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1987 DIGILAW 206 (MAD)

Thangiah Nadar v. Jeyaraj

1987-07-15

PADMINI JESUDURAI

body1987
ORDER Padmini Jesudurai, J. 1. The civil revision, is filed by the tenant, who has been ordered to be evicted by the learned Appellate Authority on the ground that the premises are required by the landlord for the purpose of demolition and reconstruction, reversing the order of the Rent Controller, dismissing the eviction petition. 2. Facts briefly are: Proceedings relate to residential premises in Door No. 200/G, Tiruchendur Road, Palayancottai, Tirunelveli. The respondent-landlord sought eviction of the petitioner-tenant in R.C.O.P.-No. 120 of 1984 before the Rent Controller (District Munsif), Tirunelveli under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the Act) on the averment that the property belonged to his father and his brothers and he was administering the same and receiving rent and that the premises were required for the purpose of demolition and reconstruction, since the locality was gaining importance and demolition and reconstruction had to be made for better economic investment, the building being also old and dilapidated. The necessary plan for the reconstruction had already been approved by the Municipal Authorities and the approved plan was filed along with the petition. 3. The petitioner resisted the above action challenging the BONA FIDES of the requirement of the respondent, contending that the building was in a very good condition and also denying the averment, that demolition and reconstruction were sought for, for better economic investment. It was stated that the move for eviction was actuated by a desire to get higher rent by leasing the premises to new tenants. 4. During the enquiry the respondent examined himself as P.W.1 and had Exs.P-1 to P-4 marked on his side. The petitioner examined himself as R.W.1. He had no-documentary evidence to offer. Learned Rent Controller holding that the respondent had not proved, through any documentary evidence or through the appointment of a commissioner for local inspection of the property that the building was old and dilapidated and had also not proved that the respondent had means to undertake the work of demolition and reconstruction, finally found that the application for eviction lacked BONA FIDES. He also observed that it was not clear as to whom the tenanted premises belonged, since there was a discrepancy regarding the ownership of the building, from what was stated in the original petition and what the respondent had later stated during cross-examination. He also observed that it was not clear as to whom the tenanted premises belonged, since there was a discrepancy regarding the ownership of the building, from what was stated in the original petition and what the respondent had later stated during cross-examination. The eviction petition was dismissed. In the appeal preferred by the respondent In R.CA. No. 11/86, learned Appellate Authority, reversed the order of the Rent Controller holding that the evidence of the respondent showed that he was a co-owner along with his brothers and could, therefore, maintain an action for eviction, without a letter of consent of the landlord as required under Section 10(8) of the Act. He also found that the requirement for demolition and reconstruction was BONA FIDE, since the petitioner himself had admitted that the respondent had abundant means that the locality had increased in importance and also that the building was being maintained by extensive repairs. Aggrieved with the above order of eviction, the tenant has preferred the present revision. 5. Thiru T.R. Mani, learned Counsel for the petitioner made the following submissions. (i) The old and decrepit condition of the building had not been established by proper evidence and the finding of the Appellate Authority, on the bonafides of the requirement of the respondent, was in-correct, based on a perverse appreciation of the evidence. (ii) The respondent was not a co-owner of the premises and his application, filed without the previous written consent of the landlord as required under Section 10(8) of the Act, was not maintainable. 6. Thiru K. Srinivasan, learned Counsel for the respondent met the above submissions as hereunder. (1) Demolition and reconstruction were sought for on the ground of economic investment, since the locality had increased in importance. Incidentally, the building also was old and dilapidated. These aspects were established on the admission of the petitioner himself. Three findings of fact by the Appellate Authority, ought not to be disturbed by this Court in revision. (2) Section 10(8) applies only to an agent merely receiving rent on behalf of the owner and in the instant case, admittedly the respondent was administering the property of the owners, besides receiving rent. Section 10(8) of the Act, therefore, does not apply. 7. The question that arises for consideration is whether the order of the Appellate Authority can be legally sustained? 8. Section 10(8) of the Act, therefore, does not apply. 7. The question that arises for consideration is whether the order of the Appellate Authority can be legally sustained? 8. I will first consider whether the requirements of Section 14 (1) (b) of the Act are satisfied. A landlord might decide to demolish a building and reconstruct it for various reasons. It could be because, the building itself is old and dilapidated and would require immediate demolition. It could also be because, though the building was not very old or dilapidated requiring immediate demolition, a reconstruction, with more modern amenities satisfying the new needs of the changed circumstances of the locality in which the building was situated, might yield more income to him. In the latter type of cases, the object of demolition and reconstruction, is for better economic investment. This Court has uniformly upheld the above principles. It is needless to refer to all the decisions of this Court on this aspect. Suffice it to mention the following decisions: Bharat Trading Co. v. K. Shanmughasundaram 95 L.W. 258, Arumugam v. D.R. Srinivasan 95 L.W. 328, Sivalingam v. Guruswamy , Kanakavali Ammal v. Sundaram and K. Janakiraman v. Hajee Abdul Sattar 98 L.W. 309. As to which category, each case would fall, would depend on the pleadings in each case. Where therefore the landlord requires the building for the purpose of demolition and reconstruction, not only on the ground chat the building is old and dilapidated, but more on the ground that the reconstructed building, in view of the increased importance of that locality, would augment his income the existing condition of the building, will not be the sold criteria to decide, the BONA FIDES of the requirement of the landlord. 9. In the instant case, in the petition for eviction, besides the condition of the building, it has been specifically averred that the locality where the building is situated, is gaining importance and from the point of view of economic investment also, it will be a waste of a precious site, if it is not demolished and a fresh construction is put thereon. In proof of this averment the respondent as P.W.1 has stated, that the locality where the building is situated, is gaining importance, being close to the new Court complex and that new buildings and shoes are being constructed in that locality and the area is fast developing. In proof of this averment the respondent as P.W.1 has stated, that the locality where the building is situated, is gaining importance, being close to the new Court complex and that new buildings and shoes are being constructed in that locality and the area is fast developing. The building faces the main Tiruchendur Tuticorin Road. The respondent has also stated, that he intends to build shops in the ground floor and build rooms in the first floor to be utilised as chambers for the advocates. The petitioner during the cross-examination, has admitted that the building is in the main road and it is a busy locality, that there is a Church about one furlong away from it and recently a church and one temple on the north and another temple on the south, have been constructed, that there is a theatre 2 or 3 furlongs away from the building and that the new Court complex is about half a mile from this place. He has also admitted that when he occupied this house, that was the only house in that locality and that now, several modern houses are being built. On the basis of this evidence, learned Appellate Authority, therefore, found that the respondent's case that the locality was increasing in importance, was true. It is now stated, that the new Court building which were under construction then, has been completed and all the Courts have recently been shifted to the new buildings. The locality, therefore, is bound to increases in importance, in view of this new factor. 10. It has also been pleaded in the petition for eviction, that the building is old and dilapidated. The roofing is tiled and to prevent the super-structure from falling down, the petitioner has fixed one or two wooden pillars inside the house. No doubt, the petitioner in his counter has averred, that the building is not old and is being repaired and maintained by him in a good condition. In the cross-examination, the petitioner as R.W. 1 has stated, that he has spent Rs. 320 for putting up pillars inside the house. He has added that he has put up pillars for his own convenience and has denied the suggestion that initially he had put up supporting wooden pillars, which he had later replaced by concrete constructed pillars. In the cross-examination, the petitioner as R.W. 1 has stated, that he has spent Rs. 320 for putting up pillars inside the house. He has added that he has put up pillars for his own convenience and has denied the suggestion that initially he had put up supporting wooden pillars, which he had later replaced by concrete constructed pillars. According to the petitioner, his was the only house in that locality when he became a tenant about 23 years back and that this house, does not have the same appearance, as that of the other houses more recently constructed in that locality. It is on this evidence that the Appellate Authority found, that the case of the respondent that the building itself was old had been established even from the evidence of the petitioner. Under such circumstances, it is not necessary that an advocate Commissioner, should visit the building and report about the condition of the same, particularly when the main reason for demolition, is the desire to construct a more modern building with shops and rooms which would fetch more income to the landlord. These findings, therefore, have been rightly arrived at by the learned Appellate Authority. 11. The petitioner has practically admitted that the landlords have sufficient means, when Ex.P.3 notice was received by the petitioner, he had approached the "Perinba Vilas Company" of the owners of the building with an application. To a suggestion that the Perinba Vilas Company, which was originally doing bus service, had sold some of the buses and had ready cash with them, the petitioner had stated that he did not know about that, but that he knew that they were people of means and if they desired they could put up constructions even for ten lakhs of rupees. Considering all these aspects, I agree with the learned Appellate Authority that the requirement of the respondent under Section 14(1)(b) of the Act, is established. 12. It remains to be considered, whether the respondent ought to have filed a written letter of consent of the landlord, as required under Section 10(8) of the Act. Considering all these aspects, I agree with the learned Appellate Authority that the requirement of the respondent under Section 14(1)(b) of the Act, is established. 12. It remains to be considered, whether the respondent ought to have filed a written letter of consent of the landlord, as required under Section 10(8) of the Act. Section 10(8) of the Act, is as follows: Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant. The term 'landlord' had been defined in the Act in Section 2(6) as here under. 'Landlord' includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. The relevant averments on this aspect as found in paragraph 3 of the petition is as follows: 3. The property described in the schedule hereunder, belongs to the petitioner's father and his brothers. The petitioner is in the administration of the same and has been receiving the rent from the tenant above-named. This has been met in paragraph 2 of the counter as hereunder: This respondent admits the allegation made in paragraph 3 of the petition. It, therefore, follows that when the respondent filed this application, he had clearly stated that the property belonged to his father and his brothers. He did not claim to be a co-owner of the property. On the contrary, he had put up a specific case that he was administering the property and was also receiving rent from the tenant. No doubt in the cross-examination the respondent as P.W.1 had stated that his brothers are also owners of the building suggesting he is also a co-owner with them and that in the eviction petition he had not stated so, but had stated that the building belonged to his father and his father's brothers. No doubt in the cross-examination the respondent as P.W.1 had stated that his brothers are also owners of the building suggesting he is also a co-owner with them and that in the eviction petition he had not stated so, but had stated that the building belonged to his father and his father's brothers. The statement of the respondent during cross-examination, making it appear as if, he was also a co-owner of the property, has necessarily to be ignored since the same has not been pleaded. The learned Appellate Authority has held that the respondent is a co-owner of the property and is therefore, competent to maintain the petition, without the written consent of the landlord as required under Section 10(8) of the Act. He has also referred to several decisions of this Court, which enable a co-owner to maintain an action for eviction on behalf of himself and the other co-owners. While one cannot dispute the above proposition of law, yet factually the learned Appellate Authority, could not give a finding that the respondent is a co-owner of the property. This is so, in view of the positive stand taken by the respondent in the eviction petition itself. The respondent, has not filed this application as a co-owner, but as one, who is administering the property of others and is also receiving rent on their behalf. This capacity of the respondent is admitted by the petition as is seen from the counter. It has, therefore, to be seen as to whether under these circumstances, Section 10(8) of the Act would apply. 13. Though initially, there had been a controversy as to whether Section 10(8) of the Act, would apply to eviction sought for under Section 10 alone or whether it would apply also to eviction sought for under the other provisions of the Act, namely, Sections 14 to 16, this controversy had been resolved on a reference to a Division Bench consisting of M.M. Ismail, (as he then was) and Mohan, J., in Bichawa v. Venkatesan. The Bench held that Section 10(8) of the Act, would apply not only to eviction sought for under Section 10 of the Act, but, also to cases of eviction sought for under Sections 14 to 16 as well. 14. It is seen that the definition of landlord as found in Section 2(6) of the Act includes several classes of persons. The Bench held that Section 10(8) of the Act, would apply not only to eviction sought for under Section 10 of the Act, but, also to cases of eviction sought for under Sections 14 to 16 as well. 14. It is seen that the definition of landlord as found in Section 2(6) of the Act includes several classes of persons. A reading of Section 10(8) of the Act indicates that not all persons included as landlords in Section 2(6), come within the purview of Section 10(8). It is only one category of persons, namely, 'one who is receiving or entitled to receive the rent of a building, merely as an agent of the landlord," who is brought within Section 10(8) of the Act. The question therefore, arose as to the interpretation of the term 'merely as an agent of the landlord occurring in Section 10(8). This aspect also was gone into by the division Bench in the decision already referred to in Bichawa v. Venkatesan. The Bench relied upon an earlier decision of Srinivasan, J., of this Court in Pahalajmal Khetumal v. T.V. & Bros. (1961) 1 M.L.J. 150 interpreting Section 77 of the Tamil Nadu Act 25 of 1949 which is identical with Section 10(8) of the present Act. Learned Single Judge observed as follows: The plain purport of the section appears to be nothing more than that no person who is collecting the rent or is entitled to collect the rent of the premises on behalf of the landlord and whose power in that connection is limited only to such collection of rent shall be entitled to take any steps for the eviction of the tenant except with the previous consent of the landlord. The expression 'merely as an agent of the landlord' has necessarily to be read along with the earlier clause who is receiving or is entitled to receive the rent, 'merely' therefore, qualified the extent of the power of the agent,. and where such power is limited only to receiving the rent or to be entitled to receive the rent, such an agent cannot apply for the eviction of the tenant unless he is armed with the further power in the shape of previous written consent of the landlord. On the basis of the above observation the Bench observed. and where such power is limited only to receiving the rent or to be entitled to receive the rent, such an agent cannot apply for the eviction of the tenant unless he is armed with the further power in the shape of previous written consent of the landlord. On the basis of the above observation the Bench observed. Having regard to the object of the provision, we are of the opinion that the Legislature could not have contemplated any such situation and that Section 10(8) of the Act applies only to a person who has been appointed as an agent only for the purpose of collecting the rent from the building and will not take in the other types of agents of the landlord, who may be empowered by the landlord himself, to take proceedings for eviction also. Consequently the class of persons contemplated by Section 10(8) of the Act, is a very limited class and only with reference to that class, the requirement of obtaining the previous written consent of the landlord for filing a petition for eviction will apply. The Bench in the case before them, wherein the question as to whether the husband filing in eviction petition under Section 14(1)(b) of the Act, regarding a property which stood in the name of his wife, was required to produce a written consent of the wife under Section 10(8) of the Act, came up finally held that the husband was acting on behalf of his wife with reference to the property belonged to the wife by renting out the property as well as collected rent from the tenants and was, therefore, not an agent solely for the purpose of collecting the rent for the building in question and did not come within Section 10(8) of the Act. He needed no written letter of consent. 15. Applying the above principles to the facts of the instant case, it is seen that the stand of the respondent that he is administering the property of the owners and is also collecting rent has been admitted by the petitioner, even in the counter. It is obvious, therefore, that a person who administers the property of the real owners, is not a mere agent for the purpose of collecting rent. He looks after all the affairs related to the property and acts on behalf of the owners, besides collecting rent. It is obvious, therefore, that a person who administers the property of the real owners, is not a mere agent for the purpose of collecting rent. He looks after all the affairs related to the property and acts on behalf of the owners, besides collecting rent. Ex.P1, shows, that the respondent alongwith another, has applied to the Municipality for approval of the plan for the reconstruction of the building. Ex.P2 shows that time for construction of the building, has been extended and copy of that extension has been sent to the respondent and another, obviously because the respondent had applied for the extension. As already stated earlier, the petitioner himself in his counter, has categorically admitted that the respondent is administering the property of the owners besides collecting rent. The respondent, therefore, cannot be described as a 'mere agent' for the purpose of receiving the rent of the building. Section 10(8) of the Act will not apply to him and he is not required to produce any written consent of the owners, in order to maintain an action for eviction on their behalf. 16. Since both the contention are answered against the petitioner the revision fails and is dismissed. No costs. Learned Counsel for the petitioner requests three months' time to vacate the premises and had over peaceful possession to the respondent. In view of the fact that the petitioner had been residing in the premises for several years, I feel some reasonable time could be given. Hence, the petitioner is given time till 15.10.1988 on condition that he files an affidavit of undertaking on or before 5.8.1988 undertaking to handover peaceful possession to the respondent on or before 15.10.1988, and in the mean time continue to pay the rent without fail.