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2007 DIGILAW 497 (MAD)

Ravindra Varma v. Vanadja & Another

2007-02-06

R.BANUMATHI

body2007
Judgment :- Challenge in this Revision Petition is the concurrent findings of the Rent Control Authorities, ordering eviction on the ground of demolition and reconstruction and subletting under Sections 14(1)(b) and 10(2)(ii) of the Pondicherry Buildings (Lease and Rent Control) Act. The unsuccessful Tenant is the Revision Petitioner. 2. The demised premises forms an integral part of the Building at Door No.72 situated at Mahatma Gandhi Road, Pondicherry. The Revision Petitioner had become Tenant under the First Respondent / Landlady on a monthly rent of Rs.1750/- for nonresidential purpose of running a shop. Stating that the entire building is in dilapidated condition and the building is more than 100 years old and requiring immediate demolition and reconstruction, the Landlady has filed Eviction Petition under Sections 14(1)(b) and 10(2)(ii) of the Pondicherry Buildings (Lease and Rent Control) Act (for short "the Act"). Eviction was also sought for on the ground of subletting alleging that without the consent of the Landlady, the Tenant has sublet the shop premises to the sub-tenant – Second Respondent for running a business of his own. The premises is situated in a commercial centre where commercial buildings are demolished and new constructions are coming up. The Respondent / Landlady filed Eviction Petition on both the grounds of Demolition and Reconstruction and subletting. 3. The First Respondent / Tenant resisted the Eviction Petition contending that the requirement is not bonafide and the Landlady has filed the Eviction Petition with ulterior motive of vacating the Tenant. According to the Tenant, he is running a Fast Food Service in the demised premises and the Second Respondent is employed under him as Chef-cum-Manager for running the business and he is not a sub-lessee. 4. In consideration of the evidence, the Rent Controller found that the building is aged and in dilapidated condition, requiring immediate demolition and reconstruction. Pointing out that the Landlady had taken steps for simultaneous eviction of other Tenants, it was found that there is bonafide requirement. Observing that there is no explanation for the presence of the Second Respondent, the Rent Controller held that irresistible and inevitable conclusion is that the Second Respondent is a sub-tenant. 5. Referring to various decisions and finding that there is bonafide requirement, the Appellate Authority dismissed the Appeal, confirming the order of Eviction. .6. Observing that there is no explanation for the presence of the Second Respondent, the Rent Controller held that irresistible and inevitable conclusion is that the Second Respondent is a sub-tenant. 5. Referring to various decisions and finding that there is bonafide requirement, the Appellate Authority dismissed the Appeal, confirming the order of Eviction. .6. Challenging the concurrent findings, learned counsel for the Revision Petitioner / Tenant has contended that no document had been produced showing the age and condition of the building. It was further submitted that there are seven tenants against whom no steps had been taken for eviction, which shows lack of bonafide in the landladys requirement. Reiterating the stand of the Tenant, it was submitted that the Second Respondent is only an employee under the Revision Petitioner / Tenant, who is taking care of the business and the Courts below erred in finding subletting. 7. Contending that the Courts below have recorded concurrent finding as to the bonafide requirement, learned counsel for the First Respondent / Landlady has submitted that the Landlady has proved her bonafide requirement and financial capacity. Placing reliance upon the decision reported in A.Mohan Rao ..Vs.. Krishnan (1978 T.L.N.J 104), learned counsel has submitted that in Petition for demolition and reconstruction, motive of the landlord is totally irrelevant. .8. Age and Condition of the Building:- The demised premises is an integral part of the shop bearing No.72, Mahathma Gandhi Road, Pondicherry. The Landlord – Tenant relationship is not disputed. The Landlady, who was examined as P.W.1 has stated that the Building is more than 100 years old and the present condition of the building is not sound and the same is in a dilapidated condition. Ex.A.5 is the Settlement cum Partition Deed dated 28.03.1964. As per Ex.A.5, the Building was gifted to the Landlady by her Father on 28.03.1964. Even at the time of execution of Ex.A.5, the building was in existence and the same is described as partly tiled and partly terraced. P.W.2, the Civil Engineer / Architect has inspected the demised premises and has opined that the building is more than 100 years old and is in damaged condition. Evidence of P.Ws.1 and 2 and Ex.A.5 clearly show that the building is aged and not in sound condition. .9. P.W.2, the Civil Engineer / Architect has inspected the demised premises and has opined that the building is more than 100 years old and is in damaged condition. Evidence of P.Ws.1 and 2 and Ex.A.5 clearly show that the building is aged and not in sound condition. .9. Learned counsel for the Revision Petitioner / Tenant has contended that for showing age and condition of the building, no document had been produced. It was further submitted that P.W.2 is not a qualified Civil Engineer, but only an Architect, who is not competent to give opinion as to the age and condition of the building. Pointing out the condition of the Building and stating that it is constructed partly with mud mortar and partly with lime mortar and plastered with lime mortar, P.W.2 has given the Report – Ex.A.12. P.W.2 has opined that the age of the building is about 100 years and on an over all condition, the building is in damaged condition, requiring demolition. In his evidence, P.W.2 has denied the suggestion that he is not a qualified Engineer and that he has obliged the First Respondent / Landlady. P.W.2 is a qualified Engineer and his opinion on the building was rightly accepted by the Authorities below. 10. The provisions of Pondicherry Buildings (Lease and Rent Control) Act, 1969 are in pari-materia with the Tamil Nadu Buildings (Lease and Rent Control) Act. While the age and condition of the buildings are relevant factors to be taken into account, it is not possible to insist that the condition of the building must be such that there is imminent threat of the building collapsing in the near future and only in such contingency, the Landlord could resort to the process under Section 14(1)(b) of the Act. It has been held in numerous decisions that the building need not be very old and dilapidated. Some of the decisions of this Court on this point are:-Lakshmanan and Others ..Vs.. Kanniammal alias Pattammal (1995 II M.L.J. 178), Kanakavalli Ammal and others ..Vs.. V.S.Sundaram and Others ( 1984 (97) L.W. 166 ), Narayanaswami Iyer ..Vs.. Ramakrishna Iyer ( 1965 (I) M.L.J. 78 ), Daniel Parthasarathy ..Vs.. Manickavasagam (1965 (78) L.W. 24), Bharath Trading Co., ..Vs.. Shanmugasundaram ( 1982 (I) M.L.J. 94 ) and Ammal Pillai and others ..Vs.. M/s.Varadarajulu Complex Etc., ( 1997 (1) L.W. 364 ). 11. V.S.Sundaram and Others ( 1984 (97) L.W. 166 ), Narayanaswami Iyer ..Vs.. Ramakrishna Iyer ( 1965 (I) M.L.J. 78 ), Daniel Parthasarathy ..Vs.. Manickavasagam (1965 (78) L.W. 24), Bharath Trading Co., ..Vs.. Shanmugasundaram ( 1982 (I) M.L.J. 94 ) and Ammal Pillai and others ..Vs.. M/s.Varadarajulu Complex Etc., ( 1997 (1) L.W. 364 ). 11. In the decision reported in Vijay Singh and others ..Vs.. Vijayalakshmi Ammal (1996 (2) C.T.C. 586 = 1996 (6) S.C.C. 475 ), a Constitution Bench of the Supreme Court has laid down the law as under:- "..... 10. 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 note. For recording a finding that requirement for demolition was bona fide, the Rent Controller has to take into account: (1) bonafide 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 buidling 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 factors and then a conclusion one way or the other has to be arrived at by the Rent Controller........" 12. Physical condition of the building is also one piece of evidence, which is relevant to show the bonafides of the Landlord. But, it alone is not the criteria. Age and condition are not sine qua non for eviction under Section 14(1)(b). Non-production of plan and license are also not fatal. [vide Balasundaram ..Vs.. A.T.Balasubramanian and others (2000 M.L.J. (SUPP) 1)]. Physical condition of the building is also one piece of evidence, which is relevant to show the bonafides of the Landlord. But, it alone is not the criteria. Age and condition are not sine qua non for eviction under Section 14(1)(b). Non-production of plan and license are also not fatal. [vide Balasundaram ..Vs.. A.T.Balasubramanian and others (2000 M.L.J. (SUPP) 1)]. Law is well settled that in order to claim eviction, the building need not be dangerous for human habitation or about to collapse in the near future. [vide Anantharaman. B.K. ..Vs.. K.N.Rajaram and another (2000 M.L.J (Supp) 149)]. 13. In view of Vijay Singhs case and other decisions of this Court, it is not necessary for the Landlord to prove that the condition of the building is such that it is dilapidated and dangerous and has to be demolished immediately. But, in this case, there are facts and ample evidence to show that the condition of the building is not sound. The specific stand of the Landlady is that the building is more than 100 years old. But, the Tenant would contend that the building is not so aged and that the building is strong. The landlady is the best Judge to decide about the use of her property. It is relevant to note that the First Respondent / Landlady has filed Eviction Petitions against the other Tenants, who are in occupation of other portions and has obtained eviction orders (Exs.A.1 to A.4). 14. Bonafide Requirement:- The other factor to be proved by the Landlady is that her requirement of the building for demolition and reconstruction is bonafide. The term "bonafide" includes the means of the Landlady for reconstruction of the building and steps taken in this regard. Before filing of the Petition, no Approval or Sanction Plan was obtained by the Landlady. Ex.A.9 (dated 111. 1998) – Sanction and Approved Plan was obtained from Pondicherry Planning Authority after filing of the Eviction Petition. Onbehalf of the Revision Petitioner, it was contended that approval of the plan has been obtained only while P.W.1 was in the box and there is lack of bonafide. In number of decisions, consistent view had been taken that for seeking eviction under Sec.14(1)(b) of the Act, Approval or Sanction Plan is not a condition precedent. Onbehalf of the Revision Petitioner, it was contended that approval of the plan has been obtained only while P.W.1 was in the box and there is lack of bonafide. In number of decisions, consistent view had been taken that for seeking eviction under Sec.14(1)(b) of the Act, Approval or Sanction Plan is not a condition precedent. Non-production of Sanction Plan will not by itself disentitle the Landlady to get an eviction order under Sec.14(1)(b) of the Act. In number of decisions, it is well settled that in a Petition for demolition and reconstruction, want of Sanction Plan or lack of preparation for the work of demolition and reconstruction by itself cannot negative the bonafides of the Landlord. Some of the decisions are:- Mohammed Gani and two others ..Vs.. S.Rathinavel and two others ( 1994 (2) L.W. 472 ); Puttalingam ..Vs.. L.Sivalingam ( 2001 (1) L.W. 153 = 2000 M.L.J (SUPP) 482). 15. As noted earlier, the Landlady has obtained eviction order against other Tenants (vide Exs.A.1 to A.4). In her evidence, P.W.1 has said that even after eviction order, other Tenants viz., Suresh Babu and other Tenants continue to run "Tiffen Stall" and Xerox Shop and other business. Bonafide requirement of the Landlady is assailed contending that even after obtaining eviction order, the Landlady has not taken steps to evict other Tenants. In her cross-examination, P.W.1 has clearly explained the same stating that the entire building has to be demolished and only after obtaining eviction order against the Revision Petitioner, she could evict the other tenants. No lack of bonafide could be inferred from the fact that other Tenants continue to run their business in the premises. 16. The next contention that the Landlady is not possessed of sufficient means to carry out construction has no merits. In her evidence, P.W.1 has deposed that she owns valuable immovable properties like house properties. P.W.1 has also stated that she has ready cash of Rs.4,00,000/- and jewels worth Rs.1,00,000/-. The Landlady has stated that her Husbands family is quite affluent and her Husband also owns several immovable properties and that she has means and capacity to raise funds. The Landlady has proved that she has means and capability of raising funds for the purpose of demolition and reconstruction. 17. Means of the Landlady to put up construction is one of the relevant factors to test the bonafide. The Landlady has proved that she has means and capability of raising funds for the purpose of demolition and reconstruction. 17. Means of the Landlady to put up construction is one of the relevant factors to test the bonafide. The Landlady is not expected to produce the entire money in Court. In the decision reported in Ammal Pillai and others ..Vs.. Varadarajulu Complex etc., ( 1997 (1) L.W. 364 = 1997 (I) M.L.J. 626 ) it was held that in a Petition for eviction under Section 14(1)(b) of the Act, it is not necessary that the landlord alone should invest the amount. Financial assistance can be availed of from other persons. Licence or sanctioned plan may lapse pending the proceedings in Court. It is not necessary that the landlord should be renewing it periodically. 18. Admittedly, the demised premises in Mahatma Gandhi Road, Pondicherry is located in a commercial locality. The locality in which the building is situated and developing nature of the locality are relevant factors to be taken note of. In the decision reported in Ispahani S.M. And another Vs Harrington House School, represented by its Hon.Secretary (2000 I C.T.C. 634), it was held that the Landlord need not jingle the coins. Location of the property and also extensive properties owned by landlord is sufficient to establish means. 19. The Courts have held that it is not necessary that the Landlords alone would invest the amount. Facilities from financial institutions can be availed of or from the other persons. Holding that raising of funds for erecting a structure in commercial centre is not at all difficult, in the decision reported in Venugopal Vs Karruppusami and another (2006 (3) M.L.J 29), the Supreme Court observed thus: "....In the instant case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and, therefore, the landlord wishes to demolish the old single storey structure and to construct a multi – storeyed building which may fetch him higher rent, apart from serving his own needs. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. The landlord had already applied to the competent authorities and got the plans approved. Taking into consideration all these reasons, we are convinced that the landlord bona fide intends to demolish the old building and to construct a new one. Raising funds for erecting a structure in a commercial centre is not at all difficult when a large number of builders, financiers as well as banks are willing to advance funds to erect new structures in commercial areas. This is apart from the fact that the landlord has himself indicated that he was willing to invest a sum of Rs.1.5 lakhs of his own, and he owns properties and jewellery worth a few lakhs........" 20. In the instant case, it is quite obvious that the premises is located at Mahathma Gandhi Road, Pondicherry, which is a busy commercial locality in the city. Hence, it would not be difficult for the Landlady to raise funds either from financiers as well as from Banks, who willing to advance funds to erect new structure in such commercial areas. .21. Subletting:- .According to the Landlady, the demised premises has been leased out by the Tenant to the Second Respondent - Sheik Mohammed Yusuff. It is the case of the Tenant that Sheik Mohammed Yusuff was employed under him and has denied subletting. According to the Tenant, Sheik Mohammed Yusuff is employed under him as a Chef cum Manager for the business and he is not a sub-lessee. Referring to the evidence of R.W.1, the Courts below pointed out that R.W.1 is a busy and active politician and finds little time to look after his business. 22. The Second Respondent - Sheik Mohammed Yusuff remained exparte. Where subletting is alleged, the relationship between the Tenant and the alleged sub-tenant is within the special knowledge of either the Tenant or the sub-tenant. Therefore, unless a Tenant or sub-tenant satisfactorily explains the presence of the alleged sub-tenant in the premises, the Court can draw the inference of sub-letting. In the decision reported in Manavalan ..Vs.. Where subletting is alleged, the relationship between the Tenant and the alleged sub-tenant is within the special knowledge of either the Tenant or the sub-tenant. Therefore, unless a Tenant or sub-tenant satisfactorily explains the presence of the alleged sub-tenant in the premises, the Court can draw the inference of sub-letting. In the decision reported in Manavalan ..Vs.. Eswari and another ( 2001(2) M.L.J. 663 = 2001 (1) TLNJ 261), it was held that when the Tenant pleads, he has not sublet the premises and the alleged sub tenant is only his employee, the burden of proving the same is only on the tenant and failure to discharge the same would only lead to the inference that there is unauthorised subletting, liable for eviction. .23. No evidence is forthcoming explaining the presence of the Second Respondent in the premises. In case of concurrent findings of subletting, normally, the High Court will not interfere with the concurrent findings of the lower Courts. In the absence of any evidence explaining the presence of the Second Respondent - Sheik Mohammed Yusuff in a demised premises, there is no reason to differ with the concurrent findings of the Courts below on subletting. Normally, under Sec.25 of the Act, the concurrent finding of fact cannot be interfered with unless there is infirmity in the orders. In the decision reported in Munawar Jan Begum ..Vs.. H.Subramaniam ( 2000 (1) L.W. 333 = 2000 (I) M.L.J. 19 ), it was held that unless perversity is writ large on the face of the judgments of the lower Courts, it is not desirable for the revisional Court to disturb concurrent findings. 24. Under Section 25 of the Act, it is not permissible for the High Court, in exercise of its revisionary jurisdiction to act as Appellate Court to re-appraise or re-assess the evidence afresh as an Appellate Court and come to a different finding contrary to the finding recorded by the Court below. In K.M. Abdul Razzack ..Vs.. Damodharan (2001 (1) M.L.J. (S.C.) 37 = 2000 (4) SUPREME 575 ) in Para 5, it was held as follows:- "5....It is not permissible for the High Court, in exercise of its revisionary jurisdiction to act as an Appellate Court to reappraise or reassess the evidence afresh as an appellate Court as an appellate Court and come to a different finding contrary to the finding recorded by the Court below. We, therefore, hold that the High Court while allowing the revision transgressed its jurisdiction conferred upon it under Section 25 of the Act...." In the present case, I do not find any unreasonableness in the orders of the Courts below. The concurrent findings of the Courts below do not suffer from any serious infirmity or perversity calling for interference. 25. In the result, the order dated 210. 2000 of the Principal District Judge, Pondicherry in R.C.A.No.3 of 2000 (arising out of H.R.C.O.P.No.111 of 1997 on the file of Rent Controller, Pondicherry) is confirmed and this Revision Petition is dismissed. No costs. Consequently, the connected C.M.P.No.3397 of 2001 is also dismissed. However, three months time from the date of this order is granted to the Revision Petitioner / Tenant for vacating and handing over vacant possession to the Respondent / Landlady.