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J.N. Gulamali and ors. Vs. Howrah Casting Company and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1978)1MLJ218
AppellantJ.N. Gulamali and ors.
RespondentHowrah Casting Company and anr.
Cases ReferredGlamour Saree Museum v. Tamil Nadu Handloom Weavers Co
Excerpt:
- ....., in dealing with a case of same business being carried on by a landlord in two different premises held that the word 'a business' occurring in section 10(3)(a)(iii) would mean any business. this was in fact the ruling laid down by a single judge earlier. but a division bench in c.r.p. no. 2343 of 1971 dated 2nd may, 1973 (shortly reported in v.r. jayaraman v. n.s. ramalingam 1973 t.l.n.j. 393) clarified the position and held if there are two different businesses and with reference to one of the businesses that is carried on by the landlord in a rented premises, if he wants to occupy a portion of that non-residential building which belongs to him, such an application would be maintainable under section 10(3)(a)(iii). that ruling would govern this case. in this view, order of the.....
Judgment:
ORDER

S. Mohan, J.

1. All these revision petitions arise out of a common judgment and the question of law that arises in these revision petitions is one and the same. It is enough to note the facts of one of the cases.

2. The revision petitioners are the owners of premises bearing Door No. 25, Errabalu Chetty Street, Madras-1. The respondents are tenants in various portions of the said building. The second petitioner (Abidali) in all these petitions is carrying on business in pipes and sluice valves under the name and style of 'International Sales Corporation', in Door No. 3|13, Vanniar Street, Madras. It is a rented premises. It is admitted that the business carried on by the revision petitioners in No. 25, Errabalu Chetty Street, Madras, is a different business than the one which the second petitioner is carrying on at No. 3|13, Vanniar Street. Stating that the second petitioner bona fide required the portions in the occupation of the respondents herein for his own business purposes he filed the petitions before the Rent Controller under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act (here in after referred to as the Act). By way of abundant caution, they also filed petitions under Section 10(3)(c) of the Act for additional accommodation should the Court hold the other applications were not maintainable. The Rent Controller held that the requirement of the premises for the occupation of the second petitioner was bona fide and ordered eviction under Section 10(3)(a)(iii) of the Act. It was further held by him that Section 10(3)(c) of the Act was not applicable.

3. Aggrieved by that order the tenants preferred appeals to the Court of Small Causes, Madras (Second Judge). The Appellate Authority was of the view that in so far as the second petitioner is a partner in the business called 'Universal Hardware Mart' which is being carried on in Door No. 25, Errabalu Chetty Street, Madras, it was not open to him to get an eviction under Section 10(3)(a)(iii) of the Act. He also held that the application under Section 10(3)(c) of the Act was not maintainable. It is under these circumstances the revision petitions have arisen.

4. Mr. K. Parasaran, learned Counsel for the revision petitioners urges with considerable force that the business carried on at 3|13, Vanniar Street, is an entirely different business than the one which is carried on by the second petitioner at No. 25, Errabalu Chetty Street, in partnership with other revision petitioners. In such a case Section 10(3)(a)(iii) woud apply. So long as these businesses are different, for that business it would be open to the second petitioner to seek eviction of the tenant from the petition-mentioned premises and his rights cannot be negatived because he happens to be a partner in the business carried on at No. 25, Errabalu Chetty Street. That would be against the spirit of the Act. In fact, a Division Bench of this Court in Easwaran Chettiar v. Subbarayan : AIR1971Mad163 , in dealing with a case of same business being carried on by a landlord in two different premises held that the word 'a business' occurring in Section 10(3)(a)(iii) would mean any business. This was in fact the ruling laid down by a single Judge earlier. But a division Bench in C.R.P. No. 2343 of 1971 dated 2nd May, 1973 (shortly reported in V.R. Jayaraman v. N.S. Ramalingam 1973 T.L.N.J. 393) clarified the position and held if there are two different businesses and with reference to one of the businesses that is carried on by the landlord in a rented premises, if he wants to occupy a portion of that non-residential building which belongs to him, such an application would be maintainable under Section 10(3)(a)(iii). That ruling would govern this case. In this view, order of the Appellate Authority is liable to be set aside.

5. Mr. M.R. Narayanaswamy, learned Counsel for the tenant supports the order of the Appellate Authority and relies upon a decision of Veeraswami, J., as he then was, reported in Glamour Saree Museum v. Tamil Nadu Handloom Weavers Co-operative Society. : (1969)2MLJ493 In that case the learned Judge categorically laid down the phrase 'a business' in the provision as reference to any business and not each of the businesses. Therefore, the application under Section 10(3)(a)(iii) is not maintainable. If according to the learned Counsel the test is applied with reference to each of the businesses it will be adding to the legislation and not interpreting that section. Having regard to the controversy, I think it will be useful to refer to the object of the Act, which says:

An Act to amend and consolidate the law relating to the regulation of the letting of residential and non-residential buildings and the control of rents of such buildings and the prevention of unreasonable eviction of tenants therefrom in the State of Tamil Nadu.

The preamble also reads in similar terms. Therefore, what is sought to be prevented is unreasonable eviction. If this is kept in the background, in my view much of the difficulties can be avoided. Section 10(3)(a)(iii) of the Act which is relevant for our purpose reads:

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.

6. How Mr. M.R. Narayanaswamy wants me to read this section is, if a landlord or any member of the family is occupying for the purpose of a business (though different) in non-residen tial building, he will go out of the purview of the section. In other words according to him, the test is: (1) whether he carries on business; (2) in a non-residential building. In the instant case, so far as the second petitioner carries on business as a co-owner along with the other petitioners he would fall out of the purview of this section. He also relies on for this contention, a judgment of Veeraswami, J., as he then was, reported in Glamour Saree Museum v. Tamil Nadu Handloom Weavers Cooperative Society : (1969)2MLJ493 . The learned Judge held therein at page 14:

What the Sub-section provides is that the carrying on of a business by the landlord in his own non-residential buildings is the test and that does not in my view, mean each business or a particular business. The phrase, 'a business' in the provision has reference to any business and not each of the business.

7. However, in Easwaran Chettiar v. Subbarayan : AIR1971Mad163 , a Division Bench of this Court held:

The primordial requisite or the condition precedent which would enable a landlord to seek an order under Section 10(3)(a)(iii) is that he should not be in occupation of a non-residential building of his own in which he is carrying on a business. The letter 'a' in Section 10(3)(a)(iii) would mean 'any', that would be its plain meaning. The fact that the premises owned and occupied by him does not subserve his business interests and that it is not convenient for him to occupy the same for purposes of a business which he is carrying on... is an irrelevant factor and if that is taken into consideration, we are of the view, that while interpreting the section we would be making law and not declaring law. The law as it stands says that the landlord is interdicted from seeking a non-residential building of his in the occupation of his tenant if and when he is already in such a non-residential building of his own in which he is carrying on a business. We have already prefaced that hardship and inconvenience caused in declaring the law as it stands cannot be noticed by Court; for it is the exclusive prerogative of the Legislature to amend such hardships and to avoid the same. In the instant case the finding of the Court below is that the respondent is carrying on both wholesale and retail oil business in a building of his own and he is seeking for eviction of the tenant in another non-residential building belonging to him on the ground that he wants to expand his business or set up a new business. However, bona fide the intention of the landlord may be and whatever hardship might result by reason of the application of the prevailing law, we are unable to agree with the contention of the learned Counsel for the respondent that he would be entitled to an order for eviction, for he deserves it.

8. It requires to be noted at this stage that the law which came to be laid down by the Division Bench was with reference to the oil business. In other words it was in respect of the same business except that one was wholesale and the other was retail. The reason why I mention this is a distinction has been made, if I may say so with great respect, rightly between distinct businesses.

9. In C.R.P. No. 2343 of 1971 dated 2nd May, 1973 a Division Bench of this Court in dealing with a situation like the one on hand held:

But the Court is of the opinion that the fact that the petitioner is carrying on business in jewellery in a building of his own does not really disentitle him to relief under Section 10(3)(a)(iii) of the Act, though in this case the petitioner has to fail on other grounds. The Appellate Authority and the Revisional Authority have not correctly understood the purport and scope of the decision in Glamour Saree Museum v. Tamil Nadu Handloom Weavers Co-operative Society Ltd. (1969) 2 M.L.J. 498 : (1970)83 L.W. 13 The observation of the learned Judge 'what the Sub-section provides is that the carrying on of a business by a landlord in his own non-residential building is the test, and that, does not in the view of the Court, mean each business or a particular business. The phrase 'a business' in the provision has reference to any business and not each of the businesses has to be understood in that context. The learned Judge held that if the landlord was carrying on Co-optex sarees business in the Pantheon Road Building which is its own, it will not be entitled to an order of eviction. That is so because on the plain meaning of Section 10(3)(a)(iii) a landlord who is carrying on a particular business in a building of his own would not be entitled to relief under the provision in respect of the same business. But if the landlord is carrying on a different business in another building which is not his own, there is nothing in the section which debars him to have recourse to the provision in that section in respect of that business even though he might be carrying on another business in a building of his own. In other words if a landlord is carrying on two different businesses, one say in jewellery in a building of his own, and the other say, in timber in a rented building he would be entitled to relief under Section 10(3)(a)(iii) for shifting the timber business to a third building which is his own... but in the occupation of a tenant. In such a case the timber business of the land-lord in the rented building satisfied the clause 'a business which he... is carrying on' occurring in the above section. This is in accord with the view taken by a Division Bench of this Court in C.M.P. No. 4164 of 1950. In the present case, the landlord is carrying on business in jewellery in a building of his own. If the business Ranga Medicals which is being carried on in 61, Long Bazaar, a rented building is a business of the landlord himself the Court sees no ground at all to say the landlord would not be entitled to apply for eviction of a tenant from the premises in question under Section 10(3)(a)(iii).

10. The observation of a Division Bench of this Court in Easwaran Chettiar's Case (1950) 1 M.L.J. 7, that the letter 'a' in Section 10(3)(a)(iii) would mean 'any' that that would be its plain meaning has also to be understood, on the facts of that case. If the landlord is carrying on the particular business in his own building, he cannot be heard to say, that he required the premises in the occupation of the tenant for shifting that business. The mere fact that in the building belonging to the landlord not only the particular business but another business was also being carried on would not mean that the landlord would be entitled to relief under Section 10(3)(a)(iii) of the Act. But on a plain meaning of the said provision, if the landlord is carrying on business in a building not his own, he would certainly be entitled to relief under the said provision albeit he is carrying on another business in a different building which is his own. The only limitation is the claim of the landlord should be bona fide and under the said provision the landlord can obtain possession of only one building.

The legal position will boil down to this: does the landlord seek eviction of a tenant from a non-residential building belonging to him with reference to a business, which he is carrying in a rented premises. If that be so, Section 10(3)(a)(iii) would apply albeit he is carrying on another business either individually or in partnership in the non-residential premises owned by him. This interpretation is in accordance with the object of the Act, viz., this is not a case of unreasonable eviction. It will be rather very reasonable for a landlord to have his business which is of a different nature in the premises owned by him, rather than suffer the tenancy for all time to come merely because he happens to be a partner in some other business which is being carried on in a portion of that non-residential premises. In the case of Muslim co-sharers it is not unknown that fractional shares are held by them and if the law is not to be interpreted in this manner, then it would affect the right of a landlord which is certainly not the policy of the Act. It is not a case of legislation at all. It is only a case of interpreting the law so as to avoid unreasonable eviction.

11. In the result, I hold the eviction petitions are maintainable under Section 10(3)(a)(iii) of the Act and therefore the finding of the lower Appellate Authority that Section 10(3)(a)(iii) will not apply is clearly an error of law. However, I do not disturb the finding that the applications cannot fall under Section 10(3)(c) of the Act.

12. Therefore C.R.P. Nos. 405 and 407 of 1977, which arise out of eviction petitions under Section 10(3)(c) of the Act will have to be dismissed and are accordingly dismissed. The other revision petitions viz., C.R.P. Nos. 406 and 408 of 1977 will stand allowed and the matter is remitted to the lower appellate Court for consideration on merits on the evidence on record. No costs. It will be open to the parties to let in such evidence as they may desire and the learned appellate authority will consider the need therefor, in his discretion. The appellate authority is directed to dispose of the appeals on or before 30th of November, 1977.


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