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Madras High Court · body

2000 DIGILAW 66 (MAD)

V. P. Palanivel Mudaliar v. Meenakshi Ammal

2000-01-18

S.S.SUBRAMANI

body2000
ORDER: Tenant in R.C.O.P.No.440 of 1983 on the file of Rent Controller 1, Additional District Munsif, Tiruchi, is the revision petitioner. 2. Parties herein will be referred to according to their rank before the Rent Controller. 3. Landlord filed an application for eviction on the ground that the building requires immediate demolition and re-construction, under Sec.14(1)(b) of the Tamil Nadu Rent Control Act. After filing the eviction petition landlord died and his widow has been impleaded as legal representative. According to the landlord, the tenant is occupying the building on a monthly rent of Rs.120 and the schedule building is more than 100 years old. It is in a very damaged condition and they wanted to demolish the existing building and put up a new construction. It is said that they have made necessary preparation for putting up a new construction and they have also obtained permission from the Local Authority. Plan and licence are also obtained. They have also prepared an estimate for construction and it is also averred that they have got means and capacity to put up a new construction. The building is situated in an envious business locality in Tiruchirapalli. It is very busy business place where every building is a shop or business place. It is one of the most important locality and new construction has also come in and around the schedule premises. The re-construction is also required to get fair return for the money to be invested. According to the landlord, the existing building is not getting a proper return. He has also given the statutory undertaking as provided under Sec.14(1)(b) of the Act. 4. In the counter statement filed by the tenant, he denied the claim of the landlord. According to him, it is without any bona fide. According to him, the building do not require demolition. When the landlord has got no financial capacity to raise the funds, mere filing of plan and licence will not make the claim as bona fide. He prayed for the dismissal of the eviction petition. 5. As per order dated 30.12.1991, the Rent Controller found that the claim of the landlord is not bona fide and genuine. It held that the building does not require immediate demolition and reconstruction. The eviction petition was dismissed. He prayed for the dismissal of the eviction petition. 5. As per order dated 30.12.1991, the Rent Controller found that the claim of the landlord is not bona fide and genuine. It held that the building does not require immediate demolition and reconstruction. The eviction petition was dismissed. For the said purpose, the Rent Controller considered the oral evidence of P.Ws.1 and 2 and D.Ws.1 and 2 and the documentary evidence Exs.P-1 to P-3 and Ex.R-1. 6. Aggrieved by the Order, landlord filed R.C.A No.27 of 1992 on the file of the Appellate Authority/ Principal Subordinate Judge, Tiruchi. The Appellate Authority re-appreciated the evidence and held that the tenant is liable to be evicted. Before the Appellate Authority, additional evidence was also let in by the landlord. Exs.P-4 to P-12 were marked before the Appellate Authority. Those documents were produced only to show that the landlord has got financial capacity to put up a new construction. The Appellate Authority held that the landlord has proved the ingredients under Sec.14(1)(b) of the Act and the claim is genuine. The same is challenged by the tenant under Sec.25 of the Tamil Nadu Rent Control Act, in this revision. 7. Before going to the merits of the case, I have to consider the scope of revision under Sec.25 of the Tamil Nadu Rent Control Act. In the recent decision in T.Sivasubramaniam v. Kasinath Pujari, (1999)7 S.C.C. 275 , a case coming under Tamil Nadu Rent Control Act itself, their Lordships in paragraph 5 of the judgment held this: "5. So far as the second submission is concerned,the Language employed in Sec.25 of the Act, which confers revisional jurisdiction on the High Court, is very wide. Under Sec.25 of the Act, the High Court can call for and examine the record of the appellate authority in order to satisfy itself as to regularity of such proceedings or the correctness, legality or propriety of any decision or orders passed therein. The words "to satisfy itself" employed in Sec.25 of the Act no doubt is a power of Superintendence, and the High Court, is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the Courts below. The words "to satisfy itself" employed in Sec.25 of the Act no doubt is a power of Superintendence, and the High Court, is not required to interfere with the finding of fact merely because the High Court is not in agreement with the findings of the Courts below. It is also true that the power exercisable by the High Court under Sec.25 of the Act is not an appellate power to reappraise or reassess the evidence for coming to a different finding contrary to the finding recorded by the Courts below. But where a finding arrived at by the Courts below is based on no evidence, the High Court would be justified in interfering with such a finding recorded by the Court below." [Italics supplied] 8. It is argued by the learned counsel for the petitioner that one of the most important point to be considered while ordering the eviction on the ground of demolition and re-construction is, the physical condition. Counsel argued that if the building could be repaired and life could be given to it, demolition and re-construction is not to be ordered. It is argued that the Act intended for the benefit of the tenant and therefore, unless the physical condition is that much bad, and if it can be renovated or repaired and life will be given to the building, that will be achieving the purpose of the Act i.e.,. preventing unlawful eviction. 9. It is true that the Rent Control Act was passed only to prevent unlawful eviction, but I cannot agree with the counsel that the duty is always cast on the landlord to see that the building is maintained properly. Whatever may be its physical strength, the choice is given to the landlord either to demolish or to have repaired. If the landlord decides to demolish the building and put up a new construction on the site, that decision of the landlord cannot be said as without bona fides. If the landlord feels that the existing structure is not getting a proper return, taking into consideration the development in the locality has really affected his chances of getting a good income and if by better investment, the landlord can get better return, that decision of the landlord cannot be said as without bona fides. While considering whether the building requires demolition, the above facts have to be taken note of. 10. While considering whether the building requires demolition, the above facts have to be taken note of. 10. It is true that the physical condition of the building is one of the important factors to be considered while considering application under Sec.14(1)(b) of the Act. But, the physical condition alone is not criteria nor it is to be considered as of primary importance. The physical condition of the building is one of the matters to be considered along with various other factors is settled in view of the decision reported in Vijay Singh v. Vijayalakshmi Ammal, (1996)6 S.C.C. 475 , a decision rendered under Tamil Nadu Rent Control Act itself. In that case, their Lordships held in paragraph 4 that the building need not be dilapidated and dangerous for human habitation. In para.4 of the judgment, their Lordships held thus: 4. The framers of the Act should have made their intention more specific and clear while enacting Sec,14(1)(b) of the Act, instead of leaving it to the Courts to interpret the same from time to time. It is not clear and specific whether the expression "immediate purpose of demolishing" is linked with the condition of the building or with the need of the landlord to demolish an existing building in order to erect a new building on that site. As the Act purports to give protection to the tenants from eviction it cannot be held that the time for eviction is to be decided at the will and desire of the landlord. Therefore, the expressions "immediate purpose of demolishing" cannot be read to mean the immediate need and urgency of the landlord. But at the same time it cannot be linked only with the dilapidated and dangerous condition of the building. The age and condition of the building has to be taken note of while judging the question of bona fide requirement of the landlord under Sec. 14(1)(b). But the question is as to where to draw the line? Whether it should not only be old but dilapidated at the same time being unsafe for human habitation? If that was the requirement for passing an order of eviction, then why the framers of the Act have put the other condition that such demolition is to be made for purpose of erecting a new building on the site? Whether it should not only be old but dilapidated at the same time being unsafe for human habitation? If that was the requirement for passing an order of eviction, then why the framers of the Act have put the other condition that such demolition is to be made for purpose of erecting a new building on the site? There are Acts in some States where one of the grounds for eviction of the tenant is that condition of the building is such that it has to be demolished. But in those Acts there is no requirement or condition to erect a new building on the same site. But in the present Act the condition of erecting a building on the site of the old building is a must. The Rent Controller has been vested with the power to direct the tenant to deliver the possession of the building to the landlord only after he is satisfied that after demolition of the old building a new building shall be erected. That is apparent not only from Sec.14(1)1b), but from Sec.16 also which provides: 16. Tenant to occupy if the building if not demolished: (1) Where an order directing delivery of possession has been passed by the Controller under Clause (b) of Sub-sec.(1) of Sec.14 and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking under Clause (b) of Sub-sec.(2) of Sec.14 the tenant may give the landlord notice of his intention to occupy the building the possession of which he delivered. If within fifteen days from the date of receipt of such notice, the landlord does not put him in possession of the building on the original terms and conditions, the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions. 2. The Controller shall order the landlord to put the tenant in possession of the building on the original terms and conditions. 2. Where in pursuance of an order passed by the Controller under Clause (b) of Sub-sec.(1) of Sec.14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the construction of such new building is completed and notified to the local authority concerned." In view of Sub-sec.(1) of Sec.16 if the work of demolishing any material portion of the building is not substantially commenced by the landlord within the period of one month in accordance with his undertaking under Clause (b) of Sub-sec.(2) of Sec.14, the tenant may give the landlord notice of his intention to occupy the building the possession of which he has delivered. Thereafter the Controller can direct the landlord to put the tenant in possession of the building on the original terms and condition. If Sec.14(1)(b) of the Act is interpreted to cover only buildings which are dilapidated and dangerous for human habitation, Sub-sec.(1) of Sec.16 would not have provided for reinduction of the tenant in such a building on original terms and conditions." [Italics supplied] Thereafter in paragraphs 10 and 11 of the judgment, their Lordships considered the scope of Sec.14(1)(b), which read thus: "10. On reading Sec.14(1)(b) along with Sec.16 it can be said that for eviction of a tenant on the ground of demolition of the building for erecting a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time, and to erect a new building on the same site. Sub-sec.(1) of Sec.16 contemplates that permission has been granted by the Rent Controller under Sec.14(1)(b) for demolition of the building, but if such demolition is not carried out in terms of the order and undertaking, then the Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. Sub-sec.(1) of Sec.16 contemplates that permission has been granted by the Rent Controller under Sec.14(1)(b) for demolition of the building, but if such demolition is not carried out in terms of the order and undertaking, then the Rent Controller can order the landlord to put the tenant in possession of the building on the original terms and conditions. If the building is dangerous and dilapidated requiring immediate demolition for safety, then there is no question of the Rent Controller directing the landlord to put the tenant in possession of such building on the original terms and conditions, on account of the failure of the landlord to commence the demolition within the period prescribed. Similarly there was no occasion to link the demolition of such building with erection of new building and then to give the landlord freedom from the restrictive provisions of the Act for a period of five years from the date on which the construction of such new building is completed and notified to the local authorities concerned. In this background, it has to be held that neither of the extreme position taken by the respondent or the appellants can be accepted. Permission under Sec,14(1)(b) cannot be granted by the Rent Controller on mere asking of the landlord, that he proposes to immediately demolish the building in question to erect a new building. At the same time it is difficult to accept the stand of the appellants that the building must be dilapidated and dangerous unfit for human habitation. For granting permission under Sec.14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not. For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into account: (1) Bona fide intention of the landlord far from the sole object only to get rid of the tenants; (2) the age and condition of the building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under Sec.14(1)(b). These are some of the illustrative factors which have to be taken into consideration before an order is passed under Sec.14(1)(b). No Court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent Controller. 11. It appears from the facts of the present appeals that the building in question was an old one and was situated in a very busy locality of the town where a number of buildings in and around the building in question had been demolished and shopping complex had been constructed with modern amenities. The respondent also wanted to demolish the entire building in order to construct a new shopping complex for which necessary permission from the municipal authorities had already been obtained. It had also been claimed on behalf of the respondent that she had sufficient financial resources for construction of the new building. An undertaking had also been given on behalf of the respondent that the work of demolition of the building would commence within one month and would be completed before the expiry of three months from the date the said respondent recovered possession of the building. Taking all the circumstances into consideration, the Controller had passed an order in terms of Sec.14(1)(b) of the Act directing the appellants who were tenants in the building in question to deliver possession of the building to the respondent. According to us, all relevant factors have been taken into consideration and there is no scope for any interference by this Court. [Emphasis supplied] Their Lordships have clearly said that the contention of the tenant that before ordering eviction under Sec.14(1)(b), the building must be dilapidated and dangerous cannot be accepted. 11. From the above decision, it is also clear that apart from the physical condition of the building, various other factors also will have to be considered and in paragraph 11 of the judgment, it is clear that their Lordships took note of the development in the locality which has taken place is also a relevant circumstance. 12. In this case, the landlord has proved that the age of the building is more than 90 years old on the date of the application. 12. In this case, the landlord has proved that the age of the building is more than 90 years old on the date of the application. It was also brought to the notice of the Court that some rafters have come down and the same was joined only by steel rod put in between them. The Engineer who has been examined as P.W.2. has prepared the report in the presence of landlord and tenant. He had given vivid picture of the condition of the building. Ex.P-3 is the report filed by P.W.2. According to him, many of the walls of the building have dilapidated cracks and are in damaged condition. He has said that the building is situated in one of the important junctions in Tiruchi and P.W.1 has also given evidence as to the development that has taken place in the locality. 13. Records were also called for and apart from the same, counsel for the both sides also placed before me the deposition and other documents filed by them for the purpose of disposing this revision. Having perused those documents and evidence, I do not think that the Appellate Authority went wrong in ordering eviction. As held by the Hon’ble Supreme Court in Vijay Singh’s case, (1996)6 S.C.C. 475 , physical condition of the building is only one of the matters to be considered along with other matters. The appellate authority has re-appreciated the evidence and it held that the building is not in a good condition. It is true that P.W.2 has said that it is not in a dangerous condition. The statute do not require that the building is to be in a dangerous condition before it had to be demolished. Taking into consideration the old age, the lack of amenities compared with the amenities in modern buildings, the recent development that has taken place in the locality, the small rent collected by the landlord from the existing building, the conclusion of the appellate authority is only to be confirmed. All these can be taken into consideration while considering the condition of the building. Even though the building is situated in one of the most important place in Tiruchi Town, the landlord is getting only monthly rent Rs.120. The entire rent per annum will not be sufficient to even repair buildings. All these can be taken into consideration while considering the condition of the building. Even though the building is situated in one of the most important place in Tiruchi Town, the landlord is getting only monthly rent Rs.120. The entire rent per annum will not be sufficient to even repair buildings. The landlord will have spend from his pocket even to pay the tax and the building may not given him any return. It has also come out in evidence that modern buildings are put up in the locality with better amenities. If better amenities are provided, that will be beneficial both to the landlord and occupier. It also gets the better income. 14. The landlord has also proved that he has got the financial capacity to raise funds. Additional evidence was filed before the Appellate Authority apart from documents already admitted before the Rent Controller. An argument was taken that the appellate authority should not have admitted additional evidence in appeal. I do not find the submission of the counsel could be accepted when the Appellate Authority feels that for the proper disposal of the appeal, additional evidence is required. When it is empowered to take evidence, I cannot find fault with the discretion exercised by the Appellate Authority. On the basis of those exhibits, the landlord had amply proved the financial capacity to put up a new construction. An argument was also taken by the learned counsel that even though the eviction petition was filed in 1983, till date the building has not collapsed and 17 years lapsed thereby. The learned counsel therefore submitted that contention that the building is not in a good shape is belied. 15. I have already held that the building need not be in dangerous condition or unfit for human habitation. An undertaking is given by the landlord that he will demolish the building or major portion thereof. From the above, it is clear that there must be a building for being demolished. It need not be on the verge of collapse as was argued by the learned counsel. The mere pendency of the litigation and the long time taken to dispose of the same, is not a relevant consideration as argued by the learned counsel. 16. From the above, it is clear that there must be a building for being demolished. It need not be on the verge of collapse as was argued by the learned counsel. The mere pendency of the litigation and the long time taken to dispose of the same, is not a relevant consideration as argued by the learned counsel. 16. The landlady has obtained plan and licence is proved in this case and no serious argument was taken by the learned counsel for the petitioner challenging the same. It is submitted by the petitioner that proof of physical condition, capacity to re-construct and the production of plan and licence by itself will not prove bona fides, but the claim itself must be bona fide. Counsel submitted that before the institution of proceedings landlady claimed enhancement of rent, which was not accepted by the tenant and that was the reason for filing this application. Even though the Rent Controller has dismissed the application, this contention was not accepted even by the Rent Controller. The Appellate Authority has also held that there is no demand for enhancement of rent. Even the tenant is not in a position to say that when such demand was made and what was the enhanced rent that was demanded. His evidence itself is sufficient to hold that the said argument is without any basis. 17. It is true that the claim of the landlady for eviction must be bona fide and it must be genuine claim. How to prove the genuineness of the claim. In Neta Ram v. Jiwan Lal, A.I.R. 1963 S.C. 499, a case under the Patiala and East Punjab States Union Urban Rent Restriction Ordinance, this question was considered by the Hon’ble Supreme Court and held thus: “Before a landlord can obtain an order for ejectment of his tenant on ground of his requirement for reconstruction of a house, he must satisfy the Rent Controller about genuineness of his claim, and this can only be established by looking at all the surrounding circumstances, such as the condition of the building, its situation the possibility of its being put to a more profitable use after construction, the means of the landlord and so on. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however, strongly, said to be entertained by him. It is not enough that the landlord comes forward, and says that he entertains a particular intention, however, strongly, said to be entertained by him. Sec.13(3)(b) of the Pepsu Urban Rent Restriction Ordinance speaks not of the bona fides of the landlord, but says, on the other hand, that the claim of the landlord that he requires the building for reconstruction and reerection must be bona fide, that is to say, honest in the circumstances. It is impossible, therefore, to hold that the investigation by the Controller should be confined only to the existence of an intention in the mind of the landlord to reconstruct. This intention must be honestly held in relation to the surrounding circumstances.” If all these circumstances are proved and when the allegation of the tenant that the landlord filed eviction petition only because of enhanced rent is not paid is found against and no other motive is alleged, the claim can only be found to be bona fide. When all the conditions under Sec.14(1)(b) are satisfied, an inference of bona fides can be had. 18. In the result, the decision of the Appellate Authority is not illegal, improper or irregular and on perusal of records, this Court is satisfied that the order of the Appellate Authority is in accordance with law. C.R.P. is dismissed. No costs. C.M.P.No.10715 of 1996 is also dismissed.