Madras High Court
M. Abu Tahir vs M. Rahamathulla on 18 July, 2005
Equivalent citations: (2005)4MLJ628
ORDER M. Thanikachalam, J.
1. The landlord is the revision petitioner.
2. The revision petitioner, claiming to be the owner of the property described in R.C.O.P. No. 2 of 1997 on the file of the District Munsif, Padmanabhapuram, as well as contending that he is the landlord, has filed a petition for eviction of the tenant, on the ground that the tenant/respondent had committed wilful default in payment of rent that the demised premises is required for him to carry on business, which he is already owning and that the building, which is in dilapidated condition, is required for immediate purpose of demolition and reconstruction, invoking the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, hereinafter called "the Act" under Sections 10(2)(i), 10(3)(iii) and 14(i)(b) of the Act.
3. The respondent/tenant, admitting the tenancy, quantum of rent, opposed the application for eviction that the landlord alone had refused to receive the rent when tendered, thereby compelling him to deposit the amount into Bank, which was later received by the landlord, showing there was no default, much less wilful default, that the premises is not required either for carrying on the business or for the immediate purpose of demolition and reconstruction in view of the fact the petitioner is having another building nearing completion, which could be occupied by him, for the alleged business, etc. Further, it is the case of the tenant that the landlord wanted a further sum of Rs. 50,000 as advance, which was also paid, for which no receipt was issued. Only in order to evict the tenant from the premises, false grounds were invented.
4. On the above pleadings, the parties went on trial before the Rent Controller. On behalf of the petitioner/landlord, including the petitioner, two witnesses have been examined, seeking aid from eight documents, which are sought to be nullified by the examination, of three witnesses on behalf of the tenant seeking buttress from eight documents.
5. The learned Rent Controller, scanning the above evidence and assessing the materials placed before him, including the Commissioner's report, came to the conclusion that there was no default of rent, much less wilful default in payment of rent, that the landlord, who is carrying on business, not owning any other building, and therefore the building is required for him for personal occupation, and that demand or requirement of the landlord, that the building is required for immediate purpose of demolition and reconstruction is bona fide. Though one ground was negatived, on two grounds, eviction was ordered, on 21.2.2001, which was challenged by the tenant, before the appellate authority in R.C.A. No. 2 of 2001.
6. The appellate authority, by going through the detailed judgment rendered by the Rent, Controller, as well as hearing the argument advanced, supported by judicial precedent, felt, that he can not subscribe his view, to the decision taken by the Rent controller on the ground, on which the petition for eviction was, allowed, though he had confirmed the finding, rendered by the Rent Controller regarding wilful default. The appellate Authority came to a different conclusion that the alleged requirement of the landlord, that the building is required for his personal occupation was not established, since the same is inconsistent with the ground of demolition and reconstruction, and that the mandatory requirement of Section 14(2)(b) of the Act, namely an undertaking was not furnished either, with the petition or before the order being passed, which was not taken note of by the Rent Controller. In this view of the matter, unable to concur with the findings rendered by the Rent Controller, the R.C.A. was allowed, setting aside the findings, which were the cause for eviction according to Rent Controller and ultimately dismissed the petition itself, which is under challenge in this revision.
7. Heard the learned Counsel for the revision petitioner and the learned Counsel for the respondent.
8. On three grounds, the landlord/revision petitioner approached the Rent Controller for the eviction of the respondent/tenant from the demised premises and they are--
(1) wilful default in payment of rent from May, 1996, (2) that the landlord requires the building for the purpose of carrying on his business, for which he is not owning any non residential premises in this town, and (3) that the building is required for the immediate purpose of demolition and reconstruction, which were opposed vehemently.
9. The Rent Controller, upon appreciation of evidence, regarding the nonpayment of rent, taking into account the Conduct of the landlord, in receiving the rent after complaining of non-payment, came to the conclusion that there was no wilful default, which was affirmed by the Appellate Authority, based upon the materials, properly appreciating, in which, my interference is absolutely unwarranted and that is why, it is also fairly conceded before me that the ground of wilful default was not pressed or urged. Hence, it is unnecessary for this revisional Authority to go into the concurrent finding, regarding wilful default, which was negatived by Courts below.
10. As far as the second ground for eviction, is also not available to the landlord and that is why, though this ground was accepted by the Rent Controller, upset by the Appellate Authority, not canvassed before me. The reason appears to be patent, which could be seen from the inconsistent stand taken by the landlord. There is not much dispute, regarding the business carried on by the landlord, in a premises belonged to the family, which is said to be allotted to the share of the brother of the revision petitioner. The Rent Controller, correctly appreciating that the landlord is not owning any now residential building of his own, ordered eviction, though it is inconsistent with the other ground. But, unfortunately, the Appellate Authority, against evidence, has reached a conclusion, which appears to be highly irregular, in view of the admitted position. When the landlord has spoken about the division in the family, allotment of the property, in which the landlord is carrying on business, to his brother, not seriously challenged, at the first instance, though it appears, an attempt was made at the appeal stage.
11. Without giving an opportunity, as rightly claimed in the grounds of revision, to the landlord, the Appellate Authority had recorded a finding, that the landlord has failed to establish the division, etc. which requires eraser. The finding recorded by the Rent Controller as far as this point is concerned, namely that the landlord is carrying on business and that the premises is not of his own, whereas it belongs to his brother, cannot be disturbed and on this ground, the denial of the prayer, for personal occupation by the Appellate Authority is incorrect, though in my opinion, the end result is correct, in view of the fact, that Section 10(3)(a)(iii) of the Act is quite inconsistent with Section 14(1)(b) of the Act, since the landlord is attempting to evict the tenant, on these two grounds. Realizing this difficulty, it was conceded before me that personal occupation is not pressed, and eviction is aimed only on the ground of demolition and reconstruction.
12. The entire reading of the petition would suggest, that the landlord needs this building for immediate demolition and reconstruction, then use the new building, exclusively for his own purpose and to that effect alone, averments are available in paragraphs 5 as well as 9 of the petition. After demolition and reconstruction of the building, if it is available, then as said under the Act, for five years from the date of completion of the building and its report to the Authority, the provisions of the Rent Control Act will not be applicable, and therefore, we need not consider, whether, after demolition and reconstruction, the landlord is going to occupy the building, for his own business or not, which is outside the jurisdiction of the Rent Controller, if Section 14(1)(b) of the Act is accepted.
13. It is not the case of the landlord, either in the petition or as P.W.I that he wants to retain the building, as such, and to carry on the business, shifting the same, from the place where he is now carrying on. Section 10(3)(a)(iii) of the Act empowers the landlord, to recover possession of the non-residential building, if he is not occupying, for the purpose of business, which he is carrying on, thereby impliedly informing that the building, as such, is required for personal occupation, not any other building, to be constructed, after demolition. On the other hand, Section 14(1)(b) of the Act empowers the landlord, to recover possession of the building, if it is required bona fidely, for the immediate purpose of demolishing it and that demolition should be made for the purpose of erecting new building on the site of the building, sought to be demolished. If it is to be held that the ingredients under Section 14(1)(b) of the Act are satisfied, then the building has to be demolished, as per the undertaking, to be given under Section 14(2)(b) of the Act. In that case, the building may not be available for the landlord, to be occupied for his personal occupation, as contemplated under Section 10(3)(a)(iii) of the Act. Therefore, in my considered opinion, the two grounds, certainly, would not synchronize and therefore, the landlord has to choose either Section 10(3)(a)(iii) of the Act or Section 14(1)(b) of the Act and not both. If he chooses both and urges even now, then that would indicate the lack of bona fide, so as to say, the aim of the landlord is, to evict the tenant and the requirement is not bona fide. When these things were pointed out, to the revision petitioner, as said above, the only ground urged was demolition and reconstruction, as envisages under Section 14(1)(b) of the Act. Therefore, we have to see, ignoring the other grounds, whether the landlord has complied with the requirements of Section 14(1)(b) of the Act as well Section 14(2)(b) of the Act. In this context, we have to remember the provisions of Section 14(1)(b) and 14(2)(b) of the Act.
14. Section 14(1)(b) of the Act reads:
"Notwithstanding anything contained in this Act, but subject to the provisions of Sections 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied--
(a)...
(b) that the building is 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."
The section does not stop there, enabling the Controller to order eviction, if the requirement is bona fide, alone, whereas it imposes further condition, even preventing the Rent Controller from ordering eviction, if not complied, which is seen from Section 14(2)(b) of the Act.
15. Section 14(2)(b) of the Act reads:
"No order directing the tenant to deliver possession of the building under this Section shall be passed--
(a) ...;
(b) on the ground specified in Clause (b) of Sub-section (1), unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially commenced by him not later than one month and shall be completed before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing allow."
(emphasis supplied), There should not be any doubt, that the above provision is mandatory, which could be seen from the subsequent provision available under the Act.
16. The significance of the undertaking and its importance are evident from a reading of Sections 16 and 33(3)(b) of the Act. Section 16(1) of the Act reads:
"16. Tenants to occupy if the building is not demolished-- (1) Where an order directing delivery of possession has been passed by the Controller under Clause (b) of Sub-section (1) of Section 14 and the work of demolishing any material portion of the building has not been substantially commenced by the landlord within the period of one month in accordance with his undertaking under Clause (b) of Sub-section (2) of Section 14, the tenant may give the landlord notice of his intention to occupy the building the possession of which he delivered. If within fifteen days from the date of receipt of such notice, the landlord does not put him in possession of the buildings, on the original terms and conditions, the tenant may make an application to the Controller within eight weeks of the date on which he put the landlord in possession of the building. The Controller shall order the landlord to. put the tenant in possession of the building on the original terms and conditions."
thereby showing, the undertaking given under Section 14(2)(b) of the Act, if not complied with, the tenant is entitled to recover possession of the demised premises. If no undertaking is available or given, then invoking Section 16(1) of the Act, by the tenant may be an impossibility, thereby giving an advantageous position to the landlord, who obtained an order of eviction without an undertaking or in other words placing the tenant in a disadvantageous position, in case of an eviction order is passed without giving an undertaking under Section 14(2)(b) of the Act, not enabling the tenant to invoke Section 16(1) of the Act.
17. Thus, the right conferred upon the tenant would be deprived of, if an eviction order is passed without the undertaking. Only, in this view, it is said in Section 14(2)(b) of the Act, no order directing the tenant to deliver possession of the building under this Section shall be passed, unless the landlord gives an undertaking. Therefore, at any stretch of imagination or at any point of time, the undertaking contemplated under the Act cannot be bypassed or ignored or overlooked, enabling the landlord to get an order of eviction, only on satisfaction of Section 14(1)(b) of the Act, ignoring the mandatory provision under Section 14(2)(b) of the Act.
18. In order to protect the tenant, at the same time in order to give relief to the bona fide landlord, whose requirements are bona fide, the above said provisions are made, in addition to Section 33 of the Act. Under Section 33(3)(b) of the Act, if any landlord contravenes the provision of Section 14(2)(b) of the Act, who obtained possession on the ground specified in Clause (b) of Sub-section (1) of Section 14, he is liable even to be prosecuted. If no undertaking had been given, as mandated under Section 14(2)(b) of the Act, subsequent sections, namely Sections 16 and 33(3)(b) of the Act will remain as dead letters, and this cannot be the intention of the legislators also. Therefore, it should be held, undoubtedly, that the undertaking is a mandatory one, before an order of eviction is to be passed under Section 14(1)(b) of the Act.
19. It is not the case of the landlord before me also that no undertaking is necessary and in fact, conceded that undertaking is necessary. The learned Counsel for the revision petitioner, submitted that even now an undertaking could be given by the landlord as specified under Section 14(2)(b) of the Act, and subject to the filing of the undertaking, an eviction order could be passed. By going through the provisions and the authorities available, and the order passed in this case, I am unable to subscribe my view to the above said submissions, and the reasons will follow. Before that it should be seen, whether the building is required by the landlord for immediate purpose of demolition and reconstruction, then only question of undertaking comes, for ordering eviction.
20. In paragraph 5 of the petition, it is said the building is an old one, in a dilapidated condition, which requires an immediate demolition and reconstruction. Then, it further reads, after construction, the landlord needs the entire new building for his own, exclusive business, namely M/s. A.N.K. Steels. Why the building should be demolished, further reasons are assigned based on its prime locality, in the town. It is an admitted position that the building is situated in the heart of Thuckalay town just opposite to the bus stand, abutting National Highway on one side and abutting some market road on the other side. It is also in evidence, that vacant space available adjacent to the building is with the landlord. Therefore, if the old building is demolished and new building is put up in the entire area, it will augment, not only income of its own, ... but also by the occupation of the landlord, for the purpose of his own business, which would flourish. Regarding the preparation for the construction of the building, it is pleaded in paragraph 8, such as necessary sanction from the Municipality also has been obtained, having enough resources to meet the expenditure for the new building. Though the building is not so old, it requires demolition, is evident from the Commissioner's report, as well as seen from the oral evidence of P.W. 1. As far as the means of the landlord is concerned, there is no dispute. The tenant has not shown anything to cast shadow of doubt, on the bona fide of the landlord, pleading an immediate need of demolition followed by reconstruction over the site. It was not urged before me, drawing my attention to any material, that bona fide is to be doubted or the ground alleged is invented only to evict the tenant or something like that. In view of the settled position by the Supreme Court, at present, to get an order of eviction on the ground of Section 14(1)(b) of the Act, the landlord has to establish--
(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.
It is further ruled by the Apex Court in R.V.E. Venkatachala Gounder v. Venkatesha Gupta and Ors., 2002 (2) CTC 248 : 2002 (2) CTC 248, that--
"...apart from the age and condition of the building the capacity of the landlord to demolish and reconstruct, the useful utilization of the property which would on demolition and reconstruction make available more space to be occupied by human beings for residential/non-residential purposes and the genuine desire of the landlord to earn economic advantage are relevant factors pointing to the bona fides of the requirement."
21. Both the Courts below have not doubted about the bona fide of the landlord, his requirement, condition of the building, financial resources, etc. the fact being, approval also obtained for construction of a new building. The finding of the Rent Controller, regarding the bona fide, was not upset by the Appellate Authority, though eviction order was set aside for some other reasons. In this view, the concurrent finding should be affirmed by this Court. Thus, settling the position, that the requirement of the landlord/ revision petitioner is bona fide, i.e. the building is required for the landlord, for the immediate purpose of demolition, for the purpose of erecting a new building on the site, it is to be seen, whether eviction could be ordered in the absence of non-compliance of Section 14(2)(b) of the Act, on which ground alone, the appellate Authority had upset the order of eviction under Section 14(1)(b) of the Act.
22. As said supra, it is not the case of the landlord, no undertaking is necessary. Here, it is not a case of insufficient undertaking or the undertaking given by the landlord is not in conformity with Section 14(2)(b) of the Act or something like that, warranting this Court's interpretation, whether the undertaking given by the landlord, is sufficient to attract Section 14(2)(b) of the Act. On the other hand, here is a case, where no undertaking at all. True, no particular form is prescribed, under the Act for furnishing the undertaking and therefore, it is left to the landlord to give an undertaking, to comply with, the pith and core of Section 14(2)(b) of the Act. The undertaking may be in the petition itself, or by separate affidavit or even at the worst, at the time of giving evidence, since the Act says, no order directing the tenant to delivery possession of the building under this section shall be passed by the Rent Controller, unless the landlord gives an undertaking, thereby emphasizing that undertaking must come or should be available, before an order of eviction is to be passed by the Rent Controller. No written undertaking is specified in the section, and that is why I said, an undertaking may be made available, while giving evidence, that must be before passing the eviction order. This would suggest, the Rent Controller is not obliged to pass the order of eviction, subject to condition that the landlord should give an undertaking, which is not within his jurisdiction. If an eviction order is passed, riot complying with Section 14(2)(b) of the Act, then it should be held, that such an order of eviction was passed without jurisdiction and this being the position, certainly that kind of order should not be allowed to remain, which means the same should be set aside.
23. It is an admitted position that no undertaking is given, in the original R.C.O.P. and no affidavit is also filed. By going through the evidence of P.W.I also, I am unable to read any undertaking given, at least orally. This being the position, the Rent Controller ought not to have passed an eviction order. Unfortunately, without going through the provisions of Section 14(2)(b) of the Act, the Rent Controller, exercised his jurisdiction illegally, i.e. against law and therefore, the same was rightly upset by the Appellate Authority, in which I am unable to find any error of law, warranting my interference.
24. The learned Counsel for the revision petitioner sought the aid of decisions (1) S.P. Kasi Viswanathan Chettiar v. S. Kalyanaraman, 2001 (1) CTC 42 : 2001 (2) LW 374; (2) Harrington House School v. S.M. Ispahani and Anr., 2002 (2) CTC 549 : 2002 (2) CTC 549, in support of his submission that undertaking should not be in a particular form, and even at this stage, an undertaking could be given, and eviction order should be passed, subject to the filing of an undertaking by the landlord, which I am unable to accept, by going through the decisions, reading cautiously and carefully Section 14(2)(b) of the Act also.
25. In the first decision relied on, there was an undertaking and the contention of the tenant in that case was, that the undertaking given by the landlord was not in conformity with the statutory requirement. Considering the availability of the undertaking, placing reliance upon certain previous decisions, this Court had taken a view, defective undertaking should not be considered to be the same as absence of undertaking and passed an order that eviction is made subject to the landlord filing a proper affidavit of undertaking before the Rent Controller. This decision could, very well be accepted, if there is an undertaking, whether it is in conformity with the section or not, i.e. in a case of undertaking available. Here is the case, where no undertaking at all. Therefore, applying the above principle is not, possible in this case. Before eviction order is passed under Section 14(1)(b) of the Act, since undertaking was available, whether it is conformity with the Act or not, the Rent Controller was competent to pass an order of eviction, construing the same as correct, but in the absence of the undertaking totally in any form, ordering eviction would be against Section 14(2)(b) of the Act, which cannot be sustained, for this view, I am having the support of the decision of this Court in Krishnan and 2 Ors. v. Ravindranath, 1991 (1) CTC 657 : 1999 (1) LW 612.
26. In Krishnan case, Alamelu v. Visalakshi, 1978 (91) LW 423, was relied on, wherein it is observed.--
"The use of the expression 'unless the landlord gives an undertaking' occurring in Section 14(2)(b) clearly indicates that the giving of such an undertaking is a condition precedent to the Controller passing an order directing the tenant to deliver possession of the building, and if no such undertaking is given, the Controller had no jurisdiction to pass any such order of eviction."
In Alamelu case, a situation, where the Rent Controller failed to pass order of eviction and when the Appellate Authority allows the appeal, only in that contingency, in the appellate Court, the undertaking could be given, also considered, thereby enabling the Appellate Authority, to pass an order of eviction, accepting the undertaking. This view was taken, since the Rent Controller, having felt Section 14(1)(b) of the Act is not satisfied, had no chance to consider Section 14(2)(b) of the Act, and that kind of situation does not arise here. Therefore, in the appeal stage or at the revision stage, the landlord is not entitled to give an undertaking, supporting the order of eviction or order of eviction may be restored subject to the landlord filing an undertaking affidavit, as contemplated under law.
27. Analysing the effect of Sections 14(1)(b) and 14(2)(b) of the Act, this Court has taken a view that--
"Admittedly, in this case, no such undertaking as required under Section 14(2)(b) of the Act was given before the Rent Controller, and without even such an undertaking the Rent Controller has directed the tenants to deliver vacant possession of the portions of the building in question by allowing the Rent Control Original Petitions. Only to rectify the said mistake, the respondent has come forward with the present applications before the Appellate Authority to accept the undertakings, pending the appeals filed by the tenants against the eviction orders."
Then, it is further observed--
"If no order of eviction is passed by the Rent Controller, since the appeal is a continuation of the proceedings, the landlord can file such an undertaking before the Appellate Authority and get the order of eviction. But the landlord cannot be permitted to file such undertaking which should be filed before ordering eviction as specifically contemplated under the provision, pending the appeal filed by the tenants, aggrieved against the order of eviction, only to avoid the objection of the tenants. Since the above said provision clearly contemplates of filing such undertaking before ordering eviction, the landlord cannot be allowed to file such undertaking after the order of eviction is passed in the proceedings."
In view of the fact, here no undertaking is given, permitting the landlord to file an undertaking at this stage does not arise for consideration, which is impermissible.
28. In Harrington House School case, the Apex Court has observed--
"Along with the plans the landlords shall also file an undertaking before the Executing Court as required by Clause (b) of Sub-section (2) of the Section 14 of the Act.
Taking aid of the above observation, the learned Counsel for the landlord submitted that even, at this stage, the landlord may be permitted to file an undertaking affidavit, which I am unable to accept, considering the facts and circumstances of the cases.
29. In the case involved in the Supreme Court decision, an apprehension was entertained by the tenant that the property may remain lying unconstructed in spite of being vacated by the tenant on the ground that the plans for the proposed reconstruction are not sanctioned by the local authority. It is not the case, where eviction order has been passed without an undertaking and therefore the requirement was sought to be satisfied, by a direction of the Supreme Court. It appears, on an undertaking available, the Rent Controller has passed an order of eviction under Section 14(1)(b) of the Act, which was the subject matter before the Apex Court also. Therefore, considering the long pending procedures, the Apex Court felt, a separate procedure has to be devised to protect the interest of landlord and tenant and only in this way, an observation is made, which reads:
"A procedure can be devised to protect the interests of both the tenant and the landlord, specially by taking care of the apprehension expressed by the tenant that the property may remain lying unconstructed in spite of being vacated by the tenant and followed by demolition if the plans for proposed reconstruction are not sanctioned by the local authority. The decree as passed by the High Court is sustained but it is directed that the landlords shall submitted the plans of reconstruction for the approval of the local authority. Only on the plans being sanctioned by the local authority the decree for eviction shall be available for execution. Such sanctioned or approved plans shall be produced before the Executing Court whereupon the Executing Court shall allow a reasonable time to the tenant for vacating the property and delivering possession to the landlord decree holders. Till then the tenant shall remain liable to pay charges for use and occupation of the suit, premises at the same rate at which they are being paid."
which may not be applicable, factually to the case on hand. In the above ruling, the Apex Court has not considered the total absence of undertaking, before an eviction order has been passed, under Section 14(1)(b) of the Act. If the effect of Section 14(2)(b) of the Act and the non-compliance of the same, at the inception are considered and discussed, then such an observation has been made, certainly it would be a binding law upon this Court, and this kind of situation is not available. Therefore, in my humble view, the above observation, cannot be taken as law declared by the Apex Court, that too against the statute, as discussed by me supra.
30. In view of the admitted position, even as on this date, no undertaking has been filed, sustaining the order of eviction passed or restoring the order of eviction passed by the Rent Controller without jurisdiction or against Section 14(2)(b) of the Act is an impossibility and in this view, the revision is not meritorious and acceptable.
31. In the result, this revision fails and is dismissed, confirming the order of the appellate authority. No costs throughout.