BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 27.04.2010 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN CRP(NPD).No.271 of 2003 D.K.Sethu Madhavan .. Petitioner/Respondent Vs. M.Thathuvamoorthy .. Respondent/Petitioner Prayer:- This Revision petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Tamil Nadu Act 23 of 1973 against the decree and Judgment in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.III, Chennai, dated 29.11.2002, reversing the decree and Judgment of the learned XVI Judge, Court of Small Causes at Chennai in R.C.O.P.No.1002 of 1996, dated 09.09.1997. For Petitioner : Mr.P.K.Sivasubramanian For Respondent : Mr.N.Thiyagarajan, Senior Advocate. For Mr.N.Raja Senthoorpandian O R D E R The civil revision petitioner herein is the tenant/respondent in R.C.O.P.No.1002 of 1996, on the file of the Small Causes Court No.XVI, at Chennai and the appellant in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.VIII, Chennai. The revision petitioner has filed this revision in C.R.P.No.271 of 2003 to set aside the decree and Judgment in R.C.A.No.905 of 1997, on the file of the Small Causes Court No.VIII at Chennai, dated 29.11.2002 and confirm the decree and Judgment of the learned VI Judge, Court of Small Causes at Chennai in R.C.O.P.No.1002 of 1996, dated 04.09.1997. 2.The short facts of the case are as follows: The respondent/petitioner/landlord has filed the eviction https://hcservices.ecourts.gov.in/hcservices/ petition against the revision petitioner/tenant directing him to vacate and handover the vacant possession of the petition property to the petitioner, on the ground of owner's occupation to enable his daughter to carry on business related to telephone booth together with STD/ISD and PCO facilities. The landlord's daughter is a B.A.Graduate and unemployed. The landlord has applied to the Department of Telecommunication, Madras Telephone North West area through application No.4121, dated 09.02.1996 under registration No.7/KGI-II-STD-PT-19.02.1996 for setting up of the business at the petition premises, namely, Shop No.3 in the Ground floor of the premises No.136, Purasawalkam High Road, Kellys, Madras-600 010. 3.The landlord further submitted that the revision petitioner is the tenant occupying the petition premises on a monthly rent of Rs.750/- excluding the electricity charges. The total extent of petition premises is 10 Feet X 12 Feet and situated on the main road. The tenant had also agreed to vacate and hand over the possession before March, 1996. On the contrary, he has filed O.S.No.4568 of 1996 for injunction as if the landlord is interfering with his possession and enjoyment of the petition premises. Hence, the landlord has filed the eviction petition under Section 10(3)(a)(iii) of the Tamil Nadu Building Lease and Rent Control Act. 4.The revision petitioner/tenant has filed a counter statement and has denied the averments made in the petition filed by the landlord. It was submitted that the averments made by the landlord that the petitioner's shop is required for his daughter is not bonafide. The landlord has not taken any steps to initiate such business and moreover the said STD business is not suitable for ladies since the telephone booth/STD/ISD/PCO are usually kept open for business till late in the night. The reason given by the landlord is merely to evict the tenant and let out the portion for a higher rent. On 29.03.1996, the tenant was forced to file a criminal complaint against the landlord since the landlord attempted to dispossess the tenant of the said premises. Hence, the tenant was forced to file a civil suit. 5.The tenant further submitted that the landlord could not achieve his malafide motive of dispossessing the tenant, by force, from the petition shop. Now, the landlord has filed this petition, belatedly, with a view to evict the tenant. Further, the landlord has refused to receive rent from the month of February, 1996 onwards and therefore the tenant had filed R.C.O.P.No.840 of 1996 for depositing the rent into the Court under Section 8(5) of the Rent Control Act. The tenant is carrying on business in the said premises for over 16 years. The tenant further submitted that the landlord does not require the petition shop as he is profitably employed with https://hcservices.ecourts.gov.in/hcservices/ Lucas-TVS. The tenant further submitted that the location of the petition-shop is not suitable for the business envisaged by the landlord. Hence, the tenant has prayed for dismissal of the petition. 6.The learned Rent Controller framed issues and recorded the evidence of the petitioner's side as well as the evidence of the respondent's side. On the side of the petitioner, three documents were marked namely Ex.P1, the receipt, acknowledging the application for public telephone given by the petition; Ex.P2, the quotation given by the Carpenter to setup the telephone booth; Ex.P3, the fixed deposit particulars taken out in the name of the landlord's daughters. On the side of the respondent, five documents have been filed namely Ex.R1, the petition copy in I.A.No.6087 and Ex.R2, the counter statement; Ex.R3, the acknowledgement card; Ex.R4-decree of R.C.O.P.No.840 of 1996 and Ex.R5-written statement copy in O.S.No.4568 of 1996. 7.After considering the evidence of both sides and after considering the facts and circumstances of the case, the learned Rent Controller has come to the conclusion that even if the tenant vacates the petition premises immediately, the landlord's daughter would not be in a position to setup the STD business immediately. Further, the Rent Controller held that the tenant had been an occupant of the petition shop for the past 16 years and had been carrying on his business and was of the opinion that if the tenant is made to vacate the shop the tenant would incur loss. The Rent Controller was of the opinion that if the eviction petition is dismissed, the landlord would not be put into any hardship. As such, the eviction petition was dismissed against the tenant. 8.Aggrieved by the above order of dismissal, the landlord has preferred this appeal. The appeal grounds and citations submitted thereof in support of the appeal are as follows: "(7) Now, the point for consideration is whether, the appeal should be allowed or not? (8) The learned counsel for the appellant/landlord would argue as follows: The petitioner/landlord has satisfied the ingredients contemplated in sec.19(3) & (iii) of the Act. Admittedly, neither his daughter nor he is not occupying any other non-residential building in Chennai, which is their own, for the proposed business. Besides, the petitioner has taken necessary steps for starting the STD Booth in the petition premises. His daughter T.Kavitha, has already applied for a Telephone Booth to the Telephone Department. She has clearly stated that she wanted the STD https://hcservices.ecourts.gov.in/hcservices/ Booth connection to be given to her in the petition premises. Ex.P1 is the receipt issued by the Telephone Department for having received the application of petitioner's daughter. It is a document given by the Public authority. So it is a valid and acceptable evidence. It shows her real intention and bonafide. Ex.P2 is the receipt given by a concern doing the job wood work of pattern works etc. It is observed from it that the petitioner has given an advance of Rs.5,000/- for the proposed work of making wooden partition for the posed telephone booth. Ex.P3(s) are fixed deposit receipts for total sum of Rs.50,000/-. So, the petitioner has amply demonstrated his genuine intention to start the proposed booth in the petition premises, by taking all possible steps meant for the business. As the daughter is unemployed, she can very well carry on the proposed business in the petition premises. It is not for the tenant to suggest to the landlord as to whether the petition premises is fit for her proposed business or not. Once, the landlord has satisfactorily complied with the conditions laid down in the Act and taken care and necessary steps for starting the proposed business, his requirement is bonafide. The need is reasonable likely to arise in future. In this connection, the following judgments are cited: (i)Organid Chemicals Ltd., Madras Vs. Venkataraman, 1997-2- LW-517, Law does not say that there should be a current and urgent need. It is enough if it is reasonably likely to arise in the future (ii)S.R.Vairevan Vs. Sundaram, 2001 (4) CTC 710 Tamilnadu Buildings (Lease and Rent Control) Act 1960, Sec.10(3) & (iii) carrying on business that is – landlord or member of his family need not carry on business at the time of filing of petition and it is enough it is reasonably likely to arise in future (9)the learned counsel for the respondent/tenant has argued as follows: (a)The petitioner/landlord has not issued any pre-petition notice to the tenant, expressing his requirement of the petition premises for starting a business. For this, the possible explanation of the landlord is that since the tenant himself has promised to vacate the petition premises https://hcservices.ecourts.gov.in/hcservices/ by March'99, arose no need for the landlord to issue any pre-litigation notice. It is not true. The landlord refused to receive rent for February '96 when tendered. He has also refused to receive the rent sent by money order. That is why the tenant filed RCOP u/s.8(5) of the Act. In fact, the tenant deposited rent for certain periods in the RCOP. Against this backdrop, the landlord filed RCOP for eviction. (b)With regard to merits of the case the following points are raised for consideration: (i)Firstly, there was no pre-petition notice. So, the tenant cannot be taken by surprise. (ii)Though the petitioner contends that his daughter has applied for STD booth connection to the Telecom Department, except, a receipt, no other tangible document has been filed to show that the petitioner has fulfilled other pre- requisite conditions stipulated by the Telecom Department, in this regard. No document representing the payment of necessary charges has been produced. Ex.P1 is only an acknowledgement of receipt of application for STD booth connection. Ex.P2 is an estimate by a carpenter for interior decoration and Ex.P13(s) are three receipts issued by one Devi Gold House for fixed deposits of total sum of Rs.50,000/-. These second and third documents are only self-serving documents and they have no evidentiary value as such. (iii)Even before the learned Rent Controller rendered judgment, the petitioner's daughter T.Kavitha got married to Mr.Vidhaya Sankar. As a married woman, she is living with her husband in his house. Her husband is not dependent on his wife. So, the very case of action ceases to exist as the daughter of the petitioner, for whose requirement the petition premises was sought for, got married and left the house of her father, the landlord. (iv)The petitioner is profitably employed in a private concern. He admitted that he used to be away. So, he could not attend the proposed business. (v)There is no proof that the petitioner purchased any telephone instrument or billing meter for the proposed STD Booth. Besides, the petition premises is not ideal for the STD Booth that too for a lady who cannot run the STD booth https://hcservices.ecourts.gov.in/hcservices/ especially after 9 P.M. In fact, due to reduced rates after 8 P.M. people throng the booths only after 8 P.M. (vi)In the event of eviction, the tenant will be put to irrepairable loss and great hardship – When examined, PW2, the son-in-law of the petitioner has deposed that he is living with his parents. So there is no need for the petitioner. Married daughter does not depend the income for her father's property. More despire to start a business is not sufficient for ordering eviction. (c)In support of the contention, the Learned Counsel for the respondent/tenant filed the following judgments: (i)M.Lanakavel Pillai by power agent N.Sellaiyah Pillai vs. Drugs and Chemicals, Kumbakonam by its Managing Director T.Ramani – 1980 – II MLJ – 392. Tamil Nadu Buildings (Lease and Rent Control) Act XVIII of 1960) (as amended by Act XXIII of 1973) sections 10(3)(a)(iii) and 14(1)(b) – Petition by landlord for eviction and recovery of possession of premises "Carrying on business" – Meaning. "We think so "because" carrying on a business" may consist of a service of steps, and even if one step is proved, we do not see why the requirement is not satisfied. But, if there is no step at all whatever and the matter is only in the stage of intention, it is difficult to bring such a case within the phraseology of the statute". (ii)1981 – I MLJ 40 E.Gopalan nair Vs. V.Kalammal Tamil Nadu Buildings (Lease and Rent Control) Act, section 10(3) (a)(iii) – Non-residential building – Petition for eviction by landlady – Allegation of building being required for business of the petitioner's husband – Mere intention to start business – Not sufficient for ordering eviction. (iii)P.Rengaswamy Naidu Vs. The Tamil Nadu Handloom Weavers Co-Operative Society Limited, Madurai, through the Marketing Officer. 1982-MLJ 130. The application a person who was carrying on a business as Hotel Proprietor. He was on that date a person who had done business in the past as a hotel proprietor and who was intending to do business in the future as hotel proprietor. https://hcservices.ecourts.gov.in/hcservices/ Such a person cannot be said to be a person who is carrying on business. To hold otherwise would be to delete from Sec.7(3)(a)(iii) the words "which he is carrying on", a function which the Court is power less to perform. (iv)Bank of Baroda, rep.by its Chairman Vs. Mahendra Dadha and two others 1982 – II-MLJ-85 Sec.10(3)(a)(iii) of the Act deals with the condition for obtaining possession of a non-residential building. The conditions are : (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)the landlord should not be occupying any other non-residential building belonging to him in respect of the business; and (4) the landlord's claim is bonafide, for his business needs and is not founded on any indirect or oblique motive for evicting the tenant either with a view to obtaining more rent than what the premises, already fetched or with a view to harass the tenant in possession. AIR 1988 SUPREME COURT, 1060. A landlord will be able to evict a tenant to satisfy his whim by merely proving the ingredients mentioned in Se.10 (3)(a)(iii) of the Act. If the requirement of 'claim' being 'bonafide' as contained in Sec.10 (3)(e) as construed to mean that genuineness of the need of the landlord for the non-residential building is not be considered and the circumstance that the landlord as the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bonafide, the tenancy of no non-residential building will be secure. (vi) 1990 TIAD – 135 Muniammal & 3 others Vs. R.Sundara Mahalingam. In the absence of any evidence to show that the landlord has taken any action by way of step-in-aid, it may be considered that his petition would not satisfy the requirements u/s/10(3) (a)(iii) of the Act even on the basis of the dicta laid down in 98 LW 666. Having regard to the fact that no step was taken by the landlord on the date when the application was filed for eviction, it is hardly possible to come to the conclusion that the landlord has satisfied the requirements of sec.10(3)(a)(iii). https://hcservices.ecourts.gov.in/hcservices/ (vii)M/s.Amitkumar Amichand by Partner S.Mohanlal Vs. Jawanthraj and others, 1082 – II – MLJ -353. Allegation that son-in-law of one landlord, desired to set up a clinic – Landlords also desiring to set up independent business in the premises – Landlords therefore requiring additional accommodation – "Additional accommodation" and "carrying on business" – Meaning – Landlords held not entitled to an order of eviction. (viii)Ramesh Vs. A.Balreddy – AIR 1990 SUPREME COURT 1376 – A.P.Buildings (Lease, Rent and Eviction) Control Act (1960) S.10 – Eviction petition – Landlord pleading that premises were required for his married doctor daughter for running a separate Clinic – Daughter assisting her doctor husband in his Clinic – Nothing to suggest that landlord's married daughter had to depend on her father in any manner – Evidence fully establishing that landlord was forcing tenant to raise rent from time to time and was making further demand which was not acceded by tenant – Held, requirement of landlord was fanciful wish and could not be accepted as good ground for eviction (10)Thus the arguments of both the learned counsels are concluded. (11)The question that comes up for consideration it so whether the landlord was satisfactorily proved his requirement and bonafide. (12) Sec.10(3)(a)(iii) reads as follows: Sec.10(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 of (any member of his family) is not occupying for purposes of a business which he or (are member of his family) is carrying on, a non-residential building in the city, town or village concerned which is his own; (13)From the above provision of law, it becomes very clear that the landlord has a legal obligation to fulfil the https://hcservices.ecourts.gov.in/hcservices/ statutory conditions enshrined in the Act. First of all, he must not occupy any non-residential building of his own for the business being carried on either by himself or by any member of his family. Here in this case, concedingly, the landlord or his daughter for whose proposed business, the petition premises is required, does not occupy any other non-residential building of their own for the business. This fact is not in dispute. So, the first condition is deemed to have been satisfied. (14)Generally, if, we are to draw any succour from the enactment, then, we must admit that the provision U/S.10(3) (a)(iii) postulates existence of a business to the landlord or by any member of his family. But, the scope of this provision has justifiably been enlarged to include even one right step towards the proposal of starting a business as "Deemed business" for harvesting relief under this section held in the case. S.P.K.Ramaswamy Pillai Vs. Karmega Thevar 1964 – II – MLJ – 89. Madras Buildings (Lease and Rent Control) Act (18/1960) sec.10(3)(a)(iii) – Scope "carrying on a business" – It is not necessary for the purpose of "carrying on a business" within the meaning of sec.10(3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act, 1960, that the entire activity of a business should exist. Sec.10(3)(a) (iii) of the Act would cover the case where the authorities come to the conclusion that the demand for occupation is bonafide one and that the landlord has already commenced some activity in connection with the starting of the business. There is no reason why a landlord having the capital ready and the intention as well to do business cannot be said to have commenced his business, though the activity relating to it has to await the securing of accommodation. (15)In this case, the petitioner's daughter is not carrying on any business, She is yet to start a business of her choice viz STD booth. She has proposed to start the above business in the petition premises. In furtherance of such proposal, the petitioner is said to have some steps which are reflected though Ex.P.1 to P3 (s). Ex.P.1 is the acknowledgement of receipt of an application for STD booth connection, by the petitioner's daughter by name T.Kavitha. https://hcservices.ecourts.gov.in/hcservices/ Ex.P.1 is undoubtedly issued by the Telecom Department. So, it is an authenticated receipt which only cogently corroborates the version of the land. It is but a audiementary step for getting a phone connection. In short, the petitioner's daughter has already applied for the STD Booth connection, thereby proved that a significant proper step prescribed has been taken in all sincerely. She is an educated lady. She is not debarred from applying for STD connection. Under Article 19(g) of our Constitution, all the eligible citizens shall have the right to carry on any occupation, trade of business, any avacation, subject to reasonable restrictions, public policy etc. No eligible woman shall be deprived of her right to choose her career by reason of sex, caste or creed, No gender discrimination is to be shown to any woman. Equal opportunity is available to all. So the tenant cannot be heard to contend that she, being a lady cannot to carry on the intended business. It is upto her to decide her way of career. (16)Ex.P2 is the estimate prepared by a carpentery concern. It is a receipt, as well, for payment of an advance of Rs.5000/- made by the landlord for woodwork inside the petition premises for the proposed business. The carpenter has even drawn a rough sketch of the proposed wood work, to suit to the convenience of the petitioner. In fact, there seems to be no standard pattern for a STD booth, It all depends upon the nesthetic sence and capacity of the landlord to decorate the internal pattern of wooden partition etc. So, whether the carpenter has prepared the sketch or not, there is no condition that the landlord should prepare plan and estimate, Ex.P2 is a document given no doubt by a private concern. But, there is no better or alternative way for the land to prove that he has taken the requisite steps. Ex.P2 is not inadmissible in evidence. There is no contra evidence to this. Besides, no other course of proof is available for the landlord. By itself, Ex.P12 may not be so patent to conceive a direct nexus and deliver the goods effectively. But, read with Ex.P1, Ex.P2 becomes meaningful and relevant. It is always the accepted norms that no evidence is to be read in islolation. The question is a matter of what Ex.P1 P2 will take to convince all concerned. After all, the funds needed for the proposed business cannot be beyond the means of the petitioner who was admitted to have been profitably employed in LUCAS TVS Company. Besides, Ex.P3(s) represent certain investments. It is one indication of his ability https://hcservices.ecourts.gov.in/hcservices/ to mobilise the required funds. As pointed out, there is no fixed cost for the proposed business. If rich enough, a person can install even Air Conditioner in a STD Booth. So, there is no point in saying that the act is so rigid and it is uphill struggle for the landlord to prove his need and bonafide. Due to advent of computer, every office gets computerised. Any device handled yesterday becomes outdated today. So, we cannot expect the landlord to procure all the devices and Instruments well in advance, even before his eviction petition is disposed off. Because, such investment will be a non-performing asset. Besides, they will have be kept idle. Above all they may become out dated in future So the requirement cannot be doubted at every stage. In fact, Ex.P1 to Ex.P3 (s) orchestrate the requirement of the landlord stupendously. Law should not interpreted as to make the landlord to find it extremely difficult to prove his cause. In the circumstances obtained, what could a landlord do to prove his requirement in a matter for consideration. What he should do is an illusionary plan sought to be imposed on him. (17)First of all, what is gatherable from the facts available is that the need simply exists. Based on this ground, we move up to find out whether, it commands bonafide. A legitimate and well founded requirement coupled with the actual and genuine need is bound to grew into a bonafide requirement. After all, the pulse of the landlord has to be ganged and measured in terms of decree of bonafide, only by the use of an accepted parameter is his every action. Here, unambiously, he took certain possible measures to translate his intention into action. Bonafide is the result of sound blending of honest shim, purposeful requirement and a practical need. All molded in one exercise. Here, the steps taken by landlord encompass every fact of his cause, marked by his reasonable exercise.