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2012 DIGILAW 2601 (MAD)

V. Koodalingappan v. P. L. Prema

2012-06-22

G.RAJASURIA

body2012
JUDGMENT:- 1. Animadverting upon the judgment and decree dated 20.04.2012 passed by the learned VI Judge (VII Judge,I/c), Court of Small Causes, Chennai in R.C.A.No.29 of 2010 in confirming the order and decree dated 03.12.2009 passed by the learned XII Judge, Court of Small Causes, Chennai in RCOP No.424 of 2009, this civil revision petition has been focussed by the tenant. 2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the Rent Controller. 3. A summation and summarisation of the germane facts, in a few broad strokes could be encapsulated thus: (i) The respondent herein/the landlady preferred RCOP No.424 of 2009 to get evicted the revision petitioner/tenant on the ground of willful default in paying the rent and also on the ground of owner's occupation. (ii) The matterwas contested. (iii) During enquiry, on the side of the landlord one P.R. Palaniappan was examined and Exs.P1 to P5 were marked. On the side of the respondent/tenant, no one was examined and Exs.B1 and B2 were marked. (iv) Ultimately, the Rent controller dismissed the prayer for eviction on the ground of willful default, but ordered eviction of the tenant on the ground of personal occupation. (v) Aggrieved by the order of the Rent Controller, the tenant preferred appeal before the Appellate Authority for nothing but to be dismissed by the Appellate Authority confirming the order passed by the Rent Controller. (vi) Challenging and impugning the orders of both the courts below, this revision has been filed by the tenant on various grounds. 4. Heard both sides. 5. The learned counsel for the revision petitioner/tenant placing reliance on the grounds of revision would put forth and set forth his arguments thus: (i) There is nothing to indicate that the landlady is carrying on business or has done anything solid in the process of starting a business. (ii) There is also nothing to display that the landlady proved her bona fide requirement for personal occupation also. (iii) But, both the courts below, ignoring the ingredients as contemplated under Section 10(3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, simply ordered eviction, warranting interference in this revision. 6. (ii) There is also nothing to display that the landlady proved her bona fide requirement for personal occupation also. (iii) But, both the courts below, ignoring the ingredients as contemplated under Section 10(3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, simply ordered eviction, warranting interference in this revision. 6. Per contra, in a bid to torpedo and pulverise the arguments as put forth on the side of the tenant, the learned counsel for the landlady would pilot his argument, which could tersely and briefly be set out thus: (a) The fact remains that one Rajeswari was running a medical shop in the nearby building in the vicinity wherein the landlady and her husband were working and they gained experience in medical shop business. Now then, the said Rajeswari faced eviction order and that the landlady and her husband are out of employment and hence they applied for obtaining licence to run the medical shop in the demised premises after evicting the tenant herein. (b) Both the courts below taking into account the pros and cons of the matter and also the bona fide requirement of the landlady ordered eviction, warranting no interference in this revision. 7. The points for consideration are as under: 1. Whether both the courts below without any evidence on record arrived at the conclusion that the landlady is in bona fide requirement of the demised premises? 2. Whether there is any perversity or illegality in the orders passed by both the courts below? 8. Ex.P5 is the application form submitted by the land lady for obtaining licence to run a medical shop. When this court raised the query as to why so far the landlady has not obtained the licence for running the medical shop in her name, the learned counsel for the landlady would appropriately and appositely draw the attention of this court to Rule 64 of the Drugs and Cosmetics Act, 1940, which is extracted here under for ready reference: 64. Conditions to be satisfied before a licence in (Form 20, 20-B, 20-F, 20-G, 21 or 21-B) is granted (or renewed) – (1) A licence in Form 20, 20-B, 20-F, 20-G, 21 or 21-B) (to sell, stock, exhibit or offer for sale or distribute) drugs shall not be granted (or renewed) to any person unless the authority empowered to grant the licence is satisfied that the premises in respect of which the licence is to be granted (or renewed) are adequate, equipped with proper storage accommodation for preserving the properties of the drugs to which the licence applies and are in charge of a person competent in the opinion of the licensing authority to supervise and control the sale, distribution and preservation of drugs: Provided that in the case of a pharmacy a licence in Form 20 or 21 shall not be granted (or renewed) unless the licensing authority is satisfied that the requirements prescribed for a pharmacy in Schedule N have been complied with: (Provided further that licence in Form 20F shall be granted (or renewed) only to a pharmacy and in areas where a pharmacy is not operating, such licence may be granted (or renewed) to a chemist and druggist) Explanation – For the purpose of this rule the term 'pharmacy' shall be held to mean and include every store or shop or other place – (1) Where drugs are dispensed, that is measured or weighed or made up and supplied; or (2) where prescriptions are compounded; or (3) where drugs are prepared; or (4) which has upon it or displayed within it, or affixed to or used in connection with it, a sign bearing the word or words "Pharmacy", "Pharmacist", "Dispensing Chemist", or "Pharmaceutical Chemist"; or (5) which, by sign, symbol or indication within or upon it gives the impression that the operations mentioned at (1) (2) and (3) are carried out in the premises; or (6) which is advertised in terms referred to in (4) above. (2) In granting (or renewing) a licence under sub-rule (1) the authority empowered to grant it shall have regard - (i) to the average number of licences granted (or renewed) during the period of 3 years immediately preceding, and (ii) to the occupation, trade or business ordinarily carried on by such applicant during the period aforesaid; Provided that the licensing authority may refuse to grant or renew a licence to any applicant or licensee in respect of whom it is satisfied that by reason of his conviction of an offence under the Act or these rules, or the previous cancellation or suspension of any licence granted (or renewed) thereunder, he is not a fit person to whom a licence should be granted (or renewed) under this rule. Every such order shall be communicated to the licensee as soon as possible: (Provided further that in respect of an application for the grant of a licence in Form 20-B or Form 21-B or both, the licensing authority shall satisfy himself that the premises in respect of which a wholesale licence is to be granted (or renewed) are - (i) of an area of not lessthan ten square metres; and (ii) in the charge of a competent person, who - (a) is a Registered Pharmacist, or, (b) has passed the matriculation examination or its equivalent examination from a recognised Board with the four years' experience in dealing with sale of drugs, or (c) holds a degree of a recognised University with one year's experience in dealing with drugs:) (Provided also that - (i) in respect of an application for the grant of a licence in Form 20 or Form 21 or both, the licensing authority shall satisfy itself that the premises are on an area of not less than 10 square metres, and (ii) in respect of an application for the grant of a licence - (a) In Form 20 or Form 21 or both, and (b) In Form 20-B or Form 21-B or both. the licensing authority shall satisfy itself that the premises are of an area not less than 15 square metres: Provided also that the provisions of the preceding proviso shall not apply to the premises for which licences have been issued by the licensing authority before the commencement of the Drugs and Cosmetics (1st Amendment) Rules, 1997.) (3) Any person who is aggrieved by the order passed by the licensing authority in sub-rule (1) may, within 30 days from the date of the receipt of such order, appeal to the State Government and the State Government may, after such enquiry into the matter as it considers necessary and after giving the appellant an opportunity for representing his views in the matter, make such order in relation thereto as it thinks fit.) A mere poring over and perusal of the said legal provision would display and demonstrate as correctly pointed out by the learned counsel for the landlady, that the landlady should satisfy the authority concerned that the place wherein she is going to conduct the medical shop, is vacant. The authority cannot be called upon to issue medical shop licence when it is under the occupation of the tenant, who is running a grocery shop. As per the aforesaid rules, at least there should be 10 sq. mts of shop area for running a medical shop. 9. Here, it is beyond doubt that the demised premises measures 260 sq. ft, which would satisfy with the statutory requirement for running a medical shop. The learned counsel for the landlady also would submit that the tenant himself had admitted the fact that the landlady is having experience in medical shop business as she was working under the said Rajeswari, who was running a medical shop business in a building in the vicinity and that she faced eviction order. As such, both the courts below concentrated on that aspect of the case and ordered eviction on the ground of bona fide requirement of the landlady. 10. I re-collect and call-up the following maxim -Acta exteriora indicant interiora secreta – Outward acts indicate the thoughts hidden within. 11. Accordingly, if viewed, the evidence on record objectively establishes the intention of the landlady. It is not as though the landlady half-heartedly utters out the ground as though she wanted to conduct a medical business. For conducting medical business, one should have experience. 11. Accordingly, if viewed, the evidence on record objectively establishes the intention of the landlady. It is not as though the landlady half-heartedly utters out the ground as though she wanted to conduct a medical business. For conducting medical business, one should have experience. Undoubtedly, unarguably and unassailably, the said landlady and her husband are having enough experience in running medical shop business as they were working under one P.R. Rajeswari in her medical shop in the vicinity. 12. It is ex facie and prima facie clear that the landlady and her husband because of their non-employment under Rajeswari should necessarily ferret out ways and means to eke out their livelihood and in that connection they want to have their own building for running their medical business and as such, the advantage of the landlady would outweigh the hardship of the tenant, who is running a grocery shop and he could shift it to some other place and conduct the same business. However, the tenant, who is running the grocery shop would require sufficient time to shift his business because of his necessity to recover the dues payable to him by his customers. Hence, from all angles, if the matter is viewed, it is quite obvious that the requirement of the landlady is bona fide only and both the courts below appropriately and appositely ordered eviction on the ground of personal occupation, warranting no interference in this revision. 13. In the result, this civil revision petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed. 14. On hearing the order, the learned counsel for the revision petitioner/tenant would make an extempore submission to the effect that the tenant is running grocery shop in the demised premises and in these days, it would be difficult to find an alternate accommodation for running the business and that he would require at least a year to vacate and hand over the premises to the landlady. Whereupon, the learned counsel for the respondent/landlady would submit that at the most six months' time might be granted. 15. Whereupon, the learned counsel for the respondent/landlady would submit that at the most six months' time might be granted. 15. By way of striking a balance between the two, and taking into consideration the fact that the tenant would obviously take some considerable time to find an alternate accommodation for continuing his business by shifting it from the demised premises to one other premises, I would like to grant nine months' time from this date to vacate and hand over vacant possession of the demised premises to the landlady, subject to payment of rent by the revision petitioner to the respondent regularly till handing over possession. The petitioner shall file an affidavit to that effect within 15 days from today.