Judgment:
ORDER
Thanikkachalam, J.
1. This revision is directed against the order passed in R.C.A. No. 242 of 1986, which in turn arose out of the order passed in R.C.O.P. No. 472 of 1981. The tenant is the petitioner herein. The petition for eviction was filed under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, XVIII of 1960, (hereinafter referred to as the 'Act'). In the petition for eviction it is stated asunder: The petition premises is situate at No. 11-12, East Chitrai Street, Madurai. The tenant is a partnership firm represented by one of its partners SP.P.S. Shanmugham Chettiar. The tenant is conducting a medical shop in the petition premises, on a monthly rent of Rs. 825. The owner of the petition premises is also a partnership firm represented by one of its partners. The landlord is carrying on business in glass and enamel wares and as general merchants in 90-92, East Avanimoola Street, Madurai. The petition premises is situate just behind the premises at door Nos. 90 to 92, East Avanimoola Street. The landlord is having its godowns in a rented premises at No. 8, Mela Nappalaya Street, Madurai and in two other rented premises at Lakshminarayanapuram Agraharam, Madurai to store its goods. The owner of the premises at door No. 8, Mela Nappalaya Street, Madurai filed eviction proceedings against the landlord, herein and obtained an order of eviction. Therefore, the landlord herein was compelled to surrender possession of premises at No. 8, Mela Nappalaya Street, Madurai to its owner. The other two godowns which are rented premises at Lakshminarayanapuram Agraharam, Madurai are far away from the place of business conducted by the landlord. The landlord desires to locate its godown very near to its business place so as to prevent breakage of glasswares in transit from the godown to the shop premises. Further according to the landlord, if the godown is near to the shop premises it will be easy for it to handle the goods by minimising the damages. With this bona fide desire in view, the landlord herein issued a notice to the petitioner herein on 7.4.1981 calling upon the tenant to quit and deliver vacant possession. The tenant sent a reply dated 11.4.1981 setting forth its defence.
2. In the counter filed by the tenant, (sic) stated as under:- The tenant is in occupation of the petition premises for the past many years. Originally, the rent was Rs. 450 and the same was increased periodically and at present the rent is Rs. 825 p.m. It is true that the owner of the premises at No. 8, Mela Nappalaya Street, obtained an order of eviction against the landlord herein. The landlord herein is also in occupation of the other two rented premises in Lakshminarayanapuram Agraharam. This would go to show that originally the landlord does not want to utilise the petition premises as godown and therefore it took on rent the premises at Lakshminarayanapuram Agraharam for storing their goods. Hence, from the beginning the respondent does not want to utilise the petition premises as godown, since it is built for the purpose of running a shop. The petition premises is not fit for using the same as godown, only to cause hardship to the petitioner herein and to enhance the rent, the landlord filed the present eviction petition. Therefore, it was submitted that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. One Kadhar Ibrahim was examined as P.W.1 and one Swaminathan was examined as R.W.1. The landlord filed 4 documents. No document was filed on behalf of the tenant. Considering the facts arising in this case, the rent controller came to the conclusion that there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly, the eviction petition was dismissed. On appeal, the Rent Control Appellate Authority came to the conclusion that there is bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act and accordingly the appellate authority reversed the order passed by the Rent Controller, allowed the appeal and ordered eviction. It is against this order, the present revision has been preferred by the tenant.
3. The learned Senior Counsel Mr. M.R. Narayanaswamy, appearing for the tenant/petitioner herein submitted as under:- The rent control appellate authority was not correct in reversing the well reasoned order of the rent controller. Admittedly, the landlord is carrying on its business in its own premises at Nos. 90-91, East Avanimoola street, Madurai and hence the respondent herein, (the landlord) cannot claim any other non-residential building its own by invoking Section 10(3)(a)(iii) of the Act. in order to obtain the remedy under Section 10(3)(a)(iii) of the Act, the landlord should satisfy the court that he is carrying on business in a non-residential building in the city, town or village concerned, which is not of his own. Unfortunately, this aspect has been completely lost sight of by the authorities below, which decided the issue arising in this case. Even if this objection is not specifically raised by the tenant in the counter statement, since this matter goes to the root of the jurisdiction of the authority concerned it can be raised at any stage. It is settled law that Section 10(3)(a)(iii) of the Act can come to the assistance of the landlord only if he is not occupying any other non-residential building of his own in the city, town or village. The fact that the landlord was compelled to surrender the possession of another rented premises being used as godown, by itself would not entitled the landlord to ask for eviction of the petitioner herein. Even in the pleadings, the petition premises is required only for carrying on glassware business, which is already being carried on in its own premises. Therefore, the authority below should have seen that without going into the merits of the claim, the petition is liable to be dismissed even at the threshold. The question of bona fide and the exact need are always interrelated. Apart from other things, it is incumbent on the part of the landlord to establish his bona fide in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Premises Nos. 90 to 92, Avanimoola Street, is a two storeyed building. The landlord is carrying on its business in the ground floor. The second floor is also in the possession of the landlord. In the first floor one portion was occupied by an auditor. Recently, he vacated the portion under his occupation. Another portion in the first floor was under the occupation of Ramanathapuram Chamber of Commerce. The Chamber of Commerce constructed a building of their own and therefore they are also moving out of the first floor. Therefore, now the entire first and second floor in the premises at Nos. 90 to 92, Avanimoola street are available to the landlord. If the landlord really needs any accommodation for storing their goods in a nearby place it can utilise the first and second floor. But the landlord does not want to do the same. The portions under the occupation of the auditor and the Chamber of Commerce are similar in extent like the portion under the occupation of the tenant herein. Hence it cannot be said that the portions under the occupation of the auditor and the Chamber of Commerce are not sufficient and suitable for godown purposes. The landlord demanded higher rent and when the tenant refused to pay the same, the landlord came forward with this eviction petition. Therefore, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Accordingly it was pleaded that the order passed by the appellate authority is liable to be set aside.
4. On the other hand, the learned Senior Counsel Mr.Palpandian appearing for the respondent/ landlord submitted as under:- The requirement of the petition premises by the landlord under Section 10(3)(a)(iii) of the Act is bona fide. Admittedly, the landlord was evicted from one of its godowns at Mela Nappalaya Street. The other two godowns are also rented premises, and they are far away from the business premises of the landlord and hence there is nothing improper on the part of the landlord to have a desire to locate its godown in the petition premises, which is admittedly situate immediately behind the premises at Nos. 90 to 92, Avanimoola Street. The landlord is carrying on business in glasswares and hence it is necessary that the godown should be situate very close to its business premises. As otherwise the landlord would incur heavy losses in the transit of goods, which are to be handled with care. It is not correct to state that the petition premises is unfit for godown purposes. In fact, the tenant is using a portion of the petition premises for godown purposes. The landlord is requiring the petition premises for different purpose viz., for godown. Therefore, the fact that the landlord is having another premises of its own in which it is carrying on its business cannot be said to be an impediment in obtaining possession under Section 10(3)(a)(iii) of the Act. The first floor in premises Nos. 90 to 92 is not fit for godown purposes. It is not correct to state that the landlord demanded higher rent. It was therefore pleaded that the appellate authority was correct in ordering eviction under Section 10(3)(a)(iii) of the Act.
5. I have heard the rival submissions.
6. The petition for eviction was filed under Section 10(3)(a)(iii) of the Act. The petition premises is situate at door Nos. 11 and 12, East Chitrai Street, Madurai. The tenant is a partnership firm and it is conducting a medical shop in the petition premises known as SP.S.S. Medical Hall. The owner of the premises is also a partnership firm. The landlord is carrying on its business at Nos. 90 to 92, East Avanimoola Street, Madurai. The petition premises is situate immediately behind the premises at Nos. 90 to 92, East Avanimoola Street. The landlord is carrying on business in Glass and Enamel wares business. The landlord is carrying on its business both in wholesale and retail in the abovesaid premises. At the time when the petition for eviction was filed, the landlord was having one of its godown for storing its goods at Melanapalayam Street. In the rent control proceedings, the landlord herein was directed to hand over the possession of the said premises. The landlord is also having its godown at two other places in Lakshminarayanapuram Agraharam. The respondent firm's manager was examined as P.W.I. According to him, possession of the godown at Melanapalayam street was already handed over to the owner of the premises. According to him, the goods stored at Melanapalayam street godown were brought back and stored in the premises at Avanimoola Street. Therefore there is shortage of place, for business purposes. The other two godowns at Lakshminarayanapuram are far away from the premises at Nos. 90 to 92, East Avanimoola Street. According to the landlord since the petition premises is very near to the place in which the landlord is carrying on its business, if the possession of the same is handed over to it, it would be of great advantage to it in carrying on its business. According to the landlord, it is now very difficult for them to bring their goods from the godowns at Lakshminarayanapuram Agraharam on account of the distance. Due to the distance the landlord is incurring a lot of damages to the goods, since the goods in which they are conducting their business is very delicate and they should be handled with care. Therefore, according to the landlord, the petition premises is a convenient place for them to use the same as their godown for the purpose of storing their goods so as to enable them to bring the goods easily from the godown to their business place. Further, it was submitted that if the goods arestored in the first floor and brought back to the ground floor for business purposes that would cause lot of damages to the goods. Therefore, the landlord required the petition premises for the purpose of its godown under Section 10(3)(a)(iii) of the Act. The tenant pointed out that admittedly the landlord is carrying on its business in a premises of its own at Nos. 90 to 92, East Avanimoola Street. Therefore, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. According to the tenant, the premises at Nos. 90 to 92, East Avanimoola Street, is having three floors. In the ground floor landlord is carrying on its business. The second floor is under its possession. The tenants in the first floor handed over the possession to the landlord. Hence, the landlord can utilise the first floor for its godown purposes. Therefore according to the tenant, there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act. Now it remains to be seen that the landlord is having a premises of its own at Nos. 90 to 92, East Avanimoola Street other than the petition premises. In the said premises the landlord is carrying on its business in glass and enamel wares. As per the provisions of Section 10(3)(a)(iii) of the Act, a landlord is not entitled to ask for eviction under this provision if he is in occupation of a non-residential premises of his own, where, he is doing his business. Admittedly, the landlord herein is the owner of the premises at Nos. 90 to 92, East Avanimoola Street wherein it is carrying on its business. Therefore, according to the tenant, even on this ground the petition for eviction is liable to be dismissed.
7. this aspect was neither brought to the notice of the authorities below nor it was considered by the authorities below. But the facts are already on record. In fact, it is the duty of the authorities below to apply the correct law on the facts available on record. But, the authorities below failed to do so. Since this question goes to the root of the matter relating to the jurisdiction of the authorities below it can be considered at this stage. 8. A similar question came up for consideration before this court in the case of M/s. Glamour Saree Museum v. The Tamil Nadu Handloom Weavers' Co-operative Society : (1969)2MLJ493 , wherein this Court held as under:
By the language employed in Section 10(3)(a)(iii) it is clear that if a landlord is carrying on a business in a non-residential premises of his own that will be a bar to his obtaining an order of eviction in respect of another premises. It does not appear to be the intention of the provision that the test is every business considered separately. It is not as if that if a landlord is having several businesses and is occupying a non-residential premises of his own in which he is carrying on one of the businesses, he is permitted by the provision to get possession of other non-residential premises of his own for carrying on every one of the other businesses.
So also, while considering the provisions of Section 10(3)(a)(iii) of the Act, a Division Bench of this court in the case of L.Easwaran Chettiar v. K.Subbarayan : AIR1971Mad163 , held as under: 'A landlord is interdicted from seeking a non-residential building of his own in occupation of a tenant if and when he is already in such a non-residential building of his own in which he is carrying on business. Considerations that the non-residential building occupied by the landlord is insufficient for the business he is carrying on is alien to the clear provisions of the law. The words 'a business' in Sub-clause (a)(iii) mean 'any business'. Convenience of the landlord or his desire to expand his business are irrelevant. He may merit an order of eviction but law as it stands precludes him from getting eviction of tenant.'
9. In this context, it is pertinent to note that a similar question came up for consideration before the Full Bench of the Andhra Pradesh High Court in the case of Smt. Udhya Bai v. Shankarlal A.I.R. 1968 A.P. 184, wherein the Full Bench of the Andhra Pradesh High Court held as under:
Under Section 10(3)(a)(iii) of the Act, a landlord in occupation of a non-residential building is not entitled, for carrying on his business or for commencing a business, to get back possession of another non-residential building in the occupation of a tenant; the bar under the section against securing eviction of the tenant of such non-residential building is absolute; suitability, convenience and sufficiency of the non-residential building already in the occupation of the landlord for carrying on the business of the landlord or to meet the bona fide need of any other member pf the family of the landlord, independent of and over and above the need of the landlord, are all irrelevant considerations in the context of construing the provisions in Section 10(3)(a)(iii) of the Act, which in clear terms, from seeking recovery of the non-residential building belonging to him in the occupation of the tenant.
Thus, it remains to be seen in the instant case also the landlord is having a business premises of its own at Nos. 90 to 92 East Avanimoola Street, in which the landlord is carrying on its own business. A plain reading of Section 10(3)(a)(iii) of the Act in the light of the ratio adumbrated in the abovesaid decisions would go to show that in the present case also there is no bona fide on the part of the landlord in requiring the petition premises under Section 10(3)(a)(iii) of the Act.
10. But the matter did not rest there. The Supreme Court stipulated further conditions in obtaining an order of eviction under Section 10(3)(a)(iii) of the Act in the following manner in the case of Hameedia Hardware Stores v. B. Mohan Lal Sowcar : [1988]3SCR384 .
By merely proving that the premises in question is a non-residential building and that the landlord or any member pf his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3)(a)(iii) appears get a tenant evicted, He must show in view of Clause (e) of Section 10(3) that his claim is bona fide. The word 'claim' means 'a demand for something as due' or 'to seek or ask for on the ground of right' etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against unreasonable evictions and for the purpose of making equitable distribution of building amongst persons who are in need of them in order to prove that his claim is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement or need.
11. In the instant case, it remains to be seen that the landlord is carrying on business in the ground floor at Nos. 90 to 92, East Avanimoola Street. The second floor is already in its possession. The auditor and the Chamber of Commerce are stated to have handed over the possession. Hence, the first floor is also under the possession of the landlord. The landlord was having three godowns for storing its goods. Possession of one godown at Melanappalayam was surrendered and the goods are now kept in its business premises. Two other godowns are at Lakshminarayanapuram Agraharam. According to the landlord the godowns at Lakshminarayanapuram are far away and in transit the goods are getting damaged and hence it wanted its godown in a nearby place to its business premises. The fact remains that first and second floor in the same premises where the landlord is carrying on its business are available. All the three floors in the said premises are of the same size. Now the landlord wanted the petition premises for godown purpose even though two floors in the same premises at Nos. 90 to 92, East Avanimoola Street are available. In such circumstances, the question is whether the requirement of the landlord is bona fide and honest. According to the landlord if the goods are stored in the first floor, and brought back to the ground floor for business purposes then there would be lot of damages to the goods. This kind of reasoning appears to be unacceptable, especially when the adjoining premises is under the occupation of a statutory tenant. No doubt it is not for the tenant to suggest as to which of the portion would be suited for the business of the landlord. But the point is under the given circumstances whether the requirement of the landlord of the petition premises under Section 10(3)(a)(iii) of the Act is bona fide when the other portions in the same premises are available to the landlord, which are also suitable for the landlord's godown purposes.
12. To my mind if the adjoining premises is nearer and advantageous to the ground floor of the premises Nos. 90 to 92, East Avanimoola Street then equally the first and second floor of the same premises are also nearer and advantageous to the ground floor. Thus, a close scrutiny of the facts arising in this case would go to show that the requirement of the landlord of the petition premises under Section 10(3)(a)(iii) of the Act appears to be not genuine. Even if the possession of the petition premises is not given that would not cause great hardship to the landlord. Therefore, even looking at this angle also the request of the landlord is not bona fide.
13. Another contention put forward by the learned Counsel for the landlord was that carrying on business is different from storing materials in a godown and the landlord required the petition premises for the purpose of using the same as godown. Therefore according to the learned Counsel the requirement of the petition premises is not for the purpose of running the business which the landlord is carrying on its own premises. Accordingly, since the petition premises is required for different purpose viz., for using the same as godown, the requirement is bona fide under Section 10(3)(a)(iii) of the Act. Further, according to the learned Counsel, the landlord is not having a premises of its own which it is using for godown purpose. In fact the landlord is using the rented premises for the purpose of godown. Therefore, according to the learned Counsel the landlord is entitled to an order of eviction under Section 10(3)(a)(iii) of the Act. The point is whether carrying on business in a particular commodity and storing the same commodity in a godown are two different kinds of businesses, as contended by the learned Counsel for the landlord. This contention cannot be accepted because storing the commodities in a godown and selling the same in the business premises of its own are different components of the same business and they are not two different kinds of businesses. Even assuming that the landlord is using the rented godown for one purpose and using the premises of its own for different purpose viz., for selling the goods, on this basis also eviction of the petition premises cannot be asked under Section 10(3)(a)(iii) of the Act, since eviction on this basis is not envisaged under the abovesaid provision of the Act. In order to support this line of argument, reliance was placed upon a decision of this court in Gulamali v. Howrah Casting Company Madras : (1978)1MLJ218 . According to the facts arising in this case:
The revision petitioners were owners of 25, Errabalu Chetty Street, Madras. The respondents were tenants in various portions of the building. The second petitioner was carrying on business in pipe and sluice valves under the name of International Sales Corporation' in door No. 3/13, Vanniar Street, Madras, being rented premises. The revision petitioners carried on a different business at No. 25, Errabalu Chetty Street, Madras. Stating that the second petitioner bona fide required the portions in the occupation of the respondent herein for his own business purposes, petitions for eviction under Section 10(3)(a)(iii) of Tamil Nadu Act XVIII of 1960, were filed.
On these facts, this Court held as under:
The legal position would boil down to this; did the landlord seek eviction of the tenant from a non-residential building belonging to him with reference to a business, which he was carrying on in a rented premises. If that is so, Section 10(3)(a)(iii) would apply albeit he was 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 was not a case of unreasonable eviction. It would be rather very reasonable for a landlord to have his business which was of a different nature run in the premises owned by him, rather than suffer the tenancy for all time to come merely because he happened to be a partner in some other business which was being carried on in a portion of a non-residential premises. In the case of Muslim co-sharers, it was not unknown that fractional shares were held by them and if the law was not to be interpreted in this manner, then it would affect the right of a landlord, which was certainly not the policy of the Act.
Thus according to the facts arising in the abovesaid decision the landlord was doing two different kinds of businesses in two different commodities and one such business was conducted in a rented premises. But the facts arising in the present case are different and therefore the abovesaid decision will not render any assistance to the respondent herein to establish its case.
14. Further, this Court took the abovesaid view in the case of Gulamali v. Howrah Casting Company Madras : (1978)1MLJ218 , after taking into consideration of a Division Bench decision of this Court rendered in C.R.P. No. 2343 of 1971 dated 2.5.1973 in the case of V.R. Jayaram v. N.B. Ramalingam. In the abovesaid decision, this Court was of the following view:
In other words, if a landlord is carrying on two different businesses, one may in jewellery, in a building of his own, and the other, may 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 case, the timber business of the landlord in the rented building satisfied the clause 'a business which is carrying on' occurring in the above section.' Again, this view was taken by the Division Bench of this Court in C.R.P. No. 2343 of 1971 by following the decision of another Division Bench of this court rendered in C.R.P. No. 4164 of 1950 in the case of Ramalinga Moopanar v. V.S. Narayana Iyer (1951) 1 M.L.J. 7. A close reading of the decision rendered by the Division Bench of this court in the case of Eswaran Chettiar v. Subbarayan : AIR1971Mad163 , and yet another decision rendered by another Division Bench of this Court in C.R.P. No. 2343 of 1971 dated 2.5.1973 in the case of V.R. Jayaraman v. N.B. Ramalingam, would go to show that the abovesaid two Division Benches of this court understood and expressed the meaning of the words 'a business' occurring in Section 10(3)(a)(iii) of the Act, in two different manners according to the facts arising in those cases. But anyhow we are not concerned with the same in the instant case. According to the facts arising in the present case, the landlord is not carrying on two different businesses in two different commodities as in those cases.
15. Therefore, in the present case, the landlord cannot ask for eviction of the petition premises for using the same as its godown under Section 10(3)(a)(iii) of the Act, since the landlord is carrying on its business in a premises of its own in the same town, where there is sufficient place available for the landlord to utilise the same as its godown. A plain reading of the order passed by the Rent Control Appellate Authority would go to show that it failed to appreciate the facts arising in this case in proper perspective.
16. Thus, on a careful consideration of the facts arising in this case, in the light of the judicial pronouncements cited supra, I hold that the Rent Control Appellate Authority was not correct in reversing the order passed by the Rent Controller in dismissing the petition. Accordingly, the order passed by the Rent Control Appellate Authority is set aside and that of the Rent Controller restored.
17. In the result, the civil revision petition is allowed. But there will be no order as to costs.