Madras High Court
R. Rajendran vs E.M. Kuthurathullah on 25 June, 1999
Equivalent citations: 1999(2)CTC606, (1999)3MLJ194
ORDER
1. The petitioner/landlord is the revision petitioner. He filed a petition under Sections 14(1)(b) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.
2. The petitioner is the landlord and the respondent is the tenant on a monthly rent of Rs. 300 and after purchase by the respondent, the petitioner attorned tenancy in favour of the petitioner. The petitioner is carrying on jewellery business in a rental shop in Door No. 359, Bazaar Street, Salem 1.
The petitioner purchased the property for the purpose of carrying on his own business. The petitioner says that the building is more than 60 years old and he has decided to demolish it and reconstruct a new building with two floors before the occupy the same for his own use to carry on his jewellery business.
The petition mentioned building is situated in the centre of Salem town, where there are number of jewellery shops. The petitioner further contends that if the building is demolished and reconstructed with two floors, the petitioner will get monthly income of not less than Rs. 3,000. The petitioner also obtained building licence from the Municipality. The petitioner contends that he bona fidely requires the building for the purpose of demolition and reconstruction and also for his own use.
3. The respondent in his counter states that the building is not 60 years old and the requirement of the petitioner for demolition and reconstruction and for his own use is not bona fide.
4. The learned Rent Controller allowed the petition and granted 3 months time for vacating the premises. The learned appellate authority allowed the appeal.
5. As against that order, the revision is filed by the landlord/revision petitioner.
6. According to the petitioner/landlord, he requires the petition mentioned premises for his own use for running jewellery business and also requires the premises for demolition and reconstruction, since the building is in dilapidated condition and it is of 60 years old. The petitioner contends that he wants to demolish and reconstruct it to make it fit for running his jewellery shop. The learned Rent Controller has found that the requirement of the petitioner for his own use and for demolition and reconstruction is bona fide. Ex.A.l is the sale deed standing in the name of the petitioner. The petitioner has also filed document to show that he is running jewellery shop. The petitioner has clearly stated that he does not own any other building of his own and the petition mentioned premises, which has been let out to the respondent, is bona fide required for his own use for running his jewellery shop, since he is running the jewellery shop in a rented premises. But the petitioner says that the building is very old and it has to be demolished and reconstructed to make it fit for running the jewellery shop. So he bona fidely requires the building for his own use and for demolition and reconstruction.
7. The learned appellate authority has negatived the claim of the landlord. The learned Rent Controller has found that a reading of the petition averments would reveal that the petitioner requires the petition mentioned building for running his jewellery business and to demolish the existing building and reconstruct a new building in the same place and it is sought to be demolished not only for the reasons of the petitioner's requirement of the building for his own business but also for the reason that the building is old and for getting more income by way of rent. The appellate Court has taken the view that though the learned Rent Controller has decided the application first under Sections 10 (3)(a)(iii) and then 14(1)(b), the appellate Court is of the view that having regard to the contention raised in the petition, the requirement of the petitioner under Section 10(3)(a) (iii) has to be decided subject to the result of the case of bona fide requirement under section 14(l)(b) and it has relied upon the decision of the Supreme Court reported in 1992 (2) Law Weekly, 547. It is settled law that the bona fide requirement as defined under Section 14(1)(b) is not the requirement of the petitioner but the requirement emanates only from the building. The appellate authority has found that there is no professional evidence such as the Engineers report about the aspect whether the building requires demolition and reconstruction, even though in the petition it is stated to be 60 years old, and it is not stated to be in a condition which requires demolition and reconstruction. So the appellate authority has found that as the claim under Section 14(l)(b) is not bona fide and as the building in question can be occupied by the petitioner for running his jewellery shop only after demolition and reconstruction after making it fit for running the jewellery shop, the requirement of the petitioner for demolition and reconstruction and for his own use is not bona fide.
8. The learned counsel for the petitioner submitted that the requirement of the petitioner for his own use and for demolition and reconstruction are independent and one is not connected with the other and since the petitioner/landlord does not own any other building of his own for running the jewellery business, his requirement for his own use is bona fide.
9. The learned counsel for the respondent/tenant submitted that even in the petition, the landlord/petitioner has stated that the petitioner has decided to demolish the entire building and reconstruct a new building with two floors in the same place before ever occupying the same for his own use to carry on jewellery business and the very same wording in the petition goes to establish that only after demolition and reconstruction, the petitioner can occupy the premises for his own use to carry on his jewellery shop and if the demolition and reconstruction is not going to be done, the petitioner cannot use the petition mentioned premises for running the jewellery shop and there is no bona fide on the part of the petitioner. He further submitted that the building as such cannot be used for running his jewellery shop and only after demolishing and reconstructing, the petition mentioned premises can be used for his own business. He also relied upon evidence of PW1 in that aspect. PW1 has spoken in his evidence that the building has to be demolished and reconstructed and only after reconstruction of the new building, he can run his shop. Basing upon this evidence, the learned counsel for the respondent/tenant submitted that the building as such is not at all fit use of running the shop and so, there is no bona fide at all on the part of the landlord/petitioner to ask for his own use.
10. The learned appellate authority has found that the mere obtaining of licence and approval of plan is not sufficient to make out the case of bona fide requirement and the financial capacity was not spoken about with regard to the proposed reconstruction and in the absence of necessary pleadings and sufficient evidence to prove the important factors for bona fide requirement of the petitioner's claim, the petitioner's not entitled to get any order of eviction under Section 14(1)(b) of the Act. The learned appellate authority has further found that regarding the claim for possession of the building for the occupation of his jewellery business though it is proved that the petitioner is carrying on his jewellery business in a rented house and has no other non-residential building of his own for the said purpose of carrying on the business unless the requirement is shown to be bona fide, he is not entitled to get any order under Section 10 (3)(a)(iii) of the Act and the petitioner's requirement under Section 10(3)(a)(iii) would only depend upon the petitioner's success in getting the possession of the building under Section 14(l)(b) of the Act and the claim under both Sections are not mutually exclusive but they are complementary to each other and the petitioner has clearly expressed his intention to carry out certain structural alterations suitable to run his jewellery business before occupying the same and he intends to occupy the same for his jewellery business after demolishing the existing building and reconstruct a new one in the existing place and as there is no bona fide for demolition and reconstruction, the requirement of the petitioner for his own use depends upon the demolition and reconstruction of the building to make it fit for running the jewellery shop.
11. The learned counsel for the petitioner/landlord submitted that the claim under Section 10(3)(a)(iii) for own use is independent and the claim for demolition and reconstruction is a different one and both of them are mutually exclusive and they are not compliment to each other. So it cannot be stated that only after demolition and reconstruction are carried out, the petitioner can ask for own use. The petitioner as PW1 has stated in his evidence that the building is in dilapidated condition. The Commissioner has also inspected and filed his report and plan Exs. P.1 and P.2. The petitioner has also filed the licence Ex.P.8.
12. The learned counsel for the respondent/tenant submitted that Ex.P.8 licence was obtained later and there is no bona fide on the part of the petitioner. The petitioner applied for Municipality with regard to the demolition and reconstruction of the building and the plan was approved and permission was granted on 28.6.1986. Ex.A.6 is the approved plan for demolition and reconstruction and it shows that the petitioner has taken steps for demolition and reconstruction. After getting that plan only, the petitioner has issued notice to the respondent/tenant for evicting the premises. So, the petitioner bona fidely has taken steps for carrying out the work of demolition and reconstruction. The petitioner also bona fidely requires the premises for his own use for running his jewellery shop. In the case of Ponnuswami Naicker v. K. Anandan, 1988 (1) LW 31 this Court has held:
"In a petition for eviction filed under Section 10(3)(a)(iii) and 14 (1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 by the landlord on the ground that he requires the building for his personal occupation and that he wants to demolish the building and reconstruct the same along with another portion of the building which is in occupation of another tenant. It was contended for the tenant that the landlord had filed the petition under Section 10(3)(a)(iii) of the Act requiring the premises for his personal occupation and also under Section 14(1)(b) of the Act and it was unsustainable in law, since both these prayers were mutually exclusive and if really the landlord required the premises for his personal occupation, then the question of demolition and reconstruction would not arise.
Held, rejecting to contention: The main basis on which the landlord has come forward with this petition for eviction, is that he is carrying on the business in a rented building and that he purchased the petition buildings for the purpose of his personal occupation, since he is already under threat of eviction by his landlord. While seeking to evict the tenant, the landlord has stated the manner in which he is going to occupy the petition premises.
It is no doubt true that the relief sought for under Section 14(1)(b) of the Act is unnecessary in this case, since he has to succeed only on his showing that his requirement is bona fide as far as his personal occupation is concerned. Once that is proved, from the mere fact that there is a reference to Section 14(1)(b) of the Act, in the petition and an allegation to the effect that he is going to demolish the building to suit his purpose, it cannot be stated that the remedy available to him under Section 10(3)(a)(iii) of the Act is taken away on the principle that the two reliefs are mutually exclusive.
Various restrictions have been placed on the right of the landlord to evict the tenant. If the tenant is evicted under the provisions of Section 14(l)(b) and Section I0(3)(a)(iii) of the Act, remedies are available under Section 10(5)(a) of the Act, to get restoration of possession, if the landlord does not himself occupy it within one month of the date of obtaining possession. Similarly if the tenant is evicted under the provisions of Section 14(1)(b)of the Act, Section 16 of the Act gives a similar remedy. Therefore, there is no infirmity in the relief asked for by the landlord."
13. The learned counsel for the respondent submitted that the petition filed under Sections 10(3)(a)(iii) and 14(1) (b) is unsustainable in law, since both are mutually exclusive. He further stated that, if the landlord really requires the petition mentioned premises for his personal occupation, then the question of demolition and reconstruction will not arise and the very fact that his intention for demolition and reconstruction shows that there is no immediate necessity for the landlord for his personal occupation. The argument advanced by the learned counsel for the respondent/tenant is not acceptable. The landlord has come forward with this petition for eviction on the main ground that he is carrying on the jewellery business in a rented building and he intends to occupy the petition mentioned building for running his jewellery shop which he is carrying on in a rented premises. The landlord/petitioner has bona fide stated the manner in which he is going to occupy the petition mentioned premises. He has clearly stated that he wants to demolish the building and reconstruct a new building with two floors for running his jewellery shop. The purpose for which the landlord wants the premises for his own occupation is for running the jewellery shop for which he requires some decency in keeping the building like show case and in modem style only with that intention he wants to demolish and reconstruct the building and occupy for his own use for running the jewellery shop. It is seen from his evidence that such demolition and conversion of that building with two floors will be more convenient and conducive for running his jewellery business. It is not possible for the landlord achieve the purpose for which the present petition is filed. It is borne out by evidence that the petitioner does not own any other non- residential building. His evidence clearly shows that his requirement is bona fide as far as his personal occupation is concerned, since it has been clearly established that the requirement of the petitioner is bona fide. Once that is proved, the mere fact that there is a reference under Section 14(l)(b) of the Act in the petition and an allegation to the effect that he is going to demolish the building and reconstruct it to suit his purpose and make it convenient for running his jewellery business, it cannot be stated that the remedy available to him under Section 10(3)(a)(iii) of the Act has to be denied to him on the principle that the two reliefs are mutually exclusive.
14. The Supreme Court has considered similar question in the case of R.P. Mehta v. I.A. Seth, 1965 (2) SCJ 608 and has laid down the following principle:
"We agree with the Courts below that the respondent's case falls under clause (b) when he bona fide requires the premises for his own occupation. The mere fact that he intends to make alternations in the house either on account of his sweet will or on account of absolute necessity in view of the condition of the house, does not effect the question of his requiring the house. There is no such prohibition either in the language of clause (g) or in any other provision of the Act to the effect that the landlord must occupy house for residence without making any alterations in it. There could not be any logical reason for such a prohibition. Under ordinary law, the landlord is entitled to eject his tenant whenever he likes, after following certain procedure except in cases where he has contracted not to eject him before the happening of a certain event. The Act restricts that general right of the landlord in the special circumstances prevailing in regard to the availability of accommodation and the incidental abuse of those circumstances by landlords in demanding unjustifiably high rents."
The said principle laid down by the Supreme Court would squarely applies to the facts of the present case. The Rent Control Act provides sufficient protection to the tenants being harassed by threat of ejectment in case they are unable to satisfy the landlord's demands. Various restrictions have been placed on the right of the landlord to evict the tenant. If the tenant is evicted under the provisions of Section 14(l)(b) and Section 10(3)(a)(iii) of the Act, remedies are available under section 10(5)(a) of the Act to get restoration of possession, if the landlord does not himself occupy it within one month of the date of obtaining possession. Similarly, if the tenant is evicted under the provisions of Section 14(l)(b) of the Act, Section 16 of the Act gives a similar remedy. Hence, I do not find any infirmity in the relief asked for by the landlord.
15. The learned counsel for the petitioner has clearly stated in the petition that the petitioner is not occupying any non-residential building of his own within Salem Municipal area excepting the building leased out to the respondent. The question of bond fide has to be considered only on the basis of all the circumstances available in the case. It was held by this Court in the case of M. Nemichand Jain v. P. Ethirajan, 1992 (II) MLJ 422 as follows:
"Though there is no specific averment, it is clear from the petition that the respondent is seeking eviction of the petitioner herein on the footing that he requires the premises for the purpose of his son's business which is being carried on in a rented premises. Taking into consideration all the averments made in the petition, it is clear that the respondent prayed for an order of eviction only on the basis of bona fide requirement. The courts have to consider only the evidence on record and decide whether the bona fide requirement has been made out. The absence of an express sentence in the pleading does not vitiate the proceedings."
The petitioner has clearly stated that he requires the premises for his own use for running the jewellery shop. He has also clearly averred in the petition that he does not own any other building of his own except the petition mentioned building. It is very clear from the averment in the petition and the evidence that the petitioner/landlord is seeking eviction of the respondent/tenant on the ground that he requires the premises for the purpose of his own jewellery business, which is being carried on in a rented premises. Taking into consideration of the averments made in the petition and the evidence, it is clear that the requirement of the petitioner for his own use is bona fide. As the petitioner does not own any other building of his own and he is running his jewellery business in a rented premises, no mala fide can be attributed on the part of the petitioner/landlord. So it has been clearly established that there is bona fide on the part of the petitioner for seeking eviction.
16. The commissioner has also inspected the. premises and filed his report. He has found that there is leakage of rain water in that building and cracks and damages have been caused to the building. The petitioner wants to use the building for his best use with modern facilities to enable him to cany on his jewellery business with modern amenities. Since the petitioner is having his business in a rented premises, he bona fide requires the premises for his own use. The petitioner/landlord is at liberty to put up new construction in the premises with good look and modern fashionable showcases and other structural alterations to run his jewellery business. Only for carrying on his jewellery business, he wants to demolish and reconstruct the building with modern facilities. It cannot be stated that there is no bona fide on his part for the requirement of the petition mentioned building for his own use simply because he has asked for demolition and reconstruction also. The landlord wants to occupy the premises with modem facilities for running his jewellery business. So it cannot be stated that as he is going to occupy the building only after demolition and reconstruction, there is no bona fide on the part of the petitioner. The learned counsel for the respondent/tenant further submitted that the building as such cannot be put to use for running jewellery shop and so, there is no bona fide on the part of the petitioner asking for the premises. Simply because the building cannot be put to use by the petitioner for running the jewellery shop with the present condition, it does not mean that the petitioner should not ask for the relief of demolition and reconstruction and after reconstruction he wants to use it for his own use. The relief sought for under Section 14(l)(b) of the Act is unnecessary in this case, since the has to succeed only on his showing that the requirement of the petition mentioned premises is only for his personal occupation. Incidentally, the petitioner has sought for the relief under Section 14(l)(b) of the Act on the ground of demolition and reconstruction as the landlord has stated the manner in which he is going to occupy the petition mentioned premises by putting up two storeyed building to enable him to carry on his jewellery business. The mere fact that he wanted to occupy the premises after demolition and reconstruction will not in any way lead to come to the conclusion that the requirement is not bona fide, since the evidence on the side of the petitioner clearly establishes that he requires the petition mentioned premises for his own use for running the jewellery business. The petitioner owns only this building which he wants to make best use of it for running his business. No mala fides can be attributed on the petitioner. The petitioner/landlord wants to put to use his building in the best way possible by demolishing and reconstructing it for his jewellery business. Simply because he has sought for demolition and reconstruction it cannot be stated that the relief under Section 19(3)(a)(iii) of the Act claimed as to be denied.
17. A perusal of the entire evidence and documents clearly establishes that the petitioner bona fidely requires the petition mentioned building for his own use for running his jewellery shop. The learned Rent Controller has analysed these aspects and has ordered eviction. The learned appellate authority has found that the petitioner's definite case is that he intends to occupy it for his jewellery business after demolition and reconstruction of a new building in the existing place and his claim under Section 10(3) (a) (ii) cannot be stated to be bona fide. The learned appellate authority was not right in coming to the conclusion that the petitioner requires the petition mentioned premises under Section 10(3)(a)(iii) of the Act and it depends upon the petitioner getting possession under section 14(1)(b) of the Act and both the sections are mutually exclusive. The order passed by the learned Appellate authority is liable to set aside.
18. In the result, the Civil Revision Petition is allowed setting aside the order passed by the appellate authority and the order of the learned Rent Controller is restored. Time for vacating the premises is 3 months.