(Delivered by Veeraswami, C J.)
The State Government by an order dated 3rd March, 1967, made under S 29 of the Madras Building (Lease and Rent Control) Act, 1960, exempted the portion under tenancy in premises No. 176/2 in Anna Pillai Street, George Town, Madras, from the provisions of S. 10. The appellant, who is the tenant, filed his objections stating inter alia that the respondent Landlord was but a peojari and was not carrying on a business for which he could bona fide require the premises for his occupation. With reference to that the impugned order says:
“The Government are satisfied that the claim of the landlord that he required the shop portion in the occupatien of the tenant for starting and running a business of his own is bona fide. But the landlord is yet to commence the business.”
On that view, the order proceeded on the basis that the landlord had no remedy under the provisions of the Act and exercise of the powers under S. 29 was called for. The appellant unsuccessfully pursued the matter before the Government by means of what he called a revision petition which was eventually dismissed on 28th December, 1968. On 24th January, 1969 ho moved this Court under Art. 226 of the Constitution for quashing the exemption. Alagiriswami, J., dismissed it on the ground that it was belated.
We agree with the appellant that the ground on which the writ petition was dismissed cannot be sustained. The appellant was until the end of December, 1968 pursuing, and we should think bona fide, the matter before the State Government. Then, when he was unsuccesful, he promptly resorted to this Court. We are clearly of opinion that, in the circumstances, there was no delay, and, if there was, it should have been condoned.
In the circumstances, we thought it best that we should ourselves deal with the merits of the appellant's contention againt the validity of the exemption. It is strenuously pressed upon us for the appellant that the respondent landlord had a remedy under the provisions of the Act so that the exemption was without jurisdiction. It is now well settled that the remedy by way of exemption under S. 29 is not a substitute for remedities available to a landlord for eviction under the Act. If he asks for eviction under the provisions of the Act, there could certainly be no occasion for the State Goverment to exercise its powers under S. 29. The two powers are mutually exclusive. To that extent the appellant is right.
But the point is whether any remedy was avilable to the landlord under S. 10. As we mentioned, it was urged before the Government as well as before us, that the landlord, being a poojari, did not and was not carrying on a business. The finding in the impugned order is also that he Was not actually carrying on the business, and, in fact, he had yet to commence the business. In such circumstances, could the landlord have resorted to the remedies under S. 10 ? Sub-Cl. (iii) of Cl. (a) of Sub-S. (3) of that section speaks of:
“ if the landlord or his son is not occupying for purposes of a business which he or his son is carrying on.”
At first sight the impression the words give, is that actually carrying on business, is a condition. That is how Basheer Ahmed Sayeed, J., read them in C.R.P No. 137 of 1965. He observed:
“ As a matter of fact it seems to me that the intention is to give this right of eviction only to such of the landlord as are actually carring on business aad who may require their own non-residential building in that connection and not to others who might have had a business or who might think of starting a future business.”
If this view is accepted, nothing could be said against the validity of the exemption in question but, subsequently, at least three single Judges of this Court were not prepared to place that literal construction, but, at the same time, they did not go to the full length of saying that, short of any tangible concerete indication of commencement of a business, mere intention to carry on business will enable the landlord to resort to section 10 (3) (a) (iii) Ramaswami, J., in Civil Revision Petition No. 1891 of 1956 held that a preparation to do business would suffice to enable the landlord to invoke that provision. Panchapakesa Ayyar, J., in Nataroja Achari v. Balasubramaniam 19572 M.L.J 492., and Balasubramania Iyer C.J in Ramaswamy Pillai v. Karmega Thevar 1964 2 M.L.J 84., more or less subscribed to that view.
On a careful consideration of the language employed by the section and particulary the words we have extracted and also the view of the several single Judges, we are of the view that while the literal construction placed by Basbeer Ahmed Sayeed, J., does not with due respect, commend itself to as, the other view appears to be reasonable. We think so because “carrying on a business” may consist of a series of steps, and, even if one step it 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. It follows, therefore, that the State Government was right in proceeding upon the basis that the landlord was yet to commence the business and, therefore, he could not have made use of section 10 (3) (a) (iii). The exemption order was, there-' fore, competent and does not suffer from any infirmity.
Counsel for the appellant made an impassioned appeal to us that his client had been in the premises for many years and that he had invested large funds in his business and it would be a great hardship if he was evicted. But that in the particular circumstances of the exemption, may not be relevant. After all, what the tenant is entitled to is a statutory protection subject to the provisions of the statue, and, the Act, in our opinion, should be administered in such a way that it maintins balance between landlords and tenants, and, in cases of hardshlpt it is relieved, whereever it lies. In (1964) 2 M.L.J 89. this case the exemption was as we have already mentioned, grounded on the bonafide requirement of the landlord. It was suggested for the appellant that the landlord being only a poojari there was no bona fide in his claim that he required the premises for carrying on his business. We do not think that we can sit in judgment over the finding in this respect as in an appeal. In exercing the powers under section 29, it was open for the Authority to go into the question of bonafide. There is notbing unreasonable or perverse about the finding on the question of bonafide.
The appeal is dismissed with costs. Counsel's fee Rs. 100.
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