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2001 DIGILAW 630 (MAD)

S. Mohammed Jamal v. Smt. Sureka

2001-06-18

K.P.SIVASUBRAMANIAM

body2001
JUDGMENT: A petition for eviction was originally filed under Sec.10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and subsequently amended under Sec.10(3)(a)(ii) of the Act. 2. The respondent/ landlady contended that she is the owner of the premises at No.72. Sri Theyagaraja Road, T.Nagar, Chennai-600 017 and the respondent is a tenant under the petitioner carrying on tailoring business in the name and style of M/s.Radiant Tailors in shop No.4, at No.72, Sir Theyagaraya Road, T.Nagar, Chennai on a monthly rent of Rs.900 for non-residential purpose and the rental amount is paid according to English calendar month. According to the landlady, she requires the portion under the occupation of the respondent for providing a car shed to park a Maruti car and a Scooter belonging to her husband and also another scooter belonging to her son. According to the landlady, the said vehicles are now parked at the platform in front of the premises and the petitioner’s husband and son were penalised by the Traffic police authorities for unlawful parking of the vehicle. The portion occupied by the respondent was situated in the petition premises facing the road side and hence it was suitable for the petitioner to convert the same as a car shed for parking the vehicles belonging to her husband and son. Therefore, she requires the premises bona fide by way of additional accommodation to provide a car shed for parking the vehicles. A legal notice was sent to the respondent on 20.8.1990 informing about the bona fide requirement to use the portion under his occupation as a car shed for their own family and called upon the respondent to quit and deliver vacant possession of the shop. The respondent chose to send and untenable reply through his counsel on 27.8.1990 refusing to vacate the premises. Hence, the present revision petition. 3. In the counter filed by the respondent, the tenancy and the monthly rent of Rs.900 were admitted but the claim of the landlady for providing a car shed was disputed. The requirement was not bona fide and was the result of a concocted story lacking bona fide. Hence, the present revision petition. 3. In the counter filed by the respondent, the tenancy and the monthly rent of Rs.900 were admitted but the claim of the landlady for providing a car shed was disputed. The requirement was not bona fide and was the result of a concocted story lacking bona fide. It was astonishing to note that in a non-residential portion which is fetching a sum of Rs.900 per month together with a sum of Rs.50,000 received as rental advance and the premises was situate in a busy locality is being required by the petitioner for car parking only. This alone would prove the mala fide intention of the petitioner to evict the tenant some how or the other. The landlady had demanded exorbitant rent, which the tenant refused to pay. It is only on account of this reason, the present petition has been filed by the petitioner/ landlady. It is further stated that in the ground floor, there was enough space in which five cars could be parked at a stretch. Even otherwise, there is another shop which is more ideal since the same was attached with the residential portion occupied by the petitioner. The claim of the landlady was not maintainable in law. The tenant had established his business of tailoring shop after very great struggle and also had paid huge amount for the purpose of securing business and in fact a sum of Rs.50,000 was paid as advance without any interest. Therefore, vacating the premises would cause such inconvenience and hardship to the tenant/ respondent which will outweigh the hardship of the petitioner/ landlady. It is further stated that the claim that family members of the landlady were being penalised by the police authorities for unlawful parking is a self serving statement. There is no question of the petitioner being penalised by the traffic police authorities. As there was no bona fides in the demand made by the landlady, the petition was not maintainable. 4. Both the Rent Controller as well as the Appellate Authority allowed the petition for eviction holding that the landlady had made out a case for accommodation for parking the car belonging to their family as provided under Sec.10(3)(a)(ii) of the Act. Hence, this revision petition. 5. 4. Both the Rent Controller as well as the Appellate Authority allowed the petition for eviction holding that the landlady had made out a case for accommodation for parking the car belonging to their family as provided under Sec.10(3)(a)(ii) of the Act. Hence, this revision petition. 5. Mr.N.R. Chandran, learned senior counsel appearing for the tenant/ petitioner contends the following points: (a) The premises in question was a showroom type of shop and access to the same was possible only through the steps, since the room was on a higher level from the road. (b) Even before and after filing of Rent Control Original Petition, other portions fell vacant and let out for third parties and therefore the conduct of the petitioner in seeking to vacate the respondent was not bona fide. (c) There was sufficient space to park the car in the passage available between one wing and the other wing of the building and also sufficient space behind the building belonging to the landlady. 6. On the first issue, as regards the usability of the premises as a car shed, no doubt the photographs have clearly disclosed that the room in question is above the ground level with four steps leading to the premises. If the premises is to be used in a car shed, the steps have to be removed and a sloping flooring has to be put up. It is not disputed by the petitioner that such a sloping flooring could be put up to enable the cars to be driven into the premises. The contention of the learned senior counsel is that the premises cannot be used as a shed as it exists now and Sec.10(3)(a)(ii) should be read in a manner consistent with the objects of the Act namely to protect the tenant from unnecessary harassment. The building should be useful as on the date of the petition for the purpose of parking the vehicles. If the building requires alterations for being put to such use, then no relief could be granted to the landlady. 7. The building should be useful as on the date of the petition for the purpose of parking the vehicles. If the building requires alterations for being put to such use, then no relief could be granted to the landlady. 7. The expression for the purpose of keeping the vehicles or "adapted" for such use as used in Sec.10(3)(a)(ii) should be interpreted in strict sense namely either the premises was being used as a shed on the date of the petition and the landlady requires the same for the purpose of keeping his vehicle or that it has been adapted for such use. In other words, the premises was being used or adapted for such use on the date of the petition. 8. Sec.10(3)(a)(ii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 reads as follows: "In case it is a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use, if the landlord requires it for his own use or for the use of (any member of his family) and if he or (any member of his family) is not occupying any such building in the city, town or village concerned which is his own." 9. The learned senior counsel fairly brought to my notice a few decisions of this Court by the respective Judges sitting singly and would seek to persuade me to take a different view. In all these ruling, the learned Judge have held that the word "adapted" should be interpreted as meaning "adaptable". 10. In Jawantharaj Mehta v. Ramachandra Chetty, 1978 L.W. 65 (J.S.), Natesan, J. has held that in considering the scope of the Sub-clause 3(a)(ii), it cannot be contended that only a building which is already used for the purpose of keeping a vehicle could be claimed. The learned Judge did not agree with the contention that the expression "adapted" for such use should mean only that already, at the time of application, the premises was being used for keeping the vehicles. The learned Judge held that the word "adapted" should mean "suitable". The learned Judge further proceeded to hold that if the premises in question could be re-modelled or converted or made fit for the purpose of keeping a vehicle, it can be said to be "adapted" for such use. 11. The learned Judge held that the word "adapted" should mean "suitable". The learned Judge further proceeded to hold that if the premises in question could be re-modelled or converted or made fit for the purpose of keeping a vehicle, it can be said to be "adapted" for such use. 11. In M/s.Tuli Brothers v. C.R.Srinivasalu, (1985)2 M.L.J. 230, P.R. Gokulakrishnan, J. as he then was, followed the judgment cited above and held that the word "adapt" had a wider meaning. In that particular case, the learned Judge found that the disputed portion was fit to park a car and a motor cycle. 12. In Mrs.Thangam v. P.K.Madhavan, (1986)2 M.L.J. 291, S.Natarajan, J. as he then was, agreed with the said earlier rulings and held that the Appellate Authority was wrong in holding that the petitioner must prove that the shed is being used as a garage at present and further more the sub-clause does not extend to a building, which cannot be used without suitable adaptations being made. 13. In an earlier judgment reported in Panduranga Padayachi v. Dhanakoti Ammal and others, 1978 T.N.L.J. 54, Govindan Nair, C.J., has held that if the expression "adapted" was read as meaning that the premises must have already been used for the purpose of keeping the vehicle, it would render the provision redundant. The meaning to be given to the word "adapted’ will be "adaptable". 14. According to the learned senior counsel, the views expressed in the judgments referred to above are not consistent with the objects of the Act resulting in depriving the valuable rights of the tenant. It is further contended that the word "adapted" given its natural meaning would only mean that the premises should be currently used as a shed and it should have been suitable to be used as on the date of the petition. 15. In this context, the learned senior counsel refers to the judgment of the Supreme Court in Bolani Ores Limited v. State of Orissa, A.I.R. 1975 S.C. 17. In that case, the question which arose for consideration is whether Dumpers, Rockers and Tractors could be treated as Motor Vehicles so as to be made liable for taxation under the Mysore Motor Vehicles Taxation Act, 1957. Under Sec2(18) of the Motor vehicles Act, (1939) the expression “adapted” was used. In that case, the question which arose for consideration is whether Dumpers, Rockers and Tractors could be treated as Motor Vehicles so as to be made liable for taxation under the Mysore Motor Vehicles Taxation Act, 1957. Under Sec2(18) of the Motor vehicles Act, (1939) the expression “adapted” was used. Sec.2(18) of the Act is as follows: “Motor Vehicle means any mechanically propelled vehicle adapted for use upon roads whether the power of propultion is transmitted thereto from an external or internal source and includes a chasis to which a body has not been attached and a trailor, but does not include a vehicle running upon fixed rails or a vehicle of a special type adopted for use only in a factory or in any other enclosed premises”. 16. The Supreme Court after analysing the provisions and the type of use of each of the three vehicles had ultimately held that Dumpers and Rockers, though registerable under the Motor Vehicles Act, they were not taxable under the taxation Act. As regards tractors, it was held that they are neither registerable under the Motor Vehicles Act nor taxable under the Taxation Act. The distinction was based on the usability of the respective vehicles on the roads. 17. The endeavour on the part of the learned senior counsel is that the word “adapted” should be given a restricted meaning as held by the Supreme Court as suitable. According to him, the word “adapted” did not warrant a loose or wider meaning and hence the decisions to the contrary were not correct. 18. I find that it is not possible to give a restricted meaning to the word “adapted” following the well considered interpretation given by not less that four learned Judges of this Court separately in the context of Tamil Nadu Act 18 of 1960. It is unnecessary to repeat the reasonings given by the learned Judges in the context in which the word “adapted” was used. 19. As regards the judgment of the Supreme Court, relied on by the learned senior counsel, the interpretation was made in the context of Taxation Statute Act read with the provisions of the Motor Vehicles Act. The meaning given for a particular word in one statute cannot be applied automatically to the same word in another statute, or even as between different provisions under the very same Act. 20. The meaning given for a particular word in one statute cannot be applied automatically to the same word in another statute, or even as between different provisions under the very same Act. 20. In Gramaphone Company of India Limited v. Birendra Bahadur Pandey and others, (1984)2 S.C.C. 534 , the Supreme Court was confronted with the meaning of the word “import” under Sec.53 of the Copy Rights Act and held that it was not proper to have recourse to the meaning given for that word under Customs Act. It was also held that when there was enough materials under Copy Rights Act itself, it was needless to refer to the cases under Customs Act. 21. In K.Ramanathan v. State of Tamil Nadu, (1985)2 S.C.C. 116 , which arose out of Tamil Nadu Paddy (Restriction of Movement) Order 1982, the question arose as to whether the expression “regulating” occurring under Sec.3(2)(b) of the Essential Commodities Act could be given the same meaning as “prohibiting” in contra-distinction with the same expression incorporated under the very same Act. It was held that the rule of construction was fairly well recognised that a word may be used in two different sense in the same Section of an Act. 22. Therefore, I am unable to be guided by the meaning attributed to the word “adapted” in a different statute. Even going by the observations of the Supreme Court in Bolani Ores Limited v. State of Orissa, A.I.R. 1975 S.C. 17, to the word “adapted” the Supreme Court had ascribed the meaning “suitable for use” or “fit for use”. That being so, in the present case, the premises in question, if it is suitable for use or is fit for use, then, the landlady will be entitled to an order of eviction. 23. Therefore, I do not find any reason to deviate from the series of judgments rendered by this Court while interpreting the word “adapted” under Sec.10(3)(a)(ii). 24. The next objection relates to the circumstances that a similar shop fell vacant and that the landlady could have occupied that premises and that the attitude of the landlady proceeding against the petitioner was not bona fide. Reliance is placed on a judgment of the Supreme Court in Sri Balaji Krishna Hardware Stores v. V.Srinivasiah, A.I.R. 1998 S.C. 994. 24. The next objection relates to the circumstances that a similar shop fell vacant and that the landlady could have occupied that premises and that the attitude of the landlady proceeding against the petitioner was not bona fide. Reliance is placed on a judgment of the Supreme Court in Sri Balaji Krishna Hardware Stores v. V.Srinivasiah, A.I.R. 1998 S.C. 994. In that case, the landlord required the premises for business of his son and during the pendency of the proceedings, another shop premises behind the suit shop fell vacant and the same was given to the daughter-in-law of the landlord. The Supreme Court held that no explanation was given as to why the said portion was not found suitable for the business of his son. 25. Reliance is also placed on one of my judgments in C.R.P. No.2909 of 1996, dated 27.3.2000. It is needless to point out that as far as the question of some other premises belonging to the landlady falling vacant is concerned, either before or after filing of the R.C.O.P. the merits of each case has to be considered on the evidence and circumstances relating to each case. On this issue also, I do not find any materials to interfere with, having regard to the following facts and circumstances. 26. It is stated that the adjacent shop and another premises, R.K. Jewellers fell vacant. Firstly, the purpose for which the petitioner requires the premises is for parking the vehicles. It is for the landlady to choose as to which portion of the building would be suitable for the said use and for easy accessability from the road etc. She has chosen the premises in question since, according to her, it is on the end of the building. As regards R.K. Jewellers both the Courts below have dealt with that issue and rejected the objection on the ground that no such suggestion had been made to the witnesses on the side of the landlady. As regards the xerox shop both the Courts below have taken note of the evidence on the side of the landlady that there was no sufficient space. Sufficient space was required to park one car and two scooters. Therefore, I do not find any reason to interfere with such concurrent findings of fact. 27. As regards the xerox shop both the Courts below have taken note of the evidence on the side of the landlady that there was no sufficient space. Sufficient space was required to park one car and two scooters. Therefore, I do not find any reason to interfere with such concurrent findings of fact. 27. The next objection relates to the contention that there ws sufficient space to park the car in the open space within the property belonging to the respondent/ landlady. This submission has relevance to the narrow common passages. The passage is the access for ingress and egress to the backside. On both sides, shops are situate. On the backside, the socalled open space is nothing but a small common passage surrounded by small shops. The space also appears to be open to the sky as could be seen from the photograph. 28. One further contention was raised as regards the pleadings to the effect that there was no specific pleading to the effect that the landlady was not occupying another building. In this context, I am inclined to hold that there is no statutory compulsion on the part of the owner to specifically make such a declaration. Also, no binding ruling in this context was brought to my notice so as to uphold the same. 29. It is well settled that the pleadings in the rent control proceedings ought to be assessed in a practical manner and if there are allegations sufficient to highlight the necessity of the landowner to secure possession, the same should be sufficient. The respondent has stated that at present three vehicles are parked on the platform and the respondent was penalised by the traffic police authorities for unlawful parking. It is also pertinent to note that this objection regarding the pleading has neither been taken in the counter before the Rent Controller, nor before the appellate authority. Even in the grounds of appeal before the appellate authority, the said issue has not been raised. Nothing prevented the tenant from raising the objection at the appropriate stage or atleast to have confronted the witnesses on behalf of the landlady in the said context. Therefore, the petitioner cannot be allowed to raise this issue at the revisional stage. 30. In the result, there are no grounds to interfere with the concurrent findings arrived at by the Courts below. Therefore, the petitioner cannot be allowed to raise this issue at the revisional stage. 30. In the result, there are no grounds to interfere with the concurrent findings arrived at by the Courts below. The revision is liable to be dismissed and accordingly dismissed. No costs. C.M.P. No.547 of 1997 is dismissed.