K. K. Subramania Sah v. A. Sampath — 1990 DIGILAW 1124 (MAD)

Judgment : The landlord is the petitioner herein. The petition for eviction was Gled under Sec.l4(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as the ‘Act’). The respondent herein is the tenant in respect of the petition premises situate at No.29, East Kooyam River Road, Chintadripet, Madras-2. The petition premises is residential one and the monthly rent is Rs.17. According to the landlord the petition premises is aged more than 70 years and it is in a dilapidated condition. The engineer who inspected the premises advised the landlord to carry out extensive repairs. Hence he filed a petition for eviction in R.C.O.P.No.336 of 1980 on the ground of requiring the petitioner premises for repair. Again on engineer’s advice the landlord withdrew the eviction petition H.R.C.O.P.No.336 of 1980 and filed a fresh petition H.R.GO.P. No.4058 of 1980 on the ground of demolition and reconstruction as contemplated under Sec.l4(1)(b) of the Act. The landlord issued a notice on 9. 1980 requesting the tenant to deliver vacant possession of the premises for demolition and reconstruction. The tenant sent a reply denying the allegations made in the notice issued by the landlord. 2. According to the tenant, the existing building is structurally sound and it is not in dilapidated condition as alleged by the landlord. Since the landlord filed an eviction petition on the ground of requiring the petition premises for repair, there is no bona fide on the part of the landlord in requiring the petition premises for demolition and reconstruction. According to the tenant, there is no bona fide on the part of the landlord in requiring the petition premises under Sed4(1)(b) of the Act. Both the authorities below concurrently came to the conclusion that there is no bona fide on the part of the landlord in requiring the petition premises for demolition and reconstruction. 3. P. W.2 is the Engineer examined by the landlord. He filed Ex.P-20 stating that the building is in a dilapidated condition and it required immediate demolition and reconstruction. On the other hand, the engineer examined on the side of the tenant as R.W.2 has stated in his report that the future life of the petition premises would be about 50 years and the condition of the building is sound. He filed Ex.P-20 stating that the building is in a dilapidated condition and it required immediate demolition and reconstruction. On the other hand, the engineer examined on the side of the tenant as R.W.2 has stated in his report that the future life of the petition premises would be about 50 years and the condition of the building is sound. Therefore the engineers did not agree with each other in the matter of stating the existing condition of the petition premises. If that is so, the proper course would be to appoint a commissioner to find out the real existing condition of the building. That was not done by the authorities below. 4. Since the engineers gave contradicting reports, In order to find out the true existing condition of the petition premises, a commissioner was appointed by this court to inspect the premises and file his report. Accordingly, the commissioner inspected and filed his report. According to his report, the entire premises is a tiled house. There is no amenities like electricity and watersupply. The tiles are covered with tarpaulins. There is a room on the right side. In the left corner of the room there is evidence to show that water is leaking which is marked as L1 in the commissioner’s plan. In the entrance passage out of 6 rafters two rafters are in damaged condition. Further, the leakage at the left side corner of the room R1 is clearly visible. One of the beams in the hall is slightly bent in the middle. In Room No.2 out of 9 rafters 3 are in damaged condition. In Room No.3 at the right hand side corner of the wall which appears to be a pillar brick is visible at the top marked as D2 in the plan. In this room there are 6 rafters and out of which two are damaged. In the portion marked as C in the plan, there is a wall of 6 feet height and in the said wall there is a crack of 6". In the portion marked as ‘C in the plan, the flooring is of mud smeared with cow dung. According to the commissioner, the building would have been constructed in the year 1935. 5. The authorities below were of the view that the building is not old or dilapidated. In the portion marked as ‘C in the plan, the flooring is of mud smeared with cow dung. According to the commissioner, the building would have been constructed in the year 1935. 5. The authorities below were of the view that the building is not old or dilapidated. They rejected the evidence tendered by the landlord’s engineer, but accepted the evidence given by the engineer examined by the tenant. This kind of approach made by the authorities below appears to be erroneous. 6. As already stated, the commissioner has filed his report and the condition of the building is stated in the report. The commissioner pointed out that the petition premises is a tiled house and the tiles are covered with tarpaulins. If that is so, there will be lot of leaking from the roof during the rainy season. The commissioner has also stated the condition of the rafters, the walls and the floorings. According to the commissioner, the building would have been built in the year 1935. If that is so, in the year 1980 when the petition was filed the building would have been aged about 45 years old and now it would be 55 years old. It is not necessary that the building should be very old and dilapidated to enable the landlord to claim that the immediate purpose was for demolition of the building. Sec.l4(1)(b) is not rendered inapplicable merely because the building is not old or dilapidated but is in a good condition. No rigid rule can be formulated with regard to the age of the building and it is certainly not necessary that the building should be of a particular age to justify the requirement for demolition. There is nothing in the Act to show that the owner is entitled to pull down a building only when it is hopelessly old and then to build a new structure thereon. The obtaining of a plan subsequent to the filing of the eviction petition will not show that the requirement of the premises by the landlord for the purpose of demolition and reconstruction is not bona fide. (See Jose v. Ramanathan, (1979)1 M.L.J. 372 at 374.) 7. The obtaining of a plan subsequent to the filing of the eviction petition will not show that the requirement of the premises by the landlord for the purpose of demolition and reconstruction is not bona fide. (See Jose v. Ramanathan, (1979)1 M.L.J. 372 at 374.) 7. The authorities below further pointed out that the landlord filed a petition for eviction earlier for the purpose of repairing, which was withdrawn later on and therefore there is no bona fide on the part of the landlord in requiring the petition premises for demolition and reconstruction. The fact that earlier the landlord filed a petition for eviction on the ground of requiring the premises for repair would not disentitle the landlord subsequently to file a petition under Sec.l4(1)(b) of the Act. It remains to be seen that on the advice of the engineer, the landlord filed this petition for eviction under Sec.l4(1)(b) of the Act. In the petition, the landlord clearly stated that he requires the building for the purpose of demolition and reconstruction of a new building on modern line. The desire of the landlord to put the property to a more profitable use after demolishing and reconstructing is also a factor, which may be taken into account in favour of the landlord P.N.Shenoy v. P.V.Shenoy, (1970)1 S.C.C. 499 at 502). It is also significant to note at this juncture, that the entire premises is yielding only an income of Rs.17 per month. Therefore, if the landlord desires to put up a new structure for better use, it cannot be said that the requirement of the landlord of the petition premises is mala fide. 8. Another point to be considered in this revision is whether the landlord is having sufficient means to put up the new building. In order to show that the landlord is having sufficient means to put up the new construction, Exs.P-23 to P-27 were filed. Ex.P-23 is the partition deed, through which certain properties were allotted to the share of the landlord. The landlord produced documents to show that he was an income-tax assessee at that time. According to the engineer’s report a sum of Rs.65,000 is required for putting up the construction. Ex.P-23 is the partition deed, through which certain properties were allotted to the share of the landlord. The landlord produced documents to show that he was an income-tax assessee at that time. According to the engineer’s report a sum of Rs.65,000 is required for putting up the construction. The landlord has stated in his deposition that he is also owner of properties situate at No.1, Devaraja Mudali Street, Madras-1, No.33, Coovam River Road, No. 1/3 Iyya Mudali Street and No.124, Singanna Chetty Street, No.59, Venkatesa Gramani Street, Chintadripet. The value of these properties was stated to be at Rs.7 lakhs. If that is so, he can raise the amount for the purpose of putting up the new construction. The statement of the landlord that he is the owner of other six houses in the city was not denied by the tenant. Further, he himself is working in a factory and earning his monthly salary. Further it is not necessary that in order to prove the means the landlord should produce the cash before the court. Capacity to raise the money is sufficient. 9. Thus on a careful consideration of all these aspects, I hold that the landlord established his bona fide in requiring the petition premises for demolition and reconstruction, as contemplated under Sec.l4(1)(b) of the Act. In that view of the matter, I set aside the orders passed by the authorities below, and allow the revision. 10. In the result, the petition for eviction is allowed, the tenant is given three months time to vacate the premises. But there will be no order as to costs.