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Janab Abdul Khader Vs. HussaIn Ali and Sons by Partner Mir Mahamood Ali - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1962)2MLJ446
AppellantJanab Abdul Khader
RespondentHussaIn Ali and Sons by Partner Mir Mahamood Ali
Cases ReferredIn Narayanaswami Iyer v. Swami and Ors. C.R.P. No.
Excerpt:
- .....either belonging to him or to which he is entitled under the act, to enable him to carry on a retail business in respect of the very commodity dealt with by him as a whole-sale dealer. the answer to this question depends upon the proper construction of section 7(3)(a)(iii) of the madras buildings (lease and rent control) act, 1949. though this act has now been replaced by another recent enactment, it is common ground that this case is governed by the old act of 1949. the petitioner in this revision petition who is the tenant has been evicted by order of the house rent controller in h.r.c. no. 1353 of 1959 and his order has been confirmed by the court of small causes at madras in h.r.a. no. 134 of 1961. hence this revision petition has been preferred by the aggrieved tenant.2. the.....
Judgment:

Jagadisan, J.

1. The question raised in this Civil Revision Petition is whether a wholesale merchant carrying on business in a premises belonging to him or to which he is entitled under the Madras Buldings (Lease and Rent Control) Act, 1949, can evict his tenant in another premises either belonging to him or to which he is entitled under the Act, to enable him to carry on a retail business in respect of the very commodity dealt with by him as a whole-sale dealer. The answer to this question depends upon the proper construction of Section 7(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1949. Though this Act has now been replaced by another recent enactment, it is common ground that this case is governed by the old Act of 1949. The petitioner in this Revision Petition who is the tenant has been evicted by order of the House Rent Controller in H.R.C. No. 1353 of 1959 and his order has been confirmed by the Court of Small Causes at Madras in H.R.A. No. 134 of 1961. Hence this Revision Petition has been preferred by the aggrieved tenant.

2. The facts as admitted or found by the Courts below are as follows : In respect of premises No. 6/285, China Bazaar Road, the respondent is the chief tenant holding under the Official Trustee of Madras. He had been carrying on business in paper and stationery articles in wholesale and retail for over two decades at premises No. 50, Bunder Street, Madras, and also in premises No. 6/285, China Bazaar Road. The retail business was however stopped in 1944 and the premises No. 6/285, China Bazaar Road was let out to the petitioner. The respondents case is that in March, 1950, the petitioner surrendered possession of the premises which was kept under lock and key by the respondent. According to the respondent the petitioner was permitted to do business in the front portion of the premises upon a plank attached to it. The allegation against the petitioner is that he forcibly broke open the lock of the front door and occupied the premises proper. The petitioner denies having surrendered possession to the respondent and of course denies having trespassed into the premises. It is however unnecessary to go into this disputed question of fact as to whether the petitioner is only a trespasser or not. It is now common ground that the petitioner is the lessee under the respondent in respect of premises No. 6/285, China Bazaar Road, on a monthly rental of Rs. 60. The Court of Small Causes, the appellate Court, has found that the respondent is carrying on both wholesale and retail business at No. 50, Bunder Street. It is also found by both the Rent Controller and the appellate authority that the respondent requires premises No. 6/285, China Bazaar Road, bona fide for the purpose of carrying on a retail business. It is not disputed that the respondent, as the chief tenant holding under the Official Trustee of Madras and as the person letting out premises No. 6/285, China Bazaar Road to the petitioner, is the landlord within the meaning of the provisions of the Rent Control Act entitled to pray for eviction. If any authority is needed that a chief tenant of a premises is a landlord entitled to evict his own tenant reference need only be made to the decision of this Court in Nataraja Asari v. Balasubramania : (1957)2MLJ492 .

3. Learned Counsel for the petitioner contended that the respondent is not the landlord clothed with the right to evict under the Act, and that, if at all, only the Official Trustee of Madras can move in the matter. This contention is obviously untenable in view of the categoric admission made by the petitioner himself in Exhibit R-2, a reply notice sent by him to the respondent, wherein he has admitted that the respondent is his landlord. There is no substance in this contention.

4. The main point urged by learned Counsel for the petitioner is one which calls for an interpretation of the relevant provision of the Act, namely, Section 7(3)(a)(iii). The terms of Section 7 in so far as they are material may now be extracted:

(i) A tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this section.

(3) (a) 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 is not occupying for purposes of a business which he is carrying, on, a non-residential building in the city, town or village concerned which is his own or to the possession of which he is entitled whether under this Act or otherwise.

(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 the purposes of a business which he is carrying on, as the case may be.

5. This is not a case where Section 7(3)(c) comes in for operation. Premises No. 6/285, China Bazaar Road is not part of 50, Bunder Street, Madras, and the landlord is not praying for eviction on the ground of need for additional accommodation. The landlords case is that he wants to carry on retail business in China Bazaar Road, that the wholesale business carried on by him at Bunder Street, is different from the retail business, that he is now carrying on the retail business as he has made all the necessary preparation therefor, and that the requirements of Section 7(3)(3)(iii) are fulfilled. An analysis of the elements of this statutory provision shows that the following requirements should be present to enable the landlord to be put in possession of the non-residential building : 1. The building should be non-residential in character. 2. The landlord should be carrying on business on the date of application for eviction. 3. That the landlord is not occupying any other building belonging to him as owner or to the possession of which he is entitled, in respect of the business; and 4. That the landlord's claim is bona fide for his business needs and is not founded on any indirect or oblique motive for evicting the tenant either with a view to obtain more rent than what the premises already fetched or with a view to harass the tenant in possession. It is not disputed that the China Bazaar Road building is non-residential in character and that the landlord is carrying on retail business. On the question of bona fide need on the part of the landlord, the lower appellate Court has found in his favour and I see no reason to interfere with that finding. The point that was much debated before me is whether the carrying on of the wholesale business in No. 50, Bunder Street, would preclude the landlord from getting possession of the building in China Bazaar Road for the retail business. The crux of the matter therefore is whether a retail business of a dealer is the same as his wholesale business.

6. In Venkataswami and Sons v. Veerabadraswami (1955) 1 A.W.R. 695, the question raised was whether a wholesale dealer in textiles who had obtained the licence from the Textile Control Officer to do retail business and who was already occupying a premises of his own in respect of the wholesale business can evict his tenant from another business premises for the purposes of enabling him to carry on business in retail trade. Viswanatha Sastri, J., held that he was so entitled. The following observation of the learned Judge may usefully be quoted:

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 transactions incidental to it. If a dealer carrying on wholesale business in cloth has also obtained necessary licence and quota for carrying on 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.

These observations no doubt relate only to the interpretation of the words ' carrying on business' occurring in the Act. They do not elucidate the point whether a retail business started by the wholesale dealer is or is not the same or part of the wholesale business.

7. In Narayanaswami Iyer v. Swami and Ors. C.R.P. No. 1792 of 1954 and an to 214 of 1955, (1956) 1 M.L.J. 70, Panchapakesa Aiyar, J., dealt with a case where eviction in respect of a non-residential building was sought by the landlord for purposes of his retail business while he was already carrying on a wholesale business in another premises. The learned Judge held that the wholesale business carried on by the landlord is different from his retail business.

8. I have not been referred to any other decision on the point that is now mooted before me. Learned Counsel for the petitioner submits that the respondent, who is now carrying on both the wholesale and retail business in Bunder Street, Madras, cannot claim the benefit of Section 7(3)(a)(iii) and that the claim of the landlord even on his own averments, is based on the desired need for additional accommodation, and to that the petitioner would be entitled only if the provisions of Section 7(3)(a) can be called in aid. In other words, the contention urged is that a landlord requiring additional accommodation in a residential or non-residential building is strictly governed by the terms of Section 7(3)(c) and cannot invoke the aid of Section 7(3)(a). I am unable to agree with this contention. It cannot be said that the landlord is merely seeking additional accommodation on the facts of the present case. He wants the premises in China Bazaar Road only for the purpose of a retail business, which he is carrying on and he seeks to bring himself within the provisions of Section 7(3)(a)(iii). If he satisfies all the conditions prescribed under that provision I fail to see how his application for eviction can be dismissed.

9. In my opinion a wholesale business is something essentially different from a retail business and the mere fact that the dealer is the same cannot constitute the two businesses to be identical in character or make the one the part of the other. The business activities in respect of a wholesale and retail business are so dissimilar in their range and character that it is impossible to say that a wholesale dealer who also happens to do a retail business of the same commodity as that comprised in the wholesale business is carrying on only one business in two departments.

10. On the findings of fact arrived at by the Courts below, with which I am completely in agreement, the respondent's application for eviction was rightly granted. The Civil Revision Petition fails and is dismissed with costs. The petitioner is granted two months time from today for vacating the premises.


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