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2005 DIGILAW 569 (MAD)

Khyrunnissa & Others v. Rose Nissa & Others

2005-03-31

PRABHA SRIDEVAN

body2005
Judgment :- The tenants are the revision petitioners and they have lost before both the courts below. The relevant facts in each of the R.C.O.P. are as follows : R.C.O.P. No.8 of 1999 (C.R.P. No.459 of 2005) The tenancy is residential. The monthly rent is Rs.120/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.9 of 1999 (C.R.P. No.460 of 2005) The tenancy is residential. The monthly rent is Rs.70/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.11 of 1999 (C.R.P. No.461 of 2005) The tenancy is residential. The monthly rent is Rs.110/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.13 of 1999 (C.R.P. No.462 of 2005) The tenancy is non-residential. The monthly rent is Rs.300/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.12 of 1999 (C.R.P. No.463 of 2005) The tenancy is residential. The monthly rent is Rs.120/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.25 of 1999 (C.R.P. No.464 of 2005) The tenancy is residential. The monthly rent is Rs.120/-. Eviction was sought for on the ground of willful default and demolition and re-construction. R.C.O.P. No.7 of 1999 (C.R.P. No.465 of 2005) The tenancy is residential. The monthly rent is Rs.90/-. Eviction was sought for on the ground of demolition and re-construction and also for own use and occupation. R.C.O.P. No.28 of 1999 (C.R.P. No.466 of 2005) The tenancy is residential. The monthly rent is Rs.90/-. Eviction was sought for on the ground of demolition and re-construction. R.C.O.P. No.27 of 1999 (C.R.P. No.467 of 2005) The tenancy is residential. The monthly rent is Rs.70/-. Eviction was sought for on the ground of willful default and demolition and re-construction. 2. All these premises are part of the same building and the respondents have pleaded that the building is composite in structure with distinct tenements and that the building cannot be demolished without eviction of all the petitioners. The respondents have also undertaken, "to commence the demolition within one month and also to complete the same within three months from the date of recovering possession from the petitioners". The respondents have also undertaken, "to commence the demolition within one month and also to complete the same within three months from the date of recovering possession from the petitioners". Wherever the respondents have sought for eviction also on the ground of owner's occupation, the landlords have stated that the premises in the occupation of the respective tenants will be converted to residential purposes after re-construction. The respondents have also stated that they have taken necessary steps to obtain the sanctioned plan from the Municipality and that they are having sufficient means to demolish and re-construct the building, which is old and dilapidated. 3. The petitioners denied all the averments of the respondents and also stated that unless a valid license is obtained as required under Chapter X-A of the Tamil Nadu District Municipalities Act, 1920, which applies to hill stations, no landlord can demolish a building and therefore, since the landlords have not applied for such a permission, on this ground alone, the eviction petitions should be dismissed. 4. A Commissioner was appointed, who filed a report stating that the building is about 100 years old and that the walls of the premises have lost their stability and that there are cracks on the side walls. The Engineer had inspected each and every tenement in the building and had given his opinion that the building may collapse at any time. The tenants/revision petitioners filed their objections to the Commissioner's report. 5. The Rent Controller came to the conclusion that the respondents required the premises bona fide for demolition and re-construction and that the willful default in R.C.O.P. Nos.25 and 27 of 1999 was proved and accordingly ordered eviction. As against that, all the tenants filed appeals before the Rent Control Appellate Authority. The learned Rent Control Appellate Authority disposed of all the appeals by a common order. As against that, the prevent revisions have been filed. 6. Learned counsel appearing for the revision petitioners submitted that the Rent Control Appellate Authority had failed to see that Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 had not been satisfied. As against that, the prevent revisions have been filed. 6. Learned counsel appearing for the revision petitioners submitted that the Rent Control Appellate Authority had failed to see that Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 had not been satisfied. The learned counsel submitted that the appellate authority had in fact accepted the case of the petitioners that the respondents were not going to re-construct the building after demolition, but were going to alienate the property, and if that was so, the landlords cannot be said to require the building bona fide for demolition and re-construction. The learned counsel also submitted that though the Act requires the landlord to give an undertaking that if he is given vacant possession of the premises, he would commence the demolition and complete the same before the expiry of three months, no such obligation is imposed on the landlord with regard to re-construct the premises. According to the learned counsel, therefore, there is a lacuna in the Act and when a landlord has no intention of re-constructing the building after demolition, his prayer for eviction shall not be granted. Learned counsel also referred to the evidence of the landlord in R.C.O.P. No.9 of 1999, where he has stated that some portion of the property has been sold and that he has kept some of the portions that have become vacant, without letting them out. The learned counsel also pointed out that apart from stating that he is admitted to obtain planning permission and building license, there is nothing to show that his intention for demolition and re-construction is genuine. Learned counsel relied on the decisions in 2003 (1) S.C.C. 191 [JAGAT PAL DHAWAN VS. KAHAN SINGH] and 2002 (5) S.C.C. 229 [HARRINGTON HOUSE SCHOOL VS. S.M. ISPAHANI]. 7. Learned counsel for the respondents submitted that the appellate authority was satisfied on facts as to the bona fides of the respondents and it not open to the revisional authority to interfere with the same. He also submitted that the evidence clearly shows that the respondent is assessed to income tax and if the building is vacated, he would immediately demolish it and get planning permission for re-construction. He has clearly denied the suggestion that he does not have the financial capacity to re-construct the building. Learned counsel referred to the decisions in 2004 (2) C.T.C. 270 [HABIBULLAH VS. He has clearly denied the suggestion that he does not have the financial capacity to re-construct the building. Learned counsel referred to the decisions in 2004 (2) C.T.C. 270 [HABIBULLAH VS. MOHAMED SULTAN] and 2003 (1) M.L.J. 819 [GANESAN VS. SUBBIAH DHARMANIDHI, TUTICORIN]. 8. As regards willful default, the appellate authority has found that the landlord has issued a notice dated 1.1.1999 calling upon the tenants to pay the rent for the period for which they were in default, which was from 1.9.1998 to 30.6.1999. Neither of the petitioners in R.C.O.P. No.25 of 1999 and 27 of 1999 (C.R.P. Nos.464 and 467 of 2005) replied to the notice and hence, the appellate authority found that in their counters, there was nothing to show why the petitioners had not paid the monthly rents without a demand from the landlord. 9. In 2002 (4) S.C.C. 204 [RAJA MUTHUKONE VS. T. GOPALSAMI], the Supreme Court has held that once the landlord has issued the notice and the tenant does not pay the rent, then, "after expiry of the stipulated period, it would be for the tenant to satisfy the Rent Controller that default was the result of circumstances beyond his control". In this case, the tenants have not discharged their burden of proof. In 2001 (6) S.C.C. 13 [M.K. MUKUNTHAN VS. M. PASUPATHI], the tenant did not disclose as to why the rent was not paid for the relevant months and the Supreme Court confirmed the conclusion of the High Court that the tenant had defaulted in payment of rent. In 2003 (1) S.C.C. 123 [E. PALANISAMY VS. PALANISAMY], the Supreme Court observed, "The rent control leglisation is normally intended for the benefit of tenants; at the same time, the benefits conferred on the tenants through the relevant statute can be enjoyed only on the basis of strict compliance with the statutory provisions, and equitable consideration has no place in such matters". The appellate authority had also relied on the decisions in 2000 (1) L.W. 371 [DHARANI AMMAL VS. P.J. RAPHAL], 2000 (1) L.W. 445 [SAINABAI AMMAL VS. KRISHNAMURTHY] and 2000 (1) L.W. 600 [S. SUBRAMANIA PILLAI VS. D. THENMOHAN]. From these decisions, it is clearly seen that "unexplained default is undoubtedly willful". Therefore, with regard to these two petitioners, the eviction on the ground of willful default must be confirmed. 10. P.J. RAPHAL], 2000 (1) L.W. 445 [SAINABAI AMMAL VS. KRISHNAMURTHY] and 2000 (1) L.W. 600 [S. SUBRAMANIA PILLAI VS. D. THENMOHAN]. From these decisions, it is clearly seen that "unexplained default is undoubtedly willful". Therefore, with regard to these two petitioners, the eviction on the ground of willful default must be confirmed. 10. As regards the requirement of the landlords on the ground of demolition and re-construction, the age of the building was assessed by P.W.2, who was a qualified Engineer, as 100 years old. He had given evidence that in the course of inspection, he had noticed that the building had extensively developed vertical as well as horizontal cracks. P.W.2, who went along with the Commissioner, has categorically given an opinion that the walls of the building have lost their stability and may collapse at any time. The appellate authority had observed that the tenants had not filed any objection to Ex.C.1. This is not correct; they had filed their objections. Yet the oral testimony of P.W.2 and his Certificate, Ex.C.1, deserve acceptance and there is no justification to reject the same. 11. In 2003 (1) S.C.C. 414 [SHAKEELUR RAHMAN VS. SYED MEHDI ISPAHANI], which was also a case that arose out of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the High Court held that notwithstanding the absence of pleadings regarding the age and condition of the building, the materials on record established that the building was old and required demolition. In that case, the building was made of lime mortar, whereas here, the building is built with brick and mud mortar, and the evidence shows that the building is old and requires demolition. The Supreme Court, while not quite approving of the High Court's interference with the concurrent findings of fact, affirmed the finding of bona fide requirement. 12. In the same case, an attempt was made to attack the Act on the ground that there is no provision in the Act for re-induction of the tenants after re-construction of the premises. The Supreme Court rejected that plea as one being without any substance in view of what is stated in the decisions in 1996 (6) S.C.C. 475 [VIJAY SINGH VS. VIJAYALAKSHMI AMMAL] and 1987 (4) S.C.C. 238 [PRABHAKARAN NAIR VS. STATE OF TAMIL NADU]. The Supreme Court rejected that plea as one being without any substance in view of what is stated in the decisions in 1996 (6) S.C.C. 475 [VIJAY SINGH VS. VIJAYALAKSHMI AMMAL] and 1987 (4) S.C.C. 238 [PRABHAKARAN NAIR VS. STATE OF TAMIL NADU]. In the present case too, the petitioners claim that there is a lacuna in the Act and that it is easy for a landlord to obtain eviction under Section 14(1)(b) of the Act with an oblique motive. Section 14(1)(b) of the Act shows clearly that for ordering eviction under this section, the Rent Controller should be satisfied that the building is bona fide required by the landlord for the purpose of demolishing it and that such demolition is to be made for the purpose of erecting a new building. Therefore, eviction is ordered only if the Rent Controller is satisfied that the requirement of the landlord is for demolition and for re-construction. In view of the decision of the Supreme Court cited above, this objection cannot be sustained. 13. Further, it is a finding of fact that the tenements are in a row in the same building and that they form an integral part of one and the same building and therefore, it is not possible for the respondents to demolish one tenement if they want to re-construct the entire building as a whole. It has also been elicited in evidence that some portions of the building have been vacated and they are still kept vacant. This only reinforces the bona fides of the respondents in requiring the building. The respondents have given an undertaking that they would start demolishing the substantial portion of the building within one month of recovering possession and complete the work within three months. Therefore, they have complied with the statutory requirement of Section 14(1)(b) of the Act. 14. There are some stray observations in the order of the appellate authority that even if there is a hidden agenda in the minds of the landlords, the law as it stands today is in favour of the landlords. But, such observations must be ignored in view of the categoric finding that it is not possible to doubt the bona fides of the respondents. The appellate authority has also observed that the respondents have proved that the vacant portions are being kept vacant so that they can demolish and re-construct the entire building. 15. But, such observations must be ignored in view of the categoric finding that it is not possible to doubt the bona fides of the respondents. The appellate authority has also observed that the respondents have proved that the vacant portions are being kept vacant so that they can demolish and re-construct the entire building. 15. As regards the claim of the petitioners that the respondents want to sell the property, the appellate authority has observed that though there is some advertisement regarding houses for sale near the area where the petition premises is situated, "From the above said advertisement, we cannot jump to the conclusion that the building advertised is the building involved in all these original petitions and that the claim of the tenants that the landlords plan to sell away the premises cannot be believed upon the oral evidence of R.W.2". 16. As regards the financial capacity of the respondents, it is seen from the decision in 1998 (3) L.W. 214 [S. RAJU VS. K. NATHAMANI] that it is enough if the landlord shows his capacity to raise the necessary funds. In this case, the respondent has, in his evidence, shown that he is a bank officer and a tax assessee and that he has the capacity to demolish and re-construct the building. 17. The appellate authority also rejected the case of the petitioners that the eviction cannot be granted since the landlords have not produced the approved plan by relying on the decisions in 1995 (1) L.W. 632 [A. LAKSHMANAN VS. KANNIAMMAL @ PATTAMMAL], 2000 (3) L.W. 400 [Dr. P.S. SALAHUDDIN VS. C. SHAMEEMUNNISA] and 2000 (3) L.W. 419 [A. BALASUNDARAM VS. T. BALASUBRAMANIAN]. In 2002 (5) S.C.C. 229 which was referred to earlier, the Supreme Court held that there is nothing to cast a shadow of doubt on the bona fides of the landlords pleading an immediate need for demolition followed by re-construction and in that case, the Supreme Court devised a procedure to protect the interest of both the tenant and the landlord while the Supreme Court did not interfere with the order of eviction. In 2003 (1) S.C.C. 191 also referred to above, the Supreme Court observed that the statute does not require that the landlord should prove the availability of building plans duly sanctioned by the local authority as a condition precedent, to his entitlement for eviction of the tenant; the landlord only has to show his bona fides. 18. Chapter X-A of the Tamil Nadu District Municipalities Act deals with Building Regulations in Hill Stations and it provides that there cannot be any construction or re-construction of building without license. Section 217-F under this Chapter deals with the period of license and it is seen therefrom that from every license granted under Section 217-D or Section 217-DD will be valid only for a period of one year from the date on which it is granted, and if the construction is not commenced within the said period, "It shall not be commenced thereafter unless the State Government or the executive authority, as the case may be, on application made therefor, has extended the period of the license". In this case, the landlords have applied for eviction in the year 1999. They had stated that they will take steps to apply for the license. We are now in 2005. 19. Even if the landlords had applied for the license and obtained it, they would still have to apply for it again, since the currency of the license is only for one year. When the landlords are admittedly conscious of their duty to obtain the license before re-constructing the building, the mere fact that they have not obtained the license, which would have anyway expired by now, cannot advance the case of the tenants. 20. In 2002 (9) S.C.C. 437 [AMAIYAPPA TRANSPORT VS. N.S. RAJULU], the building was about 80 years old when the proceedings for eviction commenced and by the time the matter reached the Supreme Court, 20 years had elapsed. The Supreme Court found that there was nothing wrong if the landlord proposed to demolish such a building to augment his earning and there is nothing to suspect the bona fides of the landlord. The Supreme Court observed, "There is nothing to assume that the need for demolition and re-construction ..... is unnatural or lacking in sincerity. The Supreme Court found that there was nothing wrong if the landlord proposed to demolish such a building to augment his earning and there is nothing to suspect the bona fides of the landlord. The Supreme Court observed, "There is nothing to assume that the need for demolition and re-construction ..... is unnatural or lacking in sincerity. There is no material on record to hold that the landlord was merely attempting to find out a pretext or ruse to get rid of the tenants". 21. The revisional jurisdiction conferred on the High Court under Section 25 of the Act is not quite as narrow as the one under Section 115 of the Civil Procedure Code; nevertheless, a finding of fact arrived at by the appellate authority cannot be lightly interfered with by the High Court acting like a court of appeal and re-appreciating the evidence – vide 2003 (10) S.C.C. 610 [P.M. PUNNOOSE VS. K.M. MUNNERUDDIN]. In 2001 (10) S.C.C. 641 [D. RADHAKRISHNAN VS. M. LOORDUSWAMY], eviction was sought for on the ground of demolition and re-construction and the High Court interfered with the concurrent findings of the authorities below. The Supreme Court observed, "We have no manner of doubt that the High Court exceeded its jurisdiction in interfering with the concurrent findings arrived at by the Rent Controller as well as the Rent Control Appellate Authority with regard to the bona fide need of the landlord requiring demolition and re-construction". In this case, the respondents had proved by the Engineer's report is to the effect that the building is 100 years old and is in danger of collapsing; they had also proved that they had the financial capacity to re-construct the building, and that they bona fide intend to demolish and re-construct the building. The Rent Controller and the Rent Control Appellate Authority accepted the case of the respondents and found that their requirement was a bona fide one. The fact that the appellate authority also made some tangential observations cannot be a ground for setting aside the concurrent findings of the authorities below. 22. For all these reasons, the civil revision petitions fail and are accordingly dismissed. No costs. Consequently, C.M.P. Nos.2832 to 2840 of 2005 are closed.