Madras High Court
Mangalambal vs Anjali Devi on 15 October, 2004
Equivalent citations: 2004(5)CTC338, (2004)4MLJ503
Author: T.V. Masilamani
Bench: T.V. Masilamani
ORDER T.V. Masilamani, J.
1. The landlady/petitioner before the Rent Controller, Karaikal and appellant before the Appellate Authority has filed this revision petition questioning the legality of the judgment rendered by the Rent Control Appellate Authority (Additional District Judge), Pondichery at Karaikal.
2. The parties to the proceedings may be referred to hereunder as they were arrayed before the Rent Controller.
3. The petitioner/landlady filed the petition under Section 14(1)(b) of the Tamil Nadu Building (Lease and Rent Control) Act, 1960 (hereinafter referred to as "Tamil Nadu Act No.18 of 1960") for eviction of the respondent/tenant on the ground that the building is required bona fide for demolition and reconstruction.
4. The respondent resisted the claim of the petitioner on the ground that the requirement of the building is not bona fide for the reason that the landlady having failed in her attempt to evict the tenant from the petition premises by filing applications in R.C.O.P.Nos.54 of 1987 and 13 of 1988 on the ground of owners occupation and wilful default respectively, filed the present R.C.O.P.No.23 of 1995 requiring the building for demolition and reconstruction.
5. The learned Rent Controller having analysed the evidence, both oral and documentary adduced on either side, dismissed the petition. The Rent Control Appeal filed by the petitioner was also dismissed by the learned Rent Control Appellate Authority having held that the claim of the landlady is not bona fide. Hence, the revision.
6. The facts leading to the filing of the revision may be stated briefly as hereunder. The petitioner is the landlady and the respondent is the tenant of the demised premises, which is in the occupation of the respondent for running a printing press. The building is very old one and on account of the dispute between the parties, the landlady was unable to carry out the periodical repairs to the building. The respondent did not permit the petitioner to enter the premises. Further the building has become dilapidated as reepers of the roof have broken down and the walls had developed cracks. In fact, the building may collapse at any moment and therefore the petitioner made arrangements to demolish the entire building and put up a new building in the same site. The petitioner is submitting blue print of the plan to the Municipal Council, Karaikal for approval as well to the Town Planning Authority, Karaikal in due course. She has got more than sufficient funds to put up a new building with all modern facilities and amenities. The new building is likely to fetch a higher rent of about Rs.1,500/- as against the present rental income of Rs.200/- per month. Therefore the petitioner issued notice to the respondent calling her to surrender vacant possession of the building for which she has given a reply containing false allegations. The petitioner undertakes to demolish the building not later than one month and construction will be put up before expiry of three months from the date of recovery of possession of the same.
7. In substance, the respondent's contentions are as follows. The relationship between the petitioner and the respondent as landlady and tenant respectively is not disputed. The petitioner was cordial towards the respondent till about1987 and thereafter it became strained on account of the dispute as the petitioner demanded enhanced rent. Since she did not succeed in her attempts, filed the petition in R.C.O.P.Nos.54 of 1987 against the respondent on the ground of bona fide requirement of the building for her daughter's occupation. Further she did not receive the rent properly and began to evade and therefore the respondent called upon her to name the bank for deposit of rent. Instead of complying with such demand, the petitioner filed an application in R.C.O.P.No.13 of 1988 for eviction on the ground of wilful default in payment of rent. While the application in R.C.O.P.No.54 of 1987 was allowed in her favour, the other R.C.O.P.No.13 of 1988 was dismissed. In the revision preferred before the High Court, by order dated 23.8.1995, the matter was remanded and therefore enquiry by the Rent Controller was ordered.
8. The petitioner has created a situation whereby her deliberate omission to carry out the repairs to the building has been the ground to file this application against the respondent. The respondent is bound under law to do the repairs to keep the building habitable. In fact, the building is not in such a dilapidated condition so as to warrant demolition and reconstruction. If it is in such bad condition, the Government authorities who inspected the premises in connection with the printing press business run by the respondent would have initiated necessary action. Hence, the petition is mala fide in letter and spirit.
9. The claim of the petitioner that she has obtained licence from the Municipality and permission of the Town Planning Authority is not true. The respondent is carrying on the printing press business in the petition premises for the last two decades by providing necessary infrastructure in the building. She has also obtained three-phase power supply with great difficulties and costs and therefore if eviction is ordered, she will be put to irreparable loss and hardships.
10. Heard the learned counsel representing M/s.Sampath Kumar Associates, the counsel for the petitioner. Though the respondent received the notice, he has neither appeared in person nor any counsel represents him.
11. The learned counsel for the petitioner has argued at the outset that the eviction proceedings initiated by the landlady is not a ground to dismiss the appeal before the Rent Control Appellate Authority. Similarly, he has submitted that having rendered a finding that the petitioner is financially sound and also obtained approval from the competent authority for demolition and reconstruction, the Appellate Authority erred in dismissing the appeal. Similarly, he has pointed out that the Commissioner's report was not at all considered by the Appellate Authority while disposing of the appeal. It is in these circumstances that the learned counsel for the petitioner has contended that the order of the Rent Control Appellate Authority (Additional District Judge), Pondichery at Karaikal is liable to be set aside and the eviction of the respondent ordered as prayed for.
12. In the above circumstances, it has become necessary to consider whether the bona fide requirement of the petition premisses by the petitioner has been established by adducing satisfactory evidence and if so, whether the judgment and decretal order passed by the Appellate Authority are liable to be set aside.
13. The first contention of the learned counsel for the petitioner is that the prior proceedings before the Rent Control Court between the parties are of no consequence. It is not under dispute that the petitioner succeeded in one petition in R.C.O.P.No.54 of 1997 and failed in the other petition in R.C.O.P.No.13 of 1988 before the Rent Controller. It is therefore urged by the learned counsel for the petitioner that on merits, the said proceedings stood disposed of by the Courts below as well as by the High Court. Though the Courts below have observed that the petitioner having failed to evict the respondent in the prior proceedings, thought it fit to file the petition under consideration on the ground of bona fide requirement for demolition and reconstruction, this Court is of the considered view that such finding as a ground to non-suit the petitioner is not available in this case. As has been rightly argued by the learned counsel for the petitioner, the Tamil Nadu Act 18 of 1960 is a benevolent legislation in favour of the tenant and therefore it cannot be said that the petitioner as landlord of the petition premises is barred under any provision of law to prefer another application to evict the respondent from the petition premises on any other ground legally available under the provisions of the Act. In these circumstances, this Court finds it difficult to accept the finding rendered by the learned Rent Control Appellate Authority on this aspect of the matter.
14. Nextly coming to the appreciation of evidence, I am of the opinion that both the Courts below failed to consider the evidence of both sides in a proper perspective. It is admitted by the respondent himself in his evidence that the building is more than 50 years old, even when he was examined in 1996 before the Rent Controller and therefore having regard to the subsequent passage of time, it is apparent that the building is more than 58 years old as of now. Similarly, the evidence of the petitioner's son as P.W.1 before the Rent Controller is to the effect that since the respondent did not permit him to enter into the building so as to see the condition, he had not entered the premises for two years prior to the date of deposition. Further he would contend that the compound wall collapsed and such state of affairs would be apparent even at the first glance of the building. Both the Courts below rejected such statement of fact on the ground that since he could not enter into the building, he could not state the condition of the building as on the date of of his examination.
15. As has been rightly contended by the learned counsel for the petitioner, the Commissioner who inspected the petition premises filed a report with the following observations:
"Wall had developed cracks on the compound wall and it has also fallen down partly and the floor of the building is also found in a bad condition. During rainy season, the building would suffer leakage. "
The above observations from the Commissioner's report have not been taken into consideration by both the Courts below. Similarly, while accepting that the building is more than 50 years old and not repaired except for the maintenance work, the learned Appellate Authority failed to appreciate the report of the Commissioner with reference to the physical features of the demised premises to arrive at the right conclusion. The Advocate Commissioner was also examined before the Rent Controller so as to give credence to his report, but yet his evidence has not been taken into account by both the Courts below. In these circumstances, it would be evident that now the building is more than 50 years old with cracks in the walls and also has a dilapidated compound wall. Similarly, it is not in dispute that the building has got tiled roof which according to the Commissioner is leaky during rainy season.
16. The petition would disclose the petitioner's categorical statement that she is possessed of sufficient means to demolish and reconstruct the building as per the direction of the Court. Further as seen from the judgment of the learned Appellate Authority such statement of the petitioner is supported by the evidence of P.W.1 to the effect that the petitioner is ready to demolish and construct a modern structure with all modern facilities and amenities. On the contrary, the evidence of the respondent as R.W.1 is to the effect that roofing of the building is of country tile and he was also present at the time of inspection of the building by the Commissioner. In view of the above evidence of both the sides, the learned counsel for the petitioner has argued in the opinion of this Court rightly that the insistence of a report from a competent Civil Engineer with regard to the condition of the building as a ground to non-suit the petitioner by the appellate Authority is not warranted when regard being had to voluminous evidence available on record to show that the building is in a dilapidated condition. It is in these circumstances that this Court finds that the Courts below have committed illegality in arriving at the correct conclusion on the factual aspect of the matter in this respect.
17. The learned counsel for the petitioner places reliance on the decision rendered by this Court in PALANIVEL MUDALIAR, V.P. V. MEENAKSHI AMMAL (2000-3-L.W. 914) in support of his contention that if the landlord decides to demolish and reconstruct the building, such decision cannot be said to be mala fide in view of the age of the building and other circumstances showing that such demolition and reconstruction would be necessary. On facts also, he has drawn an analogy in that it was the case therein that the Engineer inspected the building and filed a report and in this case, the Commissioner inspected the building and filed a report and gave evidence before the Court below. It is therefore submitted by him that the requirements under Section 14(1)(b) of the Tamil Nadu Act 18 of 1960 have been completely satisfied in this case by the petitioner.
18. Similarly, he has cited the decision rendered by the Honourable Supreme Court, JAGAT PAL DHAWAN V. KAHAN SINGH (2002 AIR SCW 4889) for the position that availability of requisite funds and approved plan are not the sine quo non to fulfill the ingredients laid down by the provision of law. In a similar matter arising under Himachal Pradesh Urban Rent Control Act (25 of 1987) while the question of bona fide requirement for construction was considered by the Apex Court, the dictum was laid as under:-
"The provision also does not lay down that the availability of requisite funds and availability of building plans duly sanctioned by the local authority must be proved by the landlord as an ingredient of the provision or as a condition precedent to his entitlement to eviction of tenant. However still suffice it to observe, depending on the facts and circumstances of a given case, the Court may look into such facts as relevant, though not specifically mentioned as ingredient of the ground for eviction for the purpose of determining the bone fides of the landlord. If a building as proposed cannot be constructed or if the landlord does not have means for carrying out the construction or reconstruction obviously his requirement would remain amere wish and would not be bona fide."
19. It is not in controversy that Section 14(1)(c) of the said Act contains the provision of law in pari materia to Section 14(1)(b) of Tamil Nadu Act 18 of 1960. Therefore, there is no difficulty in applying the said ratio laid down by the Hon'ble Supreme Court in this case also and if the evidence let in by both the parties before the learned Rent Controller is analysed in the light of the statement of law made by the Apex Court referred supra, there is no doubt that the petitioner has let in satisfactory evidence to fulfill the conditions laid down under Section 14(1)(b) of Tamil Nadu Act 18 of 1960 so as to get the vacant possession of the building for demolition and reconstruction.
20. Having regard to the aforesaid facts and the evidence of the case, this Court is of the considered view that the Courts below have committed illegality in analysing the evidence in a proper perspective so as to arrive at the right conclusion in the matter. It follows that the judgment and decretal orders passed by the Appellate Authority in R.C.A.No.4 of 1997 on the file of the Additional District Judge, Pondicherry at Karaikal have to be set aside as prayed for.
21. Thus, the Civil Revision Petition is allowed with costs throughout. The judgment and decretal orders passed by both the Courts below are set aside. The respondent is directed to deliver vacant possession of the petition premises to the petitioner within three months. The petitioner is directed to file an affidavit of undertaking to the effect that the work of demolition of the substantial portion of the building shall be commenced by her not later than one month and completed before the expiry of three months, from the date of recovery of possession of the petition premises from the respondent.