Madras High Court
Alauddin Sahit vs R.Jothi on 20 November, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date of Decision : 20.11.2014 Coram THE HONOURABLE MR. JUSTICE R.KARUPPIAH C.R.P(NPD)No.781 of 2006 Alauddin Sahit .. Petitioner Vs R.Jothi .. Respondent RESERVED ON : 01.07.2014 Prayer: Civil Revision Petition is filed under Section 25 of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 (Act 18 of 1960) (As amended by Act 23 of 1973 and Act 1 of 1980) against the decree and judgment dated 23.04.2002 passed in RCA No.11 of 2001 on the file of Rent Control Appellate Authority / Subordinate Judge, Erode reversing the order and decreetal order of eviction dated 04.07.2001 passed in RCOP No.21 of 1998 on the file of Rent Controller / District Munsif, Erode. For Petitioner : Mr.K.Rajasekaran For Respondent : Mr.P.Valliappan O R D E R
The revision petitioner / landlord filed this revision petition against the decree and judgment passed by Rent Control Appellate Authority in RCA No.11 of 2001 wherein reversing the order and decreetal order of eviction passed by the Rent Controller in RCOP No.21 of 1998.
2. For the sake of convenience, the petitioner in RCOP No.21 of 1998 / landlord referred as revision petitioner and the respondent in the above said OP / tenant referred as respondent hereafter.
3. The revision petitioner / landlord filed the petition to evict the respondent from the petition premises (i.e.) Door No.6 in Jinnah Street, Madras Terrace Shop, ground floor under Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent) Control Act 18 of 1960 as amended by Act 23 of 1973. Brief facts stated in the eviction petition are that the father of the revision petitioner purchased the petition premises with other portion by sale deed dated 29.01.1975 and in a family partition dated 28.11.1997, the petition premises and its first floor ACC sheet roofed portion were allotted to the revision petitioner. The first floor portion is lying vacant and the same has no access from anywhere since it is surrounded by the properties of third party on the east, west and north and on the south, there is East-West Jinnah Street. According to the revision petitioner, unless a staircase is erected from the petition premises in the above said first floor portion cannot be reached or used or let out. The above said petition premises is situated in a busiest area at Erode town. If the first floor is lying unused, it does not fetch any income to the revision petitioner. The petition premises has become highly dilapidated condition due to old age, developed cracks in the ceilings and in the walls, wooden rafter worn out eaten by pests and the flooring also highly damaged. Therefore, the petition premises need for demolition and re-construction in modern manner providing staircase etc. The revision petitioner is doing money lending and commission business in a rented building at Door No.10, Asad Street, which is a residential locality. Therefore, the revision petitioner approached the respondent to vacate the premises and the respondent and her husband promises to vacate in a couple of months. But, the respondent filed a suit in O.S.No.235 of 1998 with false allegations as if the revision petitioner attempted to evict her by unlawful manner. The respondent has also filed a Rent Control Original Petition in RCOP No.13 of 1998 for permission to deposit the rent into Court with false allegation as if the revision petitioner refused to receive the money order and notice. The revision petitioner has made necessary preparation for immediate demolition and re-construction and also given statutory undertaking that if the respondent surrendered possession of the property, the revision petitioner undertakes to commence the work of demolition within one month and complete the same before expiry of three months. The revision petitioner issued a registered notice to the respondent on 20.07.1998 and the respondent has sent a reply with false claim. With the above said averments, the revision petitioner filed the petition for eviction.
4. The respondent/tenant filed a detailed counter, in which, it is denied various contention of the revision petitioner. According to the respondent, she took the building from the father of the revision petitioner in or about 1981 and subsequent to the death of the father of the revision petitioner, the revision petitioner received the rent and issued receipts. The respondent has also paid a sum of Rs.25,000/- as advance. The revision petitioner refused to receive the rent from the month of January 1998 by demanding enhanced rent of Rs.3,000/- per month and an advance of Rs.3,00,000/-. Since the revision petitioner attempted to evict the respondent, the respondent filed a suit in O.S.No.235 of 1998 and prayed for to restrain the revision petitioner from unlawful eviction. The suit was decreed on 15.02.1999 after contest. The respondent has also deposit the rent before the Rent Controller in RCOP No.13 of 1998 and the same is pending. Further, the respondent issued a notice on 19.03.1998, but, the revision petitioner evaded to receive notice. It is also averred in the counter that the revision petitioner should prove the alleged family partition, in which, the petition mentioned premises along with its first floor Tin sheet roofed portion allotted to the revision petitioner. The respondent denied the contention that the first floor portion is lying vacant and the same has no access from anywhere and the building is surrounded by third parties properties. According to the respondent, the property on the south is the revision petitioner's part and parcel of the same building and the portion in the first floor is used by the revision petitioner himself. Therefore, the contention of the revision petitioner that unless a staircase is errected from the suit premises, cannot be reached to the first floor is false. The first floor is lying unused and it does not fetch any income also false. The respondent has also denied the contention of the revision petitioner that the suit premises has become highly dilapidated condition due to old age, developed cracks in ceilings and the walls and damaged in the flooring are all false. The respondent also denied the contention that the revision petitioner is doing money lending and commission business in rental building at Door No.10 Azad Street, which is situated in residential locality and he requested to vacate the premises and the respondent seeking time and contrary to that filed suit in O.S.No.235 of 1998 and also RCOP No.13 of 1998 are all as false. The respondent also denied the contention of the revision petitioner that the suit premises requires for immediate demolition and re-construction and necessary preparations made by the revision petitioner. According to the respondent, if there is any such preparation, which is created only for the purpose of evicting the respondent. Further, the revision petitioner has no sufficient means for construction and no construction could be made in the small portion of 19 X 9 ft. The eviction petition filed by the revision petitioner is illegal and malafide one and therefore, prayed for to dismiss the above said petition.
5. The Rent Controller, on perusal of oral and documentary evidence adduced on either side and finally allowed the above said eviction petition and directed the respondent to vacate the premises within two months. Aggrieved over the above said eviction order passed by the Rent Controller, the respondent herein preferred Rent Control Appeal in R.C.A.No.11 of 2001. The Rent Control Appellate Authority allowed the Rent Control Appeal and set aside the eviction order passed by the Rent Controller and dismissed the eviction petition filed by the revision petitioner.
6. Aggrieved over the reversal finding of the Rent Control Appellate Authority, the revision petitioner / landlord filed this Civil Revision Petition.
7. Heard Mr.K.Rajasekaran, learned counsel appearing for the revision petitioner and Mr.P.Valliappan, learned counsel appearing for the respondent.
8. Point for consideration in this revision petition is that whether the reversal finding of the Rent Control Appellate Authority is perverse and illegal as contended by the revision petitioner ?
9. On a careful reading of the eviction order passed by the Rent Controller revealed that on considering the plan and report filed by the Advocate Commissioner Exs.C1 and C2, it was held that the upstair portion not in use since there is no separate steps to reach the upstair portion of the revision petitioner and also the properties on all the three sides belongs to third parties. The Rent Controller also discussed the fact that at the time of inspection of the property by the Advocate Commissioner, the respondent herself admitted that the above said building was 60 years old at that time and it is fit for doing business. Further, the Rent Controller has discussed about the damages noted by the Commissioner in the building, and finally the Rent Controller came to the conclusion that the revision petitioner entitled to the relief sought for in the eviction petition on the ground of demolition and re-construction and accordingly directed the respondent to hand over the possession to the revision petitioner within two months for demolition and re-construction.
10. Before the Rent Control Appellate Authority, on the side of the respondent/tenant contended that the alleged partition deed between PW1 and PW2 is collusive and not acted upon and it was created only for the purpose of eviction of the respondent herein. Further, the respondent herein contented before the Rent Control Appellate Authority that from Exs.P1 and P2 relied on by the revision petitioner revealed that the revision petitioner has no valid title over the upstairs of the premises and therefore, without having any right in the upstair portion, the revision petitioner cannot construct new building by demolishing the old building since the upstair portion is belonging to other person and hence, prayed for to set aside the eviction order passed by the Rent Controller.
11.The Appellate Authority has held that in Ex.P2-partition deed, the upstair portion has not been allotted to the revision petitioner and the oral evidence of PW2 as if there was omission at the time of execution of partition deed cannot be accepted. Further, the Appellate Authority has held that the revision petitioner has not obtained any permission to construct the building prior to filing the petition and only subsequent to filing the petition, the revision petitioner applied and obtained the permission and therefore, it has held that no bonafide on the part of the revision petitioner to seek the relief of demolition and re-construction and hence allowed the Rent Control Appeal and dismissed the petition filed for eviction.
12. The learned counsel appearing for the revision petitioner mainly contended that in the partition deed in Ex.P2, dated 28.11.1997, only omitted to specifically mentioned about the upstair portion in the revision petitioner's share (i.e.) 'C' schedule, but, on careful perusal, it is clear that the upstair portion has been allotted only to the revision petitioner. Further, the respondent has not pleaded in the petition and proved that the above said portion not allotted to revision petitioner and it is allotted to PW2 or some other person and therefore, the finding of the Rent Control Appellate Authority is not correct. Further, the learned counsel appearing for the revision petitioner submitted that the revision petitioner intended to demolish and re-construct the building and also having sufficient means for that purpose but, the Appellate Authority has wrongly dismissed the eviction petition on the ground that the revision petitioner has obtained necessary permission under Ex.P4 from Municipality for construction only after filing the eviction petition and hence, the above said finding is illegal and perverse. The learned counsel further pointed out that the Rent Controller has discussed in detail about the bonafide requirement of the petition premises for demolition and re-construction, but, the Rent Control Appellate Authority has wrongly held that the revision petitioner has not proved the bonafide requirement of demolition and re-construction and therefore prayed for to set aside the findings of the Rent Control Appellate Authority and confirmed the eviction order passed by the Rent Controller.
13. Per contra, the learned counsel appearing for the respondent would submit that the revision petitioner himself admitted that the upstair portion in the petition premises has not specifically included in the revision petitioner's share 'C' schedule in Ex.P2 partition deed and hence, the revision petitioner cannot seek relief of eviction on the ground of demolition and reconstruction unless the above said upstair portion which is not belonging to the revision petitioner is demolished. Further, the learned counsel submitted that the revision petitioner has not at all taken any steps for demolition and re-construction prior to filing the petition, only after filing the above said petition, the revision petitioner taking steps to obtain necessary permission from Municipality and the above said conduct of the revision petitioner itself clearly shows that no bonafide on the part of the revision petitioner. Further, the learned counsel pointed out that the above said building is not in a dilapidated condition and no need to demolish and reconstruct the building and therefore, the Rent Control Appellate Authority has correctly allowed the Rent Control Appeal and there is no need to interfere in the above said findings.
14. In the instant case, it is not in dispute that the petition premises in Door No.6 is belongs to the revision petitioner and the respondent is tenant under the revision petitioner. It is also not in dispute that there is no arrears of rent. In the above said circumstances, the revision petitioner filed the eviction petition under 14(1)(b) of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 amended Act 18 of 1960 on the grounds that the upstair portion in the above said Door number is unable to use since there is no stair case available to reach the upstair portion and also the petition premises also very old and highly dilapidated condition. Further, the revision petitioner having sufficient means to demolish and reconstruct the building and therefore, filed this petition for eviction on the above said grounds.
15.The Rent Control Appellate Authority has dismissed the above said petition mainly on the grounds that the revision petitioner failed to prove the fact that the upstair portion in Door No.6 was allotted to the revision petitioner in Ex.P2 partition deed and therefore, the revision petitioner is not the owner of the upstair portion and further, the revision petitioner obtained permission to demolish and reconstruct the building from the Municipality Authority, only after filing the revision petition.
16. On perusal of the averments made in the revision petition wherein it is clearly stated as the petition premises and the first floor of ACC sheet roofed portion allotted to the revision petitioner in Ex.P2 partition deed dated 29.01.1975. The respondent has stated in the counter only as the revision petitioner is to be proved the same. In the counter, it is not specifically denied the fact that in the above said partition deed, in Door No.6, ground floor alone was allotted to the revision petitioner and the upstair portion (i.e.) ACC sheet roofed portion was not allotted to the revision petitioner. At the time of evidence, PW1, who is the revision petitioner and his own brother PW2 clearly deposed as the above said upstair portion in Door No.6 also allotted to the revision petitioner. It is not the case of the respondent that the upstair portion assigned separate door number, but it include only in Door No.6. At the time of PW1 and PW2 evidence also not suggested that the above said upstair portion allotted to PW2, who is brother of the revision petitioner or any other person or the above said portion kept in common in the above said partition deed. So as to clarify the above said fact, it is relevant to extract the details of 'C' schedule property allotted to the revision petitioner in Ex.P2-partition deed as follows:
''v';fspd; 2 ,yf;fkpl;l V myht[jPd; ehsJ njjpapy; jdpikapy; mila[k; brhj;J tpguk;/ <nuhL hpo. <nuhL rpl;o. <nuhL jhYf;fh f!;gh <nuhL lt[d;. Kdprpgy; ypkpl;Lf;Fg;g[uk; butpd;a[ thh;L 2 Kdprpgy; thh;L 17 $pd;dh tPjp tlg[uk; !;nudpapy; Kdprpgy; giHa fjt[ vz; 6.6V. 6gp o/v!;/625 ghh;k; cs;sJk; jw;nghJ g[jpa fjt[ vz; 6.7.8 vd cs;sjpy; ,e;j bc&oa{Yf;F fl;Lg;gl;lJk; fjt[ vz; 6 f;F fl;Lg;gl;lJkhd jhh;!; fil fl;ol tifauht[f;Fr; brf;Fg;ge;jp tpguk;/ $pd;dh tPjpf;Fk; tlf;F. ru!;tjp mk;khs; fl;ol tifauht[f;Fk; bjw;F. jdyl;Rkp jhh;!; fl;ol tifauht[f;Fk; fpHf;F/ nkny fz;l **V** bc&oa{y; V/ rpj;jpf; ghf brhj;jhfpa fjt[ vz; 7. 8 cs;s fil fl;ol tifauht[f;F nkw;F/ ,jd; kj;jpapy; tlg[uk; fpHnkyo 10 bjd;g[uk; fpHnkyo 13 >/ fpHg[uk; bjd;tlyo 23/ nky;g[uk; bjd;tlyo 23 ,e;j tif mst[s;s 273 rJuofs; bfhz;l k]df;fhypaplk; g{uht[k;/ c&k]df; fhypaplj;jpy; bjw;Fg; ghh;j;Jf; fl;oa[s;s jhh;!; filf; fl;olKk; ,jw;Fr; rk;ke;jg;gl;l fjt[ epyt[f; fl;Lf;nfhg;g[ moepyk; rfpjKk;/ fpHg[uk; bjd;tly; Rtw;wpy; bghJtpy; rhpghjp ghj;jpaKk; nky;g[uk; bjd;tly; Rtw;wpy; bghJghj;jpaKk; kw;w ,uz;L gf;fj;jpa Rth;fs; g{uh ghj;jpaKk; rfpjKk; c& ,lj;jpy; cs;s kPl;lUld; Toa vyf;l;hpf; ]yl; gpl;o';!; fbdf;c&d; rfpjKk; ,jw;Fr; rk;ke;jg;gl;l khKy; tHpeil rfpjKk; ,e;j bc&oa{Yf;F fl;Lg;gl;lJ/''
17.A careful reading of the above said description of the property reveals that the entire Door No.6 including ACC sheet roofed portion also allotted to the revision petitioner. Further, on the side of the respondent has not objected before the Rent Controller as the above said ACC sheet roofed portion is not allotted to the revision petitioner and it is allotted to some other person or kept in common. In the above said circumstances, as rightly pointed out by the learned counsel appearing for the revision petitioner, the entire door No.6 was allotted to the revision petitioner including the upstair portion and only Door Nos.7 and 8 alone allotted to PW2, who is brother of the revision petitioner namely A.Siddiq in A schedule. PW2 also admitted the above said fact at the time of evidence. The Rent Control Appellate Authority has not properly considered the contention of the revision petitioner and wrongly held that the ACC sheet roofed portion in the upstair not allotted to the revision petitioner. Hence, the above said finding is illegal and also perverse as rightly contended by the learned counsel appearing for the revision petitioner.
18.The next contention of the revision petitioner is that the suit premises is 60 years old and the above said premises is situated in a busiest area in Erode town. The learned counsel also pointed out that the petition premises has become highly dilapidated condition due to old age, developed cracks in the ceiling in the walls, wooden rafter worn out eaten by pests and the flooring also highly damaged and the Advocate Commissioner also filed report and plan about the condition of the building and the above said report itself clearly proved that the above said building requires demolition and re-construction. The learned counsel also pointed out that if not demolished the above said building, the revision petitioner cannot use the upstair portion since no staircase available and having loss to the revision petitioner since no income from the above said portion.
19.Admittedly, the petition premises is more than 60 years old. To prove the condition of the building, the revision petitioner has taken steps to appoint Advocate Commissioner and the Advocate Commissioner also filed his report and plan in Exs.C1 and C2. For better appreciation, the relevant portion of the Commissioner's report in Ex.C1 is extracted as follows:-
''2/ jhth brhj;jpy; epiwaruf;Ffs; 3 gFjpfspYk; mykhhpapYk; mLf;fp itf;fg;gl;L ,Ue;jd/ 3/ jhth brhj;jpd; fpHf;F Rtw;wpy; nkw;g[wk; fpuhrhft[k;. gpd; fPH; tu tu neuhft[k;. gpd; tphpry; tpl;L ,Ue;jJ/ 4/ ,e;j tphprypy; ,Ue;J Rkhh; 3 ,l';fspy; Rtw;wpy; J}h; ngha; ,Ue;jJ/ ,nj fpHf;F Rtw;wpy; tlg[wk; xU J}h; nkypUe;J fPH;nehf;fp nghapUe;jJ/ 5/ nkw;F Rtw;wpy; nkypUe;J fPH;nehf;fp Rkhh; 6 mo ePs;j;jpw;F Rth; J}h; nghapUe;jJ/ 6/ tlg[wk; fPH;nky; Rtw;wpy; 2 ,l';fspy; Rth; J}h; ngha; ,Ue;jJ/ 7/ Rtw;wpd; mokl;lj;jpy; bghhpe;Jngha; fhzg;gl;lJ/ me;j ,lj;jpy; ,Uk;g[ rhkhd; mLf;fp itf;fg;gl;L ,Ue;jJ/ 8/ nky; Rtiua[k;. J}thf;fl;ilfisa[k; ghh;f;f Koatpy;iy fhuzk; falls bra;ag;gl;L ,Ue;jJ/ jhthbrhj;jpd; nky;g[wk;. tlg[wk.; fPH;g[wk; vy;yhk; 3rd party brhj;J/ 9/ kDr;brhj;Jf;Fk; mUfpy; ,Ue;J vjph;kDjhuhpd; memo of instruction go kDjhuhpd; rnfhjuh; elj;jptUk; kspif filapy; cs;s khog;go tHpna Vwpr;brd;Wjhd; jhth brhj;jpd; nky; gFjpia ghh;f;fpnwd;/ jhth brhj;jpw;bfd khog;go VJk; jdpna ,y;iy/ 10/ bkj;ij gFjpapy; ghfk; gphpf;f Rjhh; 6 mo cauj;jpy; xU cwhnyh fpshf;!; Rth; itf;fg;gl;L ,Ue;jJ/ 11/ gphpf;fg;gl;l Rtw;wpd; me;j ghfk; giHa rhf;F/ od; faW Mfpait ,Ue;jJ/ 12/ nky; jsk; KGtJk; fiu bghhpe;J ngha; fhzg;gl;lJ/ 13/ nkyjs Rtw;wpy; fPHpUe;J nky;nehf;fp Rth; J}h; ngha; ,Ue;jJ/ 14/ khog;gFjp KGtJk; xnu ,Uk;g[r; rl;lj;jpd; fPH; rpbkz;l; ml;il nghlg;gl;oUe;jJ/ ''
20. As rightly pointed out by the learned counsel appearing for the revision petitioner, from the report of the Advocate Commissioner (i.e.)Ex.C1 it is clear that the condition of the building is in a dilapidated condition and it requires immediate demolition.
21. The Rent Controller has discussed about the oral and documentary evidence adduced on either side and also considered the detailed report filed by the Advocate Commissioner and finally held that the above said building is in a dilapidated condition and it requires immediate demolition. Further, the Rent Controller has held that the petitioner having sufficient means to demolition and re-construction and the above said requirement is bonafide requirement. But, the Rent Control Appellate Authority set aside the order of the Rent Controller and dismissed the eviction petition mainly on the ground that the petitioner applied for permission only on 07.09.1998 and obtained permission on 11.12.1998, but the eviction petition has been filed on 20.08.1998 and therefore, there is no bonafide intention to demolition and re-construction.
22. The learned counsel appearing for the petitioner submitted that in the instant case, petition premises was admittedly more than 60 years old and also in a dilapidated condition and the petitioner was doing money lending and commission business and the above said facts are not denied by the respondent at the time of evidence. The learned counsel further pointed out that necessary permission for demolition and re-construction have been obtained immediately after filing the petition and therefore, the findings of the Appellate Authority are perverse and also illegal.
23. The learned counsel appearing for the revision petitioner relied on several decisions and contended that the petition premises need not be in a dilapidated condition and even if a building is not in a dilapidated condition it may be demolished for the purpose of erecting a new building. The relevant portion of the decisions relied on by the learned counsel appearing for the revision petitioner extracted as follows:-
i) (2006) 4 SCC 507 (S.Venugopal v. A.Karuppusami and another):-
''7. On the question of demolition and reconstruction of the premises in question, much was sought to be made out of the fact that the condition of the building had not been ascertained and, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short ''the Act'') contemplates a building which 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. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site.''
ii) CDJ 2012 MHC 794 (Mr.Antony Jayasekar Proprietor M/s.Vimal Agencies & others v. Dr.S.Senthilkumar) in which para 10 as follows:-
''10. Further, the Hon'ble Supreme Court has held in many cases that the condition of the building is not the sole factor to decide the bona fide requirement of the landlord and the landlord is entitled to demolish even a building which is structurally sound for the purpose of augmenting his income by putting up multi-storied building. Therefore, the condition of the building cannot be the sole ground to decide the bona fide requirement of the landlord and in this case, as stated supra, the tenants have also admitted that the condition of the building is not good.''
iii) 1979(3) SCC 398 (Metalware and co. etc., v. bansilal sarma and co. etc.,) in which para 7 reads as under:-
''7. We would like to observe that each side has adopted an extreme stand on the question at issue which is obviously incorrect. On the one hand counsel for the appellant urged that the words 'bona fide required" refer to the condition of the building and not to the honest or bona fide intention entertained by the landlord to undertake demolition and reconstruction, suggesting thereby that the condition of the building should be a decisive factor while counsel for the respondent on the other hand contended that that aspect was totally irrelevant and the bona fide requirement of the landlord should be determined on the basis of factors such as the financial capacity of the landlord to undertake the project and whether he had taken any steps in that behalf etc. We do not agree that old age and dilapidated condition of the building is a sine qua non or a decisive factor for eviction under 6. 14(1)(b) nor is it possible to accept the view that the said. circumstance is totally irrelevant in pronouncing upon the bona fide requirement of the landlord. We are clearly of the view that the age and existing condition of the building-whether it is a recent construction or very old and whether it is in a good and sound condition or has become decrepit or dilapidated-are relevant factors forming part of all the circumstances' that have to be considered while determining the bona fide requirement of the landlord under s. 14(1) (b) of the Act and in the totality of the circumstances these factors may assume lesser or greater significance depending upon; whether in the scheme of the concerned enactment there is or there is not a provision for re induction of the evicted tenant into the new construction. Such a view would be in accord with the main objective of the benign legislation enacted with the avowed intention of giving protection to the tenant.''
iv) 2007 (14) SCC 374 (Vishwamitra Ram Kumar v. Vesta Time Company) in which para 13 as follows:-
''13. In Vijay Singh (supra), a Constitution Bench of this Court held: "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. 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."
The principle stated in Vijay Singh (supra) was followed in S. Venugopal Vs. A. Karruppusami & Anr. [(2006) 4 S.C.C. 507], wherein the developments in the surroundings areas was also taken into consideration while adjudging the bona fides of the claim for eviction on the ground of reconstruction.''
v) 2000(1)CTC 287 (Akbar Ali and 4 others v. Donian Rodrigo and another) in which para 18 reads as under:-
''18. ......... As to the age and condition of the building, there is sufficient materials to which I have already referred to and which show that the age and condition is such it requires to be demolished and reconstructed. With regard to the financial condition of the landlords, I have already held that the landlords have satisfied that they are financially in a portion to undertake the work of demolition and reconstruction. I am unable to hold that there is any material to suggest that this application has been filed by the landlords as a tool to get possession with any oblique motive. On the other hand, from the circumstances, it is clear that the request of the landlords is bona fide and the requirement is genuine.''
24. The law laid down by the Hon'ble Supreme Court and high Court in the above said decisions revealed that the condition of the building alone cannot be a sole ground to decide the bonafide requirement of the landlord and also to be considered the fact of improvement of income. Further, while considering an application under Section 14(1)(b) has to be taken into account three important elements (i.e.) i) Bonafide intention of the landlord, ii) age and condition of the building, iii) The financial position of the landlord to construct a new building.
25. The learned counsel appearing for the petitioner further submitted that even in the absence of any permission for demolition and re-construction from the concerned municipal authorities, eviction order can be passed if the petitioner proved the bonafide requirement of demolition and re-construction. In support of the above said contention, the learned counsel appearing for the petitioner relied on the following decisions and relevant portions of the decisions extracted as follows:-
I) CDJ 2012 MHC 794 (Mr.Antony Jayasekar Proprietor M/s.Vimal Agencies & others v. Dr.S.Senthilkumar):-
''13. The learned Rent Controller has taken into consideration the factors laid down by the Honourable Supreme Court in the above judgment to arrive at a conclusion and according to me, the learned Rent Controller has rightly applied the law and ordered eviction. Further, the learned Rent Controller relied upon the judgments reported in S.Balasubramaniam v. Gulab Jan (1994 LW 102) and Harrington House School v. S.M.Ispahani & Another (2002 (2) CTC 549 (SC) and held that even in the absence of making application before the authorities for demolition and construction of a new building, the court can order eviction when the requirement of the landlord is bona fide.'' (II) (2013) 5 SCC 243(Hari Dass Sharma v.Vikas Sood):-
''13. In Jagat Pal Dhawan v. Kahan Singh (dead) by L.Rs. & Ors. (supra), this Court had the occasion to consider the provisions of Section 14(3)(c) of the Act and R.C. Lahoti J. writing the judgment for the Court held that Section 14(3)(c) does not require that the building plans should have been duly sanctioned by the local authorities as a condition precedent to the entitlement of the landlord for eviction of the tenant. To quote from the judgment of this Court in Jagat Pal Dhawan v. Kahan Singh (dead) by L.Rs. & Ors. (supra):
''6. ...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 the 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 bona 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 a mere wish and would not be bona fide.'' It will be clear from the aforesaid passage that this Court has held that availability of building plans duly sanctioned by the local authorities is not an ingredient of Section 14(3)(c) of the Act and, therefore, could not be a condition precedent to the entitlement of the landlord for eviction of the tenant, but depending on the facts and circumstances of each case, the Court may look into the availability of building plans duly sanctioned by the local authorities for the purpose of determining the bonafides of the landlord.'' (III) (2002) 5 SCC 229 (Harrington House School v. S.M.Ispahani and another):-
''8. .......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 submit 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. 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 Section 14 of the Act. Subject to the said modification the decree as passed by the High Court is maintained.'' IV)2007(2)CTC 518(Lakshmi v. M.V.Balamurali and another):
''28. ........Therefore, in the light of the above Supreme Court judgment reported in S.Venugopal v. A.Karruppusami and another, 2006(2)CTC 615, and also in the light of the change in scenario in this country where loans are easily available for a property owner to put up a new construction, I am of the view that the Appellate Authority is wrong in holding that the landlord has not established his means to put up a new construction.''
26. From the above said principles of law laid down by the Hon'ble Supreme Court, it is clear that the petition for eviction on the ground of demolition and re-construction cannot be dismissed only on the ground that necessary permission not obtained from the concerned authorities before filing the petition. Therefore, in the instant case, the Rent Control Appellate Authority has dismissed the petition mainly on the ground that the petitioner has not obtained necessary permission before filing the eviction petition. As rightly pointed out by the learned counsel appearing for the revision petitioner, the finding of the Rent Control Appellate Authority is not valid in law.
27. The Rent Control Appellate Authority has dismissed the eviction petition on another ground that the petitioner has not proved the means to put up a new construction. The learned counsel appearing for the petitioner submitted that in the petition itself it is clearly stated as the petitioner is doing money lending and commission business and also given necessary undertakings as within one month to commence the work of demolition and to complete the construction work within three months. The learned counsel further submitted that at the time of evidence also the petitioner has clearly deposed about the means to reconstruct the building. But, the respondent has not denied the above said fact at the time of evidence. As rightly pointed out by the learned counsel appearing for the petitioner, on the side of the respondent has not suggested at the time of petitioner side evidence that the petitioner is not doing any money lending or commission business. Further, as the law laid down by the Hon'ble Supreme Court relied on by this Court in 2007(2)CTC 518(Lakshmi v. M.V.Balamurali and another), the eviction petition cannot be dismissed only on the ground that the landlord has not established his means to put up a new construction. Therefore, the Rent Control Appellate Authority wrongly held that the revision petitioner has not proved the means and on that ground the eviction petition filed by the petitioner is liable to be dismissed.
28. The learned counsel appearing for the respondent relied on three decisions reported in 1) 1996 (II) CTC 586(Vijay Singh etc., v. Vijayalakshmi Ammal), 2)1997 (1) LW 527 (S.V.Periasamy & Sons and others v. R.Senthil Kumar and others), 3)AIR 2000 SC 2192(K.M.Abdul Razzak v. Damodharan) and relevant portion of the decisions extracted as follows:-
1) 1996 (II) CTC 586 (Vijay Singh etc., v. Vijayalakshmi Ammal):-
''6..... 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 building; (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act.''
2. 1997 (1) LW 527 (S.V.Periasamy & Sons and others v. R.Senthil Kumar and others):-
''27...... Whether the purchaser's financial capacity and whether they can put up a new construction on the basis of a plan which was filed during the proceedings are all matters of evidence to be adduced by the purchasers. Mere undertaking by the purchasers without giving the tenant an opportunity for cross-examination, cannot be accepted as proof of bona fides. It must be understood that in all cases of eviction coming under the Rent Control Act, the bona fides of the claim is the main point to be considered. Even if the purchaser has got the means, whether he wants to demolish the building only as an oblique motive without any intention to put up construction is a matter which requires consideration.''
3. AIR 2000 SC 2192(K.M.Abdul Razzak v. Damodharan):-
''4. Interpreting the aforesaid provision, this Court in the case of P.Orr and Sons (P) Ltd, v. Associated Publishers(Madras)Ltd., (1991) 1 SCC 301 held that a landlord can succeed in an application under Section 14(1)(b) only when it is established that the building is in a dilapidated condition which requires immediate demolition. This was the legal position when the Rent Controller in the present case decided the application of the landlord for eviction of the appellant tenant. When the revision filed by the landlord was pending before the High Court the principle laid by this Court in the case of P.Orr and Sons (P) Ltd., (supra) for considering an application under Section 14(1)(b) of the Act was slightly diluted because of the subsequent decision of this Court in Vijay Singh v. Vijayalakshmi Ammal, (1996) 6 SCC 475 : (1996 AIR SCW 4198 : AIR 1997 SC 47), In Vijay Singh's case (supra), it was held that the Rent Controller while considering an application under Section 14(1)(b) has to take into account three elements which are illustrative i.e.(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; and (3) the financial position of the landlord to construct a new building according to requirements of the building laws. These were some of the illustrative elements, which were to be taken into consideration before an order is passed under Section 14(1)(b).''
29. The above said law laid down by Hon'ble Supreme Court and High Court revealed that in a petition filed under Section 14(1)(b), the Rent Controller has to consider three important elements (i.e.), 1) Bonafide intention of the landlord, 2) Age and condition of the building and 3) the financial position of the landlord. In the instant case as already discussed in detail, the petitioner has pleaded in the petition about the age and condition of the building and also to prove the same, Advocate Commissioner was appointed and from the above said Commissioner report clearly proved that the above said building is more than 60 years old and it is in a dilapidated condition and requires immediate demolition. As already discussed, the petitioner has proved his capacity to put up the construction since he is doing money lending and commission business. From the oral and documentary evidence adduced on the side of the petitioner revealed that the petitioner has proved the bonafide intention also. Therefore, all the three elements of Section 14(1)(b) has been satisfied by adducing necessary oral and documentary evidence as rightly held by the Rent Controller. But, the Rent Control Appellate Authority has wrongly reversed the findings of the Rent Controller and allowed the appeal and dismissed the eviction petition. Hence, the above said findings of the Rent Control Appellate Authority are perverse and also illegal and therefore, the above said findings are liable to be set aside.
30. In the result, the Civil Revision Petition is allowed and set aside the decree and judgment passed by the Rent Control Appellate Authority in R.C.A.No.11 of 2001 and confirmed the order of eviction passed by the Rent Controller in R.C.O.P.No.21 of 1998. Three months time granted to vacate the premises by the respondent. No order as to costs.
20.11.2014 Index: Yes / No Internet:Yes / No ssn To
1. Rent Control Appellate Authority / Subordinate Judge, Erode.
2.Rent Controller / District Munsif, Erode.
R.KARUPPIAH, J., ssn Pre-delivery Order in C.R.P(NPD)No.781 of 2006 20.11.2014