1107 , the words 'bona fide required by the landlord for the immediate purpose of demolition and reconstruction' occurring in Section 14(1)(b) came up for interpretation. In paragraph 6 at page 1562, the law was stated as follows:

As stated earlier it cannot be disputed that the phrase used in Section 14(1)(b) of the Act is 'the building is bona fide required by the landlord' for the immediate purpose of demolition and reconstruction and the same clearly refers to the bona fide requirement of the landlord. It is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining 'the, bona fide requirement of the landlord'. If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide, requirement of the landlord under Section 14(1)(b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord, though that by itself in the absence of any means being possessed by the landlord would not be sufficient. Conversely a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlord's bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under Section 14(1)(b) of the Act and the same cannot be ignored.

This case again cannot be of any assistance to the petitioner for the reason already noted.

7. Nanalal Goverdhandas & Co. v. Samratbal : AIR1981Bom1 dealt with Section 13(1)(g) of the Act in question and the meaning of 'require'. It certainly has no bearing to the facts of the case.

8. Coming to the ruling cited by the respondent, N. Sampathu Chetty v. S.V. Bapulal (1967) 1 M.L.J. 289, a Division Bench of this Court observed in a case which arose under Section 10(3)(a) as follows:

Section 10(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, allows a landlord to apply to the Controller for an order directing a tenant to put him in possession of the Building if the landlord is not occupying for purposes of business which he is carrying on a non-residential building which is his own. If the, conditions of the provision are satisfied, the Controller may make an order as prayed for by the landlord provided he is further satisfied that the, claim of the landlord is bona fide. This requirement that the claim of the landlord should be bona fide is common not only to this provision, but also to several other provisions in the Act, which provide for eviction of tenants. The expression bona fide, therefore, will have to be understood in the context, but subject to that, it means in cases under Section 10(3)(a), that the, landlord honestly desires to occupy the premises from which eviction is sought and his claim is not a device to serve an oblique purpose.

That the landlord has made certain allegations or claims in some earlier proceedings may neither be relevant nor could they affect his bona fides in a later claim so long as it is proved that the landlord honestly desires to occupy the premises for carrying on his business. The fact that he owned several other buildings, which were not mentioned in the petition, is of no consequence as it is entirely open to a landlord to choose which building he would require for his business.

So long as the evidence does not justify that the claim is a device and is intended to serve an oblique purpose, it will go a long way towards the claim being honest. In other words, when once it is clear that the claim is not a device very little evidence might be required to find that the claim is an honest one.

This affords a complete answer to all the arguments of the revision petitioner. Again in Selvaraj v. Narasimha Rao : (1969)1MLJ587 , it was observed as follows:

The quality and content of the expression bona fide appearing in the various sections of the Act and for purposes therein enumerated have to be weighed and construed in different lines under different circumstances having regard to the context in which the exemption appears.

Therefore, unrelated to the context we cannot go on interpreting the word 'bona fide' in a stereotyped fashion. To put the matter in short, when in other sections what has to be decided is whether the requirement of the land lord is bona fide, under this sub-section what has to be decided is whether the claim of the landlord is bona fide. During the course of that enquiry, it certainly is open to the Controller to find out whether the landlord is not occupying for the purpose of his business which he is carrying on a non-residential building of his own. In all probability, it might turn out that the landlord has some other building, may not be running a business of his own, or that the building where he carries on business does belong to him etc. In other words, when the landlord asserts them, whether that assertion is bona fide or not alone requires to be decided. More than this if the embarkation of the enquiry is on a wider perspective, it will be doing plainly injustice to the spirit of the legislation and it is this which I should caution the Courts to avoid. This would enable the preservation of the rights of both the parties, namely, the landlords as well as the tenants.

9. I am unable to countenance the argument of the learned Counsel for the petitioner that the respondent herein came forward with the plea that in the rented premises in which he is carrying on business, the, landlady is pestering him to vacate and that the plea that there was a rent control application for eviction in which the husband of the landlady had been granted 3 years' time is false and that falsity would render the application meritless. That a rent control application was filed for eviction of the landlady's husband is borne out by Exhibit P-S. However, I will assume that he is not under the threat of eviction or such a claim is false. Even then, the law does enable the landlady to satisfy the requirements under Section 10(3)(a)(iii) and claim eviction. Therefore, it is futile on the part of the revision-petitioner to argue that the landlady must prove whatever she has pleaded in the petition. I hold it is immaterial whether the landlady's husband suffered an order of eviction or not. Suffice it to say that he has proved the requirements of Section 10 (3)(a)(iii).

10. All this I have dealt with in great detail notwithstanding the ruling of the Supreme Court in Sri Raja Lakshmi Dyeing Works v. Rangaswamy : AIR1980SC1253 , and observations contained to the following effect:

A concurrent finding, based on evidence, that the, landlord did not bona fide require the premises for his own use and occupation is not a finding which can be touched by the High Court exercising jurisdiction under Section 25. In such a case, merely to hold that a question is a mixed question of fact and law is not sufficient to warrant the exercise of revisional power.

I did so because of the arguments levelled before me. Based on this ruling it would have been easier for me to hold that in view of the concurrent findings, I would have no jurisdiction to interfere in revision. But, as I observed above to give guidelines. as to the interpretation I have endeavoured to go into these questions fully. In the result, I conclude the revision petition carries no merit whatever and is hereby dismissed with costs.

11. The learned Counsel for the respondent is willing to grant two months' time. Recording the statement, the revision petitioner-tenant is granted two months' time to hand over vacant possession.


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