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A. Khan Mohammed v. P. Narayanan Nambiar & Others
Structured Summary of the Opinion
Factual and Procedural Background
The landlord is the petitioner in two civil revision petitions arising from an eviction proceeding under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (the Act). The subject property, bearing door No. 79, Thulasinga Naicken Street, Pudupet, Madras, contains about six non-residential shops (each about 10 ft. × 6 ft.), identified as shops A, B, C, D, E and F. The four respondents in C.R.P. 616 of 1983 and the sole respondent in C.R.P. 617 of 1983 occupy these shops respectively; it was stated in the petition that shop No. B was in the occupation of the petitioner's vendor.
The landlord purchased the property on 3rd November, 1980 and immediately thereafter filed the eviction petition alleging that the premises (a non-residential building) were needed for carrying on his own business. The Rent Controller granted relief in favour of the landlord; the lower appellate authority (the appellate court) reversed that decision. The landlord then sought revisional relief, raising two principal questions before the revising court.
Legal Issues Presented
- Whether, for an eviction claim under S. 10(3)(a)(iii) of the Act (relating to non-residential buildings), the landlord must prove a bona fide requirement to secure an eviction order.
- Whether the lower appellate authority was correct in holding that S. 10(3)(a)(iii) did not apply on the basis that the landlord had taken possession of shop B from his vendor after the sale deed (a question involving the appellate court's factual finding on possession).
Arguments of the Parties
Petitioner's Arguments
- The landlord's counsel argued that under S. 10(3)(a)(iii) the word "requires" (which appears in clause (i) dealing with residential buildings) is absent and therefore the element of proving strict bona fides is not required for eviction in respect of non-residential buildings under clause (iii).
- He contended that very little evidence is necessary to establish entitlement to eviction under S. 10(3)(a)(iii), and questioned the appellate authority's finding that the provision did not apply.
- The petitioner maintained that at the time of purchase the vendor remained in possession for about one year (as promised), and that the sale deed (Ex. P10) records that the vendor continued in possession and had not handed over possession; he thus asserted there was no evidence that the purchaser (landlord) had taken possession of shop B.
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M. Abdul Rahman v. S. Sadasivam, 97 L.W. 516 | Held that in respect of a claim under S. 10(3)(a)(iii) the Rent Controller has no jurisdiction to inquire into the bona fides of the landlord's requirement. | The court expressly agreed with this authority and followed its proposition that bona fides is not a relevant inquiry under clause (iii) of S. 10(3)(a). |
| Mahalakshmi Metal Industries v. K. Suseeladevi | Earlier decision relied upon by Ramanujam, J. to support the proposition that bona fides does not enter into a claim under S. 10(3)(a)(iii). | Referred to as an antecedent decision supporting the same legal principle; used to reinforce the conclusion that bona fides is not required under clause (iii). |
| Madurai Mills Ltd. v. Guruvammal, 1967-2 M.L.J. 286 = 80 L.W. 103 | Outlined circumstances in which a revisional authority may interfere with findings of fact (e.g., no material basis for the finding, consideration of irrelevant matter, perverse conclusions, or erroneous law applied). | The court applied this authority to hold that the lower appellate court's finding that the landlord had taken possession of shop B was unsupported by evidence and therefore a revisional interference was justified. |
Court's Reasoning and Analysis
The court proceeded in two parts corresponding to the two issues raised.
First, on statutory interpretation, the court compared S. 10(3)(a)(i) (residential buildings) and S. 10(3)(a)(iii) (non-residential buildings). Clause (i) expressly uses the word "requires" (for the landlord's own occupation or that of a family member), which the court read as importing the element of bona fide requirement. Clause (iii), by contrast, omits the word "requires" and instead focuses on whether the landlord (or a family member) is occupying for purposes of their business a non-residential building which is their own in the same locality. From this textual difference the court concluded that bona fide requirement is a relevant inquiry in clause (i) but not in clause (iii). The court found strong force in the petitioner's argument and expressed agreement with Ramanujam, J.'s decision in M. Abdul Rahman (which followed Mahalakshmi Metal Industries), holding that bona fides does not enter into the jurisdictional enquiry under S. 10(3)(a)(iii).
Second, on the appellate court's factual finding regarding possession of shop B, the revising court examined the evidence. The sale deed (Ex. P10) itself recorded that the vendor remained in possession of that portion and had not handed over possession. The landlord's evidence (as P.W. 1) consistently stated that the vendor wanted to remain in possession for about one year and was in possession when the eviction petition was filed. The respondents' witnesses (D.Ws 2–5) did not testify that the purchaser/landlord had taken possession; their brief testimony pertained only to a demand for higher rent. Against this evidentiary record the appellate court's finding that the landlord had taken possession was characterized as resting on presumption and assumption. Citing Madurai Mills Ltd., the court observed that a revisional authority may interfere with a finding of fact where there is no material basis or where the finding is perverse or based on irrelevant considerations. Applying that principle, the court held that the lower appellate court's conclusion on possession was without evidentiary foundation and therefore unsustainable.
The court also addressed a subsidiary argument: even if it were assumed that the landlord had taken legal possession of shop B, mere legal possession without evidence of actually carrying on business in that portion would not suffice to defeat S. 10(3)(a)(iii). What would disentitle the landlord under clause (iii) is proof that he is occupying for the purposes of his business a non-residential building of his own in the same locality. There was no evidence that the landlord was carrying on business in that portion; hence the appellate court's position would still be incorrect on that point.
Finally, the court evaluated the appellate court's findings on bona fide requirement and other inferences (e.g., alleged superiority of Harris Road over Thulasinga Naicken Street, failure to remodel premises before eviction, and small differences in area). The revising court held these reasons to be speculative, irrelevant, or perverse, noting for example that premises can be remodeled only after tenants are evicted and that the landlord is entitled to choose the location he prefers for his business.
Holding and Implications
Both civil revision petitions are allowed. The revising court set aside the order of the lower appellate court and restored the order made by the Rent Controller.
Direct consequences and ancillary directions given by the court (as stated in the opinion):
- The Rent Controller's order in favour of the landlord is restored and that order will stand in place of the appellate court's order.
- There will be an order as to costs in both petitions (the opinion states there will be an order as to costs; the precise quantification is not provided in the text).
- The respondents were given an opportunity to avoid execution proceedings: upon each respondent providing an unconditional undertaking on or before 21st August, 1986 to vacate the premises without forcing the landlord to seek execution, they were permitted time to vacate up to 1st June, 1987. If the undertaking was not filed in time, the request for time would be rejected.
Broader implications: The opinion applies and reaffirms existing precedent interpreting S. 10(3)(a)(iii) to exclude a bona fides inquiry; it does not purport to lay down a novel rule of law beyond the application and confirmation of previously decided authorities mentioned in the opinion.
Opinion signed: VCS.
1. The landlord is the petitioner in both the petitions. He filed a petition for eviction of the respondents under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (Tamil Nadu Act 18 of 1960) (hereinafter referred to as the Act) on the ground that the premises which is a non-residential building is needed for the purpose of carrying on his own business. The property is bearing door No. 79, Thulasinga Naicken St, Pudupet, Madras 2. It is stated that there are about six shops each measuring 10 ft. × 6 ft. The four respondents in C.R.P 616 of 1983 and the sole respondent in C.R.P 617 of 1983 are in occupation of shops Nos. A, B, C, D, E, F, respectively, and it is stated in the petition that shop No. B is in the occupation of the petitioner's vendor. The property itself was purchased by the landlord on 3rd November, 1980 and immediately thereafter the petition was filed for eviction.
2. Two interesting questions have been raised in these petitions. The first question was whether the landlord has to prove his bona fide requirement in order to establish his right to have an order of eviction in his favour under S. 10(3)(a)(iii) of the Act. The learned counsel for the petitioner apart from questioning the finding of the appellate authority on the question of bona fides, has also contended that in a case falling under S. 10(3)(a)(iii), the landlord need not prove strict bona fides and very little evidence relating to his entitlement for an order of eviction is needed.
3. S. 10(3)(a)(i) and S. 10(3)(a)(iii) may now be usefully quoted. S. 10(3)(a)(i) reads as follows:—
S. 10(3)(a)(i) “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 or for the occupation of any member of his family and if he or any member of his family is not occupying a residential building of his own in the city, town or village concerned.”
S. 10(3)(a)(iii) reads follows:—
S. 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—
(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 his own.”
The learned counsel for the petitioner laid strong emphasis on the absence of the words ‘landlord requires’ in clause (iii) and submitted that it clearly shows that the landlord need not show any bona fides for getting an order of eviction under S. 10(3)(a)(iii). There is great force in this argument of the learned counsel. The word ‘requires’ in clause (i) brings in the element of bona fides. ‘Requires’ there means that the landlord really required and in other words, bona fide requires. Whereas for the purpose of getting an order under S. 10(3)(a)(iii), the landlord has to prove only that he is not owning a building of his own for the purpose of carrying on his business, if he establishes that he is carrying on business in a rented building, then he is entitled to an order of eviction under S. 10(3)(a)(iii).
3. A similar argument was considered by Ramanujam, J. in M. Abdul Rahman v. S. Sadasivam . 97 L.W 516. In that decision, Ramanujam, J. following the earlier decision of this Court in Mahalakshmi Metal Industries v. K. Suseeladevi,2 held that in respect of a claim made under S. 10(3)(a)(iii), the Rent Centroller has no jurisdiction to go into the question whether the requirement of the landlord is bona fide or not. I am in entire agreement with the view expressed by the learned Judge. The question of bona fides does not enter into the picture when we consider a case falling under S. 10(3)(a)(iii) of the Act.
4. The second point urged by the learned counsel for the petitioner is that the finding of the appellate authority that the provisions of S. 10(3)(a)(iii), is not applicable is not correct. The appellate authority differing from the Rent Controller held that the landlord has taken possession of shop B from his vendor after the sale deed. First of all, though this is a finding on a question of fact, I am unable to agree with the same as there is absolutely no evidence. As held by this Court in Madurai Mills Ltd. v. Guruvammal . 1967-2-M.L.J 286=80 L.W 103 a revisional authority can interfere with a finding of fact also if there is no other material on which such a finding could be based or, the finding has been reached by a consideration of irrelevant or inadmissible matter, or it is so perverse that no reasonable person could have reached that conclusion or the finding had been reached by an erroneous understanding of the law applicable to the particular matter.
5. In this case, there is absolutely no evidence that the landlord is in possession of B shop. It was his case that at the time he purchased the property, the vendor wanted to remain in possession of the same for about one year promising to vacate the same after that period. That was his consistent case. He also stated that the vendor was in possession even at the time when the eviction petition was filed. Ex. P10 sale deed also mentions that the vendor is in possession of that portion of the property and had not handed over possession of the same. In spite of his evidence, without any iota of any other evidence, in this case, simply on presumption and assumption that a purchaser should have taken possession of the property and would not have allowed the vendor to remain in possession, the lower appellate court has given a finding differing from the trial Court that the landlord had taken possession of that portion of the property. I have gone through the evidence of the landlord as P.W 1. The learned counsel for the respondents was not able to rely on a single sentence suggesting that the purchaser had taken possession of the property. The respondents have given evidence as D.Ws 2, 3, 4 and 5. But none of them have stated about possession of this portion by the landlord. Each one of them had stated one point, that is, that the landlord wanted higher rent. They were not willing to pay the sum claimed by the landlord and therefore he has filed this petition. In fact, the evidence of the five persons does not run even to two pages. Their evidence is either in one sentence or two sentences and that relates to the demand for higher rent. In the face of this evidence, there could be no doubt that it has not been shown that the landlord is in occupation of that portion of the building which is said to be in the occupation of the vendor.
6. On an interpretation of S. 10(3)(a)(iii) also, I am unable to agree that even on the assumption that the landlord had taken possession of the B shop, he could not invoke the provisions of S. 10(3)(a)(iii) of the Act. What is to be proved for the purpose of disentitling the landlord when he states that he is not in possession of any property of his own for the purpose of carrying on his business is that he is actually occupying for the purpose of business a property of his own. Technically, even if it is assumed that he is in legal possession of that portion of the property which is claimed by the landlord to be in the possession of the vendor, still he cannot be considered as occupying for the purpose of his business a property of his own. As already stated, there is no evidence that the landlord is carrying on any business in that portion of the property. If only he is carrying on business in a portion of the property and he wants for the purpose of his business the rest of the property, then S. 10(3)(a)(iii) would apply and not to a case where he was not carrying on in any portion of the property a business of his own, though a portion of the property is kept by him as vacant and therefore he is entitled to rely on S. 10(3)(iii) of the Act.
7. I may also state that though on the question of bona fide requirement the lower appellate court has given a finding that the landlord has not proved his bona fide requirement, I am of the view that finding is perverse. Actually, even on the question of bona fide requirement there is absolutely no evidence contrary to what the petitioner has stated in his evidence. The learned appellate authority seems to have simply proceeded on some assumptions and presumptions and had drawn inferences which are wild guesses. He had stated first that the petitioner is carrying on business in Harris Road, Pudupet, which is a popular place and that no one would like to shift the business from that road to any other place. This is a case where the landlord wanted to shift from that place and come to his own place for business. When a landlord requires his own property for the purpose of carrying on his business, especially when he is carrying on such business in a rented premises, such a requirement cannot be considered as not bona fide merely on the ground that the other place is better for carrying on the business than the present one which he seeks. It is for the landlord to decide which place is beneficial for him to carry on his business. It is also not correct to state factually that Harris Road is more popular than Thulasing Naicken Street. Thulasinga Naicken Street runs perpendicular to Harris Road and there is evidence to show that the landlord's property is only about 100 yards from the place where he is now carrying on business in Harris Road.
8. It is also stated by the lower appellate authority that the landlord has not taken any step to after the structure of the building or to convert, all the five shops as a single premises in support of its finding against the bona fide requirement of the landlord. I do not know how this reason could be put forward by the lower appellate court because it is only after eviction of the tenants, the landlord could remodel the premises for the purpose of his busines and he could not remodel the premises before the eviction itself. The lower appellate Court has also stated that the area now in the occupation of the landlord is forty sq. ft. more than the area that is now needed for his own occupation. As against 360 sq. ft. and 400 sq. ft. I do not think that there is any appreciable difference, especially when the petitioner wants to occupy his own premises instead of paying rent to a third party and carry on business in a rented place. The other reasons given by the lower appellate Court are also irrelevant for the purpose of finding out the bona fide requirement of the landlord. In the circumstances, even the finding of the lower appellate Court on the question of bona fide requirement of the landlord is perverse and could not be accepted.
9. In the result, both the civil revision petitions are allowed, the order of the lower appellate Court is set aside and that of the Rent Controller is restored and there will be an order as to costs in both the petitioners.
10. Learned counsel for the respondents prays for time to vacate the premises. On each of the respondents herein giving an unconditional undertaking on or before 21st August, 1986 to vacate the premises without driving the landlord to have recourse in execution proceedings, the respondents will have time to vacate the premises till 1st June, 1987. If undertaking is not filed in time the request will stand rejected.
VCS.
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