Madras High Court
Ravindranath vs Samuel Asirvatham on 19 November, 1993
Equivalent citations: (1994)2MLJ98
ORDER Abdul Hadi, J.
1. The tenant under the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 (hereinafter referred to as 'the act') is the petitioner in this civil revision petition.
2. The respondent-landlord raised three grounds in R.C.O.P. No. 95 of 1984 on the file of the Rent Controller, Tirunelveli for securing the eviction of the petitioner. But, this civil revision petition is concerned only with one of the abovesaid three grounds viz., demolition and reconstruction (under Section 14(1)(b) of the Act). The R.C.O.P. was dismissed on all the said three grounds. But, in the appeal filed by the respondent-landlord in R.C.A. No. 22 of 1986, the said dismissal was set aside and eviction was granted on the ground of demolition and reconstruction. Hence the civil revision by the tenant.
3. The learned Counsel for the petitioner makes the following submissions. The landlord has not proved that the building was bona fide required by him for the immediate purpose of demolition and for erecting a new building on the site in question. He particulary draws my attention to the decision in P. Orr and Sons (P.) Limited v. Associated Publishers (Madras) Ltd. and submits that the principles laid down therein with reference to the abovesaid Section 14(1)(b) have not been followed at all by the appellate authority in passing the abovesaid eviction order. He also points out that Ex. A-1, the sanctioned plan obtained from the Municipal Authority for the alleged demolition and reconstruction only seeks to change part of the roof of the building, viz., the tiled portion of the roof and such a change of the roof alone cannot be demolition spoken to in the said Section 14(1)(b). In this connection he also brought to my notice the evidence given by P.W. 1, the landlord regarding abovesaid Ex. A-1. He also relies on the Division Bench judgment of this Court in K. Krishnan v. Munuswamy . He also points out that the landlord did not even make an attempt to appoint an engineer-commissioner or any other commissioner to inspect the petition-building and report as to its condition. He also points out that the petition-building is part of a larger building, containing the abovesaid tiled roof, throughout the middle of the said larger building, including the portion of the petition building and other portions and that if the said tiled roof has to be remove and replaced the landlord would not have let our those other portions afresh to several tenants, after the respective previous tenants occupying the said other portions vacated their portions, after the order of the appellate authority. The above fact has been stated in the affidavit in support of C.M.P. No. 3022 of 1993 in this civil revision petition and as against the many specific averments regarding the same, there is no denial at all in the counter affidavit filed therein by the landlord. In view of these subsequent events also, the bona fide requirement contemplated under Section 14(1)(b) has not been established.
4. On the other hand, the learned Counsel for the respondent-landlord reiterates that the abovesaid bona fide requirement has been proved and that since even a first floor is going to be built after removing the abovesaid tiled roof over the ground floor, the present case certanily would come under the term "demolition". He also relies on the decisions in Ramachandran v. Kasim Khaleeli (1965) 1 M.L.J. 78, S.A. Hamy v. J.V.K. Rao and Mankkam Chettiar v. Pasumponnal Achi 1976 T.L.N.J. 256. With reference to the abovesaid subsequent event mentioned in the supporting affidavit in C.M.P. No. 3022 of 1993 he submits that the abovesaid tenants to whom those abovesaid portions have been let out after the appellate authority's order, have agreed to vacate when it is required and that some of them have already vacated.
5. I have considered the rival submissions. No doubt, in the present case, there is the required pleading in the R.C.O.P. which would satisfy Section 14(1)(b), but the said pleading has been totally denied and so it is absolutely necessary for the landlord to establish the requirements under Section 4(1)(b) of the Act. The Supreme Court in the above referred to P. Orr and Sons (P.) Limited v. Associated Publishers (Madras) Ltd. , has concluded as follows in paragraph 30:
...the essential and overriding consideration is the condition of the building that demands timely demolition by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs. While the condition of the building by itself may not necessarily establish the bona fide requirement under Clause (b), that condition is not only one of the various circumstances which may be taken into account by the controller, but it is the essential condition in the absence of which it would not be possible for the landlord to prove that he was a bona fide requirement which is timely, directly and solely for the purpose of demolition of the building. The Act does not accept the requirement by the landlord on a bona fide requirement within the meaning of the provision unless the condition of the building, in the context of the relevant circumstances, requires demolition.
[Italics supplied]
6. In the present case, I do not find any proof that demolition of the existing petition building is necessary "by reason of the extent of damage to its structure making it uneconomical or unsafe to undertake repairs". First of all, excepting the P.W. 1, the landlord, no other independent witness has been examined. Particularly, the landlord has not chosen to get an engineer-commissioner appointed for inspection of the building and reporting to the court, the extent of damage to the structure of the building, making it uneconomical or unsafe to undertake repairs. That apart, even P.W. 1, the landlord did not depose in relation to the said building anything specifically as pointed out by the Supreme Court in the above case. In the Chief examination, no doubt he vaguely states, No doubt, there is not cross examination on this vague deposition given regarding the condition of the building, though R.W. 1, the tenant has deposed thus:
In the light of the above features, it is not difficult to hold that the landlord has not satisfied the requirements of proof as indicated by Supreme Court in the abovesaid decision.
7. That apart, a more, vital factor against the landlord is that as per the abovesaid Ex. A-1 itself, the present case is not one of "demolition" at all. Admittedly as per Ex. A-1, only the abovesaid tiled roof has to be changed and not other portions of the building including the walls on which the tiled roof is resting. P.W. 1 has also deposed in cross-examination as follows:
Earlier he also deposed as follows:
No doubt, thus he has stated that after removing the abovesaid tiled roof, he is going to put up a terrace instead, and put up two rooms in the first floor over and above the said terrace. But Ex. A-1 plan does not show that the walls on which the tiled roof rests are also to be demolished. No doubt, P.W. 1 stated contrary to what is contained in Ex. A-1 that he is going to demolish the said walls also. But, if he docs so, it will be in violation of Ex. A-1 plan. If really, after second thoughts he had decided to demolish the walls also and put up a new wall therein, he would have got Ex. A-1 plan modified at least after the disposal of the R.C.O.P. and before the appeal was disposed of. The learned Counsel for the tenant specifically also points out that the landlord has even filed on application for reception of additional documents while the rent control appeal was pending in order to prove his means for putting up the new building. While so, according to the said counsel, if really he wanted to demolish the abovesaid walls, he would have applied for necessary alteration in Ex. A-1 plan and obtained sanction therefor and would have filed changed plan into court at least at the appellate stage. But, the landlord has not done so, All these show, according to the said counsel, the 'demolition' as such was not in the contemplation of the landlord at all.
8. In K. Krishnan v. Munuswamy , a Division Bench of this Court has held that a change of the roof of a building will not by itself amount to demolishing a building and putting up a new building on the site of the old building and that to such a case, Section 14(1)(b) will not be attracted. The said Division Bench decision has actually overruled S.A. Henry v. J.V.K. Rao , relied by the learned Counsel for the respondent. In , referred to above, a learned single Judge of this Court had held that in between "repairs" as defined in the Act and "demolition and erection of a new building", there could be many changes which could be made to a building and for which there is no provision made in the Act. In other words, when changes much more substantial than mere 'repairs' fall for consideration, the learned Judge felt that if too technical meaning is to be given for the words demolishing and erecting a new building on the site appearing in Section 14(1)(b) many cases where substantial changes which have to be made would not fall within the scope of the Act and therefore, the words appearing in Section 14(1)(b) must be given a larger import than what they appear to convey by reading them in the ordinary manner. But the above referred to Division Bench overruled this ruling of the learned single Judge and observed thus:
With great respect, we are unable to agree with this view of the learned Judge. We have to interpret the statute and gather the intention of the legislature according to the words used applying the well-known principle that normally we must attach to those words a grammatical and literal meaning attributable to those words It is perhaps true that some changes in a building which would not fall under the expression 'repairs' as defined in the Act, would not amount to demolishing and erecting a new building on the site and if they fall out of the ambit of Section 14(1)(b) of the Act. Eviction for those purposes may not be possible. We cannot rectify any lacuna, even if that be.
9. Likewise, the other decision cited by the learned Counsel for the respondent Ramachandran v. Kasim Khaleeli (1965) 1 M.L.J. 78, has also been not approved by the abovesaid Division Bench, in (1965) 1 M.L.J. 78, Kailasam, J. held thus:
In this case the roof of the premises that is in the occupation of the petitioner is to be demolished and a staircase put, retaining only the walls. This in my opinion, would amount to demolition.
While adverting to this view of Kailasam, J., the abovesaid Division Bench observed thus:
With great respect we have to disagree with the view expressed by Kailasam, J.
10. No doubt in 1976 T.L.N.J. 256, it is observed thus:
It is not necessary that every bit of the building has to be razed to the ground in order to satisfy Section 14(1)(b).
But, in the present case, the main walls themselves are not to be demolished as per Ex. A-1. In the light of the above referred to observations of the Division Bench, I am unable to hold that the present case is one of the demolition.
11. Lastly in view of the above referred to subsequent events also, it cannot be said that the bona fide requirement contemplated under Section 14(1)(b) has been satisfied. In the supporting affidavit to C.M.P. No. 3022 of 1993, I find the following specific allegations in paragraph 2:
After the appellate court's order the respondent has converted entire building into a shopping complex. In fact the respondent who was occupying premises No. 28, vacated the same and let out the same to Anjali Wines after receiving advance of Rs. 40,000 and monthly rent of Rs. 2,000. The portion immediately adjoining to my portion on the western side, he has let out the same to Three Star Laundry and to a Ice Manufacturer. The portion on the western side where the respondent was residing he has let out the same to one Omnipatch Works for vulcanising. He has further let out another portion still on the western side to Swami Medicals for selling native medicines. He has let out the Northern Portion of the vulcanising shop for residential purpose. In the above circumstances these tenants have been inducted subsequent to the eviction petition and has completely converted the place into a shopping complex.
As against these specific allegations, in the counter that was filed to the said C.M.P., there is no specific denial at all. What is stated in paragraph 3 of the counter-affidavit is only as follows:
The averments made in para. 2 of the affidavit is false and it is hereby denied.
Therefore, the above specific averments cannot be brushed aside. Even the submission of the learned Counsel for the respondent that the abovesaid inducted tenants have subsequently vacated or have agreed vacated, does not find a place in the counter-affidavit. That apart, it is significant to note that the landlord himself vacated one of the portions of the building and let out the same "to Anjali Wines after receiving advance of Rs. 40,000 and monthly rent of Rs. 2,000". The said portion, is only adjacent to the portion is to vacate occupied by the present tenant and from the photo that has been exhibited in the present case, it is also clear that the abovesaid tiled roof extends even over the abovesaid adjacent portion occupied by the landlord himself, but, subsequently, let out to the said Anjali Wines, as stated above. If the abovesaid entire tiled roof has to be replaced and new building is going to be put up, the landlord after himself vacating the portion occupied by him, would not have let out the same to another tenant.
12. Even disregarding the subsequent events it is clear that the court below has erred in coming to the conclusion it reached without taking into account the principles laid down in the abovesaid Supreme Court case and not applying those principles to the facts of this case. Therefore, it can be safely concluded that bona fides have not been established at all. That apart, this is not a case where "for demolition" the petition building is sought for. Further, the abovesaid subsequent event also proves that the landlord has no bona fides as required J under the abovesaid Section 4(1)(b).
13. In the result, the civil revision petition is allowed, the order of the appellate authority is set aside and that of the Rent Controller is restored. However, in the circumstances of the case, there will be no order as to costs.