V. Thanappa Chetty v. Arcot Govindaswami Naicker And Another

This is an application for issuing a writ of certiorari to quash the order of the Subordinate Judge, Chittoor, in C.M.A No. 41 of 1949.

The petitioner is the owner of shop No. 7/9 in Bazar Street, Chittoor. The respondent is his tenant and has been carrying on business in pulses in the said shop. In the same street, the petitioner has been carrying on a similar business in another shop. That shop is owned by one Kandappa Chetti and the petitioner is his tenant. Kandappa Chetti filed an application under the Madras Buildings (Lease and Rent Control) Act, 1949 (hereafter referred to as the Act) for evicting the petitioner. That application was dismissed. Subsequent to the dismissal of that application, the petitioner filed an application under S. 7 of Act XV of 1946 before the Rent Controller Chittoor, for evicting the respondent. The Rent Controller dismissed that application on the ground that the petitioner failed to establish that the respondent committed any act of waste or that he has been in arrears of rent. He filed an appeal to the Subordinate Judge of Chittoor. In appeal, the petitioner's right to evict was based upon the contention that he has no other non-residential building of his own or to the possession of which he is entitled. The learned Judge rejected his contention and confirmed the order of the Rent Controller. The present application is filed for issuing a writ of certiorari to quash that order.

The learned Counsel for the petitioner argued that the petitioner is in possession of the house of Kandappa Chetty by reason of the privilege conferred on him under the Act and not by reason of any title in him and therefore he would be entitled under the provisions of the Act for evicting the respondent from the premises. The question raised in this case turns upon the construction of S. 7(3) of the Act. S. 7(3) reads:

“(a) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of the building;

(i) in the case of a residential building, if he 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 the case of a non-residential building, if he 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 or to the possession of which he is entitled.”

It will be seen from the aforesaid provisions that in the case of a residential building, a landlord can evict a tenant if he is not occupying a residential building of his own whereas in the case of a non-residential building he can do so only if he is not in possession of a non-residential building of his own or if he is oat entitled to the possession of any 6th building. The antithesis is between the ownership of a building and a building to the possession of which he is entitled. To narrow the point further, is he entitled to the possession of a non-residential building. The dictionary meaning of the word “entitle” is to give a claim, right or title to. Can it be said that a person, who is in possession of a premises under the provisions of the Act, is a person, who is entitled to its possession. Tenant is defined under S. 2 (4) as follows:

“Tenant means any person by whom or on whose account rent is payable for a building and includes a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart stand or slaughter house or of rents for shops has been farmed out or leased by a Municipal Council or Local Board or the Corporation of Madras.”

The definition of the word “tenant” takes in persons, who are not strictly tenants under general law. The statute creates a statutory tenancy even in respect of persons continuing in possession after the termination of the tenancy in his favour. Landlord is defined under S. 2(3). The definition of landlord under the Act is comprehensive enough to take in persons, who are not strictly landlords in general law. The rights and liabilities inter se between the landlord and tenant so defined are regulated and governed by the provisions of the Act. S. 4 prescribes the mode of fixing fair rent. S. 5 enables the landlord to raise the fair rent only under certain circumstances mentioned therein. S. 6 precludes the landlord to claim or receive or stipulate for the payment of any premium or other like sum in addition to the fair rent. S. 7 prevents a landlord from evicting a tenant except in accordance with the provisions of the section. S. 8 prohibits the landlord from cutting or withholding any of the amenities enjoyed by the tenant. S. 11 controls the power of the landlord from converting a non-residential building into a residential building and vice versa. It will therefore be seen that the relationship between the landlord and tenant even in cases in which such relationship terminated under the provisions of the Transfer of Property Act, continues subject to the provisions of the Act. The rights of the tenants as well as the landlord are defined. The tenant under the Act has a right to possession unless and until he is evicted under the provisions of the Act. Under the provisions of the Act, a landlord will not be entitled to the possession of his non residential building, if he obtains an order for eviction against another tenant in respect of another non-residential building or if he is in possession of another nonresidential building as a tenant; for in either case he is entitled to possession of that premises. The words used in the section, viz. “to the possession of which he is entitled” are wide and I do not see any reason why the latter category should be excluded from the express words used which in their ordinary meaning take in that class.

The petitioner is a tenant of the non-residential building owned by Kandappa Chetty. It is said that the said Kandappa Chetty gave him notice to quit. But as aforesaid, his application to evict the petitioner under the provisions of the Act was dismissed. Whether his tenancy terminated under general law or not, he is entitled to be in possession under the Act.

I shall now proceed to consider the cases cited by the learned counsel for the petitioner in support of his argument. In In re Sutton Coldfield Grammar School(1), the facts are:

“The Charity Commissioners framed two schemes by which it was proposed to withdraw from that part of the funds of the Corporation which were applicable to educational purposes a sum equal to £. 15000 to be applied as part of the foundation of the Sutton Coldfield Grammar School.”

It was said that having regard to the provisions of 11th section of the Act of 1809, as amended by the 6th section of the Act of 1873, the scheme was open to objection for not preserving, or rather for abolishing or modifying, the privileges or educational advantages to which persons of a particular class of life were entitled. The Judicial Committee held that S. 11 protects only vested interests. They observed:

“It is — ‘Any privileges or educational advantages to which a particular class of persons or (as extended by the later Act) persons in a particular class of life—‘are entitled’ i.e, have a legal title. A person is not entitled simply because he has enjoyed, by the permission or the bounty of another, some benefit either for a longer or shorter period; and therefore the question is, whether the persons in this particular class of life are entitled to these educational advantages. Now, when we investigate the title, we shall find that the original charter gave no title at all to these particular persons, or persons in this particular class of life.”

Neither the facts of the case nor the observations quoted above are apposite to the present case. But the learned Counsel for the petitioner relied upon the observations and contended that the petitioner in the present case has no legal title but is permitted to continue in possession under what he called “the statutory bounty.” As I pointed out, under the statute, the petitioner has a right to continue in possession till he is evicted under the provisions of the Act. The following observations of the Federal Court in Kai Khushroo v. Bai Jerbai, are relied upon:

“With regard to the first part of the argument of the learned Counsel for the appellant, it may be pointed out that in cases of tenancies relating to dwelling houses to which the Kent Restriction Acts apply, the tenant may enjoy a statutory immunity from eviction even after the lease has expired.”

It was argued that a statutory immunity is different from a right to possession. But in my view a statutory immunity is not inconsistent with a tight to possession. The statutory immunity itself creates a right in him to continue in possession till he is evicted under the provisions of the Act. Their Lordships neither considered nor expressed the opinion that a tenant has no right to possession under the statute. Morrison v. Jacobs(2), relied upon by the learned Counsel has really no bearing on the question to be decided. There the learned Judges held that mere receipt of rent from a tenant, who continued to be in possession after the tenancy expired would not create a new contractual tenancy. Scott, L.J, pointed out that “where, in such circumstances, the landlord desires to claim possession of the dwelling house on the ground that he reasonably requires the dwelling house for his own occupation as a residence, pursuant to S. 3, Sub-S. 1, and para (h) of Sch. 1 to the Rent and Mortgage Interest Restrictions (Amendment) Act 1933, he need not before suing serve any notice to quit on the tenant.” The fact that a contractual tenancy expired and is not created afresh by the receipt of rent does not affect the question whether the tenant has a right to be in possession under a statutory tenancy till he is legally evicted.

The decision of Horwill, J., in Venkatasami Naicker v. Navaneelhakrishnd Chettiar(3), does not also afford any assistance in deciding the question raised in this case. There the plaintiff's predecessors in title brought the property to sale and purchased it in 1925. The auction purchaser applied for delivery in the same year. But the tenant in actual possession obstructed delivery of possession to the purchaser on the ground that the lease in his favour would continue for two more years. Symbolical delivery being declined, the application was dismissed and the plaintiff's predecessor-in-title took no further steps. In 1932 the plaintiff bought the property and filed the suit within 12 years from the date when the term of the tenancy expired. The learned Judge held that Art. 137 of the Limitation Act applied and that time would begin to run only from the date on which the plaintiff's predecessor-in-title was entitled to physical possession of the land, i.e, from the date when the term of the tenancy expired.

The learned Judge held having regard to the provisions of Arts. 136, 137 and 138 of the Limitation Act that possession referred to in Art. 137 is actual possession and not constructive or symbolical possession. I do not see any relevancy in the citation of this case. Further the petitioner in this case has certainly a right to physical possession and indeed is in possession. The judgment of Rajamannar, C.J, and Rajagopalan, J., in Kota Anandakrishna Chetty v. Messrs. M.K and Co., alias Mahomed Kasim and Co., is not of any help as the learned Judges expressly left open that question. Nor does the decision of Rajamannar, C.J, and Raghava Rao, J., in Muhammadunny v. Maleperakkal Unniri bear on the point raised, for in that case the learned Judges only held that notwithstanding the provisions of the Act, a suit for eviction would lie. The aforesaid decisions do not support the learned Counsel's contention before me.

I therefore hold that the petitioner has a right to continue in possession of the non-residential building owned by Kandappa Chetty till he is duly evicted under the provisions of the Act and therefore he is not entitled to evict the respondent.

The petition therefore fails and is dismissed with costs. Advocate's fee Rs. 100.

V.C.S