Madras High Court
R. Mohammed Hanif vs Abdul Wahab And Ors. on 18 January, 1997
Equivalent citations: 1997(3)CTC469
Author: P.D. Dinakaran
Bench: P.D. Dinakaran
ORDER P.D. Dinakaran, J.
1. The revision petitioner is the tenant who has preferred the above revision petition against the order dated 10-3-1992 in R.C.A. No. 2 of 1991 on the file of the Appellate Authority/Subordinate Judge, Kumbakonam, confirming the order of the learned Rent Controller in R.C.O.P. No. 40 of 1987 dated 26.11.1990.
2. The respondent-landlords filed the eviction petition against the revision petitioner-tenant herein on the ground of act of waste alleged to have been committed by the revision petitioner-tenant and on the ground of requirement of the building for owner's occupation and also for the bona fide requirement of the building by the respondents-landlords for the immediate purpose of demolishing it, under Sections 10(2)(iii), 10(3)(iii) and under Section 14(l)(b) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960, respectively.
3. The learned Rent Controller as well as the Appellate Authority rejected the plea of act of waste alleged to have been committed by the revision petitioner-tenant and the bona fide requirement of the building for the owner's occupation claimed by the respondent-landlords, but, however, ordered eviction on the ground of that the building is bona fide required by the respondent-landlords for immediate purpose of demolishing it, under Section 14(1)(b) of the Act.
4. Against the said order of eviction the revision petitioner-tenant has preferred the above revision petition.
5. The main contention of the revision petitioner in the above revision petition is that there is no finding either by the Rent Controller or by the Appellate Authority as to the condition of the building at all which warrants the respondent-landlords to require the building for immediate purpose of demolishing it.
6. No doubt, the respondent-landlords in their eviction petition alleged that the building in question is old; it requires immediate demolition or otherwise, it would fall down; and they have sufficient source of finance for demolishing the building and to reconstruct it. The respondent-landlords further alleged that even after giving notice to the revision petitioner-tenant seeking surrender of possession of the building for the purpose of demolition and reconstruction, the revision petitioner-tenant was carrying on the repair works in the building in question. On the other hand, the revision petitioner-tenant in his counter has stated that he has not committed any act of waste to the building; the building is in good condition as he was carrying on the repair works every now and then; and also denied the requirement of the building by the respondent-landlords for the purpose of immediate demolition and that the condition of the building was sound and good, but not in a dilapidated condition. In spite of the clear denial in the counter-affidavit by the revision petitioner-tenant, admittedly the landlords have not taken any steps for appointment of commissioner or Civil Engineer for assessing the condition of the building, except choosing to mark the photographs of the building i.e. Exs.P.5 and P.6 which photos, according to the revision petitioner-tenant, are not related to the petition premises.
7. In the light of the above facts, the short question arising in the above revision petition is whether the respondent- landlords have made out a case for eviction for evicting the revision petitioner-tenant under Section 14(l)(b) of the Act.
8. It is no doubt this Court has held in Radhakrishnan and Ors. v. Rajasekaran @ Rajee and Ors., 1990 (2) L.W 270 in para-5 as follows:
"The question whether the requirement for demolition and reconstruction is bona fide or not has to be considered on the basis of the evidence let in by the landlord with regard to the condition of the building............"
9. Learned counsel appearing for the revision petitioner also relies upon the decision reported in J.D. Devadoss (died) and Ors. v. N. Srikantiah, 1986 (1) M.LJ. 93 which held as follows:
"The mere fact that the building is old in itself is not sufficient for invoking the provisions of Section 14(l)(b) of the Act and ordering eviction. It is desirable that the petitioner should let in evidence by examining a qualified engineer or commissioner to show that the building is in a dilapidated condition and that it requires immediate demolition and reconstruction. The mere fact that the landlord has got sufficient funds and has taken steps by obtaining the sanction of plan for demolition and reconstruction would also not be sufficient",
10. It is also necessary to mention that even though in the case reported in R.P. David and Anr. v. N. Daniel (died) and Ors., 1967(1) M.L.J. 110, the Bench of two Judges of the Apex Court held that "the only requirement of Section 14(1)(b) is the honest desire of the landlord to demolish the building and such demolitions to be made for the purpose of erecting a new building on the site of the old building sought to be demolished and there is nothing in the language of this Clause to warrant the view that the building should be old and decrepit....", the Apex Court in the latest decision on the point in P.Orr & Sons(P) Ltd. v. Associated Publishers (Madras) Limited, 1990(2) L.W 547, a Bench of three judges has over-ruled the earlier decision namely R.P.David and Anr. v. N. Daniel (Died) and Ors., 1967(1) M.LJ. 110. While dealing with requirement for evicting under Section 14(l)(b), the Apex Court in P. Orr & Sons(P) Ltd. v. Associated Publishers (Madras) Limited, 1990 (2) L.W 547 : 1991 S.C.C. 301, has held that the condition of the building shall be the overriding consideration for the test of bona fide requirement for demolishing the building, in the absence of which, it shall not be possible for the landlord to prove his bona fide requirement for the immediate demolition. In the said decision namely P. Orr. & Sons(P) Ltd., v. Associated Publishers (Madras) Limited, 1990 (2) L.W. 547, the Apex Court has observed as follows:
"Various circumstances such as the capacity of the landlord, the size of the existing building, the demand for additional space, the condition of the place, the economic advantage and other factors justifying investment of capital on reconstruction may be taken into account by the concerned authority in considering an application for recovery; but the essential and overriding consideration which, in the general interests of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs."
Therefore, while arriving at a finding as to the condition of the building, that demands timely demolition, the extent of damage to its structure has also become an essential requirement.
11. In one another decision, viz., reported in Arumugham Chettiar v. Jayaraman, 1995(11) M.LJ. 282, this Court has held as follows:
"The statutory condition for getting an order of eviction on the ground of demolition and reconstruction is that the landlord has to prove by positive evidence that the physical condition of the building is bad and that it requires immediate demolition and construction. Even though the development of the area, the economic condition of the landlord etc., are relevant factors the physical condition of the existing building has to be proved, since that is the primary requirement under the Section."
In the said decision Arumugham Chettiar v. Jayaraman, 1995 (II) M.LJ. 282, the landlord has not proved the physical condition of the building by taking out a Commission before the Rent Controller, as in the present case.
12. On the other hand, learned counsel appearing for the respondent-landlords relied upon a decision reported in Arumugham Chettiar v. Jayaraman, 1995 (II) M.LJ. 178 (A. Lakshmanan and Ors. v. Ranniammal alias Pattammal) wherein this Court has held as follows:
"In an eviction petition filed on the ground of demolition and reconstruction, motive for demolition and re-construction is wholly irrelevant. It is always open to the landlady to demolish an admittedly old building and put up a new building in that place with a view to augment her income. It is settled law that a concrete and immediate proposal or scheme to demolish an existing Building and reconstruct it into a bigger, more productive and higher income-yielding one cannot, by any means, be said to be mala fide. Section 14(l)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act is not rendered inapplicable merely because the building is not old or dilapidated but is in a good condition. In other words, if the intention of the landlady for demolition and reconstruction is proved to be genuine and not spurious or specious, the landlady would be entitled to obtain an order for eviction under Section 14(l)(b) of the Act whether or not the condition of the building is such as to require immediate demolition, the age and dilapidated condition of the building not being sine qua non for such eviction."
13. Similarly, in another decision viz., S. Thangaswamy v. R. Vinayakamurthy, this Court has held as follows:
"The motive for demolition and reconstruction is wholly irrelevant in a petition for eviction under Section 14(l)(b). As rightly contended by learned counsel for the landlord, Section 14(i)(b) of the Act is not rendered inapplicable merely because building is not old or dilapidated, but is in good condition. In other words, if the intention of the landlord is proved to be genuine, and not spurious or specious, the landlord would be entitled to obtain an order for eviction under Section 14(l)(b) of the Act, whether or not the condition of the building is such as to require immediate demolition, the age and dilapidated condition of the building not being sine qua non for such eviction, it is well established in this case that the means or the landlord to carry out the work of demolition and reconstruction is a relevant factor to be taken note of by this Court and considered while testing his bona fide. 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."
14. Even this decision namely S. Thangaswamy v. R. Vinayakamurthy, , this Court has ultimately observed that the condition of the building must be such as to indicate a bona fide requirement for the timely genuine and direct purpose of demolition and reconstruction.
15. The respondent-landlords relied upon another decision of a Bench of five Judges of the Apex Court reported in Vijay Singh and Ors. v. Vijayalakshmi Ammal, in which, while referring to P. Orr. & Sons (P) Ltd. v. Associated Publishers (Madras) Ltd. on the point of demolition and reconstruction required under Section 14(l)(b) of the Act, the Apex Court has held as follows:
"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 financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act."
16. Therefore, one of the essential requirements for ordering eviction under Section 14(l)(b) of the Act is the age and condition of the building. The condition of the building, as already observed, can be arrived only on the basis of evidence let in by the landlord, particularly when the revision petitioner-tenant herein, has specifically stated that the building in question is in good condition and it does not require any immediate demolition and reconstruction.
17. The same principle is also laid down in another decision of this Court in S. Kannan v. P. Manoharan, in which this Court has observed as follows:
"The essential and overriding consideration which, in the general interest of the public and for the protection of the tenants from unreasonable eviction, the legislature has in mind, is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under Clause (b), that condition is not only one of the various circumstances which may be taken into account by the Controller, but it is the essential condition in the absence of which it would not be possible for the landlord to prove that he has a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act does not accept the requirement by the landlord as a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition. These are matters which are to be proved by evidence." Their Lordships further said thus-" It must, however, be emphasised that in order to satisfy the test under Section 14(l)(b) 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 time, genuine and direct purpose of demolition and reconstruction."
18. In the instant case, as already stated, the respondent/landlords admittedly have not proved the condition of the building at all as to indicate a bona fide requirement for the time, genuine and direct purpose of demolition and reconstruction, nor have chosen to prove the same through evidence of the Commissioner or a Civil Engineer, except by marking photographs Exs. P.5 and P.6 which are also denied by the revision petitioner-tenant that the said photographs are not related to the building in question. Even the contention of the respondent-landlord namely P.W.I as to the condition of the building is that only flooring, and plastering are in a damaged condition, it is not substantially proved by the respondent-landlord as to the building making it uneconomical or unsafe to undertake repair sand to indicate a bona fide requirement for the timely, genuine and direct purpose of demolition and reconstruction as required in the decision repotted in the case of P. Orr & Sons (Private) Ltd., v. Associated Publishers (Madras) Limited, . 18 Learned counsel for the respondent-landlords also relied upon another decision viz., reported in Central Hameedia Stores and two others v. Valliammal alias Rajammal and contended that the burden is on the tenant to prove that the building does not require demolition and reconstruction. But a reading of the said decision clearly states that the burden is shifted on the tenant only to let in contra evidence to the effect that the building does not require demolition and reconstruction which would arise only in the event of the landlord adducing evidence as to the condition of the building that the building requires demolition and reconstruction. Admittedly, in the instant case, the respondent-landlord has not chosen to a adduce evidence through a Commissioner or Civil Engineer, nor adduce any evidence on record to prove the condition of the building for the immediate purpose of demolition and construction.
Therefore the said decision Central Hameedia Stores and two others v. Valliammal alias Rajammal, shall not help the respondent-landlord in the instant case.
19. After a careful consideration of the facts of the case and evidence on record, I hold that the condition of the building is also an essential ingredient which ought to have been proved by evidence on record by the respondent-landlord herein as per the principles laid down in P. Orr & Sons (Private) Ltd., v. Associated Publishers (Madras) Ltd., and in Vijay Singh and Ors. v. Vijayalakshmi Animal, . In the absence of evidence on record for arriving at a finding as to the condition of the building, I hold that the orders of eviction by the Rent Controller as well as the Appellate Authority, cannot sustain in law.
20. I, therefore, allow the Revision Petition, set aside the findings of the learned Rent Controller and Appellate Authority relating to the orders of eviction under Section 14(1)(b) of the Act and remand the case to the Rent Controller for a fresh finding in that regard. In the interest of justice, I feel that this is a fit case to direct the Rent Controller to invoke Section 18-A of the Act to depute an Advocate-Commissioner to be assisted by two competent Civil Engineers as joint Commissioners, one representing the revision-petitioner-tenant and the other representing the respondent-landlord herein. Both the revision petitioner/tenant and respondent/landlord shall co-operate with the Advocate-Commissioner and joint Commissioners. The Rent Controller shall not insist upon a formal application for the appointment of Commissioner as directed above. Time for appointing the advocate-commissioners as also the two competent Civil Engineers as joint commissioners shall be one month from the date of receipt of this order by the rent Controller and time for submitting a detailed report by the advocate-Commissioner assisted by the two joint Commissioners, shall be one month from the date of appointment of the commissioner. The Rent Controller shall render a finding as to the condition of the building and dispose of the Rent Control petition within one month from the date of receipt of the report of the advocate-commissioner. Since the learned counsel for the revision petitioner-tenant has not argued any other point as to the age of the building and the financial position of the landlord to demolish and erect a new building and the undertaking of the landlord, except the one as to the condition of the building, the findings of the Rent Controller and the Appellate Authority in that regard shall be final and the remand of the matter to the Rent Controller is only for the limited purpose as directed above. There will, however, be no order as to costs in this Civil Revision Petition.