EASWARAN CHETTIAR Vs. K SUBBARAYAN
LAWS(MAD)-1970-4-12
HIGH COURT OF MADRAS
Decided on April 03,1970

EASWARAN CHETTIAR Appellant
VERSUS
K.SUBBARAYAN Respondents

JUDGEMENT

- (1.) IN this civil revision petition the tenant who is the aggrieved party is the petitioner. The landlord filed an application for eviction of the petitioner on the ground that he bona fide required the non-residential building in the occupation of the petitioner for purposes of his own business, and the petition was filed under section 10 (3) (a) (iii) of the Madras Buildings (Lease and Rent Control) Act, 1960. The petitioner resisted the same on the ground that the respondent was occupying a non-residential building of his own for purposes of his oil business, and there was no bona fides in the application either. The landlord (respondent) succeeded before the Rent Controller, but failed before the appellate authority. On a further revision petition to the District Judge, West Thanjavur, the Court allowed the revision petition by agreeing with the Rent Controller, and directed eviction. The matter came before Kailasam, J. , and the learned Judge, after hearing the parties made the following order: "the question that arises in this civil revision petition is whether the landlord who is carrying on his business both manufacture and retain sale of oil, in a building of his own is entitled to another non-residential building for carrying on his retail business. The learned District Judge found that the main business that is being carried on by the landlord in his own premises is that of manufacture of oil and that the retain sale which being carried on in the premises is only a secondary one, and therefore he is entitled to get possession for his own use for retail business another premises which is in the occupation of the petitioned. The provision which enables the landlord to obtain possession is Section 10 (3) (a) (iii) of Madras Act 18 of 1960 which provides that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of the building, if the landlord or his son is not occupying for purposes of a business which he or his son is carrying on, a non-residential building in the city town or village which is his own. It is not disputed that the landlord is occupying a premises in which he is carrying on the business of manufacture of oil as well as retain sale. The provision prima facie therefore will not apply. Mr. Ratnam, learned Counsel for the respondent, strongly relied on a decision of this Court in Abdul Khader v. Hussain Ali by the 1962-2 Mad lj 446. The facts as found by the Court of Small causes and accepted by the learned Judge are that the respondent in the case was carrying on both retail and wholesale business at No. 50 Bunder Street. The case of the landlord-respondent was that he wanted to carryon retail business in china Bazar, 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 preparations therefor, and that the requirements of Section 7 (3) (a) (iii)are fulfilled. The learned judge referring to the contention of the learned counsel for the petitioner that the landlord was carrying on both the wholesale and retail business in Bunder Street cannot claim the benefit of Section 7 (3) (a) (iii), rejected the same. With respect, I am unable to agree with the reasoning or the conclusion arrived at by the learned Judge. On the finding that the landlord was carrying on retail business at No. 50 bunder Street, he will be disentitled to the benefits under Section 7 (3) (a) (iii) of the Act (corresponding to Section 10 (3) (a) (iii)of Act 18 of 1960), as he is not a person not occupying for purposes of a business a non-residential building. The learned counsel for the petitioner part from submitting that the decision in 1962-2 Mad LJ 446 required reconsideration, contended that when once the Court finds that the landlord is in possession of a premises for any business, he would not be entitled to the benefit of the provision for getting possession of any other premises, even through it is for some other business. The learned counsel relied recent decision of this Court in Glamour Saree Museum v. Tamil Nadu Handloom Weavers Co-operative Society Ltd. , 1969-2 Mad lj 493. The learned Judge expressed his view that the language of the section would indicate that if a landlord is carrying on business in a nonresidential premises of his own, that twill be a bar to his obtained an order of eviction in respect of any other premises. The learned Judge was of the view that the phrase 'a business' in the provision has reference to any business and not to each of the businesses. The subsection provides that the landlord or his son who is not occupying for purposes of a business is entitled to apply to the Controller for an order directing the tenant to put the landlord in possession of the premises which is his own. With respect, I am unable to agree with the view taken by the learned Judge that when once the landlord is in occupation of a non-residential building for any business, he will not be entitled to ask for possession of any other non-residential building of his own for any other business. As I am unable to agree with the two decisions cited supra, the matter is referred to a Bench for disposal. The papers will be placed before the Honourable the Chief Justice for orders. " the papers having been set before us by my Lord the Chief Justice the matter has come up for final disposal by us.
(2.) THE relevant section which has to be considered in the instant case is Section 10 (3) (a) (iii) of the Madras Buildings (Lease and Rent Control) Act, 1960. That section reads as follows:-- "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- (i) in case it is a residential building, if the landlord required it for his own occupation or his son and if he or his son is not occupying a residential building of his own in the City, town or village concerned; (ii)------------------------------------------------------------------ (iii) in case it is any other non-residential building, if the landlord or his son is not occupying for purposes of a business which the or his son is carrying on, a nonresidential building in the city, town or village concerned which is his own. "
(3.) THE provisos therein are not relevant for purposes of this case. The relevant provision in the Madras Buildings (Lease and Rent Control) Act, 1949, which has been repealed by Act 18 of 1960 ran as follows:-" 7 (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- (i) in case it is a residential building, if the landlord requires it for his own occupation and if he is not occupying a residential building of his own in the city, town or village concerned; (ii) in case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use and if he is not occupying any such 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; (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 buildings 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. ";


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.