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2014 DIGILAW 516 (AP)

Gopu Pratap Kumar v. Buddhiraju Laxmana Rao

2014-04-04

ASHUTOSH MOHUNTA

body2014
JUDGMENT This Civil Revision Petition is filed being aggrieved by the order dated 25.4.2012 passed in RCCMA.No. 9 of 2010 whereby the learned Senior Civil Judge, Nandigama, upheld the order dated 29.10.2010 passed in RCC No. 4 of 2006 by the learned Rent Controller-cum-Principal Junior Civil Judge, Nandigama, directing the petitioners to vacate the schedule house and handover the vacant possession to the respondent. Briefly stated, the facts of the case are that: the father of the respondent leased out the schedule premises to the father of the petitioners in the year 1980. After demise of his father, the respondent succeeded to the schedule premises. He is a retired employee and having landed properties nearby Nandigama and he intended to stay at Nandigama. It has been averred that he has no house property except the schedule house and therefore he is in bona fide requirement of the schedule house for his comfortable stay and to look after the management of his landed properties and therefore he got issued a legal notice to the father of the petitioners on 24.6.2004 demanding him to vacate the schedule house and hand over same, to which, the father of the petitioners got issued reply, refusing to vacate the same. Thereafter, the respondent visited the schedule house on 12.6.2006 and came to know that the schedule house was without roof and find no inmates and the doors kept opened, and the main entrance gate was kept under lock. Expecting danger from the electric service connection to the inmates and passers by and to avoid electrical accident, he rushed to the office of the APSEDCL Sub Station, Nandigama and gave a requisition to disconnect the electricity service provided to the schedule premises and accordingly they disconnected the service connection provided to the schedule premises. Thereafter the respondent found another electric service connection No. 332 originally fixed to the door No.19-107 situated near Mahalaxmi temple street, Nandigama which is far away to the schedule house. The respondent came to know that the father of the petitioners with a mala fide intention removed the said service from his own house and fixed the same to the schedule house without permission of the respondent. Again the respondent requested the Assistant Engineer of APSEDCL, Nandigama on 14.6.2006 to disconnect the said illegal service connection and on such request, the said service connection was disconnected. Again the respondent requested the Assistant Engineer of APSEDCL, Nandigama on 14.6.2006 to disconnect the said illegal service connection and on such request, the said service connection was disconnected. Thereafter, on knowing the whereabouts of the father of the petitioners questioned his illegal acts. Later, the father of the petitioners covered the roof of the schedule premises with tarpaulin sheet on 7.7.2006 to show that they were living in the schedule premises. On 16.6.2006 the respondent got video recording and photographs in respect of the schedule house showing gathered heaps of sand, baby stones and gravel which are kept for construction. Thereafter, the father of the petitioners filed a petition RCC No. 3 of 2006 under Section 14 of the A.P. Building (Lease, Rent and Eviction) Control Act ( for short ‘the Act’) to restore the amenities to the schedule premises. The said petition was contested by the respondent and therein, the learned Rent Controller appointed an Advocate Commissioner, who submitted a report regarding physical features of the schedule house. However, the father of the petitioners filed a memo dated 11.9.2006 stating that they compromised the matter and the electricity connection was restored to the schedule premises and sought for dismissal of RCC No. 3 of 2006 and on such memo, the Rent Controller dismissed the said RCC. It has been averred that since beginning, the Northern portion of the petition schedule house is in possession of the respondent and he used to stay there as and when he visited Nandigama. However, as the father of the petitioners constructed special toilets on Northern-East of the schedule premises without permission of the respondent, thereby the possibility of living in the Northern portion of the schedule house by the respondent became in vain. It has further been averred that the respondent never asked the petitioners to do repairs to the schedule premises and that the petitioners never allowed the respondent to visit inside the schedule premises to assess the conditions; that the petitioners committed acts of waste which materially impaired the value and utility of the schedule house; that the petitioners did not give any intimation to the respondent in respect of the alterations or got permission from the respondent before removal of the roof of the schedule premises and that the petitioners are unnecessarily causing hurdles in allowing the respondent to stay in Northern portion of the schedule premises. In view thereof, the respondent got issued legal notice dated 1.8.2006 to the petitioners demanding them to vacate the schedule house and hand over the same. The petitioner gave reply to the said notice refusing to vacate the schedule house. Hence, the respondent filed RCC No. 4 of 2006 for eviction of the petitioners from the petition schedule premises. After filing the said RCC, the father of the petitioners died and his legal heirs came on record and adopted the counter filed by their late father and contested the said RCC. While so, the petitioners filed RCC No. 5 of 2006 for restoration of the amenities to the schedule house, the details of which are not necessary for adjudication of the present CRP. The learned Rent Controller though recorded findings that the respondent failed to prove the bona fide requirement of the schedule premises since because he gave notice to the petitioners for their eviction seven years after his retirement; that the respondent failed to prove that the father of the petitioners constructed special toilets as alleged by the respondent, and that he was doing shamiyana business in the schedule premises; however, the learned Rent Controller found that the petitioners committed acts of waste in removing the roof without prior permission of the respondent and without taking care and caution and kept the house without roof for such a long time and thereby directed the petitioners to vacate the schedule house and hand over the vacant possession to the respondent within a time frame. Aggrieved by the same, the petitioners herein unsuccessfully carried the matter in appeal in RCCMA.No. 9 of 2010 before the learned Senior Civil Judge, Nandigama, who, while observing that the petitioners committed act of waste held that the petitioners are liable to vacate the schedule house and handover the vacant possession of the same to the respondent. Hence this revision petition. In this revision petition, the learned Counsel for the petitioners mainly submitted that even though the schedule house was in dilapidated condition even way back in 1985, the respondent neither take up any steps to demolish and reconstruct the building nor to repair in order to avoid mandatory requirements of Section 12 of the Act. Hence this revision petition. In this revision petition, the learned Counsel for the petitioners mainly submitted that even though the schedule house was in dilapidated condition even way back in 1985, the respondent neither take up any steps to demolish and reconstruct the building nor to repair in order to avoid mandatory requirements of Section 12 of the Act. He further submitted that as the respondent-landlord failed to take up steps under Section 12 of the Act, the removal of roof which was intended to avoid injury or loss to the inmates or public, cannot be attributed against the petitioners as acts of waste. He pointed out that shifting of power connection cannot be termed as acts of waste as it being power supply intended to avoid inconvenience to the inmates. On the other hand, the learned Counsel for the respondent advanced arguments justifying the concurrent findings of the Courts below. While reiterating the submissions made before the Courts below, the learned Counsel for the respondent emphasized that the removal of entire roof of the schedule premises without notice to the landlord and placing of permanent board on the gate of the schedule premises showing as if it belongs to the petitioners and illegitimate shifting of the power supply connection of their own house to the schedule premises can certainly be termed as acts of waste. He therefore sought that there are no valid and legitimate grounds to interfere with the concurrent findings of the Courts below. Perused the record. Before entering into the merits or otherwise of the subject matter, it is just and necessary to have look at sub-sections (1) and (2) of Section 12 of the Act in so far as it relates to the present dispute, in order to appraise the contentions advanced by the learned Counsel, which reads as under. “Section 12(1) and (2) of the Act read as under: "Recovery of possession by landlord for repairs, alterations or additions or for reconstruction:- (1) Notwithstanding anything in this Act, on an application made by a landlord the Controller may, if he is satisfied: (a) That the building is reasonably and bona fide required by the landlord for carrying out repairs, alterations or additions which cannot be carried out without the building being vacated. (b) That the building consists of not more than two floors and is reasonably and 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. Pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. (2) No order for recovery of possession under this section shall be passed unless the landlord gives an undertaking that the building on completion of the repairs, alterations or additions or the new building on its completion will be offered to the extent, who delivered possession in pursuance of an order under sub-section (1), for his re-occupation before the expiry of such period as may be specified by the Controller in this behalf." From the above it is clear that Section 12 of the Act deals with a situation where the landlord bona fide requires the leased building for repairs, alterations or additions or for reconstruction. The non-obstante clause in sub-section (1) of Section 12 of the Act makes it clear that the landlord is entitled to seek eviction of the tenant from the building by satisfying the Rent Controller that the building is bona fide required for carrying out repairs, alterations, additions or for erecting new building. Sub-section (2) of section 12 of the Act obliges the landlord to give an undertaking to the Rent Controller that the building on completion of the repairs of reconstruction will be offered to the tenant who delivered possession in pursuance of an order passed under sub-section (1) of Section 12 for tenant's reoccupation before the expiry of the period prescribed by the Rent Controller. Indeed, no order for recovery of possession under subsection (1) of Section 12 of the Act can be passed by the Rent Controller unless the landlord gives an undertaking, as required under sub-section (2) of Section 12 thereof. Indeed, no order for recovery of possession under subsection (1) of Section 12 of the Act can be passed by the Rent Controller unless the landlord gives an undertaking, as required under sub-section (2) of Section 12 thereof. A landlord, who files an application either under Section 10(2)(i) (wilful default) or Section 10(2)(ii)(a) (subletting) or Section 10(2)(ii)(b) (using the building for unaccepted purpose) or Section 10(2) (iii) and (iv) (acts of wastage and causing nuisance) or Section10(3)(i) (bona fide occupation of residential house) or Section 10(3)(iii) (bona fide purpose of starting business in a nonresidential building), may also simultaneously seek eviction of the tenant for effecting repairs or for reconstruction of the building. In an application, which is filed -for example, for the bona fide requirement, the landlord can still succeed under Section 12 of the Act even if he fails to plead and prove properly the bona fide purpose. Then the Rent Controller, can order eviction of the tenant if the building is reasonably and bona fide required by the landlord either for carrying out repairs or for the immediate purpose of demolishing it, even if the landlord fails to prove either wilful default or bona fide requirement or other grounds of eviction. (emphasis supplied). But the case on hand does not rest on the said analysis. No doubt, the demised premises is about 80-90 years old and is dilapidated, but whether to get it demolished and have constructed a new building in its place or to carry out repairs, is for the landlord. It is for the respondent-landlord to take recourse to Section 12 of the Act for eviction of the petitioners-tenants when the demised premises is required for carrying out repairs or alterations or additions or for re-constructions, however, subject to fulfilling the conditions enumerated therein. Whether or not the landlord is able to carryout repairs or alterations or additions or reconstructions cannot be decided by the tenants. It is not for the petitioners-tenants to contend that the respondent-landlord is not carrying out the repairs because he wants to avoid mandatory requirement of Section 12 of the Act. They have no say in regard thereto. If any repairs are required to be carried out and if the land lord is not attending to/carrying out the same, it is for the tenants to approach the Courts of law. They have no say in regard thereto. If any repairs are required to be carried out and if the land lord is not attending to/carrying out the same, it is for the tenants to approach the Courts of law. Even in the case on hand, the respondent is not seeking eviction of the petitioners under Section 12 of the Act, but is seeking their eviction under Section 10 of the Act on account of the tenants resorting to acts of waste. It is not in dispute that the respondent is the landlord and the petitioners are the tenants. The ownership of the respondent was not disputed by the petitioners. The petitioners-tenants did not dispute that they had removed the roof of the schedule house without prior permission or knowledge of the respondent. Even the Advocate Commissioner appointed to note down the physical features of the schedule premises also reported that the entire roof of the schedule house was removed and the waste was stored. The contention of the petitioners that as the respondent failed to effect the repairs and there is every likelihood of leakage of rain water into the schedule house, they removed the roof, cannot be accepted since because Section 19 of the Act is clear that even after notice is given to the landlord, and in case of failure on the part of the landlord, the tenant can effect the repairs. Indeed, as per Section 121 of the Gram Panchayat Act, permission for causing repairs to the building is necessary; however, from the record, the tenants did not take any such permission. Virtually, the petitioners removed the entire roof of the schedule premises and after questioning of the respondent, they covered the roof with tarpaulin cover. Thus, the acts of the petitioners-tenants were damaging the very structure of the building. Further it is to be seen from the evidence on record that after removing the roof of the schedule house without prior permission or knowledge of the respondent, the petitioners-tenants kept intact the electric supply connection without disconnecting the same. Anticipating short circuit due to the negligent act of the petitioners and expecting endanger to the human beings and passers by, the respondent gave a requisition to the electricity department to disconnect the power supply to the schedule premises and on such request, the power supply was disconnected. Anticipating short circuit due to the negligent act of the petitioners and expecting endanger to the human beings and passers by, the respondent gave a requisition to the electricity department to disconnect the power supply to the schedule premises and on such request, the power supply was disconnected. However, the petitioners without approaching the respondent or the Court of law for restoration of the power supply, they gone to the extent of shifting the power supply connection of their own to the schedule premises. Again the respondent requested the electricity department to disconnect the illegal power supply service provided by the petitioners to the schedule premises. Thereafter only, the petitioners moved the Court of law under Section 14 of the Act for restoration of the amenities, details of which are not necessary for adjudication of this revision. Further it is to be seen that with an intention to deny the title of the landlord over the schedule premises, after removing the roof, laid a permanent name board to the entrance gate, whereat the petitioner was shown as the owner of the schedule property. The Advocate Commissioner so appointed had reported the same in his report. The acts so committed by the petitioners would threaten the respondent very safety and utility of the schedule premises. Further, the first petitioner is doing shamiyana business in the schedule house without permission of the respondent. Even the contention of the learned Counsel for the petitioners that the earlier petitions filed by the respondent for eviction of the petitioners was dismissed, cannot be countenanced because of the subsequent events that took place. From the above, it is clear that the first petitioner committed acts of waste, which materially impaired the value and utility of the schedule house. The removal of the roof and effecting of repairs to the schedule premises without prior notice or knowledge of the landlord, shifting of illegal power connection, and erecting name board can certainly be treated as acts of waste and the same is a tenable ground for eviction of the tenants. The trial Court therefore rightly allowed the eviction petition believing the version of the landlord on the ground of tenants resorting to act of waste. The appellate Court confirmed those findings having regard to the ample evidence to support the findings of the Court below on the ground stated supra. The trial Court therefore rightly allowed the eviction petition believing the version of the landlord on the ground of tenants resorting to act of waste. The appellate Court confirmed those findings having regard to the ample evidence to support the findings of the Court below on the ground stated supra. No argument is, therefore, available for the tenants-revision petitioners in this Court to contend that the concurrent findings were vitiated on the ground of no evidence. In fact, as observed above, the defence of the tenants to the eviction petition was that the removal of roof is temporary in nature and the roof was removed only for repairs and the same would not come under the definition of acts of waste. The main part of the judgment of the trial Court considered that question and held that the tenants did not make out case to over come the same. It is now settled by the judgment of the Supreme Court in Sri Raja Lakshmi Dyeing Works vs. Rangaswamy (AIR1980SC1253) that a finding based on evidence recorded by the trial Court and confirmed by the lower appellate Court is not in our view a finding which can be touched by the High Court exercising jurisdiction under Section 22 of the Act. Going thereby, I do not see any illegality or infirmity in the order of the lower appellate Court. In view of the foregoing discussion, the Civil Revision Petition fails and is accordingly dismissed. As a sequel thereto, the miscellaneous petitions if any pending consideration shall stand closed. There shall be no order as to costs.