Andhra HC (Pre-Telangana)
Smt Kesar Bai (Died Per Lr) And ... vs S.D.Kamal Kumar on 12 November, 2014
Author: M.Seetharama Murti
Bench: M.Seetharama Murti
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL REVISION PETITION No.1102 of 2011 12-11-2014 Smt Kesar Bai (died per LR) and another..P[etitioners S.D.Kamal Kumar...Respondent Counsel for the Petitioners:Sri M.V.S.Suresh Kumar Counsel for Respondent: SRI R.A.Achuthanand <Gist: >Head Note; ?Cases Referred: ALT-2001-2-206 1989(3) ALT 138 (DB) 1997(2) ALT 249 (1972) 4 SCC 654 THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL REVISION PETITION No.1102 of 2011 ORDER:
This is a civil revision petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act for brevity) by the petitioner/tenant assailing the orders dated 14.02.2011 of the learned Chief Judge, City Small Causes Court, Hyderabad passed in R.A.No.133 of 2008 whereby the learned Chief Judge while dismissing the said appeal of the tenant/petitioner herein had confirmed the order of eviction dated 16.05.2008 in RC.No.380 of 2004 passed by the learned II Additional Rent Controller, Hyderabad.
2. The original tenant died during the pendency of the rent control case and her legal heir is the present tenant. In this revision, the parties shall be referred to as the revision petitioner/tenant and the respondent/landlord for convenience and clarity.
3. The introductory facts, which led to the filing of this revision by the tenant, in brief, are as follows: - The landlord who is the owner of a double storied building consisting of three mulgies in the ground floor filed three eviction petitions against three of his tenants including the RC.No.380 of 2004 against the present tenant who is in occupation of the mulgi bearing No.15-8-20 in the ground floor of the said building situate at Siddiamberbazar, Hyderabad. The landlord had sought eviction of the tenant on the ground that the building in which schedule mulgi is a part requires demolition and reconstruction as it is in dilapidated condition and as the landlord requires bona fide the schedule mulgi and the other two mulgies in the occupation of two other tenants for commencement of business in novelties, general goods, and other fancy items. The tenant herein had filed a counter and had resisted the eviction petition filed by the landlord. During the course of enquiry before the learned Rent Controller, the landlord and his father were examined as PWs.1 and 2 and exhibits P1 to P7 were marked on the side of the landlord. The husband of the tenant was examined as RW1. No exhibits were marked on the side of the tenant. On merits, the trial court had allowed the eviction petition and had directed the tenant to vacate the schedule mulgi and handover vacant possession of the same to the landlord within three months. The tenants appeal in RA.No.133 of 2008 was dismissed by the learned Chief Judge, City Small Causes Court. Therefore, the tenant is before this court.
4. I have heard the submissions of the learned counsel for both the sides. I have perused the material record.
5. Now the points for determination are: -
(1) Whether, in the facts and circumstances of the case, the eviction petition filed by the landlord under Sections 12 and 10(3)(a)(iii)(b) of the Act is not maintainable?
(2) Whether the landlord had established that he requires the petition schedule mulgi bona fide for his personal occupation?
(3) Whether the landlord had established his pleaded case that he requires the building which is in a dilapidated and dangerous condition for its demolition and reconstruction?
6. The grounds urged in the revision and the submissions made on behalf of the revision petitioner/tenant, in brief, are as follows: - The eviction petition filed by the landlord under Sections 12 and 10(3)(a)(iii)(b) of the Act is not maintainable as the two reliefs are mutually contradictory and exclusive. The schedule premises/building is not in a dilapidated condition. The courts below had failed to see that the landlord had not produced any evidence to show that the schedule premises is in dilapidated condition. The courts below had erred in holding that the premises is in a dilapidated condition and requires demolition. The appellate authority erred in holding that the landlord requires the premises bona fide for personal occupation. Even assuming that the building requires demolition and reconstruction, the landlord is bound to give an undertaking as per the provision of Section 12(2) of the Act offering a premises in the reconstructed building to the tenant. The courts below had failed to see that if the building is required by the landlord for carrying out repairs, he cannot maintain the petition for eviction under Section 10(3)(a)(iii)(b) of the Act by stating that the premises is required bona fide for personal occupation for doing business. The landlord must first seek eviction only on the sole ground that the building requires demolition and reconstruction by giving an undertaking as per the provision of Section 12(2) of the Act and then first deliver a premises like the schedule mulgie to the tenant after such demolition and reconstruction and then only the landlord can seek eviction on the alleged ground of personal requirement and the landlord would be entitled to eviction orders, in case such alleged requirement is bona fide.
7. On the other hand, the learned counsel for the landlord had contended as under: - The petition as filed by the landlord is maintainable. On facts, the courts below have recorded concurrent findings that the building is in a dilapidated condition and that it requires reconstruction after demolition and that the requirement of the landlord for his personal business is bona fide and that there are no improprieties or illegalities or irregularities or infirmities [either factual or legal] in the findings that were recorded by the courts below after proper appreciation of evidence and that therefore, there is no merit in the revision petition and hence, the revision is liable to be dismissed.
8. Now the points are taken up.
9. The case of the landlord which is relevant, in brief, is as follows:
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The building in which the schedule mulgie is a part is more than 100 years old. The building has become dangerous to the life of the public in general and the occupants in particular. The building may collapse at any time. The landlord had made a representation before the Municipal Corporation of Hyderabad in regard to the condition of the building and the nature of threat to life of the public in general and the occupants of the building in particular. The officials of the Corporation after inspecting the premises and having been satisfied about the said condition of the building had issued a notice dated 31.01.2003 to the tenant to vacate the premises. Instead of vacating the premises the tenant had challenged the action of the Corporation by filing WP.No.2057 of 2003. This Court was pleaded to direct the Corporation to take action afresh according to law. The building is a very old one and it requires immediate demolition. The landlord is financially sound to invest the required amount for demolition and reconstruction of the building on the entire site. He is making necessary preparation for getting the plan sanctioned. The landlord will get the sanctioned plan and permission as per the bye-laws and the rules framed under the Municipal Corporation Act enabling him to construct a building on the site. The demised mulgie is also reasonably and bona fide required for immediate purpose of demolition 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. In view of the facts and circumstances of the case and as the landlord had also sought permanent eviction of the tenant on the grounds enumerated under Section 10(3)(a)(iii)(b) of the Act, the landlord is not under an obligation to give an undertaking to deliver possession of a mulgie in the newly constructed building to the tenant. The landlord is also filing cases against the other tenants in occupation of the other portions of the property for eviction on similar grounds. The landlord is studying 10th class and he hails from a business community. The landlord is not interested in continuing his studies. He intends to commence and carry on business in novelties, general goods, cosmetics and fancy items. The landlord has got sources to commence and carry on business. Except the petition schedule mulgi and the other two mulgies in the occupation of the other tenants, the landlord does not have and possess any other non residential building in twin cities of Hyderabad and Secunderabad. The landlord has decided to commence and carry on business in the ground floor of the entire newly constructed building after reconstruction, which will be non residential.
10. The defence of the tenant, in brief, is as follows: - D. Ekantha Rao, the original owner of the premises had filed an eviction petition in RC.No.1480 of 1986 on the ground of bona fide requirement since the premises is in a dilapidated condition and on the ground of the tenant securing alternate accommodation. The said case was dismissed. The appeal preferred by the said landlord in RA.No.51 of 1989 was also dismissed. During the pendency of the said appeal, the schedule mulgie was provided with the amenities and up to date facilities. The application is filed to harass and coerce the tenant to concede to the illegal demands of the landlord. The contents in the eviction petition are false, fabricated and invented. The landlord requires the schedule premises for carrying on business is denied. The landlord is not entitled to seek eviction and maintain the petition on the said ground. The landlord decided to discontinue his studies and commence a business either in the existing mulgi or after reconstruction is denied. The landlord did not comply with the statutory provisions for seeking eviction. The landlord does not own any property in twin cities is denied. This tenant and the other tenants are being harassed for more than two decades and the owners are bent upon evicting the tenants by hook or crook. The intention of the landlord is mala fide. The business in the schedule mulgi is the only source of livelihood of the tenant. The landlord is abusing the process of law. The judgment in the earlier rent control proceedings operate as res judicata. The petition may be dismissed.
11. I have carefully gone through the entire evidence on record.
12. Coming first to the aspect of bona fide personal requirement of the landlord for his intended business, PW1 had reiterated his stand in his evidence as regards the dilapidated condition of the building and also his bona fide personal requirement of the schedule mulgi along with other two mulgies in the occupation of two other tenants for commencing and carrying on his intended business. He had maintained his stand in the cross examination. PW2 who is no other than the father of PW1 supported the case of PW1. According to the evidence, PW2 is a business man carrying business in novelties, general goods, cosmetics and fancy items etcetera and he is carrying on his business in a rented mulgi at Chikkadpalli, which belongs to one Govinda Rao. It is also in evidence that after college hours and during leisure time, PW1 is sitting in the shop of his father and had gained experience in the said business. PW2 also had maintained his stand in the cross examination. The defence of the tenant is in the nature of denial. In his cross examination RW1 pleaded ignorance as to whether the father of the landlord is carrying on business in bangles in a rented premises at Chikkadpalli. It is undisputed and also established that PW1 belongs to business community and it is further sufficiently established that his father is carrying on business in novelties, fancy goods etcetera and that he has gained experience in the said business. PW1 had completed his studies by the date of the filing of the eviction petition. Therefore, in the facts and circumstances and having regard to the legal position that the landlord is the best judge of his requirement, this court holds that the petitioner had sufficiently established that he requires the petition schedule mulgie bona fide for commencing and carrying on his intended business as urged in the petition.
13. Coming next to the old and dangerous and dilapidated condition of the building and the requirement of the landlord simultaneously for demolition and reconstruction, PW1 had testified that the building is more than 100 years old and its condition is dangerous to the public in general and the occupants in particular and that the building may collapse at any time and that therefore, he made a representation to the authorities of the Municipal Corporation of Hyderabad in regard to its precarious condition and that after inspection a notice was issued by the municipal corporation to the tenants in occupation to vacate the premises. PW1 had further testified that in the rainy season a part of the first floor of the building had collapsed and that the entire ground floor is in a dilapidated condition and is beyond any repairs and it requires immediate demolition and reconstruction. However, PW1 had admitted that whenever repair work is necessary the tenants are making repairs to the building. RW1 who is the husband of the tenant had admitted in his cross examination that the building was constructed 50 years prior to 1969 and that his wife is a tenant in the schedule premises since more than 70 years and that the first floor which is vacant since eight or nine years had collapsed by the date of his evidence. He had also admitted that MCH authorities had issued notice and that thereafter the first floor was removed as it was in a dilapidated condition. Basing on the said evidence, it can safely be concluded that the building is in a dilapidated condition and hence it is not in a fit condition to effect repairs and it requires demolition and reconstruction. Having thus analysed the evidence, this court finds that there is no merit in the contentions of the tenant that the building is not in a dilapidated condition and that it does not require demolition and reconstruction and that the requirement of the landlord on that count is not established.
14. Before proceeding to the next aspect, there is one more aspect regarding bona fide personal requirement, which is to be examined. According to the landlord he had sought eviction of the three tenants including the tenant herein from three different mulgies in the ground floor of the same building in the respective occupations of the three tenants including the tenant herein. Indisputably, the eviction proceedings against the other two tenants of the landlord have reached finality. In fact, the landlord had admittedly obtained possession of one of the three mulgies from one of the tenants; and hence, it is sought to be contended on behalf of the tenant herein that in view of the subsequent event that the landlord had come into possession of one mulgi, which was earlier in the occupation of one of the three tenants, he is not entitled to seek eviction of the tenant herein from the petition schedule mulgi as the bona fide requirement no longer subsists. This contention has no merit in view of the contentions of the learned counsel for the landlord which are as follows: - The case of the landlord is that he requires all the three mulgies in the occupation of all the three tenants in the ground floor including the present petition schedule mulgi in the occupation of the present tenant and that therefore, the requirement would be fulfilled if only all the three tenants would vacate the three mulgies and deliver vacant possession of all the three mulgies to the landlord and until all the three mulgies as sought for by the landlord are vacated and given vacant possession, the landlord cannot demolish and reconstruct the building and occupy the premises covered by the three mulgies and cannot commence and carry on his intended business. As rightly contended, the requirement of the landlord in the present case is, therefore, not confined to one mulgi in the occupation of one of the three tenants. The requirement is in respect of all the three mulgies put together coupled with demolition and reconstruction after all the three mulgies come into the possession of the landlord for the said purpose. Therefore, the mere possession of one of the three mulgies by the landlord pursuant to eviction orders obtained against one of the three tenants is no ground to hold that the landlords personal requirement for the intended business does not any longer subsist. On the other hand, this Court while dismissing a revision petition filed by another similarly placed tenant had confirmed the order of eviction passed on similar grounds against the said other tenant who was in the occupation of one of the three mulgies in the ground floor of the same building is a circumstance in favour of the landlord and therefore, there is no merit in the contentions of the tenant that the requirement for personal occupation no longer subsists.
15. Now the vital and focal aspect, namely the ground that the application as framed and filed is not maintainable, on which the tenant relies upon to canvass for the dismissal of the eviction petition of the landlord is to be examined. On this aspect of non maintainability of the eviction petition the tenants contentions, in brief, are as follows: Admittedly, the landlord does not immediately require the mulgi in the occupation of the tenant for immediate commencement of the intended business of the landlord on the tenant vacating and handing over possession of the same to the landlord. Even according to the admitted case of the landlord the mulgi in the occupation of the tenant is not fit for immediate occupation and commencement of the intended business of the landlord as the petition schedule mulgi, which is a part of the building of the landlord, which is in a dilapidated condition requires demolition and reconstruction. Therefore, the requirement of the landlord is two fold namely (i) eviction on the ground that the building, which is in a dilapidated and dangerous condition requires immediate demolition and reconstruction and (ii) eviction on the ground of bona fide personal requirement of the demised premises after such reconstruction for the intended business of the landlord. Therefore, the provision of Section 10(3)(a)(iii)(b) of the Act is not attracted to the case on hand and the eviction petition under the said two provisions is not maintainable as the two reliefs i.e., the requirement for demolition and reconstruction and the requirement for personal occupation only after the demolition and reconstruction of the building are mutually exclusive and contradictory; and hence, one single eviction petition under Sections 12 and 10(3)(a)(iii)(b) of the Act for the said two inconsistent reliefs, which are mutually exclusive and contradictory, is not maintainable. Even assuming that the building requires demolition and reconstruction, the landlord is bound to give an undertaking as per the provision of Section 12(2) of the Act offering a premises in the reconstructed building to the tenant. The courts below had failed to see that if the building is required by the landlord for carrying out repairs, he cannot maintain the petition for eviction under Section 10(3)(a)(iii)(b) of the Act by stating that the premises is required bona fide for personal occupation for doing business. The landlord must first seek eviction only on the sole ground that the building requires demolition and reconstruction by giving an undertaking as per the provision of Section 12(2) of the Act and then first deliver a premises similar to the schedule mulgi to the tenant after such demolition and reconstruction and then only the landlord can seek eviction on the alleged ground of personal requirement. And, the landlord would be entitled to eviction orders only in case such alleged requirement is bonafide. The learned counsel for the tenant had placed reliance on a decision in Harischandra Vidyarthi v. Meenakshi Shah in support of the contentions that the petition is not maintainable.
16. On the other hand, the learned counsel for the landlord had contended that the said contention is not legally and factually tenable and that the said contention is contrary to the statutory provisions. He had placed reliance on the following decisions. (i) New Peking Chinese Hotel through Ayeshah v. M/s.Hindustan Builders ; (ii) Savani Transport Pvt. Ltd., (Now Savani Transport Ltd.,) Rajahmundry and (iii) Masood Ahmad v. The Rent Control and Eviction Officer .
17. In view of the contentions raised by the learned counsel for the tenant, it is necessary to refer to the provision of Section 10(3)(a)(iii)(b) of the Act.
Section 10(3)(a)(iii)(b) reads as under:
for the purpose of a business which in the opinion of the Controller, the landlord bona fide proposes to commence:
Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered :
Provided further that, where a landlord has obtained possession of a building under this clause he shall not be entitled to apply again under this Clause, --
(i) in case he has obtained possession of a residential building, for possession of another residential building of his own;
(ii) in case he has obtained possession of a non residential building, for possession of another non-
residential building of his own.
I have carefully gone through the said provision of law and also Section 12 of the Act.
18. In the decision in New Peking Chinese Hotel (2 supra), the facts show that eviction of the tenant was sought on the grounds of wilful default in payment of rents and also that the premises is required for immediate demolition and reconstruction. While considering the scope and ambit of Section 12 (1)(b) of the Act, a Division Bench of this Court had held as follows:-
The undertaking contemplated under Section 12 of the Act is required when recovery of possession is ordered under that particular section. The idea is to safeguard the interests of the tenant by providing him a provision for occupation of the premises after reconstruction. But the same condition need not be imposed when eviction is ordered on the grounds other than demolition and reconstruction.
Coming to the case on hand, eviction is being sought on the ground of bona fide personal requirement for the intended business and also on the ground that the mulgi is required for demolition and reconstruction. In the decision in Savani Transport Pvt., Ltd (3 supra) the facts show that the eviction was sought on twin requirements namely bona fide requirement of building for business and for repairs as the building was constructed more than 50 years ago as on the date of the eviction petition. In that case, it was found that the ground for requirement for repairs is not an independent one but connected with bona fide requirement and that, therefore, the landlord need not give undertaking to re-deliver the building to the tenant after repairs. It was inter alia held on facts that the requirement for personal occupation of the landlord in that case is bona fide and that the claim for eviction on the ground for effecting repairs is not an independent one but is connected with bona fide requirement and therefore, mere reference to Section 12(1)(a) in the preamble of the petition does not make it an independent ground and hence the question of the landlord giving an undertaking under Section 12(2) of the Act that he will re-deliver the premises to the tenant after repairs does not arise nor can it be said that the requirement of personal occupation is not bona fide. In the decision in the case of Harischandra Vidyarthi (1 supra) the facts and ratio are as under: -
The landlords filed a petition for eviction of the tenant under Section 10(3)(a)(i)(a) and Section 12 of the Act inter alia contending that the tenant is in the occupation of a mulgi and that the building is more than 75 years old and is in a dilapidated condition and that therefore, the landlords want to demolish the entire building and construct a new building in its place and that after such reconstruction, the landlords want to occupy the suit mulgi for their own use and bona fide occupation to start business in electrical goods as one of the landlords was idle and he had intended to start a business in collaboration with others. The tenant had opposed the petition inter alia contending that the building is strong enough and does not require demolition and that the landlords have got another non residential building in their possession since a long time and that the petition for eviction is not bona fide and is based on fictitious grounds. The learned Rent Controller and the learned Chief Judge, City Small Causes Court, passed successive orders of eviction. The tenant had filed a revision before this Court. On facts, this court held that the landlords are not entitled to an order for eviction of the tenant as they failed to establish the bona fide requirement. However, the landlords contention that they are entitled to seek eviction of the tenant on the grounds mentioned in Section 12 even if they fail to seek eviction on any other grounds is accepted by this Court. Since the eviction was ordered as per the provision of Section 12 of the Act, this court ordered eviction though the landlords bona fide requirement of non residential building for the purpose of commencing business was not proved. This Court by upholding the contention that the building requires demolition and repairs had therefore directed the tenant to deliver possession of the building to the landlords by holding as follows: - Therefore, the order of the I Additional Rent Controller, as confirmed by the Chief Judge, City Small Causes Court (appellate Judge), insofar as the order of eviction on the ground that the landlords bona fide require non residential premises in question for the purpose of commencing business, is set aside. The landlords petition R.C.No.708 of 1997 is disposed of directing the tenant to deliver possession of the building to the landlords within a period of one month from the date of landlords giving an undertaking as required under Section 12(2) of the Act, to the I Additional Rent Controller. If the landlords fail to give undertaking on or before 28.02.2001, as required under law, R.C.No.708 of 1997, stands dismissed.
19. A plain reading of the facts and ratios in the cited cases would clearly indicate that eviction petition seeking eviction of the tenant from a non residential building for the purpose of intended business of the landlord is maintainable and that the landlord who requires bona fide the building in the occupation of the tenant which is in a dilapidated condition may simultaneously plead and prove the requirement of the building for demolition and reconstruction and also his bona fide personal requirement on such demolition and reconstruction. In paragraph 10 of the judgment in Harishchandra vidyarthi (1 supra) after considering various precedents including the decision of the Honble Supreme Court, this court had held as follows: -
I may hasten to add that, as already noticed above, Section 12 starts with a non abstante clause, and therefore, even if the landlord fails to prove bona fide requirement under Section 10 (3)(b)(iii), by virtue of non-abstante clause under Section 12(1), the landlord can still simultaneously plead and prove that the building is required for repairs etc. or demolition and reconstruction. Therefore, the interplay between Section 21(1)(h) and 21(1)(j) of Karnataka Rent Control Act, as interpreted by the Supreme Court, may not apply while interpreting the provisions of the A.P. Rent Control Act. Having regard to the legal provisions and the relevant case law, the following principles emerge.
(1) The A.P (Lease, Rent and Eviction) Control Act, 1960 confers on the landlord the right to seek eviction of a tenant from the building for the bona fide purpose of starting business, and also on the ground that the building is immediately required for repairs etc., or demolition and reconstruction.
(2) Likewise, the landlord has a right to seek eviction of the tenant on any of the other grounds under Section 10(2), 10(3) and also simultaneously on the ground mentioned in Section 12 of the Act.
(3) In an eviction petition, founded on different grounds, as mentioned above, even if the landlord fails to prove the ground of wilful default, subletting, bona fide requirement for self-occupation, still the landlord is entitled to an order of eviction if he satisfies the Rent Controller that he bona fide requires the building for repairs etc., or demolition and reconstruction. Any eviction order is subject to the landlord giving an undertaking that on completion of the repairs etc., or reconstruction, the building will be offered to the tenant, who delivered possession in pursuance of an order of eviction under Section 12(1). The premises to be offered and reoccupied by the tenant need not be identical in dimensions, but must be as nearly equal to as practicable. (4) The condition of giving an undertaking under Section 12(2) need not be imposed when eviction is ordered on the ground other than demolition and reconstruction. In such an event, the law contemplates that the landlord who pleads and proves any of the grounds mentioned in Section 10(2) and 10(3), has to succeed on these grounds alone, and it is immaterial whether the landlord effects repairs or demolishes the building.
(5) When an application is filed under Section 10(3)(b)(iii), even if bona fide requirement is proved for self-occupation of commencing business, the landlord should fail if he is in occupation or deemed to be in occupation of a building owned by him. In such an event, the purpose of self-occupation is legally not bona fide. However, if the landlord is in occupation of a rented building, the same is not a bar for seeking eviction under Section 10(3)(b)(iii).
The settled legal position which applies to the case on hand on all fours is sufficient to hold that the legal contention raised before this court by the learned counsel for the tenant is devoid of merit as from the ratios in the decisions and the settled legal position it is clear that under the provisions of the State Act, the landlord has a right to seek eviction of a tenant of the building for bona fide purpose of starting business and also on the ground that the building requires immediate demolition and reconstruction. In the case on hand, both the requirements are satisfied and are held proved. Accordingly, the points are answered holding that the eviction petition is maintainable and the revision is devoid of merit.
20. In the result, the Civil Revision Petition is dismissed. The revision petitioner/tenant is given four months time, from the date of receipt of a copy of this order, to vacate and handover vacant possession of the schedule mulgi to the landlord. On failure of the revision petitioner/tenant to do the same, the landlord is at liberty to proceed in accordance with the procedure established by law and obtain vacant possession of the schedule mulgi. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this civil revision petition shall stand closed.
________________________ M. SEETHARAMA MURTI, J 12th November 2014