D. Gopal v. G. Rajathiammal — 1997 DIGILAW 1313 (MAD)

Judgment :- 1. Tenant/5th respondent in R.CO.P. No. 2077 of 1988 on the file of XI Small Causes Court, Madras, is the revision petitioner 2. The landlady has filed a petition for eviction under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973. 3. According to the respondent, the building is situated in an excellent locality near Pondy Bazaar. The building is 40 years old and the condition of the building is bad. The superstructure consists only of Mangalore tiles and R.C.C. shed. The walls are also in a dilapidated condition. The petition for eviction was against six respondents/tenants. The 5th respondent/tenant is the petitioner is this Civil Revision Petition. 4. In the counter filed jointly by the respondents 2 to 5 it is stated that the building is in sound condition and does not require demolition. There is no means sufficient with the respondent for reconstruction. They have also raised a plea that they are only lessees of the land alone and they are the owners of the superstructure. 5. After considering the evidence, the Rent Controller found that the building was in a dilapidated condition and required demolition. He also found that the landlady has sufficient funds. On appeal, the Appellate Authority also found that the condition of the building was bad and required demolition. It is also found that the demand of the landlady for demolition was bona fide, and she also possessed sufficient means. Therefore, the Appellate Authority concurred with the finding that the building required demolition and there was bona fide in the claim of the landlady, and rejected the contention of the tenant. 5-A. In this revision petition, the learned counsel for the petitioner Mr. A.R.L. Sundaresan, contended that the rejection of the report of the Engineer R.W.5 is erroneous. He also contended that the courts below have not applied their mind to the actual condition of the building in the occupation of the petitioner. Over-all consideration of the entire building has misled them to conclude that the condition of the building involved in the Civil Revision Petition is also bad required demolition. He further contended that there are contradictions between two Engineers reports. Over-all consideration of the entire building has misled them to conclude that the condition of the building involved in the Civil Revision Petition is also bad required demolition. He further contended that there are contradictions between two Engineers reports. The only course open to the court is that a Commissioner should be appointed to inspect the building and submit the report with reference to the condition of the building. He also contended that the landlady has not proved sufficient means for reconstruction. 6. Learned counsel for the respondent contended that the courts below have concurrently found that the condition of the building is bad and required immediate demolition. As both courts have concurrently found, this court need not interfere with the finding. He contended further that with reference to the means also, both courts have concurrently found and the said finding is not liable for challenge before this Court. He finally contended that in as much as there is denial of title of the petitioner in the counter, the same can be taken note of and the eviction should be ordered on that ground also. 7. As regards the condition of the building, two engineers have been examined. P.W.2 (Engineer) was examined on the side of the landlady. He has inspected all the six shops and submitted his report Ex.P8, with reference to the building in question in this revision petition, he has stated that it is an improvised bunk in north west Conner of a tinker shop. At the end of this report, he has stated that the entire campus contains irregular and flimsy structures and in dilapidated condition beyond repair and requires demolition and re-construction. As.P.W.2 he has spoken to these facts. From this report, it is clear that the condition of the building is really bad. 8. As against this, we have the report of the Engineer who was examined by the respondent i.e., R.W.5 and his report is Ex.R.10. With reference to the shop in the occupation of Gopal, who is the petitioner herein, this Engineer has stated that it consists of a basement in brick work with necessary foundation. Over this, a shop is built with iron girders and wooden scantlings. Roofing is in A.C.C. sheets. Flooring also is in wooden planks. The side walls are in brickwork and wood. The walls can be replaced, which would not affect the structure in any way. Over this, a shop is built with iron girders and wooden scantlings. Roofing is in A.C.C. sheets. Flooring also is in wooden planks. The side walls are in brickwork and wood. The walls can be replaced, which would not affect the structure in any way. He has also added that it is quite strong and a stable. According to him, none of the three structures including the petitioners shop warrant demolition now. There is a sketch annexed to this report i.e. , Ex.R-11. It is seen that a small bunk shop is located on the north west comer of the Tinker shop of the 3rd respondent in the main eviction petition. 9. It is true that one Engineer has stated that the building is strong and the other has stated that the building is in a very bad condition and requires immediate demolition. When we look at the location we are able to see that the shop in question is in a corner of another shop occupied by another tenant. Portion No. 3 was in occupation of one P. Periasamy. In fact, out of six tenants against whom the petition was filed, three of them have vacated i.e , the respondents 3, 4 and 6. From the evidence, we are able to see that the building in question has wooden and brick walls. Even according to the opinion of the Engineer examined on the side of the tenant, the walls can be replaced without affecting the other structure of the building. There is no necessity for making such a statement unless he has found that the walls required to be replaced. So from this, it is clear that even according to the engineer examined on the side of the tenant, he has admitted that the walls are in a bad condition and required demolition. Apart from this, the Engineer who was examined on the side of the respondent has opined that the building required immediate demolition. 10. We are able to see that this small shop is in a corner of the building. The tenant of the main shop has already vacated. The courts below have found that when the respondent wants to construct the building, this portion cannot be left out. 11. 10. We are able to see that this small shop is in a corner of the building. The tenant of the main shop has already vacated. The courts below have found that when the respondent wants to construct the building, this portion cannot be left out. 11. If the building is a small portion and the construction of the same is with wooden planks and A.C.C. sheets, the presumption is that such construction was put up temporarily or for a short duration. From the nature of the structure itself, the court can come to the conclusion that a particular structure has to be demolished within a short period. Whenever the owner of such a structure wants to put up a pucca construction, applying the principle that the building by itself must require immediate demolition, is not proper. The principle can be applied with reference to pucca building and it cannot be applied to improvised and thatched structures or tiled structures standing on wooden pillars or posts etc. There are also cases holding that the building need not be in a very bad or dilapidated condition when the landlord requires it for demolition and reconstruction. In A. Lakshmanan and others v. Kanniammal @ Pattammal (1995 1 L.W. 632) a learned single Judge of this Court has held as follows: “Section 14(1)(b) not rendered inapplicable merely because building is not old or dilapidated, but is in good condition Intention of the landlady being genuine, not spurious or specious, she is entitled to an order under this section. The age and dilapidated condition, not being sine qua non for such eviction. Similar view has been taken by another learned Judge of this Court in Sherwood Educational Society, No. 3 XIII Avenue, Harringtin Road, Chetpet, Madras-31 v. Abid Namazie and two others (1997 1 L.W. 323). According to the learned Judge “Condition does not mean physical condition of the building alone, but something more - old structure in newly developing area may be like pimples on fair faces.” 12. The building in question in this revision petition is really a pimple in the fair face compared with other structures. Therefore, I find justification in the findings of the courts below that the building in question required demolition and reconstruction and the requirement is bona fide. 13. As regards the means, the courts below have considered Exs.P6 and P7. The building in question in this revision petition is really a pimple in the fair face compared with other structures. Therefore, I find justification in the findings of the courts below that the building in question required demolition and reconstruction and the requirement is bona fide. 13. As regards the means, the courts below have considered Exs.P6 and P7. According to the learned counsel, from Exs.P6 and P7, the amount required for the re-construction has not been proved to be in possession of the landlady. Exs.P6 and P7 show that a sum of Rs. 55,000/- is in fixed deposit. The petitioners son Sridhar has been examined as P.W.1. He has spoken to the fact that his mother would be in a position to arrange for further funds to put up construction as per the plan obtained. The oral and documentary evidence has been accepted by the Rent Controller as well as the Appellate Authority and they have come to the conclusion concurrently that the landlady has sufficient means to reconstruct. No infirmity has been brought to my notice with reference to this finding. Hence, I do not want to interfere with the findings of the courts below. 14. Learned counsel for the respondent submitted that in as much as there is a denial of title with reference to the superstructures, his client is entitled for eviction on this ground also. He has also cited some authorities in support of his contention In my view, when a tenant in occupation of temporary structure with wooden walls and A.C.C. sheets for quite sometime, he would have replaced them every now and then, in the normal course and in such circumstances when he makes a claim of ownership to the portion of the said buildings, that will not tantamount to denial of title to render a tenant liable for eviction on the ground of denial of title. Hence, I am not in agreement with the contention of the learned counsel for the petitioner that eviction may be ordered on this ground also. In as much as I have found that the findings of the Rent Controller as well as Appellate Authority are justified in other respects and do not require interference, this revision petition is dismissed. However, there will be no order as to costs. Consequently, CMP 5248/97 is also dismissed. Six months time is granted for eviction.