HUSSAIN SAHEB Vs. MOULI SAHEB

JUDGEMENT

(1.) The question that arises for determination in this Civil Revision Petition is as to the true construction of section 7 clause (3)(a)(iii) of the Madras Buildings (Lease and Rent Control) Act of 1949. The petitioner is the landlord and the respondent is the tenant. The petitioner applied for an order directing the tenant to put him in possession of a non-residential building. The Rent Controller, Nandyal, ordered eviction of the tenant holding that the application was a bonafide one and that he had no other building in Nandyal Municipality to carry on the business in respect of which he applied for a licence. But, on appeal, the House Rent Control Appellate Authority while agreeing that the application was bonafide, held that the terms of Sec. 7 (3) (a) (iii) were not complied with as he was not carrying on any retail business before the date of the application and consequently allowed the appeal, and his order was confirmed by the District Judge of Kurnool in revision. The landlord has consequently preferred the Civil Revision Petition to this Court. Section 7 (3) (a) provides when a landlord may apply to the Controller for an order directing the tenant to put him in possession of his own building. It states that it is subject to the provisions of clause (d) namely, that where the tenancy is for a specified period, agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply before the expiry of such period. Section 7 (3) (a) (i) provides that the landlord is entitled to recover possession of a residential building if he requires it for his own occupation and if he is not occupying a residential building of his own. Section 7 (3) (a) (ii) provides the same conditions in respect of a non-residential building which is used for the purpose of keeping a vehicle or adapted for such use. The landlord must require it for his own use and must not be occupying any such building of his own or to the possession of which he is entitled whether under the Act or otherwise. In respect of other non-residential buildings, section 7 (a) (iii) enacts as follows :

(2.) The question that arises for decision in this case, is, whether, to enable the landlord to recover possession of a non-residential building other than that referred to in Section 7 (3) (a) (ii), it is necessary that he should establish not only that he has no other non-residential building but also that he is carrying on business on the date of the application. The language employed in Section 7 (3) (a) (iii) is "not occupying for purposes of a business which he is carrying on". The legislature, in my opinion, insists that if the landlord desires to recover possession of a non-residential building other than that mentioned in Section 7 (3) (a) (ii), he should prove that he is carrying on a business and has no other non-residential building. Section 7 (3) (c) makes it clear that the language "for the purpose of business which he is carrying on" is deliberately but not accidentally used by the Legislature as it is repeated in clause (c). Clause (c) provides that in order to enable the landlord who is occupying only a part of a building, whether residential or non-residential, to obtain possession of the remaining portion of the building from the tenant, he should prove that he requires additional accommodation for residential purposes or for the purpose of a business which he is carrying on as the case may be. I am therefore clear, on the language of the section, that the landlord must be carrying on a business on the date of the application. I am therefore unable to agree with the contention of Sri M. Krishna Rao that no effect should be given to the words "for the purpose of carrying on a business" or, in other words, it is sufficient if the landlord proves that he has no other non-residential building. The decision in Venkataswami v. Veerabhadraswami was next referred to as bearing on the construction of Section 7 (3) (a) (iii). As pointed out by the learned Judge at page 582, the wording of the Section ii no doubt unhappy.

(3.) The learned Judge held, on the facts of the particular case, that the landlord was carrying on a retail business as he (landlord therein) obtained a retail licence and the necessary quotas from the licensing and controlling authorities. It is unnecessary for me to decide in this case whether the wide construction placed by him on the phrase "carrying on business" is correct or not. In this particular case, it is conceded that no retail licence was obtained before the date of the filing of the application and the decision of Viswanatha Sastri J. does not, therefore, apply to this case. I do not propose to extend that principle to a case where no retail licence was obtained but only an application was made to the municipality for the issue of a retail licence.