Madras High Court
M/S. M.M. Jaffar & Co., Coimbatore And ... vs M/S. Coimbatore Bearing Stores, Prop., ... on 21 October, 1998
Equivalent citations: 1999(1)CTC620, (1998)IIIMLJ741, 1999 A I H C 187, (1998) 3 MAD LJ 741, (1999) 1 RENCR 440, (1999) 2 RENTLR 179
ORDER
1. The petitioners/landlords who failed in their attempt to get the order of eviction before the authorities below, have filed the above revisions.
2. There are six portions in the building in question and five tenants are occupying the said building in the respective portions. According to the petitioners, on 31.10.1984, the then Prime Minister of India was assassinated at New Delhi and an unprecedented violence in the city of Coimbatore had sparked off. The building belonging to the petitioners which is in the occupation of the tenants was also attacked by goondas who set fire to the building, due to which the building suffered extensive damage. On the basis that the building had suffered substantial damage which is permanent in nature and it is unfit for the purpose of occupation and also on the ground that the petitioners proposed to erect a new modern building in the site, filed R.C.O.P.Nos.366 to 391 of 1984 to the effect that they require the building bona fide for the purpose of demolition and reconstruction. It is stated specifically that the petitioners have capacity to construct such a building. They have also given undertaking which is required under the Provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act herein after called as 'the Act'. But, we are concerned in these revisions only with respect to R.C.O.P.Nos.367, 368 and 370 of 1984, filed on the file of the learned Rent controller, Coimbatore. The respective tenants in these R.C.O.Ps. filed counter disputing the bona fide intention of the landlords. They have also denied the fact that the building in question is in dilapidated condition and requires demolition and reconstruction immediately. According to them, the building is in good condition and there is no necessity to demolish and reconstruct the same. It is also their case that there are other tenants also and without evicting them, the building in question cannot be demolished and reconstructed. An advocate-Commissioner was appointed by the Rent Controller and he visited the building before the same was repaired by the tenants and also after repairing the building, and he filed his report. The Rent Controller after appreciating the oral and documentary evidence dismissed the petitions. Aggrieved against the same, the landlords filed appeals in R.C.A.Nos. 63 to 65 of 1992 on the file of the learned Appellate Authority, Coimbatore. The appellate authority also rejected the appeals holding that the building in question does not require immediate demolition and reconstruction. Still aggrieved, the petitioners/landlords have filed the above revisions.
3. The learned Senior Counsel appearing for the petitioners/landlords has submitted that the petitioners want to erect modern building in the site in question taking into consideration the fact that the building had suffered substantial damage which is permanent in nature and it is unfit for the purpose of occupation. He has also relied on the commissioner's report in support of his submissions regarding the substantial damage to the building. The learned senior counsel while submitting about the means of the petitioners to demolish and reconstruct the building has stated that regarding the same, there is no dispute about the capacity of the petitioners to meet the expenses. With regard to the rejection of the petitioners 'application for not producing the sanctioned plan, he has submitted that the production of sanctioned plan is not absolutely necessary to find out the bona fide intention of the petitioners, if/they had established the same otherwise.
4. On the other hand, the learned senior counsel appearing for the respondents, to sustain the orders of the authorities below has submitted that since the respondents/tenants have established before the authorities below that the building is required for them for occupation and so the authorities below are correct in holding that the petitioners have not established that the building is not in dilapidated condition and it requires immediate demolition and reconstruction. While answering to the argument of the learned senior counsel appearing for the petitioners to the effect that the state of affairs of the building on the date of the petition have to be taken into consideration, and, merely because the tenants had repaired the same the same cannot be a ground to assert the nature of the building on the date of the petition, the learned Senior Counsel for the respondents has submitted that/since the tenants established the fact that by way of mere repairing the building the same can be used for occupation, the question of evicting the tenants on the ground that it requires immediate demolition and reconstruction will not arise.
5. I have carefully gone through the records and the arguments of both the senior counsel. The landlords have come forward with the petitions to demolish the building for the purpose of erecting new modern building, taking into consideration of the fact that the building had already been subsequently damaged due to riots, It is not in dispute that there was violence in the city of Coimbatore during the said period and the building in question suffered substantial damage. The only defence that has been taken by the tenants is that the building can be utilised again after repairing the same and so the question of demolition and reconstruction will not arise. As submitted by the landlords, the authorities below also accepting the said case of the tenants rejected the petitions filed by the landlords. The authorities below relied on the fact that the landlords have not produced any structural stability certificate to show that the building requires immediate demolition, especially when the tenants could establish that it is fit for occupation after effecting repairs.
6. From the reports of the Commissioner, namely, Exs. C1, C3 and C5, it can be very well seen that the building suffered extensive damage. Taking into account the said situation, the petitioners wanted to erect a new modern building, after demolishing the same. In this situation it has to be found out whether the petitioners request is a bona fide one or not.
7. In this case, the petitioners have come forward with the petitions not only on the ground that the building had damaged extensively and it requires immediate demolition and reconstruction but also on the ground that he wants to put up a modem new building in the said site. It is held in various decisions, that to maintain the petition under section 14(1)(b) of the Act, the landlord should satisfy three conditions, namely, (1) the bona fide intention of the landlord far from the sole object to get rid of the tenants, (2) the age and condition of the building and (3) the financial position of the landlord to demolish and erect a new building It has been held in a number of decisions that the building in question need not be in dilapidated condition and in a dangerous state of affairs for ordering the petition under Section 14(1)(b) of the Act.
8. While dealing with the scope of Section 14(1)(b) of the Act, in the decision in K.J. Sivalingam v. Guruswamy and another, 1983 (2) M.L.J. 85, it has been held as follows:-
"While the age and condition of the buildings a relevant factors to be taken into account, it is not possible to insist that the condition of the building must be such that there is an imminent threat of the same crumbling down in the near future and only in such a contingency, the landlord could resort to the process under Section 14(1)(b) of the Act. There is no warrant for applying such stringent tests to discountenance the plea of the landlord for requiring the building for demolition and reconstruction of a better structure either to get a better return or to accommodate himself comfortably."
9. AR. Lakshmanan, J., in the decision in S.Thangasamy v. R. Vinayakamurthy, , while dealing with the scope of the said section, has held as follows:-
In my opinion, in order to satisfy the test under Section 14(1)(b) of the Act, the condition of the building need not have deteriorated to the extent of the building being in danger of crumbling down but the condition must be such as to indicate a bona fide requirement for the timely, genuine and direct purpose of demolition and reconstruction".
10. To reach the conclusion whether the building is in such a condition that it needs reconstruction, it need not be really on the basis of looking at the building or taking into account the actual physical condition of the building alone, but having due regard to various other circumstances, namely, the area where the building is situated, the nature of development that had taken place in the area etc. In the present case it is not in dispute that the building in question is located in a busy commercial centre. Though the building was in good condition before 31.10.1984, it had substantial damage in view of the said riot that had taken place during the relevant period. Taking advantage of the said fact, and taking into account the situation, and also the area in which the building is situated, the landlords want to put up a modern building. While considering the similar situation, S.S. Subramani, J in Kattuppan, S. v. Civil Advocates Clerks 'Assn., Dindigul , relying on the Supreme Court decision, has held as follows:-
"The recent decision of the Supreme Court has also applied the same principle. When we consider the development of the locality and importance of the same, the coming up of modern buildings and also the amenities etc., should also be taken into consideration. If this is the interpretation that has to be given for the expression condition of the building, as held by the Supreme Court, 'physical condition' of the building is only one of the requirements that has to be taken into account under Section 14(1)(b) of the Act along with other factors"
11. In view of the above, the approach of the authorities below in this case, while deciding the bona fide intention of the landlords with respect to the question of demolition and reconstruction of the building cannot be sustained. The authorities below concurrently failed to appreciate the fact that the landlords intention is to erect a new modern building in the site taking into consideration the fact that the building suffered extensive damage in the riots. The authorities below had mainly concentrated on the nature and condition of the building only, which, as held by the Apex Court and various other decisions of this Court, is not the only ground to decide the bona fide intention of the landlords to seek eviction under Section 14(1)(b) of the Act.
12. In this case,the tenants have not established the mala fide intention of the landlords with respect to the request of the landlords regarding the requirement of the building. The tenants have concentrated only in establishing the fact that after effecting repair to the building, that too without the consent of the landlords, the building would be fit for occupation. But, the landlords have established their means to demolish and reconstruct the building which was not seriously disputed and disproved by the tenants. From the above discussions, it is very clear that the landlords have established their bona fide intention to demolish and reconstruct the building in question. They have also given an under taking that they will demolish the building and commence the construction within the particular period. If they failed to do so, the tenants can seek restitution under the Act.
13. Yet another ground that has been raised against the landlords is that they have not produced the sanctioned plan before the authorities below, while dealing with the necessity to produce the sanctioned plan during the proceedings, this Court in S. Balasubramaniam v. Gulab Jan 94 L.W. 102 has held as follows:-
"The capacity and means of the landlord to carry out the work of demolition and reconstruction do not appear to have been challenged in the present proceedings. Want of the sanctioned plan or lack of preparation for the work of demolition and reconstruction by itself cannot negative the bona fides of the landlord. Each case will have to be decided on its own facts. Under certain circumstances the preparation for demolition and reconstruction on the fond hope of succeeding in his proceedings for eviction. To insist upon such a factor as a sine qua non for initiation of proceedings for eviction on the ground of demolition and reconstruction, would drive the landlord to incur expenditure which may turn out to be futile depending upon the ultimate result in the proceedings for eviction. In my view, Exhibit A1 clinches the issue and lends ample support to the case of the landlords for demolition and reconstruction".
14. S.S. Subramani, J in the decision in Kannan, S. v. Manoharan, P., , following the decisions in Ammini Pandarathy and others v. Leelammu and others, 1988 (1) KLT S.N.30 Sukumaran v. Addl.
District Judge, G.K. Jose v. Ramathal 1979(1) MLJ 372 and in S. Balasubramanian v. Gulab Jan 94 L.W. 102, has held as follows:-
"Even when a condition is imposed in the State for production of plan and licence as a pre-condition for eviction, and the same has been interpreted by Court that the production at the later stage will be sufficient, in Statutes where there is no such condition, according to me, the production at the late stage cannot be considered as an afterthought or eviction petition was filed without any bona fides. In this case, the eviction petition was filed in 1982. Till 1989, the petition was in cold storage. If we ask the landlord to have plan and licence every time renewed, as held in S. Balasubramanian v. Gulab Jan 94 LW 102, it will be a futile exercise depending upon the result of the litigation and unnecessary expenses will have to be incurred. After licence is obtained, even the licence rules may change. So, the earlier plan becomes ineffectual. By the time eviction is ordered, the plan already filed may become ineffectual due to change of life of the property, or change of rules of construction. Even at that time when fresh licence will have to be taken up sic. Under the circumstances, to insist the landlord that he must produce the plan and licence along with the petition cannot be correct. The Court will have to see whether the landlord has come to Court with clean hands with a good intention that he wants to demolish and reconstruct the building. For the said purpose it will be sufficient if the plan and licence are filed either at the time of evidence or at the time of execution. The Rent Controller can insist that before the tenant is dispossessed, the landlord should produce a plan and licence".
15. In view of the above, it is very clear that mere non- production of the plan at this stage cannot be put against the petitioners/landlords to reject the eviction petitions, if they are able to otherwise establish their bona fide intention to demolish and reconstruct the building in question, for the foregoing reasons, the orders of the authorities below cannot be sustained. Hence they are set aside. R.C.O.P.Nos.367, 368 and 370 of 1984 are allowed. Consequently, these revisions are allowed accordingly. No costs. C.M.P.Nos.10623 to 10625 of 1998 are ordered.