Madras High Court
P. Ganesan vs Subbiah Dharmanidhi, Through Its ... on 18 March, 2003
Equivalent citations: (2003)1MLJ819
ORDER A. Ramamurthi, J.
1. The revision petitioner / tenant has preferred the present revision petition aggrieved against the fair and decretal order passed by the Rent Control Appellate Authority, Tuticorin in RCA No. 60 of 1992 dated 05.07.2002 reversing the fair and decretal order of the Rent Controller, Tuticorin passed in RCOP No. 72 of 1991 dated 22.04.1992.
2. The case in brief for disposal of the revision petition is as follows:- The first respondent / landlord filed a petition under section 10(2)((ii)(a) and 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as "Rent Control Act"), seeking eviction of the tenants from the property. The schedule mentioned property belongs to the 1st respondent / landlord and the revision petitioner was a tenant on a monthly rent of Rs.40/= payable on the 5th of every succeeding English calendar month. The building is about 60 years old and constructed of coral stones and lime. The building is in a bad condition. It is situated in the fast developing locality and other buildings adjacent and opposite side have been demolished and new buildings have come up. The Trust also decided to demolish the building and put up a new one to augment the income of the Trust. The Trust is possessed of sufficient means and resources to put up the new construction. The landlord already filed RCOP No. 234 of 1982 for eviction on the ground of demolition and reconstruction and it was contested by the revision petitioner and the Rent Controller dismissed the petition. The landlord preferred RCA No. 3 of 1988 and ultimately it was withdrawn with permission to file a fresh petition on the same cause of action. Now, the present petition is also filed for eviction on the ground of requirement of building for demolition and reconstruction. During the pendency of the earlier rent control proceedings, the revision petitioner had sublet a portion of the building to the 2nd respondent, who is conducting a cycle repair shop. The landlord has not given any consent for such sub-lease. The revision petitioner also committed default in payment of monthly rent and he was irregular in payment. Hence, the petition.
The revision petitioner filed a counter and stated that the building was used only for non-residential purpose. He is in possession and enjoyment of the property even from his father's time for more than 30 years. The building has been renovated and re-modelled at his own cost and it is in sound and good condition. The other allegations regarding the condition of the building as well as the demolition and reconstruction of other buildings nearby are denied. There are lot of litigation regarding the Trust property between the trustees and the members. In fact, the Trustees had filed a suit in O.S. No. 184 of 1987 before Sub Court, Tuticorin. The allegation that he let out a small portion to the 2nd respondent is false. He has not sub-let any portion. The arrears of rent is also denied. The Trust has been negotiating through brokers to sell the property. The respondent is not entitled to claim any relief.
The Rent Controller on the basis of the evidence as well as the documents, dismissed the rent control petition and aggrieved against the fair and decretal order, the landlord preferred R.C.A. No. 60 of 1992 on the file of Rent Control Appellate Authority, Tuticorin and the learned Judge after hearing the parties, allowed the appeal and set aside the order passed by the Rent Controller and allowed the rent control petition on the ground of demolition and reconstruction alone.
3. Heard the learned counsel for the parties.
4. The points that arise for consideration are (1) Whether the order passed by the Rent Control Appellate Authority is proper and correct ?
(2) Whether the request of the first respondent / landlord for demolition and reconstruction is bona fide ?
(3) To what relief ?
5. POINTS:- It is admitted that the schedule mentioned property belongs to the Trust. The revision petitioner is a tenant in the property on a monthly rent of Rs.40/= for non- residential purpose. The landlord has come forward with a specific case that the building is more than 60 years old and is in a dilapidated condition and, as such, it requires demolition and reconstruction. The Trust is having funds and they will be in a position to put up new construction. They already preferred RCOP No. 234 of 1982 for demolition and reconstruction and the same was dismissed by the Rent Controller and subsequently RCA No. 3 of 1988 filed by them was withdrawn with a liberty to file a fresh petition on the same cause of action. So far as the ground of sub-letting is concerned, it was rejected by the Appellate Authority also.
6. The learned counsel for the revision petitioner contended that the building is only 30 years old and it is not in a dilapidated condition. The Trust is not financially sound and in fact, they have disposed of some of the properties also. There is also a suit pending between the Trustees and the members. In fact, the earlier petition filed by the landlord for identical grounds was dismissed and, as such, the subsequent petition invoking section 14(1)(b) of the Rent Control Act is not maintainable under section 19 of the Rent Control Act.
7. The Rent Controller dismissed the rent control petition filed by the landlord, whereas the Appellate Authority partly allowed the appeal and allowed the rent control petition only under section 14(1)(b) of the Rent Control Act. The learned counsel for the petitioner contended that the Appellate Authority erred in law in proceeding only on the basis that the building is old without adverting to other factors. There are no materials raised before the Court that the condition of the building was changed between the years 1982 and 1991. The admission of P.W.1 that the building plan under Exs.A-3 and A-10 expired long before the proceedings was overlooked. No notice by the present Managing Trustee was given before filing of the petition. Exs.R-1 to R-3 are the documents to show the alienation of the property belonging to the Trust for want of funds. There is no reference to the age and condition of the building under Exs.C-1 and C-2. There is no evidence except the evidence of P.W.1 in support of his claim.
8. The learned counsel for the revision petitioner mainly contended that the earlier rent control petition filed by the landlord was withdrawn without any reason and not on any technical grounds. He also produced the certified copy of the order passed by the Appellate Authority granting permission to withdraw the rent control appeal with liberty to file a fresh appeal on the same cause of action. The order passed by the Appellate Authority is a mistake because permission is given to withdraw the rent control petition only and to file a fresh petition on the same cause of action and not any fresh appeal. Whatever it may be, the earlier rent control petition was filed in the year 1982, whereas the subsequent rent control petition was filed in the year 1991. It is seen from the counter filed by the revision petitioner himself to the main rent control petition that the building is more than 30 years old and it is in the occupation from the father's time and it would only establish the age of the building. Simply because the earlier rent control petition was withdrawn, it cannot be said that there is any bar in filing a second petition on the same ground.
9. The learned counsel for the revision petitioner further stated that the plan Exs.A-3 and A-10 had not been renewed at the time of filing this rent control petition. It was also pointed out that there was no funds in the Trust to demolish and put up a new construction. Exs.R-1 to R-3 produced on the side of the revision petitioner would only indicate that some properties belonged to the Trust have been sold. In fact, number of tenants occupying adjacent property belonging to the Trust have already been vacated. The Advocate Commissioner had also inspected the property and the building had also been inspected by a qualified person. Their report and plan would clearly establish the age and nature of the construction of the building. There is absolutely no basis that the building is in a good condition and it does not require any repair. In fact, four fixed deposit receipts were also produced on behalf of the landlord to show the financial position. The Trust had also given an undertaking that they would demolish and reconstruct within a particular period. Even assuming that the sanction period for the plan expired, it is not difficult for renewal on payment of necessary fees. The grounds now highlighted by the learned counsel for the petitioner will not affect the case of the landlord in any way.
10. The learned counsel for the revision petitioner relied on the head notes in P.S.MOHAMED ALI AND OTHERS ..vs.. S.GOVINDAN AND ANOTHER (2002 (4) CTC 542) as follows:-
"Section 19 can be involved only on establishing two aspects viz., (a) there must be an identity of issues in two proceedings (b) former proceeding must have been decided on very issues which arise in latter pro. Earlier petition related to fixation of fair rent and while latter proceedings are for eviction. Petitioners in latter proceedings are not parties in earlier proceedings. Premises in eviction proceedings are different than one in fair rent proceedings".
11. Reliance is also placed on R.J.MEHTA & CO., ..vs.. PROOTAM SINGH (1979 (II) MLJ REPORTS 19), wherein it is observed as follows:-
"It is very well known that in the doctrine of res judicata, no magic is involved, but it is essentially a pragmatic principle which has to be applied on the facts and circumstances of each case. A decision in an earlier case is res judicata in a later case concerning and relating to the same subject-matter, if as between the same parties the issue in question was heard and finally decided as between them. It may also operate as res judicata in a case where such an issue might and ought to have been raised in the earlier proceeding".
12. Reliance is also placed on VIJAY SINGH ..vs.. VIJAYALAKSHMI AMMAL (1997 (I) MLJ REPORTS 98) that "eviction of a tenant on the ground of demolition of the building for erection of a new building, the building need not be dilapidated or dangerous for human habitation. If that was the requirement there is no occasion to put a condition to demolish within a specified time and to erect a new building on the same site".
13. It has been held in R.SRINIVASAN ..vs.. V.THANGARAJU AND OTHERS (1999 (II) MLJ REPORTS 337) that if the condition of the building is not established and other requirements are not pleaded or proved, requirement for demolition and reconstruction is not made out.
14. The learned counsel for the 1st respondent relied on VIJAY SINGH's case (cited supra), wherein it has been observed as follows:-
"..It is difficult to accept the stand of the tenants that the building must be dilapidated, dangerous and unfit for human habitation. For granting permission under section 14(1)(b) the Rent Controller is expected to consider all relevant materials for recording a finding whether the requirement of the landlord for demolition of the building and erection of a new building on the same site is bona fide or not. The Rent Controller has to take into account: (1) bona fide intention of the landlord far from the sole object only to get rid of the tenants: (2) the age and condition of the building (3) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. These are some of the illustrative factors which have to be taken into consideration before an order is passed under section 14(1)(b). No court can fix any limit in respect of the age and condition of the building. That factor has to be taken into consideration along with other factors and then a conclusion one way or the other has to be arrived at by the Rent Controller".
The principle in this decision is applicable to the case on hand.
15. It has also been held in A.BALASUNDARAM ..vs.. A.T.BALASUBRAMANIAN (DECEASED) AND OTHERS (2000 MLJ (Supp.) 1) as follows:-
"The Rent Controller as well as the appellate authority have given importance only to the physical condition of the building and also non-production of the building plan and licence to hold that the landlord is not entitled to get eviction for demolition and reconstruction. The decision of the authorities below are not in accordance with law as interpreted by the Supreme Court and this Court. In that view of the matter, interference under Section 25 of the Act with the concurrent findings of the authorities below can be had in this case".
16. It is, therefore, clear from the aforesaid decisions and discussion that it is not necessary that the building should be old, dilapidated and in a dangerous condition to invoke section 14(1)(b) of the Rent Control Act. So far as this case is concerned, by positive evidence, the landlord had established that the building is fit for demolition and reconstruction and the Trust is also possessed of sufficient funds and there is no reason to suspect the bona fide of the landlord. In fact, the possession of the adjacent premises have already been taken by the landlord. The Trust is also possessed of other properties and it had also fixed deposit amount to prove the means for putting up reconstruction. Hence, I am of the view that the reason given by the Rent Control Appellate Authority is proper and correct and no interference is called for.
17. For the reasons stated above, the civil revision petition fails and is dismissed. No costs. Consequently, CMP No. 11912 of 2002 is closed. The revision petitioner is granted three months' time to vacate from the premises on his filing an affidavit of undertaking that he would vacate within the stipulated period and the affidavit should be filed in a period of one week from today.