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2013 DIGILAW 3196 (MAD)

P. S. Murugesan v. P. N. Nallasamy

2013-09-05

K.RAVICHANDRA BAABU

body2013
Order: 1. The petitioners are the tenants. C.R.P.(NPD) No.2790 of 2013 arises out of R.C.O.P.No.1 of 2008 filed under section 14(1)(b) of the Tamilnadu Buildings (Lease and Rent Control) Act. The said R.C.O.P. was dismissed and an appeal preferred by the landlord in R.C.A.No.1/2011 was allowed. C.R.P.(NPD) No.2791 of 2013 arises out of R.C.O.P.No.2/2008 filed under sections 14(1)(b), 10(2)(i) and 10(2)(ii) of the said Act. The learned Rent Controller dismissed the R.C.O.P. and the appeal by the landlord in R.C.A.No.2/2011 before the learned Rent Control Appellate Authority was allowed and eviction was ordered on the grounds of Sections 14(1)(b) and 10(2)(ii) and however by rejecting the eviction sought under Section 10(2)(i) of the said Act. Thus, the aggrieved tenants are before this Court. 2. In both these civil revision petitions, the petitioners are different tenants and the respondent/landlord is one and the same. Both the tenants are occupying different portions within the same building. Both of them are commonly aggrieved against the order of eviction passed under section 14 (1)(b). In so far as the tenant in CRP (NPD) No.2791 of 2013 is concerned, the order of eviction was passed also on the ground of change of user. Thus, the validity of the order of eviction passed on the ground of demolition and reconstruction is to be considered first in both these civil revision petitions. 3. The respondent herein filed the eviction petitions in R.C.O.P.Nos.1 and 2 of 2008 on the file of the Rent Controller, Gobichettipalayam against the petitioners herein respectively. 4. The case of the landlord is as follows: The age of the building is roughly 90 years old. The building is in a dilapidated condition and cracks have appeared in the walls. The petition mentioned property is situated at the center of the town in a busy locality and there is a great demand for shops in that locality. Therefore, the petitioner wants to demolish and reconstruct a new modern and multistoried building so as to augment his income. He has made all necessary arrangements to put up multistoried building and he has enough funds in the bank and financial institutions and also in the name of his mother. He has prepared a blue print through a competent Civil Engineer for submitting to Gobi Municipality for getting building plan approval. He has also given an undertaking as contemplated under section 14(2)(b). 5. He has prepared a blue print through a competent Civil Engineer for submitting to Gobi Municipality for getting building plan approval. He has also given an undertaking as contemplated under section 14(2)(b). 5. In R.C.O.P.No.2 of 2008, the other ground raised was under section 10 (2)(ii)(b). The contention of the landlord therein is that the tenant occupied the premises for running power press and for doing the business in printing. However, without written consent, the tenant started to do the business in fancy materials under a different name and style. The tenant has been doing business in crackers also. Therefore, the tenant is using the petition mentioned building for a purpose other than the one for which it was let out. The said applications were resisted by the tenants. 6. The learned Rent Controller rejected the applications on all the grounds. The learned Rent Controller rejected the eviction petitions by holding that the landlord has not taken any steps to vacate other tenants, who are in occupation of the other portions of the same building. Thus, the learned Rent Controller has found that there is no bonafide. The learned Rent Controller however, found that by demolishing and reconstructing a new building, the landlord would get more income and therefore, there is a possibility of augmentation of his income. He also found that the building is old and safer only to an extent of 50%. The learned Rent Controller further found that the petitioner/landlord is having enough source of fund for reconstructing a new building. At paragraph No.41 of his order, the learned Rent Controller has observed as follows: "41. TAMIL” 7. Thus, from the perusal of the order passed by the learned Rent Controller, it could be seen that the only reason on which the eviction was rejected is that the landlord has not taken any steps to evict the other tenants who are in occupation of the other portions of the same building. 8. On the other hand, the learned Appellate Authority has found that the landlord has specifically pleaded in R.C.O.P.No.2/2008 that he approached all the tenants who are in occupation for their cooperation to execute demolition and almost all the tenants agreed to the same and in fact, one of the tenants viz., one Ramasamy, who was running a parcel lorry service business, has vacated his portion and handed over the delivery of possession to the landlord. The Appellate Authority has thus found at paragraph No.17 of his judgment that when the other tenants have already agreed to vacate the petition premises which are in their respective possession, there is no necessity for the landlord to take steps against them for eviction. 9. Learned counsel for the petitioners vehemently contended that filing of an eviction petition only against these two petitioners on the ground of demolition and reconstruction is without bonafide when there are other tenants. According to him, the landlord should have filed eviction petition against all the tenants. It is also contended by him that no specific averment is made in the eviction petition with regard to the presence of other tenants in respect of other portions. 10. Learned counsel for the petitioners further contended that the presence of other tenants was not specifically pleaded in the petition and the said details were elucidated only during the cross-examination and therefore, there was no occasion for the tenants to prove the negative by examining the tenants. He further contended that under Ex.P13, Blue print, the landlord proposed to put up a single unit construction by demolishing two buildings viz., the present premises and the adjacent building where also other tenants are there and no R.C.O.P. was filed against them. The core contention of the tenants is that the landlord has not taken any steps against the other tenants to evict them. 11. Per contra, the learned counsel appearing for the landlord submitted that the building is 100 years old and after demolition and reconstruction, it is capable of getting good revenue. The petitioner in R.C.O.P.No.1/2008 became the tenant during the year 1967 whereas the other petitioner in R.C.O.P.No.2/2008 became the tenant in the year 1959. The other tenants have agreed to vacate and in fact, one Ramasamy has already vacated his portion. Therefore, there is no need for filing eviction petition against the other tenants. The examination of P.W.1 would show that the other tenants are ready to vacate and there is no contra evidence produced by the petitioners herein. 12. I have given careful consideration to the submissions of the learned counsel on either side and am unable to appreciate the submissions made by the petitioner's counsel. The examination of P.W.1 would show that the other tenants are ready to vacate and there is no contra evidence produced by the petitioners herein. 12. I have given careful consideration to the submissions of the learned counsel on either side and am unable to appreciate the submissions made by the petitioner's counsel. It is obvious that an eviction petition would be normally filed against a tenant only when he refuses to vacate and hand over vacant possession inspite of a notice to vacate on anyone of the grounds stated under the Act. It is not that every landlord has to file a petition before the Rent Controller and seek eviction of the tenant even though the tenant agrees to vacate. If there is mutual understanding between the parties for vacating the premises, absolutely there is no necessity for the landlord to approach the court and seek for eviction. Therefore, when it is stated that all other tenants have agreed to vacate and hand over the vacant possession to the landlord, he need not file evictions petition against those tenants. Here in this case, there are admittedly four tenants in the property. Out of four tenants, two are before this Court. It is not the case of the petitioners herein that the other tenants have not agreed to vacate. On the other hand, it is their case that no eviction petitions were filed against them. They have not examined any of the other two tenants on their side to show that there was no such agreement to vacate. Therefore, as rightly found by the lower Appellate Court, there was no necessity for the landlord to file eviction petition as against the other tenants who had agreed to vacate. 13. I already pointed out that mere non filing of eviction petition against the other tenants, cannot be a ground to doubt about the bonafide of the landlord especially, when it is pleaded that the other tenants agreed to vacate and in the absence of any contra material or evidence placed to show that there was no such agreement. Hence, non filing of eviction petition against those tenants cannot be put against the landlord to deny the eviction on the ground of demolition and reconstruction. Hence, non filing of eviction petition against those tenants cannot be put against the landlord to deny the eviction on the ground of demolition and reconstruction. Thus, I find that the order of the Appellate Authority in reversing the order of the learned Rent Controller on the ground of demolition and reconstruction, does not warrant any interference. 14. The learned counsel for the petitioner relied on the decision reported in 2007(4)CTC 786, Kolla Ravindra (alias) K.Ravi v. Susheela Bai, to contend that the landlord has not proved the bonafide. A perusal of the said order would show that the facts therein are totally different and distinguishable with the facts of the present case. In that case, it is seen that the landlady therein refused to receive the rents which led the tenant to file a petition under section 8(5) of the Rent Control Act. The landlady also filed a petition on the ground of demolition and reconstruction and pending such application, she filed another eviction petition on the grounds of subletting, act of waste and change in user. It appears that the second petition came to be dismissed. Taking note of all these facts, the learned Judge came to the conclusion that the bonafide was lacking in the said case. Thus the facts of the present case being totally different and distinguishable one, the reliance placed on the above said decision is totally misconceived. 15. Per contra, the learned counsel for the respondent/landlord relied on 2006(4)SCC 507, S.Venugopal v. A.Karruppusami and another, to contend that Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition and 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. 16. In the other decision reported in (2010)1 MLJ 500 , J.Josephine Chrisobell v. P.Subramanian, a learned Judge has observed at paragraph No.13 that when the building is 60 to 70 years old and is requiring immediate demolition, there is nothing wrong in the petitioner proposing to demolish such old building and instead construct a modern and spacious complex so as to make better use of the property and augment her income. 17. In 2004(2) CTC 364, P.S.Pareed Kaka vs. Shafee Ahmed Saheb, the Hon'ble Supreme Court at paragraph No.11 has held as follows: "11. 17. In 2004(2) CTC 364, P.S.Pareed Kaka vs. Shafee Ahmed Saheb, the Hon'ble Supreme Court at paragraph No.11 has held as follows: "11. Law is well settled on this aspect. Even if the building is in a good condition, if it is not suitable for the requirement of the landlord, he can always demolish even a good building and put up a new building to suit his requirements. It is not necessary for the landlord to prove that the condition of the building is such that it requires immediate demolition, particularly when the premises is required by the landlord. Therefore, it has to be held that the finding of the trial Court cannot be sustained and the High Court on re-appreciation of the evidence, rightly so, held that the landlord has established that his need for all the four petition schedule premises is bonafide and reasonable." 18. Considering all the facts and circumstances, I am of the view that the order of the Appellate Authority in reversing the finding of the learned Rent Controller on the ground of demolition and reconstruction does not warrant any interference. Accordingly, the same is to be confirmed. In so far as the other ground viz., change of user is concerned, the Appellate Authority has found that the tenants have taken the premises for running a printing press and used it for running a fancy store and therefore, there is change of user of the premises. I am unable to appreciate the said finding. It is seen from the order of the learned Rent Controller that the tenant has marked Ex.R5 Registration Certificate showing that the tenant is using the premises for running a stationery store under the name 'Shanmuga Stationery'. It appears that the said certificate was issued as early as on 04.02.2000. Therefore, even on the date of filing the eviction petition, more than 8 years have lapsed. It is hard to believe that the tenant is running the said stationery business or fancy store without the knowledge of the landlord all these years. Even otherwise, running a fancy store cannot be construed as a different user especially, under the circumstances that there are no materials placed before the Court to show that the premises was let out only for the purpose of running the printing press. Even otherwise, running a fancy store cannot be construed as a different user especially, under the circumstances that there are no materials placed before the Court to show that the premises was let out only for the purpose of running the printing press. Therefore, I do not find any merits in the eviction petition on the ground of different user. Accordingly, the order of the Appellate authority ordering eviction on the ground of different user is set aside. However, as I am confirming the order of eviction on the ground of demolition and reconstruction, both the civil revision petitions are dismissed accordingly. The petitioners/tenants are granted three months time to vacate and hand over vacant possession of the petition premises to the respondent/landlord. No costs. The connected miscellaneous petitions are also dismissed.