Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 2734 (MAD)

G. S. Dhandapani v. G. D. Selvaraj

2013-07-29

K.RAVICHANDRA BAABU

body2013
ORDER 1. In all these four civil revision petitions, tenants are the petitioners. They are aggrieved against the order of eviction passed by the learned Rent Controller which is confirmed by the learned Appellate Authority. The respondent in all these petitions is one and the same. 2. The respondent/landlord filed R.C.O.P.Nos.3,4, 5 and 7 of 2008 on the file of the Rent controller, Gobichettipalayam, against the respective tenants/petitioners herein, seeking eviction on the grounds of owners occupation, additional accommodation and demolition and reconstruction. The said applications were resisted by the tenants. It is their contention that both the grounds of owners occupation and demolition and reconstruction will not go together and therefore, there is no bonafide on the part of the landlord in claiming eviction. Apart from that, they resisted the application by denying the requirement of the landlord in respect of each grounds individually. After trial and during the course of argument, the landlord filed a Memo and an affidavit on 10.01.2011 and not pressed the relief claimed under section 10(3)(a)(iii) and 10(3)(c), however by maintaining the petition under section 14(1)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act. The said memo filed was resisted by the tenants by filing a written objection on the very same day. However, the learned Rent Controller allowed the memo thereby restricting the eviction petitions only on the ground raised under section 14(1)(b). The said permission granted by the learned Rent Controller was not separately challenged. The learned Rent Controller considering the age of the building as more than 50 years and also by considering the fact that the landlord will get more income by way of reconstructing a new building and also by finding that the landlord has got sufficient means to put up construction, allowed the eviction petitions on the ground of demolition and reconstruction. The learned Rent Controller also found that the non furnishing of an approved plan will not be fatal to the application filed under section 14(1)(b). 3. The aggrieved tenants filed R.C.A.Nos.4,5,10 and 11 of 2011 on the file of the Rent Control Appellate Authority, Gobichettipalayam. The Appellate Authority confirmed the finding of the Rent Controller and dismissed the appeals by her judgment and decree dated 21.11.2011. Aggrieved further by the said judgment and decree of the Appellate Authority, the tenants have filed these civil revision petitions. 4. The Appellate Authority confirmed the finding of the Rent Controller and dismissed the appeals by her judgment and decree dated 21.11.2011. Aggrieved further by the said judgment and decree of the Appellate Authority, the tenants have filed these civil revision petitions. 4. Mr.K.M.Vijayan, learned senior counsel appearing for the petitioners/tenants submitted as follows: The landlord filed the petitions for eviction on three grounds viz., owners occupation, Additional Accommodation and demolition and reconstruction. Thus, the very filing of the eviction petitions on those grounds would prove that there is no bonafide on his part. Demolition and reconstruction and owners occupation will not go together as one contradicts the other. Thus, the intention of the landlord is proved that he wants eviction of the tenants somehow or other. Once the pleadings are completed and the parties have let in their evidence, based on those pleadings, the landlord cannot withdraw the other two grounds viz., owners occupation and additional accommodation. The very attempt of withdrawal itself shows that there is no bonafide. The landlord has chosen to withdraw those two grounds in order to avoid the dismissal of the eviction petitions on the ground that the same is not maintainable with contradictory claims. The landlord did not file approved plan. Ex.P7 is a Plan not approved by the local authority. The landlord pleaded in his pleadings that he wants to put up multi-storied building, whereas in his evidence as P.W.1, he deposed that the plan submitted under Ex.P7 is in respect of godown. The landlord has not proved his means. 5. The learned senior counsel for the petitioners relied on a decision reported in 2006(3) CTC 147 , Duraisamy and others V. R.Sureshlal and another, to contend that both sections 10(3) and 14 are mutually destructive and cannot go together. He relied on the very same decision to contend further that by not filing a sanctioned plan, the bonafide is not proved. 6. Per contra, Mr.T.V.Ramanujam, learned senior counsel appearing for the respondent/landlord submitted as follows: "Bonafide" referred under section 10(3)(c) is not the very same bonafide referred under section 14(1)(b). Under section 10(3)(c), it is the bonafide of the landlord which has to be proved whereas under section 14(b), the bonafide is referable to the building. Consideration on bonafide on each ground has to be done independently and therefore, there cannot be any common consideration of bonafide for all the grounds. Under section 10(3)(c), it is the bonafide of the landlord which has to be proved whereas under section 14(b), the bonafide is referable to the building. Consideration on bonafide on each ground has to be done independently and therefore, there cannot be any common consideration of bonafide for all the grounds. The affidavit and memo was filed on 10.01.2011 during the course of argument itself and the court has also allowed the landlord to restrict his petition only in respect of Section 14(1)(b). Even otherwise, it is open to the landlord to withdraw any grounds at any stage of the proceedings. In so far as the requirement under section 14(1)(b) is concerned, both the courts below have concurrently found that the building is 50 years old and the landlord has also proved his means. Producing of approved plan is not necessary. 7. In support of his submissions, the learned senior counsel for the respondent relied on the following decisions, i) 1991(1) MLJ 327 , SYED YUSUF v. O.P.KANNAN NAIR; ii) 2013 (5)SCC 243 , HARI DASS SHARMA v. SHIV PRASHAD. 8. Upon hearing the learned senior counsels appearing on either side and on perusing the orders passed by the courts below and other relevant materials placed before me, the following questions arise for consideration in these civil revision petitions: (a) Having filed a petition for eviction on several grounds, whether the landlord is entitled to either withdraw or not press one or some of the grounds during the course of the proceedings? (b) Whether such withdrawal has got any relevance to consider the bonafide of the landlord in respect of each grounds? (c) Whether the concurrent findings of the courts below on the ground of demolition and reconstruction in favour of the landlord in this case require any interference? 9. In this case, the landlord filed the eviction petitions by raising three grounds viz., owners occupation, additional accommodation and demolition and reconstruction. It is also true that the parties have let in evidence based on the said pleadings. But, before completion of the argument and reserving the matter for orders, the landlord has opted to withdraw the two grounds viz., owners occupation and additional accommodation, by filing an affidavit as well as a Memo by the counsel to that effect. The same was filed on 10.01.2011. But, before completion of the argument and reserving the matter for orders, the landlord has opted to withdraw the two grounds viz., owners occupation and additional accommodation, by filing an affidavit as well as a Memo by the counsel to that effect. The same was filed on 10.01.2011. It is also seen that on the very same day, the tenants filed an objection against the said memo. The learned Rent Controller allowed the memo, which is evident from his order at paragraph No.12, which is extracted hereunder: "12. “TAMIL” Therefore, only after accepting the memo, the respective counsels have proceeded to advance their further argument before the Rent Controller and consequently, the learned Rent Controller also adverted his attention only to the ground raised under section 14(1)(b) and upon considering rival pleadings and evidence let in by parties in respect of that ground, he came to the conclusion that the requirement of the landlord on that ground is bonafide and consequently, ordered eviction. 10. Thus, it is crystal clear that the Memo filed by the landlord came to be allowed by the Rent Controller, which has not been challenged by the tenants independently. However, when they filed appeals before the Rent Control Appellate Authority, they raised a ground challenging such permission granted by the Rent Controller. Therefore, the fact remains that even before completion of the argument and even before passing an order by the Rent Controller, the landlord has chosen to withdraw the other two grounds. In my considered view, it is open to the landlord to withdraw anyone or more grounds raised in the eviction petition, at any stage of the proceedings taking note of either the change of circumstances or change of requirement in respect of the said premises. Therefore, such withdrawal cannot be construed that there is no bonafide on the part of the landlord. Each ground has to be established and proved independently by showing and establishing the bonafide in respect of that ground. 11. As rightly pointed out by the learned senior counsel for the landlord, the bonafide referred under section 10(3)(c) is the bonafide of the landlord whereas the bonafide referred under section 14(1)(b) is referable to the building. In other words, under section 10(3)(c), the landlord has to prove that the requirement for his personal occupation is bonafide. 11. As rightly pointed out by the learned senior counsel for the landlord, the bonafide referred under section 10(3)(c) is the bonafide of the landlord whereas the bonafide referred under section 14(1)(b) is referable to the building. In other words, under section 10(3)(c), the landlord has to prove that the requirement for his personal occupation is bonafide. If the landlord requires the building for demolition and reconstruction in order to augment his income, the bonafide cannot be doubted as the same is inbuilt in such purpose. If the landlord wants to demolish by taking note of the condition on the building, then the bonafide is referable to the building. That is why, in such cases, while considering the petition under section 14(1)(b), the age and condition of the building and other aspects such as means, etc., are taken into consideration to decide as to whether the building really requires demolition and reconstruction. Therefore, merely because the landlord filed petition under both grounds, it does not mean that there is no bonafide on his part. Even I can go to an extent of saying that section 10(3) under the said Act does not contemplate that the landlord has to immediately occupy the building on the day on which the tenant is evicted. He may even opt to occupy after reconstructing the building also. 12. No doubt that in so far as the claim under section 10(3)(c) is concerned, it cannot go together with claim under section 14(1)(b). At any event, as the landlord herein has taken permission from the court to withdraw such ground before consideration by the Court, then the tenants cannot be permitted to say that there is no bonafide on the part of the landlord. 13. At this juncture, it is useful to refer to the decision of a learned single Judge of this Court reported in 1991(1) MLJ 327 , SYED YUSUF v. O.P.KANNAN NAIR, wherein it is stated in paragraph No.9 as follows: "9. Another contention put forward by the learned counsel for the tenant was that the landlord filed the petition for eviction not only on the ground of additional accommodation but also on the ground of bona fide requiring the petition premises for the purpose of demolition and reconstruction under section 14(1)(b) of the Act. At the time of hearing the landlord withdrew the ground relating to Section 14(1)(b) of the Act. At the time of hearing the landlord withdrew the ground relating to Section 14(1)(b) of the Act. Therefore his requirement for additional accommodation is not bonafide. It remains to be seen that simply because the landlord withdrew one of the grounds on which eviction petition was filed, that would not by itself prove that the requirement of the petition premises by the landlord is not bona fide. The element oibonafide has got to be proved independently in respect of each one of the ground on which the eviction petition was filed. As already pointed out that on evidence the landlord proved his bona fide requirement of the petition premises for his additional accommodation." 14. The learned senior counsel for the petitioners relied on the decision of a learned single Judge of this Court reported in 2006(3) CTC 147 , DURAISAMY AND OTHERS v. R.SURESHLAL AND ANOTHER. It is true that in the said decision, the learned Judge has observed that both the grounds of requirement for owners occupation as well as demolition and reconstruction may not be simultaneously maintainable and that grounds may be raised as alternative to each other and both cannot survive simultaneously. In my considered view, the said decision cannot be pressed into service by the petitioners now, when admittedly, the landlord had already withdrawn other two grounds and proceeded with the eviction petitions only on the ground of demolition and reconstruction. When that being the admitted and factual position, reliance placed on the above said decision is not having any relevance to this case. 15. Further, in a decision reported in 2005(4) M.L.J. 628 , M.ABU TAHIR v. M.RAHAMATHULLA, the another learned single Judge of this Court has observed at paragraph No.13 of his order as follows: "13. Therefore, in my considered opinion, the two grounds, certainly, would nor synchronize and therefore, the landlord has to choose either Section 10 (3)(a)(iii) of the Act or Section 14(1)(b) of the Act and not both. If he chooses both and urges even now, then that would indicate the lack of bona fide, so as to say, the aim of the landlord is, to evict the tenant and requirement is not bonafide. When these things were pointed out, to the revision petitioner, as said above, the only ground urged was demolition and reconstruction, as envisaged under Section 14(1)(b) of the Act. When these things were pointed out, to the revision petitioner, as said above, the only ground urged was demolition and reconstruction, as envisaged under Section 14(1)(b) of the Act. Therefore, we have to see, ignoring the other grounds, whether the landlord has complied with the requirements of Section 14(1)(b) of the Act as well as Sec.14(2)(b) of the Act." Thus, it is seen that the Courts can look into the requirements and the bonafide of such requirements independently and individually. 16. Therefore, I answer the questions raised in question Nos.a and b by holding that the landlord is entitled to withdraw any one or more grounds of eviction during the course of the proceedings and such withdrawal will not disprove his bonafide intention as each ground has to be established independently by proving the bonafide thereon. 17. Then, while considering the other questions with regard to the merits on the ground of demolition and reconstruction, both the courts below have concurrently found that the landlord has proved that the building bonafidely requires for demolition and reconstruction. 18. Before considering the nature of the building, it is also to be noted that the landlord has categorically stated in the petition that the building is located in a commercial busy area and therefore, the value of the property will be increased apart from the fact that it will augment more income, if the existing building is demolished and a new multi-storied building is put up therein. Therefore, the intention of the landlord for augmentation of the income is well pleaded. It is also stated by him that the building has lived its life and is in dilapidated condition and that there are several cracks on the walls and floor. Thus, it is seen that the building is required to be demolished not only taking into consideration of the condition of building but also for the purpose of augmenting the income. In support of his claim, the landlord relied on Exs.C1, C2 and C3 Reports. The court below on perusal of the same, has found that the building is older enough requiring demolition. In support of his claim, the landlord relied on Exs.C1, C2 and C3 Reports. The court below on perusal of the same, has found that the building is older enough requiring demolition. Even assuming that the building is not older and is in sound condition, in my considered view, that cannot be a reason to reject the claim for demolition and reconstruction, especially under the circumstances that the landlord has filed the petitions also by saying that he wants to augment his income by putting up a new construction. The court below has also found that the landlord has proved his means by marking the fixed deposit receipts under Ex.A24. Therefore, the court below has found that the landlord has proved his means and that he is having sufficient immovable property to meet out the cost of the proposed building. In the absence of any contra evidence to disprove such contention of the landlord, the court below has rightly found that the bonafide requirement as proved. 19. While considering the other submission with regard to the filing of non approved plan is concerned, the learned counsel for the petitioner relied on 2006(3) CTC 147 , DURAISAMY AND OTHERS v. R.SURESHLAL AND ANOTHER, to contend that non filing of the approved plan discloses that there is no bonafide. A perusal of the said order of the learned single Judge of this Court at paragraph No.5 shows that in that case, there was no plan filed for reconstruction and there was also no evidence produced indicating the financial resources available with the landlord therein. Therefore, the learned Judge has come to the conclusion that the requirement is not bonafide. The facts of the present case are totally different and distinguishable from the facts stated in the above stated case. As already found that not only a plan is filed under Ex.P7 and the landlord has also shown and proved the sufficient means and resources to meet the expenses for putting up the construction. 20. Even otherwise, a perusal of the recent order of the Hon'ble Supreme Court reported in (2013) 5 Supreme Court Cases 243, HARI DASS SHARMA v. SHIV PRASHAD, would show that placing the approved plan is not a condition precedent to the entitlement of the landlord for eviction of tenant on the ground of demolition and reconstruction. The relevant paragraph No.13 is extracted hereunder: "13. The relevant paragraph No.13 is extracted hereunder: "13. In Jagat Pal Dhawan v. Kahan Singh, ( (2003) 1 SCC 191 ), this Court had the occasion to consider the provisions of Section 14(3)(c) of the Act and R.C.Lahoti,J. writing the judgment for the Court held that Section 14(3) (c) does not require that the building plans should have been duly sanctioned by the local authorities as a condition precedent to the entitlement of the landlord for eviction of the tenant. To quote from the judgment of this Court in Jagat Pal Dhawan V. Kahan Singh, (2003) 1 SCC 191 :(SCC p.194, para 6) "6.... The provisions also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of the tenant. However still, suffice it to observe, depending on the facts and circumstances of a given case, the court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction, for the purpose of determining the bona fides of the landlord. If a building, as proposed, cannot be constructed or if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain a mere wish and would not be bona fide." It will be clear from the aforesaid passage that this Court has held that availability of building plans duly sanctioned by the local authorities is not an ingredient of Section 14(3)(c) of the Act and therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord." Therefore, from the above decision of the Apex Court, it is crystal clear that the said contention raised by the tenants is also not maintainable and liable to be rejected. 21. 21. It is further contended by the learned senior counsel for the petitioners that the landlord having stated in the petitions that he wants to put up a multi-storeyed commercial building, has deposed as P.W.1 that the plan submitted under Ex.P7 is only for putting up a godown and therefore, the intention to put up the construction is not proved and consequently, there is no bonafide. But, a perusal of the said deposition further shows that the landlord has also spoken by saying that a plan has been prepared for putting up a new construction in the petition mentioned premises. It is further to be noted that the landlord has also given an undertaking at paragraph No.6 of his petition that he would undertake the work of demolition of the building not later than one month and complete it within three months from the date of getting possession of the property. Thus, in view of the specific undertaking given by the landlord, the tenant can always insist upon for reoccupation under section 16, if the building is not demolished, as per the undertaking given under section 14(2)(b). Thus, the interest of the petitioners/tenants are well protected under section 16 itself. When that being the position in law, whether the landlord is going to put up godown or new building is immaterial for consideration of the tenants as well as the court. 22. Thus, I find that all the civil revision petitions do not have any merits and there are no grounds to interfere with the concurrent findings of the courts below, ordering eviction on the ground of demolition and reconstruction. Accordingly, all the civil revision petitions are dismissed. The petitioners/tenants are given three months time to vacate and have over vacant possession to the landlord. No costs. The connected miscellaneous petitions are dismissed.