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2013 DIGILAW 4095 (MAD)

P. Perumal (died) v. V. Arun Prasad

2013-12-04

S.RAJESWARAN

body2013
JUDGMENT As the issue involved in both the revision petitions is one and the same, a common order is being passed to dispose off both the revision petitions. 2. The facts which are necessary for the purpose of disposing of both the revision petitions are as follows: The respondent herein/landlord filed R.C.O.P.No.83/2004 against the revision petitioner in C.R.P.No.1650/2010 and R.C.O.P.No.84/2004 against the revision petitioner in C.R.P.No.1684/2010. 3. Both the R.C.O.P.Nos.83/2004 and 84/2004 were tagged together and a common order was passed by the Rent Controller on 14.08.2007, dismissing both the petitions. Aggrieved by the common order dated 14.08.2007 made in R.C.O.P.Nos.83/2004 and 84/2004, the respondent/landlord filed R.C.A.No.13 of 2008 and R.C.A.No.14 of 2008. A common order was passed by the Rent Control Appellate Authority on 02.07.2009, allowing both the appeals, ordering eviction of the revision petitioners from the respective demised premises occupied by them. Against the common order dated 02.07.2009, both the tenants filed the above revision petitions in C.R.P.Nos.1650/2010 and 1684/2010. Since a common order has been passed in the original petitions and also in the appeals, a common order is also being passed now to dispose of both the revision petitions. It is admitted by both the counsel appearing for both the parties that the facts are identical and therefore, whatever order that is to be passed in one revision petition will apply to the other revision petition also. For the purpose of convenience, I am referring to R.C.O.P.No.83/2004 which leads to the filing of C.R.P.No.1650/2010 before this Court. 4. R.C.O.P.No.83/2004 has been filed by the respondent/landlord under Sections 10(3)(A), (a)(i) and 14(1)(a) of the Pondicherry Buildings (Lease and Rent Control) Act, 1969. The case of the respondent/landlord in R.C.O.P.No.83/2004 is that in the land, building and superstructure bearing Old No.43 (New Nos.131 and 133). Jawaharlal Nehru Street, which is formerly known as Duplex Street, Pondicherry Town, the demised premises is a shop in the Ground Floor under the name and style of Perumal Watch House, bearing New No.133, measuring approximately to an extent of 640 sq.ft. belongs to him absolutely. The revision petitioner/respondent in R.C.O.P.No.83/2004 entered into a rental agreement on 01.01.1998 for non-residential purpose i.e. for running a Watch House in the name and style o f Perumal Watch House,. for a period of five years. belongs to him absolutely. The revision petitioner/respondent in R.C.O.P.No.83/2004 entered into a rental agreement on 01.01.1998 for non-residential purpose i.e. for running a Watch House in the name and style o f Perumal Watch House,. for a period of five years. The rent for the demised premises was fixed at Rs.3,500/-pm and an advance amount of Rs.10,000/- was agreed to be paid by the respondent. During the time of execution of the said rental agreement, he was employed as a Sergeant in Indian Air Force. After the lease period has expired, he issued a letter to the respondent to vacate and deliver vacant possession of the demised premises. It is also his case that the revision petitioner/respondent has attorned the tenancy in his favour and was paying the rent into his bank account. He also issued another letter dated 07.02.2003 to vacate and deliver vacant possession of the demised premises as the rental agreement came to an end by efflux of time on 31.12.2002 itself. However, a reply dated 25.09.2004 was sent by the respondent in R.C.O.P.No.83/2004 containing bare denials. 5. The respondent/landlord in C.R.P.No.1650/2010 who retired from his service on 31.07.2004 wanted to set up his family in Pondicherry. He is already in possession of the first floor of the petition schedule property from January 2003, wherein he is going to set up his family and therefore, the petitioner is in need of the demised premises for his personal occupation. 6. It is the further case of the respondent/landlord in R.C.O.P.No.83/2004 that the whole building is in a dilapidated condition and it is in fact more than 105 years old making it unfit for habitation. Therefore, he wanted to demolish and reconstruct the entire building bearing Old No.47 (New Nos.131 and 133), so that he could occupy the entire building including the demised premises for his residential purposes. He has already obtained necessary clearance from the Pondicherry Planning authorities for raising a new construction. He had already gathered adequate resources for putting up such construction. Hence, the petitioner needs bonafide the premises for demolition and reconstruction for his personal occupation. He also undertook to demolish the demised premises within one month and to reconstruct the same within another three months as stipulated in the Act from the date of the order. He had already gathered adequate resources for putting up such construction. Hence, the petitioner needs bonafide the premises for demolition and reconstruction for his personal occupation. He also undertook to demolish the demised premises within one month and to reconstruct the same within another three months as stipulated in the Act from the date of the order. Hence, he prayed for an order of eviction under Section 10(3A)(a) (i) and 14(1)(b) of the Pondicherry Buildings Lease and Rent Control Act, 1969. 7. R.C.O.P.No.83/2004 was resisted by the revision petitioner/tenant by filing a counter. In the counter, it is stated that he is not aware of whether the petitioner/landlord retired from services and it is completely false to state that the petitioner/landlord wanted to set up his family in Pondicherry. According to him, the petitioner/landlord is permanently settled in Chennai and as the enhanced rent as demanded by him was not accepted, the R.C.O.P.No.83/2004 has been filed in order to vacate the respondent/tenant and to lease it out for a higher rent. 8. In so far as the allegation that the whole building is in a dilapidated condition, it is submitted that the building is a very recent one, which is in a sound and very good condition. Therefore, it does not require immediate demolition and reconstruction. 9. It is further stated that it is false to state that the petitioner/landlord gathered adequate resources for putting up a new construction and in fact, he has no source of income for demolition of the building and for putting up a new construction. Hence, he prayed for the dismissal of the R.C.O.P.No.83/2004. 10. Similar are the averments in R.C.O.P.No.84/2004, wherein the demised premises is a shop in the ground floor under the name and style of Vedagiri Medical Store, bearing New No.131 and measuring an extent of 1120 sq.ft. Approximately. However, one major difference is that in R.C.O.P.No.84/2004, the petitioner/landlord states that he is in need of the demised premises for doing business, whereas in R.C.O.P.No.83/2004, he stated that he is in need of the demised premises for his personal occupation. This petition was also resisted by the respondent/tenant by filing a counter. By order dated 14.08.2007, both the petitions were taken up together by the Rent Controller and both the petitions were dismissed. 11. This petition was also resisted by the respondent/tenant by filing a counter. By order dated 14.08.2007, both the petitions were taken up together by the Rent Controller and both the petitions were dismissed. 11. In the common order dated 14.08.2007, the learned Rent Controller admitted the fact that the petitioner/landlord has returned from Indian Air Force Services. While referring to Section 10(3A)(a)(i), the learned Rent Controller states that as per the provisions, building must be bonafidely required for his residential purposes. However, the building is non-residential in character and the requirement of the petitioner/landlord is also for doing some business in R.C.O.P.No.84/2004. Hence, the learned Rent Controller held that the petitioner/landlord is not entitled for eviction under Section 10(3A)(a)(i) of the Act. 12. In so far as the other ground is concerned, the learned Rent Controller referred to the Certificate marked through PW2/a Civil Engineer. The learned Rent Controller came to the conclusion that PW2 has not made any scientific test to assess the age of the building and the structural stability of the building. Apart from the photographs, no other documents were produced to speak about the condition of the building. Hence, the learned Rent Controller held that the petitioner/landlord loses the case as he failed to prove his case viz., he failed to prove the age and condition of the building. 13. The learned Rent Controller while considering the financial status of the petitioner/landlord referred to Ex.P10, which is the photocopy of the IOB Pass Book, Ex.P11 which is the photocopy of the Punjab National Bank Pass Book, Ex.P12 which is the photocopy of the Deposit Receipt from Punjab National Bank, Ex.P13 which is the photocopy of the Term Deposit Receipt with IOB and Ex.P15 which is the photocopy of the Statement of Accounts, found that Ex.P11, Ex.P13, Ex.P14 to Ex.P18 are all prior to filing of the Eviction Petition. It is not known whether the petitioner/landlord had these amounts to his credit as on the date of filing the petition. The learned Rent Controller further held that the petitioner/landlord has not produced any documentary evidence to show that he approached the banks to raise funds. Hence, it is to be inferred that the petitioner/landlord has failed to prove his financial status to raise constructions. 14. The learned Rent Controller further held that the petitioner/landlord has not produced any documentary evidence to show that he approached the banks to raise funds. Hence, it is to be inferred that the petitioner/landlord has failed to prove his financial status to raise constructions. 14. The learned Rent Controller after evaluating the evidence found that the petitioner/landlord is working as the Village Administrative Officer (VAO) and he is residing in the first floor of the building. When his intention is to do a business in the ground floor as stated in the R.C.O.P.No.84/2004, how the bonafides could be proved when he is working as a Village Administrative Officer. Hence on both the grounds, the learned Rent Controller dismissed the R.C.O.P.Nos.83/2004 and 84/2004. 15. In the common order dated 02.07.2009, the Rent Control Appellate Authority after re-evaluating the evidence, found that the landlord is a Defence personnel who retired from AIR Force as Sergeant on 31.07.2004. Therefore, he is entitled to seek eviction under Section 10(3A)(a)(i) of the Act. After referring to the judgment reported in 2008 (5) SCC 287 (Satyawati Sharma (Dead) By Lrs. vs. Union of India and another), the Rent Control Appellate Authority observed that the Rent Control Act was enacted about forty years ago when there was a dearth of buildings, but, this situation has eased out now and many buildings have come up and therefore, the provision as it stood now infringed Article 14 of the Constitution as it discriminated between the premises leased out for residential and non-residential purposes, when the building is required bonafidely by the landlord for occupation for himself or for any member of his family dependant on him. In view of the above decision of the Hon'ble Supreme Court, the Rent Control Appellate Authority found no impediment for the landlord to seek for eviction of the tenant from the demised premises either for his residential or non-residential purposes. Consequently, the Rent Control Appellate Authority held that the landlord is entitled for an order of eviction against the tenant under Section 10(3A)(a)(i) of the Act. 16. Consequently, the Rent Control Appellate Authority held that the landlord is entitled for an order of eviction against the tenant under Section 10(3A)(a)(i) of the Act. 16. While considering Section 14(1)(b) of the Act, the learned Appellate Authority found that the landlord produced the approved plan and permission accorded by the Pondicherry Planning Authority to demolish the building and to reconstruct a new building in its place and marked the same as Ex.P8 and Ex.P9 in R.C.O.P.No.83/2004 and Ex.P10 and Ex.P11 in R.C.O.P.No.84/2004, the learned Rent Control Appellate Authority found that the source of income has been established. The learned Appellate Authority held that the two grounds of eviction are mutually exclusive and the Rent Controller ought to have been influenced or prejudiced the findings in one over the other. Hence, he allowed both the appeals and ordered eviction in both the petitions on both the grounds. This common order dated 02.07.2009 is put under challenge before me in these two revision petitions. 17. Heard the learned counsel appearing for the revision petitioners and Mr.R.Krishna Moorthy, the learned senior counsel appearing for the respondent in both the revision petitions. I have also gone through the relevant documents which were made available on record, including the judgments cited by both the learned counsel appearing for both the parties. 18. The main contention of the learned counsel for the revision petitioners/tenants is that Section 10(3A)(a)(i) of the Pondicherry Buildings Lease and Rent Control Act, 1969 (Act No.5 of 1969) will not apply to the facts of the present case and therefore, allowing the RCOP under this ground by the Rent Control Appellate Authority is absolutely illegal. He further contended that the respondent/landlord has miserably failed to prove his case under Section 14(1)(b) of the Act also. As he has miserably failed to establish the age and condition of the building by letting in any acceptable evidence besides no acceptable documents have been filed to prove his financial status to demolish the building and to put up a new construction, the learned counsel further points out that the documents which were filed to prove his case/financial status which are photocopies are not admissible in evidence and once they are eschewed, then, there is absolutely no evidence to prove his financial status which is a vital ingredient while seeking eviction under Section 14(1)(b). Hence, he prayed for setting aside the orders of the Rent Control Appellate Authority and restoring the orders passed by the Rent Controller. A number of decisions have also been cited by him in support of his contentions. 19. Per contra, the learned senior counsel appearing for the respondent/tenants submits that the Rent Control Act has been enacted forty five years ago and therefore, now, a definite change has occurred as held by the Hon'ble Supreme Court. Therefore, according to the learned senior counsel, the eviction order passed by the Rent Controller under Section 10(3A)(a)(i) is also valid even though what is contemplated therein is bonafide requirement for his residence only. That apart the learned senior counsel points out that in R.C.O.P.No.84/2004 alone, it was sought for his business purpose and in R.C.O.P.No.83/2004, it was sought for his residence purpose only. In such circumstances, the learned senior counsel submits that the order passed by the Appellate Authority is to be sustained in this regard. 20. In so far as the eviction sought under Section 14(1)(b) is concerned, the learned senior counsel submits that even as per the Engineer's report marked through the tenants, it has been clearly stated that the building is more than 50 years old and if that being so, the age of the building is to be taken as more than 50 years old and this aspect has been omitted to be considered by the Rent Controller. Further, the learned senior counsel submits that though the documents filed by the landlord to prove his financial status are only photocopies, were verified by the Court and certified that they are the true copies of the originals. The learned senior counsel further points out that even otherwise it is not necessary for the landlord to show all the documents to prove his financial status, as the current trend indicates that it is very easy for the landlord to approach any bank or a financial institution for obtaining loan for the purpose of putting up new construction. Therefore, the learned senior counsel submits that there are no merits in both the revision petitions and they are to be dismissed as devoid of merits. The learned senior counsel also produced a number of decisions in support of his submissions. 21. I have considered the rival submissions with regard to the facts and citations. 22. Therefore, the learned senior counsel submits that there are no merits in both the revision petitions and they are to be dismissed as devoid of merits. The learned senior counsel also produced a number of decisions in support of his submissions. 21. I have considered the rival submissions with regard to the facts and citations. 22. First, let me consider whether the respondent/landlord is entitled to evict the tenants under Section 10(3A)(a)(i) of Act No.5 of 1969. Section 10(3A)(a)(i) reads as under: (3-A)(a) Where the landlord has been or is a member of the Armed Forces and (i) is released or has retired from service and the building is bona fide required for his residence; or (ii) is stationed at a place where on account of military exigencies, he cannot live with his family or dies on active duty and the building is bona fide required for the residence of his family, the Controller shall, on application made by the landlord or the member of his family, as the case may be, if he is satisfied that the claim of the landlord or the member of his family is bona fide, pass an order directing the tenant to put the landlord or the member of his family in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application." 23. It is true that in the above Section, it is made clear that it will apply for the bona fide requirements of the landlord's residence only. 24. If the averments contained in R.C.O.P.No.83/2004 are perused, in paragraph 5, it is stated that the landlord is already in possession of the first floor whereas he is going to set up his family and therefore he is in need of the demised premises for his personal occupation. 25. From the above, it is clear that in R.C.O.P.No.83/2004, the landlord seeks eviction on the ground of personal occupation only under Section 10(3A)(a)(i) of the Act. However, he has clearly stated that he is already in possession of the first floor for his personal occupation and if that being so, why he needs the petition premises which is measuring just an extent of 640 sq.ft. for his residential purposes is not clearly stated. 26. However, he has clearly stated that he is already in possession of the first floor for his personal occupation and if that being so, why he needs the petition premises which is measuring just an extent of 640 sq.ft. for his residential purposes is not clearly stated. 26. His case is worse in R.C.O.P.No.84/2004 wherein in paragraph 5 of the petition, the landlord states that he is already in possession of the first floor of the petition schedule mentioned property, wherein he is going to set up his family and he is in need of the demised premises for doing business. As rightly pointed out by the learned counsel for the revision petitioners, if the need is for doing business, then, Section 10(3A)(a)(i) of the Act will not apply. Further, the landlord in his deposition has clearly pointed out that he is working as a Village Administrative Officer and if that being so, how he could carry on any business when he is under the services of the State Government. Whether he is going to run the business or some today else will do it and what type of business which are material and relevant questions are not all answered and in such circumstances, I am of the considered view that the landlord/respondent is not entitled to get eviction order under Section 10(3A)(a)(i) of the Act. This aspect has been simply brushed aside by the Appellate Authority by merely quoting that a lot of changes have taken place since the Rent Control Act was enacted some forty five years ago which is not in consonance with the provisions of the Act. Therefore, I am setting aside the eviction order passed by the Rent Control Appellate Authority against the revision petitioners under Section 10(3A)(a)(i) of the Act. 27. Now, let me consider whether the respondent/landlord can sustain the eviction order against the revision petitioners under Section 14(1)(b) of the Act No.5 of 1969. 28. It is the case of the respondent/landlord that the building is very old and the same requires demolition and reconstruction and he has got financial status and he also obtained necessary orders from the planning authorities. The learned Rent Controller dismissed the eviction petition on the ground that the age of the building was not at all decided and no acceptable evidence has been let in to prove the age of the building. The learned Rent Controller dismissed the eviction petition on the ground that the age of the building was not at all decided and no acceptable evidence has been let in to prove the age of the building. However, the learned Rent Controller has failed to see that the report marked by the tenant before the Rent Controller through his Engineer would make it very clear that even according to the tenant's engineer, the building is more than 50 years old. This vital aspect has been omitted to be considered by the Rent Controller. In so far as the financial status is concerned, the documents are brushed aside by the Rent Controller, as they are prior to filing of the eviction petitions and are only photocopies. However, as rightly pointed out by the learned senior counsel for the respondent/landlord, the photocopies are verified as true copies of the originals by the Court Officer himself. If that being so, there is a clear distinction between a simple photo copy and a photo copy which has been marked after verifying with the original, that too, by a Court officer. Further, even otherwise, it is not necessary for the landlord to prove his financial position and status by filing documents after documents, as it is easy for any landlord to obtain loan from any financial instruction or a bank and in such circumstances, too much of importance need not be given to the documents filed by the landlord to prove his financial status. It is an admitted fact that the building is situated in Jawaharlal Nehru Street in Pondicherry Town and if that being so, it is very easy for the landlord to raise funds and therefore, it cannot be said that he does not have the financial status or position to demolish the building and to reconstruct a new building. Hence, I find that the Rent Control Appellate Authority has rightly allowed the appeals under this Section, as I am of the considered view that the respondent/landlord has proved that he is entitled to evict the revision petitioners under Section 14(1)(b) of the Act. 29. Though a number of decisions have been referred to by both the learned counsel, in view of the special facts and circumstances of the case, these revision petitions could be disposed of without referring to any one of them. 30. 29. Though a number of decisions have been referred to by both the learned counsel, in view of the special facts and circumstances of the case, these revision petitions could be disposed of without referring to any one of them. 30. In the result, the Civil Revision Petitions are partly allowed by setting aside the common orders of the Appellate Authority in ordering eviction under Section 10(3A)(a)(i) of the Act and partly dismissed by sustaining the order of eviction passed by the Appellate Authority under Section 14(1)(b) of the Act. Consequently, the respondent/landlord is entitled to evict the revision petitioners from the demised premises under Section 14(1)(b) of the Act only. 31. Hence, the Civil Revision Petitions are disposed of in the above terms. No costs. Consequently, connected miscellaneous petitions are also closed.