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2010 DIGILAW 3630 (MAD)

P. Vasanthi v. P. Thambuswamy

2010-08-19

G.RAJASURIA

body2010
Judgment :- Inveighing the order dated 04.03.2008 passed in RCA Nos.1 and 2 of 2007 by the VIII Court of Small Causes at Madras, in reversing the order of dismissal of the eviction petition dated 22.11.2006 passed in RCOP Nos.593 and 594 of 2006 by the XVI Court of Small Causes at Madras, these civil revision petitions are focussed. 2. Heard both sides. 3. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of these two revisions would run thus: (i) The respondent herein filed two RCOPs by invoking Sections 10(2)(i), 10(2)(iii), 10(2) (v) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 [hereinafter referred to as the Act], on the following grounds: (1) Wilful default (2) Act of waste (3) Act of nuisance; and (4) Demolition and reconstruction. The revision petitioners are husband and wife. The matter was contested. (ii) On the side of the landlord, he examined himself as P.W.1 and marked Exs.P1 to P10. On the side of the tenants, R.W.1 and R.W.2 were examined and Ex.R1 was marked. Ultimately the Rent Controller dismissed the RCOPs by rejecting all the grounds, as against which two RCAs were filed and after hearing both sides, the appellate authority reversed the finding of the Rent Controller and allowed the RCOPs on the ground of demolition and reconstruction, but not on any other grounds. Being aggrieved by and dissatisfied with the order of the appellate authority in ordering eviction on the ground of demolition and reconstruction, the tenants preferred these revisions on various grounds, more or less on identical grounds. 4. The learned counsel for the revision petitioners placing reliance on the grounds of revision, would develop his arguments, the gist and kernel of them would run thus: (a) The landlady ought to have given undertaking before the Rent Controller, but she failed to do so. Her filing of the undertaking before the appellate authority would not cure the defect. (b) The financial wherewithal of the landlady was not proved by any clinching evidence. (c) There is nothing to indicate that there is any bona fide intention on the part of the landlady in getting the demised premises demolished and reconstructed. (d) The building plan approval also was not obtained to show the bona fides of the landlady. (b) The financial wherewithal of the landlady was not proved by any clinching evidence. (c) There is nothing to indicate that there is any bona fide intention on the part of the landlady in getting the demised premises demolished and reconstructed. (d) The building plan approval also was not obtained to show the bona fides of the landlady. Accordingly, the learned counsel for the revision petitioners/tenants would pray for setting aside the order of the appellate authority and for restoring the order of the Rent Controller in toto. 5. On the contrary, denying and refuting, challenging and impugning the contentions and arguments as put forth and set forth on the side of the tenants, the learned counsel for the landlord would advance his arguments, which could pithily and precisely be set out thus: (a) The law is well settled that the landlady need not jingle the cois before for the Court for the purpose of showing that she is having the financial wherewithal to raise construction. There are precedents which would show that nowadays the financial institutions are vying with each other to lend money for raising non residential buildings. (b) The demised premises is situated in a busy commercial locality, so to say, in the heart of the city of Madras and the tenants cannot compel the landlady to get satisfied with the meagre rent that she is deriving from out of the property as rent, instead of demolishing and reconstructing a commercial cum residential building and earn profits. The building itself comprised of brick walls with roof of asbestos sheets, which require demolition also. As such absolutely there is no perversity or illegality in the order passed by the appellate authority warranting interference in these revisions by this Court. Accordingly, the learned counsel for the respondent/landlord prays for dismissal of these civil revision petitions. 6. The point for consideration is as to: Whether the finding of the lower Court that the landlady is having bona fide intention to get the demised premises demolished and reconstructed, is fraught with any illegality or perversity? 7. At the out set itself it is just and proper to fumigate my mind with the precedents relating to Section 14(1)(b) of the Act: (i) 2006(2) CTC 615 – S.VENUGOPAL VS. A.KARRUPPUSAMI AND ANOTHER, certain excerpts from it would run thus: "7. 7. At the out set itself it is just and proper to fumigate my mind with the precedents relating to Section 14(1)(b) of the Act: (i) 2006(2) CTC 615 – S.VENUGOPAL VS. A.KARRUPPUSAMI AND ANOTHER, certain excerpts from it would run thus: "7. On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1) (b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short the Act) contemplates a building which is bona fide required by the landlord for the immediate purpose of demolishing it, and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site. 11. 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-storied 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. 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. 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.One and a half lakh of his own, and he owns properties and jewellery worth a few lakhs." (ii) (2002)3 M.L.J.130(S.C.) - HARRINGTON HOUSE SCHOOL VS. S.M.ISPAHANI AND ANOTHER, certain excerpts from it would run thus: 8. ..........................." A procedure can be devised to protect the interest of both the tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying unconstructed inspite of being vacated by the tenant and followed by demolition if the plans for proposed construction are not sanctioned by the local authority. The decree as passed by the High Court is sustained but it is directed that the landlords shall submit the plans of re-construction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Execution Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord-decree holders. Till then the tenant shall remain liable to pay charges for use and occupation of the suit premises at the same rate at which they are being paid along with the plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of Sub-Sec.(2) of Sec.14 of the Act." (iii) 1997-1-L.W.218 – VIJAY SINGH AND OTHERS VS. VIJAYALAKSHMI AMMAL, certain excerpts from it would run thus: "14. 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. 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 understanding 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 the 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 S.14(1)(b) of the Act directing the appellants who were tenants in the building in question to delivery 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. As such, we are left with no option but to dismiss these appeals. The appeals are accordingly dismissed." 8. A mere poring over and perusal of those decisions would highlight that there is a virtual change in the law relating to demolition and reconstruction. So far the demised premises is concerned, it is no more imperative on the part of the landlord or landlady to establish before the Court that the building is in such a dilapidated condition and that it might fall at any time warranting reconstruction. On the other hand it is sufficient if the building is an old one and the landlady is having the bona fide intention to demolish the building, so to say put it into a much more benefecial use than the existing one. 9. Indubitably and indisputably, the building is being used as a shed for parking the vehicles and it is situated in a busy locality. No landlady having head over shoulder would ever like to keep such an insignificant building by getting such a meagre monthly rent of Rs.7,000/- (Rupees seven thousand only) in total and keep quiet. As such it is ex facie and prima facie clear that the intention of the landlady is bona fide and it is not fraught with any mala fide intention. 10. In fact, on the tenants side R.W.2, the Engineer was examined to show that the demised premises does not warrant demolition etc. As such it is ex facie and prima facie clear that the intention of the landlady is bona fide and it is not fraught with any mala fide intention. 10. In fact, on the tenants side R.W.2, the Engineer was examined to show that the demised premises does not warrant demolition etc. My above ratiocination adhered to in viewing the matter would highlight that the question of dilapidated condition of that insignificant building does not arise at all because the very nature of the building is such that it would not fetch good rent and the appellate authority also extracted the relevant portion of the deposition of R.W.1 herself that if the demised premises is demolished and reconstructed, it would fetch more rent than what R.W.1 was paying. As such it is clear that the bona fide intention on the part of the landlady in getting the demised premises demolished and reconstructed cannot be doubted. 11. Regarding the non filing of the undertaking before the Rent Controller is concerned, the appellate authority appropriately and appositely, correctly and convincingly cited the decision of this Court reported in 1999-1-L.W.398, which would highlight the fact that in the event of the Rent Controller dismissing the RCOP and the landlady filing appeal before the appellate authority, the filing of the undertaking before the appellate authority would be sufficient. In this case, it is quite clear that the RCOPs were dismissed by the Rent Controller and in the appeals filed, the landlady gave such an undertaking. The so called defect got cured by such filing, over which nothing could be canvassed in these revisions legally. 12. Regarding the financial capacity of the landlady is concerned to raise construction, no doubt clinching evidence has not been adduced. But in view of the decision of the Honble Apex Court in Harringtons case (cited supra), it is not necessary for the landlady to prove precisely by producing clinching documentary evidence that she is having financial wherewithal to raise the building. 13. But in view of the decision of the Honble Apex Court in Harringtons case (cited supra), it is not necessary for the landlady to prove precisely by producing clinching documentary evidence that she is having financial wherewithal to raise the building. 13. To the risk of repetition and pleonasm, but without being tautologus, I would like to point out that the landlady is owning in that area six grounds and at the rear portion, an extent of almost one ground alone is in the occupation of the tenants now and that too there is a shed like structure and in such a case, it is clear that she would be able to secure financial assistance to raise any non residential cum residential building and as such, I could see no perversity or illegality in the order passed by the Court below. 14. According to the learned counsel for the tenants, so far the building plan was not produced. Once again such a plea is turned out to be not tenable in view of the decision of the Honble Apex Court in Harringtons case (cited supra) and it would be sufficient if the landlady files the approved plan in the Executing Court before obtaining order of delivery of the property. 15. As such taking into consideration the pros and cons of the matter, I am of the considered view that there is no perversity or illegality in the order of eviction passed by the appellate authority. I could see no merit in these revision petitions and accordingly the same shall stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed. 16. The learned counsel for the tenants would make an extempore submission to the effect that if the tenants are evicted holus bolus, they would not be able to secure alternative accommodation and six months time might be granted for vacating the premises, for which the learned counsel for the landlady would submit that granting three months time would be sufficient, because the landlady is an octogenarian and if six months time is granted she cannot reap the fruit of the order passed by this Court. By way of striking a balance between the two, I would like to grant four months time to vacate the premises, subject to payment of rent regularly and an affidavit of undertaking to that effect shall be filed within a period of fifteen days from the date of receipt of a copy of this order.