This revision has been directed against the Judgment in RCA.No.18 of 2003 on the file of the Rent Control Appellate Authority, Pondicherry, which had arisen out of the order passed in RCOP.No.15 of 2002 on the file of the Rent Controller Magi. The unsuccessful respondent in the RCOP is the revision petitioner herein.
2.The averment in the petition sans irrelevant particulars runs as follows:-
The petitioner is the owner of the petition schedule property, which is situated in R.S.No.32 / 2 in Mahe Commune. After the purchase of the the said property, the petitioner planned to constitute a partnership firm in the name and style of Aristo Shopping Complex in the petition scheduled building. But no such partnership was constituted. But the property stands in the name of the petitioner. The petition scheduled property is a non-residential building, which was designed and constructed to use as a restaurant. The respondent had taken the petition scheduled property on lease under the lease deed dated 20.05.1988 for constructing a restaurant with a stipulation to pay rent at the rate of Rs.3,000/- per month. The rent was enhanced and fixed as Rs.3,630/- from Rs.3,000/- per month. The respondent was conducting a restaurant in the plaint schedule property besides having three other shop buildings, which is adjacent to the petition scheduled building from the year 1991, and his constructing a Coolbar and Icecream Parlour in the said building. The petitioner requires the petition scheduled building for the bonafide purpose of starting a restaurant for his daughter K.E.Ragina, who is depending on the petitioner and she is also a member of his family. The said Ragina alongwith her husband is residing with the petitioner and the residence of the petitioner is very near to the schedule building. The Tharavad House of the petitioner's wife is also very near to the schedule building. Therefore, the petitioner also could pay attention to the management of the restaurant conducted in the petition scheduled building. The husband of the petitioner's daughter by name K.M.Vasser is an M.B.A., graduate and he is unemployed. The petitioner's daughter is also unemployed. In fact the son in law of the petitioner is none other than the sister's son of the petitioner. The petitioner intents and proposes to open a non-vegetarian restaurant in the petition schedule building and he has taken necessary steps in the said direction. The petitioner is having the necessary financial resources to invest in the Hotel business. He has already applied to the Mahe Municipality for issue of Municipal licence to run the restaurant. The petitioner's daughter K.E., Ragina is well versed in making non-vegetarian dishes and she will be managing the restaurant along with her husband. The need of the petitioner is genuine and bonafide. Neither himself nor his daughter K.E.Ragina is in possession of any other non-residential building in Mahe commune which is sufficient to run a restaurant. The petition scheduled building is situated on the side of Mahe River and it is visible both from Mahe side as well as from the New Mahe side which is in Kerala. The geographical location of the schedule building is such that it will attract the customers while tavelling through the Managalore Calicut National High Way Road. The building has got all the convenience and facilities to run a restaurant. The need of the petitioner is imminent and he bonafide requires the building for his daughter and her husband to do business to maintain their family. The daughter of the petitioner is solely depending on him for her livelihood as her husband has no avocation. There are no building available in the locality to open the restaurant. Even though the respondent was requested time and again to vacate the building and handvoer vacant possession to the petitioner, he has been dragging on the matter under some pretext or the other. Hence, the petition under Section 10(3)(a)(iii) of the Pondichery Building (Lease & Rent control) Act, 1969, for eviction.
3.The respondent in his counter would contend that the respondent is running a hotel business under the name and style of "Hotel Cool Land". The petitioner let out the buildings for the Hotel Purpose and the monthly rent was originally Rs.3,000/-. The petitioner let out petition scheduled building with effect from 20.05.1988 under Kooli Kachit dated 20.05.1988. The monthly rent was enhanced periodically and at present the rent is Rs.3,630/- per month. The petitioner is a well known and affluent business man in Mahe and nearby places. The petitioner is having business in Petroleum, Electrical goods, Household items etc., K.E.Rajina daughter of the petitioner is owner of an estate to an extent of Sixteen and Half Acres named Poonoor Estate near Thamarasserry. Rajina's husband is managing a Factory named as National Metals, near Parassinikadavu. The allegations that K.M.Yassar husband of Rajina is unemployed is false. Rajina and her husband are not depending on the petitioner as alleged in the petition. Rajina does not propose to open a non-vegetarian restaurant in petition schedule building. It is only a false demand to evict this respondent somehow from the petition scheduled building. It is not true that the petitioner's daughter K.E.Rajina is well versed in making non-vegetarian dishes. The dishes for the petitioner's family members are prepared by only by the servants. In fact the petitioner's family is as such affluent that none of them need to run any non-vegetarian restaurant. The petitioner, his wife and his dauughter have number of buildings in their possession. The petitioner's daughter J.E.Rajina is partner of number of firms which are managed by the petitioner. The main business of this respondent is hotel business. The respondent is depending on hotel business for living. The business of Cool Bar and Ice Cream Parlour is only related to Hotel Business and Cool Bar and Ice Cream Business is not the main business. This respondent has spent huge amount in the hotel business. The annual repairs and annual maintenance have been done, all by this respondent, even white washing and paint washing have been done by this respondent. The petitioner has undertaken to reimburse such amount spent for annual maintenance and repair. The respondent has spent nearly Rs.5 lakhs. The income from the Hotel business is the main source of this respondent and it is the only means of livelihood of this respondent's family. The petitioner demanded enhanced rent of Rs.5,000/- per month to which this respondent could not agree and so petitioner instituted the petition for eviction. The petitioner's daughter is a co-owner and partner in respect of the petition scheduled property and the business conducted by the petitioner. Hence, the petition is liable to be dismissed.
4.Before the trial Court the petitioner has examined himself as P.W.1 and Ex.P.1 to Ex.P.6. The respondent has examined himself as D.W.1, who has not marked any exhibits. On the basis of the available oral and documentary evidence, the learned Rent Controller, after ariving at a conclusion that the requirements of the petitioner of the petition schedule building is bonafide, had allowed the petition giving one month time for the respondent to vacate and handover vacant possession. Aggrieved by the findings of the learned trial Judge, the respondent preferred an appeal in RCA.No.18 of 2003 before the Court of II Additional District Judge, Pondicherry. But the learned Rent Control Appellate Authority after giving due deliberations to the submissions made by the learned counsel on both sides and after scanning the evidence let in before the learned Rent Controller finding no reason to interfere with the well considered orders of the learned Rent Controller, had dismissed the appeal thereby confirmed the order of the learned Rent Controller in RCOP.No.15 of 2002, which necessitated the respondent to approach this Court by way of this revision.
5.The point for determination in this revision is whether the petitioner has complied with the requirements of the provisions under Section 10(3)(a)(iii) of the Pondicherry Building (Lease and Rent Control) Act, 1969 to get an order of eviction in his favour in respect of the petition scheduled property; or the findings the learned Rent Control Appellate Authority in RCA.No.18 of 2008 is liable to be set aside for the reasons stated in the memorandum of revision?
6.The Point:- The learned counsel on both sides agree that Section 10(3)(a)(iii) of the Pondicherry Building (Lease & Rent Control) Act, 1969 and the Madras Building (Lease and Rent Control) Act, 1960 are one and same in all respects. Section 10(3)(a)(iii) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, runs as follows:-
"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_
(i) .............
(ii)..............
(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 own;
Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered;
Provided further that where a landlord has obtained possession of a building under this clause, he shall not be entitled to apply again under this cause_
(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;
(ii)in case he has obtained possession of a non-residential building, for possession of another non-residential building of his own.
The two important requirements under Section 10(3)(a)(iii), for a landlord to get an order of eviction against the tenant are (i) the landlord or any member of his family should not occupy any other non-residential building at the time of filing of the petition for eviction under section 10(3)(a)(iii) of the Act; (2)neither the landlord nor any member of his family shall not carry on any busiess in other non-residential building of own in the city, town or village concerned. Admittedly the petitioner requires the petition scheduled building for the purpose of his daughter viz., Regina to start a restaurant in the petition scheduled building sine neither she nor her husband had any avocation on the date of filing of the petition. The petitioner has more specifically pleaded in the petition that her daughter Regina for whom he requires the petition scheduled building to conduct a restaurant is depending on him along with her husband. The learned counsel appearing for the revision petitioner would contend that even the petitioner in the cross-examination would admit that he is having 15 tenants in a single building complex and also having about 6 petrol pumps in and around Mahe and that the petitioner is receiving Rs.1 lakh by way of rent from various buildings occupied by his tenants. He would further state that as per the admission of the petitioner his daughter Regina is also having 15 acres of rubber trees at Thamarasery, Calicut District. Relying on the above said admissions of the petitioner in the cross-examination the learned counsel for the revision petitioner would contend that the petitioner is in affluent circumstances and that there is no need for his daughter to run a restaurant in the petition scheduled building. It is not in dispute that the revision petitioner is the tenant under the respondent herein. There is no evidence let in on the side of the respondent / tenant to show that on the date of filing of the petition the petitioner is in possession of a vacant non-residential building of his own or any of his member of his family was not in possession of any non-residential building in their possession lying vacant. Further, there was no material placed before the learned Rent Controller to show that neither the petitioner nor his daughter Regina, for whom the petitioner requires the petition scheduled building for conducting a restaurant, was carrying on business in a non-residential building of his own in the city or town or village. There is absolutely no iota of evidence let in before the learned Rent Controller to show that Regina, the daughter of the petitioner, was having any non-residential building of her own and that Regina was conducting a business in a non-residential building of her own in and around Mahe.
6(a)Relying on 1999(3) MLJ 293 (M.Shanmughasundaram Vs. N.T.P.Subburaya Chettiar) the learned counsel for the respondent herein would contend that it is immaterial in a petition filed under Section 10(3)(a)(iii) of the Pondicherry Buildings (Lease and Rent Control) Act to consider whether the landlord is in affluent position, but the point to be considered in a petition like this is whether the landlord requires the building bonafide for his personal use and occupation and the two ingredients stated under Section 10(3)(a)(iii) of the Act have been satisfied by the landlord. The exact observation in the above said judgment relevant for the purpose of deciding this revision runs as follows:-
"Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads thus:
"10(3)(a):A landlord may, subject to the provisions of clause (d), apply tot he 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 own;
The said section came for interpretation before the Hon'ble Supreme Court in a case reported in V.Radhakrishnan Vs. S.N.Loganatha Mudaliar, (1999)1 M.L.J., (S.C.) 1 : (1998)6 S.C.C., 431. Before the Hon'ble Supreme Court, an argument was taken i.e., if the landlord is in possession of any non-residential building, that will be a disqualification to get possession of another non-residential building even if the requirement is for benefit of a member of the family. Differences of opinion rendered by the various judgments of this Hon'ble Court were also placed before the Hon'ble Supreme Court and finally in para.12 of the Judgment, Their Lordships have held thus:
"12.On a plain reading of Section 10(3)(a)(iii) of the Act, it appears to us that the legislature intended that a landlord seeking eviction of the tenant could be disentitled from claiming possession of the non-residential premises where he requires those premises for his own use, if he is occupying anon-residential building of his own. Similarly, the landlord wold also be disentitled from claiming possession of non-residential premises for the benefit of a member of his family, if that member of the family was in occupation of anon-residential building of his own. Any other interpretation of this section would not only be doing violence to the plain language of the section but would result in absurdity inasmuch as the benefit of the provision would stand denied to the family members of the landlord, who do not occupy any premises of their own and for whose benefit eviction is sought, if the landlrod himself is occupation of a non-residential premises of his own. The fact that the landlord, who seeks eviction for the benefit of a member of his family, is himself occupying a building of his own cannot operate a bar to the landlord seeking eviction for the benefit of a member of his family, who does not occupy any premises of his own."
In the case on hand also as I have already referred to, there is no material worth referring was placed before the learned Rent Controller to show that the daughter of the petitioner viz., Regina was in possession of a non-residential building of her own and that she is running business in a non-residential building in the same locality. Under such circumstances, the contention of the learned counsel appearing for the revision petitioner / tenant that the petitioner / landlord is running several businesses and that he is having several non-residential building of his own is not a ground to reject the claim under Section 10(3)(a)(iii) of the Act because he requires the building for the purpose of starting a restaurant under no avocation and it is also in evidence that her husband who is also close relative of the petitioner is also without any employment.
6(b)The learned counsel for the revision petitioner focused the attention of this Court to Ex.P.6 and contended that except the letter addressed by the petitioner to the Mahe Municipality Commissioner to issue licence for her daughter Regina for running restaurant and that there is no other evidence produced on the side of the petitioner / landlord to show that he has taken steps for his daughter to conduct restaurant business.
6(c)This argument of the learned counsel appearing for the revision petitioner was contraverted by the learned counsel appearing for the respondent herein by placing his reliance on a ratio in 1999 (3) MLJ 303 (T.V.Jagatrakshagan (since deceased) and others Vs. N.Futaree Bai and others), wherein the relevant observation of the learned Judge of this Court runs as follows:-
"In other words, "carrying on business" may consist of series of steps. It cannot be said that if only all the steps have been taken, the requirement of the section would be satisfied. In other words, even if one step is taken and proved, in my view, the essential requirement of section is satisfied. But, if the matter is only in the stage of intention or desire and there is no step at all whatever, then it can certainly be said that it would not bring such a case under the said section. Short of any tangible concrete indication of commencement of a business, mere desire to carry on business would not enable the landlord to resort to Section 10(3)(a)(iii).
The above principles have been laid down by this Court in Kirshna Reddy Vs. Vasudevayya, (1984) I M.L.J., 22, Raju Chettiar Vs. State of Tamil Nadu (1970) I M.L.J. 249 : AIR 1970 Mad. 306 and Thiru Chelliah Pandithan Vs. Smt. Anthoniammal, 98 L.W. 66.
.............
In Krishanasamy Naicker Vs. Veerabahu Pillai, (1990)2 T.L.N.J., 138, when the premises was required for commencing the commission business, this Court would hold that no elaborate preparations are necessary for the setting up or the establishment of such a business. It would also hold that a name-board, a table and perhaps a chair would be more than adequate to carry on the business and to secure this, no elaborate preparations also are necessary.
In yet another decision in Saraswathi alias Sasikala Vs. Syed Ibrahim, (1993) I M.L.J., 321. Justice Thanikkachalam, (as he then was) would hold that for running a mess to feed about 10 persons mere possession of necessary funds to run the mess would be sufficient to show that the landlady has taken steps in furtherance of starting the business and that it is not necessary to get the licence from the Municipality and to produce vouchers for having purchased vessels and other equipments like mat, etc., as these things could be purchased at any time before obtaining possession of the premises.
So, the fact that the petitioner under Ex.P.6 had approached the Municipal authorities, Mahe for sanctioning of a licence in favour of his daughter to run a restaurant in the petition scheduled premises it self will go to show that necessary steps have been taken by the petitioner for running a restaurant in the name of his daughter.
6(d)The other contention of the learned counsel appearing for the revision petitioner that Regina being a lady belonging to Muslim community cannot do business because she is a parthanishin lady. This point was meeted out by the learned counsel appearing for the respondent herein by placing his reliance on the ratio decidendi in 2008(9) SCC 1 (Shamshad Ahmad and others Vs. Tilak Raj Bajaj (deceased) through LRs and others), wherein it has been held as follows:-
"It was also held that it could not be contended that pardanashin lady/ladies cannot do business. No such provision of law was brought to the notice of the prescribed authority so as to compel the authority to dismiss the application on that count. Hence, even that ground also was not well founded for dismissing the application.
.........
The authority also held that if the landlords wanted to do business in readymades garments, they would require an office room. They would also require sufficient space for preparation of readymade garments and godown for export of garments. In absence of such accommodation, it could not be said that the requirement was bona fide. The authority proceeded to observe that the family of the landlords was a reputed family having high status in the society and they were living in high standard, doing business in timber would and enjoying facilities of car, scooter, telephone, etc., It, therefore, would not be said that they were interested in doing business in readymade garments.
.........
In our opinion, the grievance voiced by the learned counsel for the appellants is well founded that the above grounds and reasons were irrelevant and extraneous so far as the requirement of the landlords was concerned. The authority can undoubtedly decide whether the need or requirement of landlords was or was not bonafide. It can record a finding against the landlords if such requirement is not proved. But the authority cannot decline the prayer of the landlords on the ground that they belonged to upper class of society having facilities of car, etc. Similarly, the prescribed authority was wrong in commenting on the experience of the landlords in business of readymade garments. Again, the authority went wrong in stating tht if the applicants wanted to do business in readymade garments, they needed "an office" and place of godown for preparation of readymade garments to be exported.
............
The counsel is also right in submitting that admittedly, Matloob Ahmad had retired from service. Even if the tenant was right in submitting that the landlords belonged to a higher strata of society, it did not mean that all throughout his life after retirement, Matloob Ahmad, husband of Applicant should not do any work. If he wanted to get himself engaged in doing some business, it could not be held that he would not be entitled to possession of property for doing business since he was rich and even without doing any business, he could maintain himself.
...........
A finding as to bonafide requirement for doing readymade garments' business by Matloob Ahmad has been expressly recorded by the appellant authority. The said finding was a finding of fact. Neither could it have been interfered with, nor has it been set aside by the writ court. In view of the above position, the High Court was wrong in allowing the writ petition."
So, the contention of the learned counsel appearing for the revision petitioner that since the petitioner is in affluent status, he is not required the petition schedule building for running a restaurant in the name of his daughter holds no water.
6(e)The learned Rent Controller has elaborately discussed each and every point on the basis of several dictums of this Court as well the ratio decidendi of the Honourable Apex Court in arriving at a correct conclusion that the petitioner is entitled to get an order of eviction under Section 10(3)(a)(iii) of the Pondicherry Building (Lease and Rent Control) Act, which has been confirmed by the learned Rent Control Appellate Authority in RCA.No.18 of 2003 on the file of the Court of II Additional District Judge, Pondicherry. It is a well considered proposition of law that unless it is shown that the findings of the Courts below are perverse and the Courts below have failed to consider the materials placed before them, the concurrent findings of the Courts below cannot be interfered by this Court. There is no material placed before this Court to show that the findings of the Courts below is perverse in nature and that the learned Rent Control Appellate Authority has failed to consider the material placed before the learned Rent Controller in arriving at a concurrent finding. Under such circumstances, I hold on the point that the petitioner has complied with the requirements under Section 10(3)(a)(iii) of the Act to get an order of eviction in his favour as prayed for.
A.C.ARUMUGAPERUMAL ADITYAN, J.
7.In fine, the Civil Revision Petition is dismissed confirming the judgment of the learned Rent Control Appellate Authority in RCA.No.18 of 2003 on the file of the Court of II Additional District Judge, Pondicherry. Time for vacating the premisses three months. No costs.
07.01.2009 Index :Yes Web :Yes ssv NOTE:- Issue order copy on 09.01.2009).
To,
1.The II Additional District Judge, Pondicherry.
(Rent Control Appellate Authority)
2.The Sub-Judge, Pondicherry.
(Rent Controller) C.R.P.(NPD).No.1339 of 2005