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Madras High Court · body

2011 DIGILAW 2376 (MAD)

J. Vincent v. T. L. Narayanamoorthy

2011-04-26

S.TAMILVANAN

body2011
Judgment :- 1. C.R.P.(NPD).No.3917 of 2010 is preferred by the petitioner / tenant, J.Vincent against the Judgment and Decree, dated 02.08.2010 made in R.C.A.No.12 of 2007 on the file of the Rent Control Appellate Authority / VII Judge, Court of Small Causes, Chennai, confirming the order and decretal order, dated 30.11.2006 made in R.C.O.P.No.353 of 2006 on the file of the Rent Controller / XII Judge, Court of Small Causes, Chennai. 2. C.R.P.(NPD).No.3918 of 2010 is preferred by the petitioner / tenant, Ukkamaraj Amlokchand against the Judgment and Decree, dated 02.08.2010 made in R.C.A.No.13 of 2007 on the file of the Rent Control Appellate Authority / VII Judge, Court of Small Causes, Chennai, confirming the order and decretal order, dated 30.11.2006 made in R.C.O.P.No.354 of 2006 on the file of the Rent Controller / XII Judge, Court of Small Causes, Chennai. 3. C.R.P.(NPD).No.3919 of 2010 is preferred by the petitioner / tenant, S.Meganathan against the Judgment and Decree, dated 02.08.2010 made in R.C.A.No.14 of 2007 on the file of the Rent Control Appellate Authority / VII Judge, Court of Small Causes, Chennai, confirming the order and decretal order, dated 30.11.2006 made in R.C.O.P.No.356 of 2006 on the file of the Rent Controller / XII Judge, Court of Small Causes, Chennai. 4. C.R.P.(NPD).No.3920 of 2010 is preferred by the petitioner / tenant, M.Paradas, against the Judgment and Decree, dated 02.08.2010 made in R.C.A.No.17 of 2007 on the file of the Rent Control Appellate Authority / VII Judge, Court of Small Causes, Chennai, confirming the order and decretal order, dated 30.11.2006 made in R.C.O.P.No.357 of 2006, on the file of the Rent Controller / XII Judge, Court of Small Causes, Chennai. 5. All these Rent Control Original Petitions were filed by the respondent / landlord under Section 14 (1) (b) of Tamil Nadu Buildings (Lease and Rent Control) Act, (hereinafter referred to as ' the Act'), on the ground of demolition and reconstruction. It is seen that all the Rent Control Original Petitions were tried together and a common order was passed. Before the Rent Controller, on the side of the respondent / landlord, P.Ws.1 to 3 were examined and Exs.P.1 to P.24 were marked and for the petitioners / tenants, P.Ws.1 to 4 were examined and Exs.R.1 to R.9 were marked. The learned Rent Controller, allowed all the Rent Control Original Petitions and ordered eviction of the petitioners / tenants. Before the Rent Controller, on the side of the respondent / landlord, P.Ws.1 to 3 were examined and Exs.P.1 to P.24 were marked and for the petitioners / tenants, P.Ws.1 to 4 were examined and Exs.R.1 to R.9 were marked. The learned Rent Controller, allowed all the Rent Control Original Petitions and ordered eviction of the petitioners / tenants. Aggrieved by which, the revision petitioners herein preferred R.C.A.Nos. 12, 13, 14 and 15 of 2007 under Section 23 (1) (b) of the Act before the Rent Control Appellate Authority. 6. Considering the evidence available on record and also the arguments advanced by both the learned counsel, by common Judgment, dated 02.08.2010, the learned Rent Control Appellate Authority, confirmed the order and decretal order passed by the Rent Controller and dismissed the appeals preferred by the tenants. Aggrieved by which, these Civil Revisions have been preferred under Section 25 of the Act by the revision petitioners / tenants. 7. Mr.M.Kumarasamy, learned counsel appearing for the petitioners submitted that the Rent Control Appellate Authority, without considering the the Rent Control Appeal properly has simply confirmed the orders and decretal orders, by quoting certain Judgments of the Hon'ble Apex Court. According to him, the evidence of P.Ws.1 to 3 would not establish the bonafide reason for demolition and reconstruction. As per Ex.P.22, the Report of P.W.3, the rent control premises is aged about 28 years. Ex.P.23 does not disclose the correctness of each portions of the tenants in occupation. However, the Courts below have not considered the vital aspects. He has further contended that the age of the building was not established by the respondent / landlord, as stated in the R.C.O.P. The appellate Court failed to note that there is no whisper as to when the respondent / landlord had obtained planning permission to demolish the building, hence, placing reliance on Ex.P.24 has no avail. Without getting a planning permission, the respondent / landlord could not get any loan for the purpose of reconstruction, as per the regulations of the Reserve Bank of India, which is being followed by Nationalised Banks. In the aforesaid circumstances, the financial capacity of the respondent / landlord was also not considered by the Courts below. 8. In the grounds, the revision petitioners have specifically stated that Exs.13, 14, 15, 16 and 17 are no way related to the petitioner's financial capacity. In the aforesaid circumstances, the financial capacity of the respondent / landlord was also not considered by the Courts below. 8. In the grounds, the revision petitioners have specifically stated that Exs.13, 14, 15, 16 and 17 are no way related to the petitioner's financial capacity. With the above grounds, the learned counsel appearing for the petitioners pleaded for allowing these civil revisions, setting aside the Judgment and Decree rendered by the Rent Control Appellate Authority and also the order and decretal order passed by the learned Rent Controller. 9. Per contra, Mr.A.V.Munusamy, learned counsel appearing for the respondent / landlord submitted that there is a concurrent finding by the Courts below and only based on the evidence available on record, eviction was ordered by the Courts below and that in the Revisions, there is no material irregularity pointed out by the petitioners, to interfere with the concurrent findings of the Courts below. 10. The following decisions were relied on by both the learned counsel to enlighten the legal aspects involved in the revisions : 1. R.V.E.Venkatachala Gounder vs. Venkatesha Gupta and others, AIR 2002 SC 1733 2. Harrington House School vs. S.M.Isaphani and another, AIR 2002 SC 2268 3. Vijaya Singh etc. etc. vs. Vijayalakshmi Ammal, 1996 (II) CTC 586 4. D.M.Belgumvala vs. Tamil Nadu Real Estates Pvt., Ltd., 2010 (3) MLJ 803 5. R.Pappathiammal and others vs. Nachammal & 13 others, 2001-1-LW 814 11. Mr.M.Kumarasamy, learned counsel appearing for the petitioners/ tenants submitted that the respondent / landlord has not established the bonafide requirement of the RCOP premises for demolition and reconstruction, as contemplated under Section 14 (1) (b) of the Act. According to the learned counsel, though there is concurrent finding by the Courts below in favour of the respondent / landlord, the same is not supported by evidence. Though the respondent has got permission to demolish the building and to reconstruct the building, there is no legally acceptable evidence, therefore, it has to be construed as perverse finding. 12. Per contra, Mr.A.V.Munusamy, learned counsel appearing for the respondent drew the attention of this Court to the concurrent finding of the Court below and submitted that the rent control premises is in a dilapidated condition, which requires demolition. 12. Per contra, Mr.A.V.Munusamy, learned counsel appearing for the respondent drew the attention of this Court to the concurrent finding of the Court below and submitted that the rent control premises is in a dilapidated condition, which requires demolition. Learned Rent Controller has found in paragraph number 11 of the impugned Judgment that on perusal of Ex.P.21 (series), photographs and Ex.P.22, report of the petitioner's engineer, who was examined as P.W.3 and the evidence on record that the building is in a dilapidated condition that needs demolition, on account of the improper construction. As per Ex.P.24, the Corporation of Chennai has received the amount towards granting permission for demolition and therefore, the respondent / landlord has established that the requirement of building for demolition and reconstruction is bonafide and further, held that the evidence of P.W.1 is sufficient to establish that the respondent has got sufficient means for demolition and reconstruction. In support of the contention, as per the impugned Judgment, Exs.P.11 to P.17 were also marked before the Court below. Ex.P.18 is the bank pass book of the petitioner's wife. As contended by the learned counsel appearing for the respondent, the rent control premises is located at Valluvar Nagar, Kolathur, Chennai, within the Chennai Corporation limit, therefore, the jurisdiction of the Courts below is not in dispute in this revision and the respondent / landlord has established that in addition to his financial capacity, loan could also be raised from Banks. 13. Mr.M.Kumarasamy, learned counsel appearing for the petitioners submitted that the Rent Control Original Petitions were filed under Section 14 (1) (b) instead of Section 14 (1) (a) of the Act. It is not in dispute that Section 14 (1) (b) of the Act deals with the bonafide requirement by the landlord for the immediate purpose of demolition of the building for the purpose of erecting a new building on the site of the building sought to be demolished, whereas Section 14 (1) (a) of the Act deals with the building, which bonafidely requires by the landlord for carrying out repairs, which cannot be carried out without the building being vacated. 14. The respondent / landlord has specifically stated that the building is needed for total demolition and reconstruction and not to carryout any repairs. 14. The respondent / landlord has specifically stated that the building is needed for total demolition and reconstruction and not to carryout any repairs. Therefore, the Court has to consider whether the respondent / landlord has established the bonafide reason for the need to demolish the existing building and to reconstruct the same. As found by the Courts below, P.W.1 has specifically stated that the building is in a dilapidated condition, hence, after a portion was vacated by one of the tenants, that was kept under lock and key, without letting out the same to any other tenant. It is also pertinent to note that R.W.1 has deposed that he vacated a portion in the upstairs, that had been occupied by him for residential purposes, even in the year 2000, after he vacated the portion, that was kept under lock and key by the respondent / landlord and similarly, one of the tenants in the rear portion of the ground floor vacated the premises four months prior to his deposing evidence, that was also kept vacant. The aforesaid evidence is not controverted by the Revision petitioners / tenants. 15. In R.V.E.Venkatachala Gounder vs. Venkatesha Gupta and others, reported in AIR 2002 SC 1733 , the Hon'ble Supreme Court has held as follows: "12. Reverting back to the case at hand, we find that the six tenants are not in full occupation of the entire space available. The landlord proposes to construct a new and modern building in busy commercial locality of a rising city. The landlord requires a part of the newly constructed building for his own personal and such part of the newly constructed building as would be in excess of his own requirement he is willing to let out at current rate of rent to his tenants which would obviously augment his earnings. The newly constructed double storeyed building, would certainly provide much more total accommodation than what is available, In such circumstances the offer of the tenant that they are prepared to pay the rent at the current rate, the one which the landlord expects on reconstruction, becomes irrelevant and should not have prevailed with the High Court. 13. For the foregoing reasons, we are of the opinion that the High Court ought not to have interfered with the decision of the appellate authority. 13. For the foregoing reasons, we are of the opinion that the High Court ought not to have interfered with the decision of the appellate authority. The appeals are allowed, Judgment of the High Court is set aside and that of the appellate authority restored." However, the aforesaid decision is not directly applicable to the facts and circumstances of this case, since even as per the evidence of one of the petitioners / tenants, the building relates to the revisions, is in dilapidated condition, which requires immediate demolition and reconstruction. Though two portions were kept vacant for number of years, the same were not let out by the respondent / landlord, considering the condition of the building. 16. In Vijaya Singh etc. etc. vs. Vijayalakshmi Ammal, reported in 1996 (II) CTC 586, Constitutional Bench of the Hon'ble Supreme Court has held that the rent controller should consider all relevant materials to find out whether requirement of the landlord is bonafide or not, such as (1) bonafide intention of landlord far from sole object only to get rid of tenant (2) age and condition of building (3) financial position of landlord to demolish and erect new building, to render finding on question of bonafide requirement. In the aforesaid decision, it has been further held as follows : "6. ...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 difficulty 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 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 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 count 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." 17. In B.M.Belgumvala vs. Tamil Nadu Real Estates Pvt. Ltd., reported in 2010 (3) MLJ 803 , this Court has held that when the landlord is able to establish the bona fide intention for demolition of a dilapidated structure leased out to a tenant, he is entitled to get order for eviction. As there is no specific denial on the part of the tenant as regards the means possessed by the landlord for demolition and reconstruction and the respondent has produced documents to show that they have got sufficient means for the purpose, and it was held that the requirement for demolition and reconstruction was bonafide. 18. In Metalware and Co. etc., vs. Bansilal Sharma and Co., etc., reported in 1979 (3) SCC 398 , the Hon'ble Apex Court has held as follows : "As stated earlier it cannot be disputed that the phrase used in Section 14(1)(b) of the Act is “the building is bona fide required by the landlord” for the immediate purpose of demolition and reconstruction and the same clearly refers to the bona fide requirement of the landlord, it is also true that the requirement in terms is not that the building should need immediate demolition and reconstruction. But we fail to appreciate how the state or condition of the building and the extent to which it could stand without immediate demolition and reconstruction in future would be a totally irrelevant factor while determining “the bona fide requirement of the landlord”. If the Rent Controller has to be satisfied about the bona fide requirement of the landlord which must mean genuineness of his claim in that behalf the Rent Controller will have to take into account all the surrounding circumstances including not merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing condition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under Section 14(1)(b). In a sense if the building happens to be decrepit or dilapidated it will readily make for the bona fide requirement of the landlord,though that by itself in the absence of any means being possessed by the landlord (would), not be sufficient. Conversely a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself may not be sufficient to establish his bona fide requirement if the building happens to be a very recent construction in a perfectly sound condition and its situation may prevent its being put to a more profitable use after reconstruction. In any case these latter factors may cast a serious doubt on the landlord’s bona fide requirement. It is, therefore, clear to us that the age and condition of the building would certainly be a relevant factor which will have to be taken into account while pronouncing upon the bona fide requirement of the landlord under Section 14(1)(b) of the Act and the same cannot be ignored." 19. In R.Pappathiammal and others vs. Nachammal & 13 others, reported in 2001-1-LW 814, this Court has held that to establish the bonafide requirement, the landlord must establish the age and the condition of the building, bonafide intention of the landlord and his solvency, to reconstruct the building. 20. In R.Pappathiammal and others vs. Nachammal & 13 others, reported in 2001-1-LW 814, this Court has held that to establish the bonafide requirement, the landlord must establish the age and the condition of the building, bonafide intention of the landlord and his solvency, to reconstruct the building. 20. In K.M.Abdul Razaak vs. Damodaran, reported in 2000-5-S.C.C. 369, the Hon'ble Supreme Court has held as follows : "The principles of law laid down in Vijay Singh case were that the landlord was not only required to show that the building is in a dilapidated condition, but he was also to establish his bona fide intention for demolition and reconstruction as well as his financial position to reconstruct the building. Unless findings to that effect are recorded in favour of the landlord, an application under Section14 (1) (b) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960 does not deserve to succeed." 21. It is a settled proposition of law, in the light of various decisions rendered by the Hon'ble Supreme Court and this Court, while exercising jurisdiction under Section 25 of the Act, cannot re-appreciate the evidence and record the finding contrary to the concurrent finding of the Courts below, if the finding arrived at by the Courts below is supported by materials. In other words, when there is a concurrent finding by the Courts below, this Court cannot interfere with the same, unless the finding is against the evidence or without evidence. Only considering the perversity of the finding, this Court can interfere with the concurrent finding, under the revisional jurisdiction, as contemplated, under Section 25 of the Act. 22. In the instant case, it is not in dispute that the age of the building is established as 28 years, however, the building is in a dilapidated condition and the finding of the Courts below is based on the evidence. On the aforesaid condition of the building, the respondent / landlord has not let out two portions of the premises and kept it under lock and key, without letting out the same for any other tenant. Similarly, it is established that the respondent / landlord is financially capable of reconstructing the building. He has also obtained permission to demolish the building. 23. Similarly, it is established that the respondent / landlord is financially capable of reconstructing the building. He has also obtained permission to demolish the building. 23. In the aforesaid circumstances, this Court is of the view that the concurrent finding of the Courts below that the respondent / landlord has established the bonafide requirement of the building, for demolition and reconstruction is based on evidence, which requires no interference. 24. Learned counsel appearing for the petitioners submitted that the respondent has not obtained sanction plan, approved by the authorities for reconstruction. The Hon'ble Supreme Court, in Harrington House School vs. S.M.Ispahani and another, reported in AIR 2002 SC 2268 , has held as follows : "The decree as passed by the High Court is sustained, but it is directed that the landlords shall submitted the plans of reconstruction 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 Executing 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-section (2) of Section 14 of the Act." 25. In the light of the aforesaid decision rendered by the Hon'ble Supreme Court, the respondent / landlord has established the bonafide requirement and also the financial capability of the landlord, as required under law and the only point for consideration is the non-production of the sanctioned plan obtained by the authorities for reconstruction. 26. Learned counsel appearing for the petitioners submitted that the plan prepared by a qualified Engineer is readily available, however, within the time limit, if the building is not constructed, the same has to be renewed and heavy amount has to be paid for getting renewal. Unless the building is vacated by the petitioners / tenants, it may cause delay, which may lead to renewal of sanctioned plan and further expense to the respondent. Unless the building is vacated by the petitioners / tenants, it may cause delay, which may lead to renewal of sanctioned plan and further expense to the respondent. Learned counsel for the respondent submitted that the respondent / landlord is ready to produce the sanctioned plan before evicting the revision petitioners, as ruled by the Hon'ble Apex Court in the decision reported in AIR 2002 SC 2268 (referred to above) and for the aforesaid contention, there is no tenable legal objection on the side of the petitioners / tenants. 27. On the facts and circumstances, all the revision petitions are liable to be dismissed. However, in the light of the decision rendered by the Hon'ble Apex Court reported in AIR 2002 SC 2268 (referred to above), the sanctioned or approved plan for reconstruction shall be produced by the respondent / landlord before the Executing Court, whereupon the Executing Court shall allow a reasonable time to the petitioners / tenants for vacating the R.C.O.P premises and delivering possession to the landlord / decree-holder, so as to demolish the building and reconstruct the same in time. 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 affidavit before the Executing Court, as required by clause (b) of Section 14 of the Act. 28. With the above observations, all the civil revision petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed. No order as to costs.