Madras High Court
Balasubramaniam Alias Palaniappan ... vs Waran on 28 July, 1997
Equivalent citations: (1998)1MLJ496
ORDER S.S. Subramani, J.
1. This revision is filed by the landlord in R.C.O.P. No. 41 of 1986, on the file of Rent Controller (District Munsif), Erode.
2. Petition for eviction was filed on the ground that the building in question requires immediate demolition and reconstruction, as stated in paragraph 5 of the petition. It is said that the condition of the building is very bad and the tenant entered into a lease arrangement orally with one Kuppammal in the year 1967 on a monthly rent of Rs. 25 It originally belonged to one Karuppanna Chettiar's family. In a suit to which the landlord was also a party the same was declared as belonging to him. The tenant was intimated about this by Kuppammal, and after court proceedings, the tenant recognised the right of the landlord and paid rent. The rent was increased from Rs. 25 to Rs. 55. lt is said that the building is very old and weak, the materials like brick and wood are worked out and the entire portion is damaged. It is very difficult and costly for building on the Bazaar Street at Kodumudi on account of increase in prices. Further, the landlord wanted the tenant to deliver vacant possession of the portion in his occupation for demolition and reconstruction. The purpose of reconstruction is to run an ice cream parlour in the new building. The petitioner has undertaken to commence the demolition and reconstruction work immediately. He has also submitted that he has got the necessary funds for putting up the reconstruction.
3. In the counter statement filed by tenant, he contended that the rent payable is not Rs. 55, but 50. It is alleged that when the landlord refused to receive the rent, tenant had to file R.C.O.P. No. 13 of 1985, seeking permission to deposit the rent into court. Land-lord seriously contested the petition, but it was allowed and it was decided therein that the rent is Rs. 50. The tenant is continuing to deposit the rent in court. The allegation that the building required immediate demolition and reconstruction is also disputed. It is said that the petition is intended only to evict the ten-ant somehow or other, and that the same is without any bona fides, it is further said that far from the petitioner asking this tenant alone to vacate the portion his his occupation, it is clear that the landlord has not come to court with clean hands. It is further contended that from the prior conduct of the landlord, it can be seen that only to evict the tenant, he has filed the petition. In the suit in which the landlord is a party, namely, O.S. No. 23 of 1960, the schedule property was allotted to him. Even though the tenant was in possession, landlord somehow or other, intending to get physical possession, filed execution petition. On coming to know about that, tenant filed an application that he should not be dispossessed. His contention was accepted by court and dispossession was averted. The landlord again interfered with his possession and, therefore, the tenant had to file another suit, namely, O.S. No. 588 of 1976 for injunction. The same was seriously contested by the landlord. But in spite of the same, the suit was decree. It was thereafter the tenant had to file an application seeking permission to deposit the rent in court. It is his case that there is enmity between the parties, and it is only to wreak vengeance on the tenant, the present eviction petition has been filed.
4. Rent Controller took oral and documentary evidence. Father of the petitioner, who is his Power of Attorney Agent, was examined as P.W. 1. The tenant got himself examined as R.W. 1.
5. After evaluating the entire evidence including the Commissioner's Report and plan submitted by him, Rent Controller came to the conclusion that the claim of the landlord is bona fide. He directed dispossession of the tenant. Rent Controller came to the con-clusion that even though there might have been prior proceedings, when the landlord has satisfied the statutory grounds under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control}-Act, he is entitled to get recovery of the property.
6. Against the said decision, tenant filed R.C.A. No. 5 of 1991 as on the file of Subordinate Judge, Erode. The Appellate Authority, after reconsidering the entire evidence, came to the conclusion that the finding of the Rent Controller is not correct. It found that the building does not require immediate demolition and reconstruction. Landlord has also no means to put up the construction, and from the prior conduct, it is clear that the landlord has come to court with the avowed purpose of evicting the tenant somehow or other. The conduct of the landlord in seeking to de-molish only a portion of the building was taken note of by the appellate authority as one of the reasons to hold that the petitioner has no bona fides, it further came to the conclusion that the remaining portion of the building was also let out by the very same land-lord after the eviction proceedings. The appellate authority was not prepared to believe the allegation put forth by the landlord that the portion in the occupation of the tenant herein alone is dilapidated, though the entire structure was put up at the same time. The Appellate Authority allowed the appeal and dismissed the eviction petition. It is against mat judgment, land-lord has preferred this revision petition.
7. Learned Counsel for the revision petitioner submitted that the finding of the Appellate Authority that the building does not require demolition and reconstruction is against law. He further contended that reliance placed by the Appellate Authority on the decision reported in P. Orr & Sons (P) Ltd. v. Associated Publishers (Madras) Limited (1992) 2 L.W. 547 has undergone vast change, and giving too much importance to the condition of the building is no longer good law. He further contended that the finding of the Appellate Authority that the landlord has no means to put up the construction is also not correct. According to him, the court is concerned only about the ability to reconstruct, and the liquid cash need not be placed before court. He further contended that when all the statutory conditions under Section 14(1)(b) of the Act are satisfied, bona fides will have to be presumed. Learned Counsel submitted that it is the claim of the landlord that has to be taken into consideration, and, for the said purpose, the statutory conditions alone need be complied with. The finding of the Appellate Authority therefore requires interference. He further contended that whatever may be the conduct of the landlord, it loses its significance when the statutory conditions are satisfied.
8. I do not agree with the said contention of the land-lord.
9. The main purpose of the Rent Control Act is to prevent unlawful eviction. In the decision reported in Hameedia Hardware Stores v. B. Mohan Lal Sowcar A.I.R. 1988 S.C. 1080 : (1988) 2 L.W. 1, in paragraph 13 of the judgment, their Lordships considered the scope of Rent Control law in general, though in that case, the question was, whether bona fides will have to be proved in a case of eviction under Section 10(3)(a)(iii) of the Act. In a case under Section 14(1)(b) of the Act also, the landlord must prove that the requirement is bona fide It is the Supreme Court decision referred to above, it has been held thus (at page 1068):
We are of the view that by merely proving that the premises in question is an non-residential building and that the landlord or any member of his family is not occupying for the purpose of a business which he or any member of his family is carrying on any residential building in the city, town or village concerned which is his own, the landlord cannot in the context in which Section 10(3)(a)(iii) appears get a tenant evicted. He must show in view of Clause (e) of Section 10(3) that his claim is bona fide The word 'claim' means "a demand for something as due" or "to seek or ask for on the ground of right" etc. In the context of Rent Control Law which is enacted for the purpose of giving protection to tenants against un-reasonable evictions and for the purpose of making equitable distribution of buildings amongst persons who are in need of them in order to prove that his claim; is bona fide a landlord should establish that he deserves to be put in possession of the premises which is in the occupation of a tenant. Any decision on the question whether a landlord deserves to be put in possession of a premises in the occupation of a tenant should naturally depend upon the bona fides of the landlord's requirement of need....
[Italics supplied] In that case, the Supreme Court said that even if the conditions are satisfied, the claim must be bona fide, and gave an example that with an intent to evict the tenant, evidence are created to suit the conditions contemplated under that section. Their Lordships held that if the landlord creates certain conditions, that by itself will not be sufficient to come to the conclusion that the claim is bona fide In the words of their Lord-ships, 'The need of the landlord should be genuine. If this is the scope of the Rent Control Act, merely satisfying the statutory requirements may not be sufficient to come to the conclusion that the landlord has not come to court with an oblique motive. The claim must be a genuine one. It is in this background, we have to consider whether the contention of the landlord has to be accepted.
10. Learned Counsel submitted that the decision in P. Orr & Sons (P) Ltd. v. Associated Pub-lishers (Madras) Limited (1992) 2 L.W. 547 has now been watered down in view of the later decision of the Supreme Court reported in Vijay Singh v. Vijayalakshmi Ammal : (1997) 1 L.W. 218. Learned Counsel subrnitted that the condition of the building need not be such that it should fall down. It need not be dilapidated.
11. I agree with the said contention of learned Counsel. But that by itself will not be sufficient to say that he has satisfied all the requirement so as to get an order of eviction. The relevant portion of the decisions in (1996) 6 S.C.C. 475 : (1997) 1 1 W. 218 reads thus:
... 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 fi-nancial 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 court 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 factors and then a conclusion one way or the other has to be arrived at by the Rent Controller.
If the contention of the learned Counsel for the petitioner is to be accepted, the conditions 2 and 3 referred to in the judgment alone will be sufficient. But their Lordships gave primary impor-tance to the bona fide intention of the landlord far from the sold object being only to get rid of the tenants. In the case on hand, the landlord wanted to demolish only that portion of the building occupied by the respondent. It is not disputed that the schedule building is only a portion having other rooms on the eastern side. The landlord does not want to demolish that portion, though the entire superstructure was put up at the same time. According to the learned Counsel, in the condition of the building has deteriorated only in this portion and, therefore, it requires demolition.
Though the law does not prohibit the demolition of a portion and also does not insist that the entire building should be demolished for the purpose of reconstruction, that is also one circum-stance which the court can take into consideration while considering the bona fides of the landlord. The landlord himself has stated in paragraph 5 of the petition that he wants to demolish and put up a new construction for the purpose of starting an icecream parlour. After the initial eviction proceedings, tenants in the remaining portion of the building vacated. If the building was in a dam-aged condition, under normal circumstances, it would not have been let out. It is not disputed that the remaining portions were also let out to other tenants and they still occupy the same. In the examination of P.W. 1 he has said thus:
In view of this admission, namely, that the condition of the entire building is the same, the alleged requirement for demolition of the portion in the occupation of the respondent alone casts a doubt on the bona fides of the petitioner.
12. Regarding the means of the landlord, great reliance is placed on Ex. A-6, a sale deed executed by the landlord in favour of a stranger. It is the case of the landlord that the consideration for the sale, viz., Rs. l lakh is available for construction. The Appellate Authority has discarded Ex. A-6 for the reason that the payment referred to therein is not paid on the basis of that document, but paid long before the execution of the deed. While P.W. I was examined, he admitted that the landlord has no bank account and he also admitted that the landlord, on the date when he filed the petition, was not having any job or employment. P.W. I has stated that he has got immovable properties over 6 and odd acres. Even though the same is not seriously challenged by the tenant, the question that has to be considered is, whether the landlord is in a position to raise funds for the purpose of construction. For the said purpose, of construction. For the said purpose, better evidence could have been adduced by the landlord himself. When P.W. 1 comes forward to say that he intends to pout up an icecream parlour for his son, that shows that the son might not have necessary funds to raise the building. in his deposition, P.W. I has said.
In paragraph 4 of the eviction petition, he has said that he intends to raise sufficient funds from individu-als and bank also. Absolutely no evidence in that regard has been placed before court. On reading of paragraph 4 of the eviction petition, it is clear that the funds which the landlord is alleged to have received under Ex. A-6 are not intended for reconstruction, or that the same are not available. It further denotes that the landlord has to take loans from indi-viduals and banks. It is settled law that the landlord need not place the entire liquid cash before court. But when the landlord himself says that he has to raise fund from others, his capacity to raise the funds is to be proved. The evidence in this regard is lacking. 13. It is true that the Commissioner visited the property and has given a report. It is also true that the Commissioner has not reported that the building is in a dilapidated condition. But he has stated that there are some cracks in the building. When P.W. I himself has stated that the schedule premises which is in the occupation of the respondent herein and the eastern portions are in the same condition, demolishing the respondent's portion alone as if it is dilapidated casts a doubt about the physical condition of the building. The land lord has also produced plan and licence and also the estimate.
14. Learned Counsel submitted that even demolition of a portion will amount to demolition for the purpose of the Act, and the entire building need not be demolished for the purpose of Section 14(1)(b) of the Act. For that proposition, he placed reliance on para (25) the decision reported in S.A. Henry v. J.V.K. Rao (1971) 2 M. LJ. 297 : 84 L.W. 523. That legal position is not doubted. The doubt in this case is only regarding the bona fides of the landlord.
15. Along with the legal and factual position discussed above, let us consider about the antecedent relationship between the parties. It is the case of the tenant that for years together the relationship is not good. A suit was filed as O.S. No. 23 of 1960, in which the landlord was given right over the building. Even though there was no decree for getting physical possession, an attempt was made by the landlord to get physical possession by filing execution petition. As a result of that, the respondent had to file a petition praying that his physical possession should not be disturbed. The Executing Court had to accept the contention of the respondent, in spite of serious contest by the landlord, and only symbolical possession was delivered. Even though in the eviction petition, landlord has said that the tenant attorned the tenancy in his favour, the landlord has suppressed the fact that such atonement was in pursuance of the Order passed by Court. Even thereafter, the landlord did not remain silent. He wanted to interfere with the possession of the tenant. The respondent had to approach the court again with a suit in O.S. No. 588 of 1976. The same was also seriously contested by the landlord. But a decree for injunction was granted in favour of the respondent.
16. Thereafter the landlord refused to receive rent so as to make it a ground for eviction. The tenant again had to move the Rent Control court seeking permission to deposit the rent. The same was allowed, and the tenant is still continuing to deposit the rent into court. That also shows that even to-day the landlord is not prepared even to receive the rent from him directly. The strained relationship between the parties will have a great bearing while we consider the aspect of bona fides in this Case As has been held in Hameedia Hardware Stores v. B. Mohan Lal Sowcar , the mere satisfaction of the statutory requirement will not be sufficient to order eviction. The intention of the landlord should not be to evict the tenant by some means or other. The intention must be bona fide I must say, genuineness has to be proved. When viewed in that perspective, the finding, according to me, can only be against the landlord in this case.
17. In the result, I confirm the judgment of the appellate authority by dismissing the revision petition with costs.