Research › Search › Judgment

Madras High Court · body

2004 DIGILAW 438 (MAD)

K. Lingam v. E. Thandayuthapani

2004-03-15

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- 1. The landlords, who lost the case before the learned Rent Control Appellate Authority are the revision petitioners. 2. The revision petitioners filed the Rent Control Original Petition for eviction of the respondent from the petition non-residential premises under Sections 14(1)(b) and 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 that the petition non-residential premises is bona fide required for the purpose of demolition and reconstruction and that the respondent committed acts of waste. 3. The petition non-residential premises is bearing door No. 745, Nethaji Road, Erode Town which originally belonged to E.R. Palaniraja and 6 others being the heirs of one Pappathiammal. The respondent was a tenant under them on a monthly rent of Rs. 575/- where he is running a Clinical Laboratory. The first revision petitioner purchased the southern half from them as per registered sale deed dated 30.5.1993 and the second revision petitioner purchased the northern half as per the registered sale deed of the same date. After purchase, the respondent attorned tenancy in their favour. The petition premises is very very old and very bad and dilapidated condition. The building has been constructed with mud brick more than 80 years ago. There are cracks in the walls and the building requires immediate demolition. It is located in the heart of Erode town in the busiest commercial locality. If the new building is put up after demolishing the old, the income would be many-fold. Two tenants, who were occupying the small shops abutting the road, have vacated and they are lying vacant. The revision petitioners proposed to put up building jointly and store the income. Necessary plan has been submitted to the Erode Municipality. They have sufficient funds to put up new construction and they have made all arrangements to demolish and put up new construction. They will commence the work within one month and complete before three months from the date of recovery of possession of the building. After purchase of the petition property by the revision petitioners, the respondent is indulging in acts of waste and has made opening in the wall, which would impair materially the value and utility of the building. 4. The petition was resisted in the counter by the respondent herein admitting that he was a tenant under the original owner E.R. Palaniraj on a monthly rent of Rs. 4. The petition was resisted in the counter by the respondent herein admitting that he was a tenant under the original owner E.R. Palaniraj on a monthly rent of Rs. 575/- and that he is running a clinical laboratory in the petition premises. It is denied that the revision petitioners have purchased the property as claimed and that the respondent attorned the tenancy in their favour. It is also denied in the counter that the building is situated in the busiest commercial locality and that there have been cracks in the walls and the building is more than 80 years old. It is further stated that the building does not require demolition. It is also stated that he has not committed acts of waste and has not made opening on the wall. After obtaining permission from Pappathiammal, he made improvements by spending about Rs. 61,500/-. He also put up further construction at the cost of Rs. 82,000/- after obtaining permission from Pappathiammal and started the blood bank in the year 1987. 5. The learned Rent Controller considering the evidence of the first revision petitioner and Exs. A-1 to A-6 marked on the side of the revision petitioners and that of the evidence of the respondent as R.W. 1 and Engineer Muthuvel as R.W. 2 and Exs. B-1 to B-9 marked on the side of the respondent and the advocate-commissioners report and plan Exs. C-1 and C-2 and accepting the case of the revision petitioners/landlords that the petition non-residential premises is bona fide required for the purpose of demolition and reconstruction and that the respondent committed acts of waste, ordered eviction. On appeal by the tenant/respondent, the learned Rent Control Appellate Authority reversing the order of eviction and by allowing the appeal dismissed the Rent Control Original Petition. Therefore, the landlords have filed this Civil Revision Petition. 6. The learned counsel for the revision petitioners contended that with regard to the means, it is clearly stated by the revision petitioners, who are income tax assessee, in the Rent Control Original Petition that they have sufficient funds to put up new construction. Therefore, the landlords have filed this Civil Revision Petition. 6. The learned counsel for the revision petitioners contended that with regard to the means, it is clearly stated by the revision petitioners, who are income tax assessee, in the Rent Control Original Petition that they have sufficient funds to put up new construction. Then it is submitted that the petition premises is very old and in a dilapidated condition and even the building is not old and dilapidated condition, the revision petitioners are entitled for eviction, in that it is situated in the busiest commercial locality in Erode town and if new construction is put up, it will augment the income of the landlords. In this regard the learned counsel also pointed out that the landlords/revision petitioners have already obtained approved plan and the revision petitioners have the capacity to raise funds. As regards the acts of waste, the learned counsel for the revision petitioners argued that the alterations effected by the tenant/respondent and materially impaired the utility and value of the building and as such, on that ground also, the respondent is to be evicted. As regards the petition filed by the revision petitioners, who are the owners of the southern half and the northern half of the petition premises respectively, it is submitted that the petition is very much maintainable, in that the entire premises is occupied by the respondent as a tenant, who also attorned the tenancy in favour of the revision petitioners. The learned counsel for the revision petitioners relied on the following decisions:— (1) S. Raju and others v. K. Nathamani reported in 1998(3) L.W. 214, (2) R.E.V. Venkatachala Gounder v. Venkatesha Gupta & others reported in JT 2002 (3) S.C. 591 = 2002-4-L.W. 427. (3) Harrington House School v. S.M. Ispahani and another reported in JT 2002(4) S.C. 639 = 2002-4-L.W. 639. (4) Manickkampillai v. A. Sakuntala & others reported in 2002(1) T.L.N J. 86=2002-1-L.W. 796. 7. The learned counsel for the respondent submitted that the single petition filed by both the revision petitioners is not maintainable. As regards the old and dilapidated condition of the building, it is argued for respondent that the building is in sound condition and as such, not required for immediate purpose of demolition and reconstruction. The intention of the landlords is only to evict the respondent from the petition premises. As regards the old and dilapidated condition of the building, it is argued for respondent that the building is in sound condition and as such, not required for immediate purpose of demolition and reconstruction. The intention of the landlords is only to evict the respondent from the petition premises. The learned counsel further contended that the landlords did not have sufficient means to demolish the petition premises and put up new construction and their financial aspects have not been proved by the revision petitioners. According to the learned counsel for the respondent, the estimate for the proposed construction have not been filed. As regards the acts of waste alleged, the learned counsel for the respondent argued that the respondent started blood bank in the year 1987 in the first floor only after obtaining permission from the previous landlord and has not committed acts of waste and since according to the learned counsel no perverse finding has been recorded by the learned Rent Control Appellate Authority, the judgment of the learned Rent Control Appellate Authority need not be reversed. The learned counsel for the respondent relied on the decision reported in Vijay Singh, etc. etc. v. Vijayalakshmi Ammal reported in 1996(II) CTC 586 (1997-1 L.W. 218), in which the Full Bench of the Apex Court ruled in paragraph 13:— “Permission under Section 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 Section 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 Section 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 facts and then a conclusion one way or the other has to be arrived at by the Rent Controller.” 8. The first revision petitioner Lingam purchased the southern half and the second revision petitioner purchased northern half of the petition premises and also the adjacent two shops on the southern portion bearing door Nos. 746 and 747 as per the sale deeds Exs. A-4 and A-5 respectively. It appears, after purchase, their vendor R. Palaniraj caused lawyer notice to the tenant, viz., the respondent herein intimating the sale in favour of the revision petitioners. It appears, under Ex. A-1 dated 29.6.1993 the tenant sent notice to the revision petitioners requesting to intimate the bank for depositing the proportionate rent due to them. The revision petitioners replied under Ex. A-2 dated 9.7.1993 informing that the entire rent can be paid to the first revision petitioner. It appears the rent is paid to the first revision petitioner. As per the sale deeds Exs. A-4 and A-5, the property purchased is a terrace and tiled building. The property sold under Exs. A-4 and A-5 was purchased by the Pappathiammal, the mother of the vendor Palaniraj and mother-in-law and paternal grand mother of the other vendors as per registered sale deed dated 21.2.1927, the copy of which was marked as Ex. B-1. In the sale deed Ex. B-1, the property purchased by Pappathiammal is mentioned as the tiled building. The Rent Control Original petition was filed on 1.6.1994. 9. The advocate-commissioner appointed in the Rent Control Original Petition inspected the petition premises on 24.10.1994 and filed report Ex. C-1 on 31.7.1995 along with Plan Ex. C-2. In the report Ex. C-1 it is stated that the petition premises is situated on the East of the Nethaji Road leading from South to North. The portion shown as ABCED in the plan Ex. C-2 is of Madras terrace and the advocate-commissioner found on the northern side East to West wall one crack and on the East to West southern wall two cracks from the bottom to top and it was found white washed newly. The portion shown as ABCED in the plan Ex. C-2 is of Madras terrace and the advocate-commissioner found on the northern side East to West wall one crack and on the East to West southern wall two cracks from the bottom to top and it was found white washed newly. The adjacent East portion shown as ECGF is connected by wooden doors and the southern EFLND portion is separated by cardboard in the line EF. In the portion ECGF in the northern East to West wall there was a crack from bottom to top and also another crack in the floor as shown in the place X. In the next adjacent portion shown as GHML also there have been cracks in the northern East to West wall from the bottom to top. The portion near the well and the stair case as shown in the plan Ex. C-2 was roofing with country tiles and except that portion all other portions are Madras terrace. In the first floor portion, the advocate-commissioner noticed two air conditioners newly fixed where also the advocate-commissioner noted open space and also rooms separated by card board. 10. It is admitted by R.W. 1 in his evidence that he became a tenant under Pappathiammal in 1969 and at that time the petition premises was of tiled construction. The Engineer R.W. 2 examined on the side of the tenant has admitted in his evidence that the petition premises is situated in an important commercial locality and in the opposite, there have been a commercial complex and there have been shops on either side of the Nethaji Road. The tenant as R.W. 1 has also admitted in his cross-examination that opposite to the petition premises, there is a bank and there is a commercial complex surrounding the same and that there are six shops in the church complex. It is also admitted that two tenants have vacated, but the said portions are being used as godown by the landlords for the past about 1-1/2 years. 11. The tenant filed a suit O.S. No. 480 of 1993 on 16.3.1993 against the previous Landlord Palaniraj and 5 others. The certified copy of the plaint is Ex. B-1. In paragraph 7 of the plaint it is stated that the petition premises is not in good condition. In as much as the property was originally purchased under the sale deed Ex. The certified copy of the plaint is Ex. B-1. In paragraph 7 of the plaint it is stated that the petition premises is not in good condition. In as much as the property was originally purchased under the sale deed Ex. B-1 dated 21.2.1927 by Pappathiammal as tiled construction, it is clear that the building is more than 65 years old at the time of the filing of the Rent Control Original Petition in the year 1994. The building is of Madras terrace construction as it can be seen from the advocate-commissioners report Ex. C-1 excepting the well and stair case portion which is of country tiles, it is clear from the report of the advocate-commissioner that there have been cracks on the northern as well southern wall. Therefore, it is clear that the building is old building and not in a good condition. 12. It is stated that the building is situated in a busiest commercial locality as admitted by R.Ws. 1 and 2, in that in and around on both sides of the Nethaji Road, where the petition premises is situated, there have been shops on either side of the road and also commercial complex besides banks etc. Two shops occupied by other two tenants admittedly are remaining vacant. By annexing the said portions the petition premises can be constructed newly after demolition. If the building is newly constructed it would augment income of the petitioners. 13. Since admittedly, the tenant has been paying rent to the first revision petitioner as per the lawyer notice Ex. A-2, even though the southern portion was purchased by the first revision petitioner and the northern portion was purchased by the second revision petitioner, it is only single tenancy and as such single petition filed for both portions consisting of same door number 745 is very much maintainable. 14. The revision petitioners also obtained approved plan under Ex. A-3. Merely because the estimate has not been filed, it cannot be said that the requirement of the landlords in respect of the petition premises is without bona fide, in that the approved plan Ex. A-3 has been obtained. P.W. 1 has stated in his evidence that in Erode-Mettur Road, he has got shopping complex consisting of three floors, in which there are 6 shops in each floor. A-3 has been obtained. P.W. 1 has stated in his evidence that in Erode-Mettur Road, he has got shopping complex consisting of three floors, in which there are 6 shops in each floor. Therefore, it reveals that the revision petitioners have sufficient means and capacity to raise funds to put up new construction. The revision petitioners have also gave statutory undertaking. In S. Raju and others v. K. Nathamani reported in 1998(3) L.W. 214, it has been held:— “it has been held that when new buildings with modern amenities have come up in that locality, naturally the building in question may become unsuitable to the surroundings and a liability, in its present condition, to the landlord. Keeping the building in the same condition will amount to asking the landlord to shoulder the burden for ever. Tenants may be satisfied with the present state of the building since they have to pay only a nominal rent but the Rent Control Legislation, beneficial to the landlord and the tenant both, should be interpreted in that way. For the purpose of proving his bona fide the landlord need only show that he has got the capacity to raise the necessary funds.” 15. As stated by the learned counsel for the landlords/revision petitioners the landlords have proved that the building is of more than 65 years old and not in a good condition, in that cracks have developed on the northern wall as well on the southern wall. Therefore, the requirement of the petition premises for the purpose of demolition and reconstruction is bona fide. On this ground the revision petitioners are entitled for eviction, in that though such finding recorded by the learned Rent Controller, proper finding has not been recorded by the learned Rent Control Appellate Authority and such perverse finding is to be set aside. 16. As regards the acts of waste, the advocate-commissioner has only noted the fixing of two air conditioners in the first floor for the purpose of running of the blood bank by the respondent and that cannot be said to be an acts of waste. So on this ground the revision petitioners are not entitled for eviction. 17. In the result, this Civil Revision Petition is allowed with costs ordering eviction on the ground of demolition and reconstruction. After pronouncement of the order, the learned counsel for the respondent/tenant sought time for eviction. So on this ground the revision petitioners are not entitled for eviction. 17. In the result, this Civil Revision Petition is allowed with costs ordering eviction on the ground of demolition and reconstruction. After pronouncement of the order, the learned counsel for the respondent/tenant sought time for eviction. Considering such request, three months time is granted for eviction, on the respondent/tenant filing an undertaking affidavit within two weeks from today that he would hand over possession of the petition premises without resorting to execution proceedings.