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1994 DIGILAW 939 (MAD)

Kairunnissa Begum v. Abdul Razack

1994-11-11

THANIKKACHALAM

body1994
Judgment : Landlady is the petitioner herein. She filed a petition for eviction against the tenant under Sec.10(3) (a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. as amended by Act 23 of 1973 (hereinafter referred to as ‘the Act’). The tenant is in occupation of the petition premises on a monthly rent of Rs.380. The petition premises is a non-residential one. According to, the landlady she requires the petition premises for the purpose of conducting the business by her third son, who failed in his B.Sc. examination. He wanted to start his business in the petition premises in selling electrical goods and electrical fittings, etc. The landlady has made all arrangements for starting the said business in the petition premises. The landlady is not having any other nonresidential premises of her own in Vellore town. Therefore she required bona fide the petition premises for the business of her son under Sec.10(3) (a) (iii) of the Act. She issued a notice to the tenant and the tenant sent a reply. According to the tenant he is doing his business in the petition premises even prior to the purchase by the present landlady. The landlady is having several premises of her own in Vellore town and, therefore, according to the tenant, her requirement is not bona fide. The tenant stated that the landlady required a sum of Rs.5,000 by way of pagadi. Since the tenant refused to pay the said sum, the landlady came forward with the present petition. The tenant submitted that the landlady’s son is not doing any business and no arrangement was made for conducting business as alleged by the landlady. It was, therefore, submitted that the requirement of the landlady is not bona fide under Sec. 10(3) (a)(iii) of the Act. 2. Mohamed Iqbal was examined as P.W.I and the tenant examined himself as R.W.I. The landlady filed two documents and the tenant filed thirteen documents. Considering the facts arising in this case, the Rent Controller held that the landlady failed to establish her bona fide in requiring the petition premises under Sec.l0(3)(a)(iii) of the Act, and, accordingly, dismissed the petition for eviction. On appeal, the Rent Control Appellate Authority, confirmed the order of the Rent Controller. It is against that order, the landlady is in revision before this Court. .3. On appeal, the Rent Control Appellate Authority, confirmed the order of the Rent Controller. It is against that order, the landlady is in revision before this Court. .3. Learned counsel appearing for the petitioner submitted as under: The landlady purchased the petitioner premises. The landlady requires the petition premises for the purpose of conducting business by her third son, who failed in B.Sc. examination. The tenant is doing business in electrical goods and hardware. The landlady has made preparations for starting business for her third son. Unless possession of the petition premises is given to her, she cannot get licence to start the business. In a business like this elaborate preparation is not necessary and she is having financial status. That would be enough to show that she can establish business for her third son. It was further submitted that her family is business family and, therefore, she wanted the petition premises for the business of her son. The landlady is not having any other non-residential premises of her own in Vellore Town. Therefore, according to the landlady, she established her bona fide in requiring the petition premises under Sec. 10(3) (a)(iii) of the Act. .4. On the other hand, learned counsel appearing for the respondent submitted as under: The tenant is in occupation of the petition premises and doing business in electrical goods and hardware. The landlady is having several premises of her own in Vellore town. The landlady has not made any preparation for starting business for her son. Her son is not doing any business. Mere intention or desire to start a business is not sufficient to ask for possession under Sec.10(3) (a)(iii) of the Act. The only document filed by the landlady would go to show that she executed a letter in which she has stated that she has no objection for her son to carry on business in the petition premises. No licence was obtained for starting the business. If the tenant is vacated that would cause great hardship to him. It was therefore submitted at the authorities below concurrently came to the conclusion that there is no bona fide on the part of the landlady in requiring the petition premises under Sec.10(3) (a)(iii) of the Act. Since the findings arrived at by the authorities below are concurrent, no interference is called for. 5. I have heard the rival contentions. 6. It was therefore submitted at the authorities below concurrently came to the conclusion that there is no bona fide on the part of the landlady in requiring the petition premises under Sec.10(3) (a)(iii) of the Act. Since the findings arrived at by the authorities below are concurrent, no interference is called for. 5. I have heard the rival contentions. 6. The landlady purchased the petition premises. She now requires the petition premises for starting business for her third son. The tenant is carrying on business in electrical goods and hardware in the petition premises. According to the tenant, the landlady is having several non-residential premises in Vellore town. But no evidence was produced to substantiate this version. The tenant further stated that the landlady demanded pagadi from the tenant and since the tenant refused to pay the same, she came forward with the petition for eviction. For this version also there is no evidence produced on the side of the tenant. The landlady required the petition premises for the purpose of her third son’s business. She filed Ex.P-2, dated 28. 1989, a letter written by the landlady stating that she has no objection for her son to start the business in the petition premises. The said document was after the filing of the petition. Admittedly no licence was obtained by the landlady for starting this business. According to the landlady unless possession is given, it is not possible for her to obtain licence. The landlady further submitted that her family is a business family and she has made preparations for starting business in the petition premises. Admittedly, landlady’s son is not carrying on any business on the date when the petition was filed. No application was made for obtaining licence to carry on business. It is well settled that mere intention or desire to start a business is not sufficient for obtaining possession under Sec.10(3) (a) (iii) of the Act. The landlady must prove that she has taken atleast one step in furtherance of starting of the business. That is also not present in the instant case. According to the landlady, the nature of the business is such that no preparation need be made for the purpose of starting the business. The nature of the business which her son is going to start is neither a petty pawn shop nor a business for selling condiments prepared in their own house. According to the landlady, the nature of the business is such that no preparation need be made for the purpose of starting the business. The nature of the business which her son is going to start is neither a petty pawn shop nor a business for selling condiments prepared in their own house. 7. In the case of Hameediya Hardware Stores v. Mohan Lal Sowcar, (1988)2 L.W. 1 (S.C.), the Supreme Court held as under: “If the requirement of claim being ‘bona fide’ as contained in Sec.l0(3)(e) is construed to mean that genuineness of the need of the landlord for the non-residential building is not to be considered and the circumstance that the landlord on the date of making the application is factually carrying on business and has no non-residential building of his own in his occupation in the city, town or village concerned is to be construed sufficient to make his claim bona fide, the tenancy of no non-residential building will be secured. It will be preposterous to attribute such an intention to the legislature. Such a contingency should be avoided as it would be against the very object of the Act itself. The need of the landlord should be genuine. That is that object of enacting clause (e) of Sec.10(3) of the Act. When once we reach the above ci/...!vcion it is not enough that the landlord should merely desire to use or occupy the premises. What is necessary is that he should bona fide need them for his own use and occupation or for occupation by any of the members of his family.” 8. According to the facts arising in Ruth Margaret Gonsalves v. K.T.H. Presses by its Proprietor, Kumar, 100 L.W. 258, the landlady required the petition for her unemployed son to carry on business in selling condiments and pickles made in her own house. While considering this aspect, this Court held as under: “It is then contended that there is no evidence to show that the landlady was carrying on any business. On a review of the evidence, it appears that the appellate authority had clearly misdirected himself when be allowed himself to be wholly influenced by the use of the word” busi-ness’. While considering this aspect, this Court held as under: “It is then contended that there is no evidence to show that the landlady was carrying on any business. On a review of the evidence, it appears that the appellate authority had clearly misdirected himself when be allowed himself to be wholly influenced by the use of the word” busi-ness’. It was never the claim of the landlady that she was carrying on any business on a large scale which would necessitate maintenance of any accounts or vouchers which could be produced in court. It is difficult to see what documentary evidence the appellate authority expected when facts showed that an old lady was carrying on some sort of activities of preparing pickles and condiments for selling to persons who are known to her because that is her evidence. Though strictly in economic terms, this might be called “business” which is really an activity to raise some money and in a case where especially no employees are involved and where the so-called production is not of a large scale, it is difficult to see how the activity could be subjected to scrutiny on the basis of absence of vouchers or correspondence. It was not the case of the landlady that she was making bulk purchases of any raw material in respect of which any correspondence would be there. The finding recorded by the Appellate Authority is, in my view, clearly vitiated because of the erroneous approach to the question of the nature of the activity which the landlady was claiming to be carrying out. Her statement shows that she was doing business in home made curry powder, jam and pickles. She has also stated in cross-examination “ people known to me are purchasing from me. I am not issuing any bills.” Such activity for making a small money is well known where women without sufficient source of income try to make some money by making small things at house and selling them to their acquaintance or to persons known to them. Strictly speaking, therefore, any insistence on evidence in the form of bills or vouchers in regard to such an activity is not justified. “ 9. Strictly speaking, therefore, any insistence on evidence in the form of bills or vouchers in regard to such an activity is not justified. “ 9. In the case of B. S. Ramamoorthi v. O. G. Paramatha-chari, (1989)1 L. W. 102, while considering the petition filed under Sec.l0(3)(c) of the Act, this Court held as under: ”It is found on the evidence that the additional accommodation is required for the purpose of manufacturing and repairing shoes as an adjunct to the business of running a shoe mart which was already in existence. The activity of manufacturing and repairing shoes is a fresh activity which has to be undertaken by the landlord as part of the business which he is already conducting. In order to have the fresh activity, preparations could not be made earlier by the landlord unless he had the prospect of obtaining possession from the tenant of the premises in the near future. It is well known that Rent Control litigations take a long period in these days and no landlord can predict as to when he would get possession of the premises occupied by the tenant." 10. In Krishnasami Naicker v. C. Veerabahu Pillai, 1990 T.L.N.J. 138, this Court while considering the provisions of Sec.10(3)(a)(iii) of the Act pointed out that, "for commission business, ordinarily, no elaborate preparations are necessary for the setting up or the establishment of such a business." But in the present case, the nature of the business for which the ‘landlady is requiring the possession of the petition premises is not like doing a commission business or manufacturing and repairing of shoes or selling condiments. Moreover, decision in each case depends upon its own facts. Therefore, in order to state that no elaborate arrangement is necessary to start a new business, it must be shown that the business that is going to be started is a petty business and it does not require elaborate arrangements. Starting a business in selling electrical goods and electrical fittings cannot be construed to be a petty business for which possession of funds alone would not be sufficient to show that the landlady has taken a step in furtherance | of starting a new business. 11. Starting a business in selling electrical goods and electrical fittings cannot be construed to be a petty business for which possession of funds alone would not be sufficient to show that the landlady has taken a step in furtherance | of starting a new business. 11. Further in the present case both the authorities below considering the facts arising in this case concurrently came to the conclusion that the requirement of the landlady is not bona fide under Sec.10(3) (a)(iii) of the Act. Such concurrent conclusions are based upon findings of facts. When both the authorities below concurrently gave a finding that there is no bona fide on the part of the landlady in requiring the petition premises under Sec. 10(3) (a)(iii) of the Act, it is not possible for this Court to reappraise the facts once again and come to a different conclusion. Accordingly, I consider that there is no merit in this revision. 12. In the result, the revision is dismissed. No costs.