Madras High Court
G.Subburaj vs B.V.Vidyasekar on 7 July, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07/07/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(NPD)(MD)No.1158 of 2009
and
M.P.(MD)No.2 of 2009
G.Subburaj,
Proprietor, National Transport Company,
D.No.1-A, Gurusamy Lane,
Mahal Vadamboki Street,
Madurai. ... Petitioner/Appellant/Tenant
vs
1.B.V.Vidyasekar
2.M.U.V.Saravanan
3.B.V.Balaguru ... Respondents/Respondents/
Landlords
Prayer
Civil Revision Petition filed under section 25 of the Tamil Nadu
(Lease & Rent Control)Act 1960, against the fair and executable order, dated
11.07.2008 passed in R.C.A.No.100 of 2007, on the file of the Principal
Subordinate Court, Madurai, confirming the Executable order, dated 21.06.2007
passed in R.C.O.P.No.3 of 2004, on the file of the District Munsif Court,
Madurai.
!For Petitioner ... Mr.S.V.Jayaraman
Senior Counsel
for Mr.V.Venkatasamy
^For Respondents ... Mr.J.Barathan
:ORDER
Heard both sides.
2.The tenant, who lost in both the Courts below is the revision petitioner herein.
3.The respondents/Landlords filed RCOP.No.3 of 2004, on the file of the District Munsif Court, Madurai, for eviction on the ground of act of waste under Section 10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act and for demolition and reconstruction under Section 14(i)(b) of the Act.
4.The case of the respondents/Landlords is that the building was leased out to the petitioner on a monthly rent of Rs.2,625/- and the tenancy is as per the Tamil Calender month. The petitioner has taken the building for the purpose of carrying on lorry office and godown. The petitioner, after taking the building on lease, removed the tin sheet roofing in the rear portion measuring about 300 sq.ft. and demolished the entire Madras terrace building portion and converted the entire rear portion into tin sheet roof portion. He also demolished the stair-case which leads to a room in the upstairs and therefore, the petitioner committed act of waste, which impaired materially the value or utility of the building and therefore, the tenant is liable to be evicted on the ground of waste. It is further stated that the building is aged more than 80 years and is in a dilapidated condition and the landlords have got means to put up a new construction in the premises after demolishing the same and the requirement of the landlords is bona-fide and therefore, the petitioner is liable to be evicted under Section 14(1)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act 1960.
5.The petitioner/tenant admit that he has taken the property on lease on 27.09.1989 for non-residential purpose and it is stated that at the time of taking delivery of possession of the property, necessary and proper repairs were done by the petitioner herein with the consent of the respondents/landlords to suit his business purpose. He further denied the allegation that he demolished the rear portion of the Madras terrace building and converted into tin sheet roof portion. It is stated that the tin sheet roof was put up with the consent of the landlords even at the time of commencement of tenancy and the building is maintained properly and therefore, the tenant has not committed any act of waste, which impaired materially the value or utility of the building. The tenant further denied the allegation that the building is in a dilapidated condition and requires immediate demolition and reconstruction and also denied the financial capacity of the respondents/landlords to put up a new construction thereon.
6.Before the learned Rent Controller, on the side of the petitioners, four witnesses were examined and 19 exhibits were marked to prove the means of the landlords to demolish and put up a reconstruction and on the side of the tenant, one witness was examined and an Advocate Commissioner was appointed to visit the suit building and he also submitted his report along with his plan.
7.The learned Rent Controller, after carefully appreciating the oral and documentary evidence and after taking into consideration of the report of the Advocate Commissioner, held that the tenant has demolished the Madras terrace portion and replaced the same with tin sheet roof without the consent of the landlords and the act of the tenant in converting the Madras terrace portion into tin sheet roof amounts to act of waste and is also corroborated by the report of the Advocate Commissioner and Engineer.
8.The learned Rent Controller further held that as per Exs.P4 to 19, the landlords proved the means to demolish and reconstruct the building and Exs.P1 to P3 would also prove the bona-fide of the landlords in demolishing the old building and re-reconstruction of the new building and allowed the petition on both the grounds.
9.The tenant filed appeal in RCA No.100 of 2007, on the file of Principal Sub Court, Madurai viz., the Rent Control Appellate Authority and the learned Rent Control Appellate Authority also concurred with the finding of the learned Rent Controller and held that the tenant had demolished the Madras terrace portion and replaced the same with tin sheet roof without obtaining permission of the landlords and that amounts to act of waste. The Rent Control Appellate Authority also held that the report of the Advocate Commissioner and Engineer would also prove that the building is an old one and is in a dilapidated condition and it requires immediate demolition and the landlords have got means and therefore, dismissed the appeal filed by the petitioner herein. Aggrieved by the same, this civil revision petition is filed by the tenant.
10.Mr.S.V.Jayaraman, the learned Senior Counsel appearing for the petitioner, submitted that it is for the landlords to prove that the tenant has committed the act of waste by changing the tin sheet roof without the consent of the landlords and in this case, the landlords have not discharged that burden and according to the tenant, at the time of taking possession, with the consent of the landlords, repairs were effected and by reason of the repairs effected by the tenant, the utility of the building has enhanced and there is no impairment to the value of the building and therefore, it cannot be stated that by reason of the change of roof with tin sheet, the petitioner has committed the act of waste. In support of his contention, the learned Senior Counsel, Mr.S.V.Jayaraman, appearing for the petitioner relied upon the judgment reported in 1997(2)MLJ 401, in the case of A.Duraisami vs. A.Arumughan and in 2007(2) MLJ 976, in the case of V.Dinesh Kumar vs. Dr.Indira Bai, rep. by her Power of Attorney, P.Suresh Chanderpaul, Chennai. The learned Senior Counsel Mr.S.V.Jayaraman appearing for the petitioner further submitted that the landlords have not also made out a case for demolition and reconstruction and the building is in a sound stage and the petitioner is carrying on business and the building does not require any immediate demolition and therefore, the requirement of the landlords is not also bona-fide and the petition is filed only to evict the petitioner from the premises and the landlords have no bona- fide intention of demolishing and reconstructing the building. He further submitted that the landlords have also filed a petition for fixation of fair rent which would also prove that the landlords are interested in getting more rent and they have no intention of demolishing the building and put up a new construction.
11.Per contra, Mr.J.Barathan, the learned counsel appearing for the respondents/landlords submitted that both the authorities have concurrently held that the tenant has committed act of waste and the landlords have proved their means and bona-fide requirement. He further submitted that the tenant has not denied the demolition of the Madras terrace portion and replacing the same with tin sheet roof portion and also the demolition of the staircase leading to the upstairs and the defence of the tenant is that at the time of taking possession of the building, repairs were effected with the consent and knowledge of the landlords and therefore, in the absence of any proof adduced by the tenant that the landlords have given consent for effecting the repairs, it is not open to the tenant to contend that he has not committed any act of waste. In other words, Mr.J.Barathan, the learned counsel appearing for the respondents submitted that when the tenant has admitted the change of roof and demolition of staircase, we will have to see whether it was done with the knowledge of the landlords or not and whether the tenant has committed the act of waste and when the tenant has alleged that he has done repairs with the consent of the landlords, it is for him to prove the same. But in this case, the petitioner has not come forward to prove this fact and therefore, the repair or change of roof effected by the tenant amounts to act of waste as held by this Honourable Court.
12.In support of his contention, Mr.J.Barathan, the learned counsel appearing for the respondents/landlords relied upon the judgment reported in 1971(2) MLJ 224, in the case of Sha Jetmull Genmull vs. Gocooldass Jamunadas & Co., represented by its Parter Govindass Purushothamdas, in AIR 1967 SC 643, in the case of Manmohan Das Shan and others vs. Bishun Dass & 1982 (1) MLJ 376, in the case of Krishna Rao M.Nikan and Krishna Rao M Nikan vs. Sha Nirbhayala Bahaduramal and others.
Therefore, we will have to see (1)whether the petitioner/tenant has obtained the consent of the landlords before effecting the repairs as alleged by the landlords; and (2)whether acts committed by the tenant amount to act of waste?
13.Point No.1: In the counter, the tenant has stated that the roof of the building was changed and tin sheet roof was put up with the consent of the landlords, even at the time of tenancy. It is further stated that it is a deliberated falsehood to allege as if it was done after the tenancy. Therefore, according to the tenant he has changed the roof from Madras terrace portion into tin sheet roof and according to the tenant, the change of tin sheet roof was done with the consent of the landlords at the time of tenancy and it was not done after the commencement of tenancy. It is further stated in the counter that at the time of taking delivery of possession, necessary and proper repairs and modifications were done by the tenant with the consent of the landlords to suit his business purpose. Therefore, from the admission made by the tenant, he admitted that he has changed the roof from Madras terrace into tin sheet roof and he has also made some modifications and the only defence is that it was done with the consent and knowledge of the landlords at the time of taking delivery of the property.
14.In evidence, the Manager of the tenant was examined as RW1 and he has stated in the chief examination that at the time of taking the property on lease in the year 1989, Madras terrace portion was replaced by tin sheet roof with the consent of the landlords and after entering into the property, they have not done anything without the consent of the landlords. In the cross examination, the witness has admitted that he has no document to prove that the demolition of the Madras terrace portion and replacing the same with tin sheet roof was done with the consent of the landlords. Therefore, it is also admitted by the tenant during trial that there was a change of roof and it was done with the consent of the landlords. Admittedly, the tenant has not produced any proof to show that the landlords have given consent for changing of roof. Further, the tenant has not entered the box to speak about the consent and he examined his Manager. According to me, the tenant is competent person to speak about the consent alleged to have been given by the landlords. Therefore, in the absence of any proof to that effect, coupled with the admission that there was change of roof, one can presume that change of roof was done by the tenant without the consent of the landlords.
15.Point No.2: The next question that arises for consideration is that whether the change of roof as admitted will amount to act of waste.
16.Admittedly, both the authorities below have held that repairs effected by the tenant amount to act of waste and he is liable to be evicted on that ground. Before going into the legal contention regarding the act of waste, we will have to see whether the act of the tenant complained by the landlords amounting to act of waste. In the petition, the landlords have stated that the entire Madras terrace building in the rear portion was demolished and was converted into tin sheet roof portion and the tenant also demolished the staircase leading to the room in the upstairs. Therefore, in the pleadings it has been specifically stated that Madras terrace roof portion has been replaced by tin sheet roof and the access to upstairs through the staircase was also removed
17.As per section 10(2)(iii) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 1969, a tenant is liable to be evicted when he has committed or caused to be committed such an act of waste impairing materially the value and utility of the building.
18.The Honourable Supreme Court in the judgment reported in AIR 1969 SC 643, in the matter of Manmohan Das Shah vs. Bishnu Das, has observed as follows:- "There is no reason why the word "or" should be construed otherwise than in its ordinary meaning. If the word "or" were to be construed meaning "and" it would mean that the construction should not only be such as materially alters the accommodation but also such that it would substantially diminish its value. Such an interpretation is not warranted for the simple reason that there may be conceivably material alternations which do not however diminish the value of the accommodation and on the other hand there may equally conceivably be alterations which are not material alternations but nevertheless would substantially diminish the value of the premises. It seems the Legislature intended to provide for both the contingencies and where one or the other exists it was intended to furnish a ground to the landlord to sue his tenant."
19.Further, in the judgment reported in 1971(2)MLJ 224, in the case of Shah Jetmull Genumull vs. G.Jumnadoss & Company, this Court has held that the words "value of or utility" referred to in the section cannot be considered in a disjunctive manner. The Legislature has clearly intended to prohibit a tenant from causing damage to the building or doing any act which may affect the utility of the building. There may be cases in which acts of the tenants may add to the utility of the building for some time but they may cause damage to the building. There may be also cases where they might not do any damage to the building but utility of the building might be seriously affected. In either of the cases, the tenant should be held to have committed acts of waste coming under the section."
20.Further, in the judgment reported in 2000(2) MLJ 527, in the case of B.Ramesh vs. H.Nandeeswari, Justice Mr.S.S.Subramani has discussed the entire case law in this aspect and held that impairment of value or utility of building is to be considered from the point of landlord and not of the tenant. Therefore, even assuming that repairs effected by the tenant, in the view of the tenant, the utility of the building is not impaired that should not be taken into consideration and the utility of the building should be considered from the view point of the landlord.
21.Further in the judgment reported in 1993(2)SCC 614, in the case of Vipin Kumar v. Roshan Lal Anand, it was held that the Court can infer from the proved facts that the construction, repairs effected by the tenant without the consent of the landlord whether those acts amount to act of waste and by reason of those acts, the value and utility of the building will be materially affected.
22.Further, in the judgment reported in 1982(1) MLJ 376, in the case of S.N.Bahadurmal vs. Krishna Rao M.Nikan has held that "the learned counsel for the tenant argued that these alternations or constructions have not impaired the value or the utility of the building and therefore, cannot constitute waste. I am unable to differ from the conclusions of the lower Courts on this aspect. It is not open to a tenant to reconstruct or remodel the building leased out to him without the written consent of the landlord and it is not as if that these admitted acts done by the tenant are mere minor alternation or repair works. They are in the nature or re-modelling and reconstruction to suit the personal requirement of the tenant, who had converted a stainless steel shop into a textile show-room. He should not have ventured on reconstructions and alterations without the approval of the landlord. Changing the nature of the demised premises tantamounts to technical waste and the demolition or removal of the doors and shutters, pillars, etc., are undoubtedly wilful and reckless on the part of the tenant. It is not as if the removal of these portions was caused in the course of reasonable use and it is certainly prejudicial to the interests of the landlord, in that the tenant has made indiscriminate alternations and additions. In my opinion, this also amounts to doing of an act which affects the utility of building, though the tenant might have added to the value of the building by putting up a better appearance. In this view of the matter, the findings of the Courts below that the tenant should be held to have committed acts of waste' coming under the definition have to be upheld."
23.It is further held in the judgment reported in 1984(1) MLJ 251, in the case of Associated Traders and Engineers Ltd., Vs. Alamelu Ammal as follows:-
"As regards the ground of act of waste is concerned, it is not disputed that the tenant has not obtained the written consent of the landlady. The learned counsel for the petitioner contends that after all the tenant has made on opening in the wall dividing two rooms for the purpose of easy access in using the ground floor as a godown. There is no record to prove that the tenant obtained the consent of the landlady for making an opening in the wall, which had divided two rooms. The said act of making an opening in the mail wall, which divides two rooms, without the consent of the landlady will certainly amount to an act of waste. As rightly contended by the learned counsel for the respondent herein in a storeyed building, like the demised building, making an opening in the wall will definitely weaken the strength of the wall and in the long run it will weaken the building."
Therefore, it is seen from the above judgments, the change of roof and removal of the staircase leading to upstairs amounts to act of waste.
24.In the judgment reported in 2007(2) MLJ 976, in the case of V.Dinesh Kumar, S/o. Vellaichamy, Chennai vs. Dr.Indira Bai, rep. by her Power of Attorney, P.Suresh Chanderpaul, Chennai, this Court has held that whether there is an act of waste or not is a mixed question of law and fact and the act of waste should refer to such acts which are prejudicial to the interest of the landlord which would lessen the utility value of the building and cause prejudice to the landlord.
25.Further, in that case, the report of the Advocate Commissioner was not taken into consideration to ascertain the condition of the building on the alleged act of waste and the landlords have not discharged the burden to the effect that the alleged act of waste materially impairs the value and utility of the building and on that ground, the claim of the landlords was rejected. But in this case, it is admitted that the tenant has replaced the Madras terrace portion and put up a tin sheet roof and in my opinion, that would amount to act of waste. Further, in the judgment reported in 1997(2) MLJ 401, in the case of A.Duraiswami vs. A.Arumugham, the alleged act of waste was that the tenant has damaged the door in front of the shop and replaced the same with a new door frame without the consent of the landlord and that act was not considered as act of waste by the learned Judge. But in this case, the act complained is very serious and the tenant has changed the Madras terrace portion which is very firm and stable and replaced the same with tin sheet roof and which definitely would affect the utility as well as caused damages to the building.
26.Further in the judgment reported in 2004(1)MLJ 76 in the case of M.Selvam vs. Josephine Mary, this Court has held that "the specific acts of waste are demolition of the floor, erection of bore well inside the building, installation of an electric motor, damage to the front side, construction of a drainage canal, damage to the roof, installation of zinc pipe, installation of a gas oven generating a high degree of heat damaging the building, development of cracks all over the building and damage to the balcony and each act had done something permanent to the wall or the building and ordered eviction. Hence, in my opinion, the landlords have proved that the tenant has committed act of waste by replacing the Madras terrace into tin sheet roof and hence, he is liable to be evicted and both the Courts below have also come to the conclusion that the tenant has committed an act of waste and I do not find any infirmity to interfere with the finding of the Courts below. Further, the facts of the case in the reported judgments cited by the learned Senior Counsel are different and cannot be applicable to the facts of the present case.
27.The next question is whether the landlords have proved their case for eviction on the ground of demolition and reconstruction. Admittedly, the building is more than 50 years. The landlords have proved their means by marking Exs.P4 to P19 and they have also applied for plan from municipal authorities and except the bare allegation in the counter that the landlords have no means to put up construction, no material were placed by the tenant to doubt the bona- fide of the landlords in demolition and reconstruction of the building. The report of the Advocate Commissioner and Engineer would also support the case of the landlords regarding the condition of the building and as a matter of fact, the Advocate Commissioner has stated in his report that the building is aged 50 to 60 years old and the walls are all old and in the northern wall, there was a huge hole and without bricks it looks like a cave and the tin sheets are not properly maintained and they are rusted. In the Engineer report it has been stated as follows:
"In the north west corner, the wall is completely damaged due to rain water leakage. The C.G.I sheets in the roof of the hall are rusted and the palmyrah and country weed rafters supporting the roof are worn out and sagging. The cut-stone flooring is completely damaged. The northern wall has lost its plumb and there are a number of cracks developed in it. The building is 60 years old I am of opinion that the building is not in fit condition and it has to be demolished."
28.Further, RW1 did not dispute the nature and extent of damages noted by the Engineer and Advocate Commissioner in their reports. Considering all these aspects, both the Courts below have concurrently held that the landlords have proved their means and their bona-fide requirement and ordered eviction on the ground of demolition and reconstruction.
29.Hence, I do not find any reason to interfere with the order of the Courts below and accordingly, this civil revision petition is dismissed and the order of the Courts below are confirmed. Consequently, connected miscellaneous Petition is closed. No costs.
er To
1.The Principal Sub Judge, Madurai.
2.The District Munsif, Madurai.